Chapter 968

968.20 Annotation Under sub. (1m) (b), “rightful owner” refers to an innocent person who owned a firearm or ammunition at the time an offense was committed. State v. Williams, 148 Wis. 2d 852, 436 N.W.2d 924 (Ct. App. 1989).

968.20 Annotation Discussing whether explicit photographs seized during the execution of a search warrant were contraband. State v. Benhoff, 185 Wis. 2d 600, 518 N.W.2d 307 (Ct. App. 1994).

968.20 Annotation In the event that the district attorney elects not to bring a forfeiture action against seized property, a person seeking the return of the property may do so under this section, not s. 961.55 (3). State v. Jones, 226 Wis. 2d 565, 594 N.W.2d 738 (1999), 97-3306.

968.20 Annotation The definition of contraband in s. 968.13 applies to this section. The burden is on the state to prove by the greater weight of the credible evidence that property is contraband not subject to return under this section. State v. Jones, 226 Wis. 2d 565, 594 N.W.2d 738 (1999), 97-3306.

968.20 Annotation The term “use” in sub. (1m) (b) requires more than the mere fact that a firearm is with a person. It must be part of the crime in some way. State v. Perez, 2000 WI App 115, 235 Wis. 2d 238, 612 N.W.2d 374, 99-3108.

968.20 Annotation This section establishes an in rem proceeding to establish true ownership of property. It does not authorize granting a money judgment to the rightful owner when seized property is missing or mistakenly returned to another as a judgment in an in rem proceeding is valid only against the property and not against a defendant or a defendant’s assets. City of Milwaukee v. Glass, 2001 WI 61, 243 Wis. 2d 636, 628 N.W.2d 343, 99-2389.

968.20 Annotation Sub. (1m) (b) prohibits the return of a dangerous weapon to a person convicted of carrying a concealed and dangerous weapon. State v. Perez, 2001 WI 79, 244 Wis. 2d 582, 628 N.W.2d 820, 99-3108.

968.20 Annotation Sub. (1m) (b) is subject to the excessive fines clause of the 8th amendment to the U.S. Constitution. State v. Bergquist, 2002 WI App 39, 250 Wis. 2d 792, 641 N.W.2d 179, 01-0814.

968.20 Annotation Sub. (1m) (b) forbids returning weapons to one who committed a crime involving their use; it does not require that the defendant be convicted of that crime. Agreeing to a crime being read in at the time of sentencing constitutes an admission of having committed the crime. When charged with possession of a firearm by a person ordered not to possess a firearm under an injunction, a defendant need not have them literally in the defendant’s hands or on premises that the defendant occupies but must have the right to possess them. Not having contact with the weapons for several years did not establish lack of possession, especially when the defendant was allowing the firearms to appreciate for later sale. State v. Kueny, 2006 WI App 197, 296 Wis. 2d 658, 724 N.W.2d 399, 04-1291.

968.20 Annotation When the defendant’s conduct resulting in the defendant’s conviction for disorderly conduct involved the use of a single firearm, the circuit court properly denied the defendant’s motion for the return of that gun under sub. (1m) (b). However, with respect to other guns and ammunition that were seized following the incident, those items were not used in the commission of the disorderly conduct offense, and sub. (1m) (b) did not bar their return. State v. Leonard, 2015 WI App 57, 364 Wis. 2d 491, 868 N.W.2d 186, 14-2892.

968.20 Annotation Nothing in this section provides a creditor with the right to obtain a debtor’s property in a proceeding under this section. A circuit court does not have the inherent authority to take property unassociated with the crime at issue and allocate that property to itself or others solely because the police happened to have seized the unassociated property at the time of arrest. This section does not provide for equitable relief. State v. Branch, 2015 WI App 65, 364 Wis. 2d 582, 869 N.W.2d 542, 14-2515.

968.20 Annotation A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09.

968.20 Annotation Due process does not require states to give detailed instructions to owners who seek the return of lawfully seized property no longer needed in a police interrogation or criminal proceeding. City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d 636 (1999).

968.20 Annotation This section applies although a criminal action has not been commenced; the property owner has the burden of moving for the return of the property. Supreme Video, Inc. v. Schauz, 808 F. Supp. 1380 (1992).

968.205 968.205 Preservation of certain evidence.

968.205(1) (1) In this section:

968.205(1)(a) (a) “Custody” means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee, or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order under ch. 938, supervision of a person, whether in institutional care or on conditional release, pursuant to a commitment order under s. 971.17 and supervision of a person under ch. 980, whether in detention before trial or while in institutional care or on supervised release pursuant to a commitment order.

968.205(1)(b) (b) “Discharge date” means the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency proceeding under ch. 938, or a commitment proceeding under s. 971.17 or ch. 980 or, if the person is serving consecutive sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.

968.205(2) (2) Except as provided in sub. (3), if physical evidence that is in the possession of a law enforcement agency includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the law enforcement agency shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

968.205(2m) (2m) A law enforcement agency shall retain evidence to which sub. (2) applies in an amount and manner sufficient to develop a deoxyribonucleic acid profile, as defined in s. 939.74 (2d) (a), from the biological material contained in or included on the evidence.

968.205(3) (3) Subject to sub. (5), a law enforcement agency may destroy evidence that includes biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

968.205(3)(a) (a) The law enforcement agency sends a notice of its intent to destroy the evidence to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment, and to either the attorney of record for each person in custody or the state public defender.

968.205(3)(b) (b) No person who is notified under par. (a) does either of the following within 90 days after the date on which the person received the notice:

968.205(3)(b)1. 1. Files a motion for testing of the evidence under s. 974.07 (2).

968.205(3)(b)2. 2. Submits a written request for retention of the evidence to the law enforcement agency.

968.205(3)(c) (c) No other provision of federal or state law requires the law enforcement agency to retain the evidence.

968.205(4) (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the evidence will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the evidence is filed under s. 974.07 (2) or a written request for retention of the evidence is submitted to the law enforcement agency.

968.205(5) (5) If, after providing notice under sub. (3) (a) of its intent to destroy evidence, a law enforcement agency receives a written request for retention of the evidence, the law enforcement agency shall retain the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the evidence under s. 974.07 (9) (b) or (10) (a) 5.

968.205 History History: 2001 a. 16; 2005 a. 60.

968.21 968.21 Search warrant; secrecy. A search warrant shall be issued with all practicable secrecy, and the complaint, affidavit or testimony upon which it is based shall not be filed with the clerk or made public in any way until the search warrant is executed.

968.22 968.22 Effect of technical irregularities. No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.

968.22 Annotation The incorrect identification of a building’s address in a warrant was a technical error and did not render the resulting search unreasonable when the search made was of the building identified by the informant, which was otherwise correctly identified in the warrant. State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993).

968.22 Annotation Mistakes on the face of a warrant were a technical irregularity under this section and the warrant met the 4th amendment standard of reasonableness when, although the warrant identified the car to be searched incorrectly two times, the executing officer attached and incorporated an affidavit that correctly identified the car three times, describing the correct color, make, model, and style of the car along with the correct license plate, and the information was based on the executing officer’s personal knowledge from prior encounters. State v. Rogers, 2008 WI App 176, 315 Wis. 2d 60, 762 N.W.2d 795, 07-1850.

968.22 Note NOTE: See also the notes to article I, section 11, of the Wisconsin Constitution.

968.23 968.23 Forms. The following forms for use under this chapter are illustrative and not mandatory:

STATE OF WISCONSIN,

.... County.

AFFIDAVIT OR COMPLAINT.

In the .... court of the .... of ....

A. B., being duly sworn, says that on the .... day of ...., A. D., .... (year), in said county, in and upon certain premises in the (city, town or village) of .... in said county, occupied by .... and more particularly described as follows: (describe the premises) there are now located and concealed certain things, to wit: (describe the things to be searched for) (possessed for the purpose of evading or violating the laws of the state of Wisconsin and contrary to section .... of the Wisconsin statutes) (or, which things were stolen from their true owner, in violation of section .... of the Wisconsin statutes) (or, which things were used in the commission of (or may constitute evidence of) an offense to wit: (describe offense) committed in violation of section .... of the Wisconsin statutes).

The facts tending to establish the grounds for issuing a search warrant are as follows: (set forth evidentiary facts showing probable cause for issuance of warrant).

Wherefore, the said A. B. prays that a search warrant be issued to search such premises for the said property, and to bring the same, if found, and the person in whose possession the same is found, before the said court (or, before the .... court for .... County), to be dealt with according to law.

(Signed) A. B.

Subscribed and sworn to before me this .... day of ...., .... (year)

...., Judge of the .... Court.

STATE OF WISCONSIN,

.... County.

SEARCH WARRANT.

In the .... court of the .... of ....

THE STATE OF WISCONSIN, To the sheriff or any constable or any peace officer of said county:

Whereas, A. B. has this day complained (in writing) to the said court upon oath that on the .... day of ...., A. D., .... (year), in said county, in and upon certain premises in the (city, town or village) of .... in said county, occupied by .... .... and more particularly described as follows: (describe the premises) there are now located and concealed certain things, to wit: (describe the things to be searched for) (possessed for the purpose of evading or violating the laws of the state of Wisconsin and contrary to section .... of the Wisconsin statutes) (or, which things were stolen from their true owner, in violation of section .... of the Wisconsin statutes) (or which things were used in the commission of (or, may constitute evidence of) an offense, to wit: (describe offense) committed in violation of section .... of the Wisconsin statutes) and prayed that a search warrant be issued to search said premises for said property.

Now, therefore, in the name of the state of Wisconsin you are commanded forthwith to search the said premises for said things, and if the same or any portion thereof are found, to bring the same and the person in whose possession the same are found, and return this warrant within 48 hours before the said court (or, before the .... court for .... County), to be dealt with according to law.

Dated this .... day of ...., .... (year)

...., Judge of the .... Court.

ENDORSEMENT ON WARRANT

Received by me ...., .... (year), at .... o’clock ....M.

...., Sheriff (or peace officer)

RETURN OF OFFICER

State of Wisconsin

.... Court,

.... County.

I hereby certify that by virtue of the within warrant I searched the within named premises and found the following things: (describe things seized) and have the same now in my possession subject to the direction of the court.

Dated this .... day of ...., .... (year)

...., Sheriff (or peace officer)

968.23 History History: 1997 a. 250; 2015 a. 183.

968.24 968.24 Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person’s conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.

968.24 History History: 1993 a. 486.

968.24 Annotation Suspicious behavior of a driver and passenger justified detention. State v. Goebel, 103 Wis. 2d 203, 307 N.W.2d 915 (1981).

968.24 Annotation A defendant’s flight from a police officer may, using the totality of circumstances test, justify a warrantless investigatory stop. State v. Jackson, 147 Wis. 2d 824, 434 N.W.2d 386 (1989).

968.24 Annotation Actions suggesting to a reasonable police officer that an individual is attempting to flee is adequately suspicious to support an investigatory stop. State v. Anderson, 155 Wis. 2d 77, 454 N.W.2d 763 (1990).

968.24 Annotation The Terry, 392 U.S. 1 (1968), rule applies once a person becomes a valid suspect even though the encounter is initially consensual; if circumstances show investigation is not complete, the suspect does not have the right to terminate it. State v. Goyer, 157 Wis. 2d 532, 460 N.W.2d 424 (Ct. App. 1990).

968.24 Annotation When a person’s activity may constitute either a civil forfeiture or crime, an investigative stop may be performed. State v. Krier, 165 Wis. 2d 673, 478 N.W.2d 63 (Ct. App. 1991).

968.24 Annotation A “showup” where police present a single suspect to a witness for identification, often at or near a crime scene shortly after the crime occurs, is suggestive but not impermissibly suggestive per se. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996), 96-0168.

968.24 Annotation Detaining a person at the person’s home, then transporting the person about one mile to the scene of an accident in which the person was involved, was an investigative stop and a reasonable part of an ongoing accident investigation. State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997), 97-0695. But see State v. Cundy, 2023 WI App 41, 409 Wis. 2d 34, 995 N.W.2d 266, 22-0540.

968.24 Annotation That the defendant is detained in a temporary Terry, 392 U.S. 1 (1968), stop does not automatically mean Miranda warnings are not required. Whether the warnings are required depends on whether a reasonable person in the defendant’s position would have considered himself or herself to be in custody. State v. Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998), 96-2588.

968.24 Annotation This section authorizes officers to demand identification only when a person is suspected of committing a crime but does not govern the lawfulness of requests for identification in other circumstances. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, 98-0931.

968.24 Annotation A police officer performing a Terry, 392 U.S. 1 (1968), stop and requesting identification could perform a limited search for identifying papers when: 1) the information received by the officer was not confirmed by police records; 2) the intrusion on the suspect was minimal; 3) the officer observed that the suspect’s pockets were bulging; and 4) the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, 99-1686.

968.24 Annotation Under Florida v. J.L., 529 U.S. 266 (2000), an anonymous tip giving rise to reasonable suspicion must bear indicia of reliability. That the tipster’s anonymity is placed at risk indicates that the informant is genuinely concerned and not a fallacious prankster. Corroborated aspects of the tip also lend credibility; the corroborated actions of the suspect need be inherently criminal in and of themselves. State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106, 96-1821.

968.24 Annotation An anonymous tip regarding erratic driving from another driver calling from a cell phone contained sufficient indicia of reliability to justify an investigative stop when: 1) the informant was exposed to possible identification, and therefore possible arrest if the tip proved false; 2) the tip reported contemporaneous and verifiable observations regarding the driving, location, and vehicle; and 3) the officer verified many of the details in the tip. That the tip reasonably suggested intoxicated driving created an exigency strongly in favor of immediate police investigation without the necessity that the officer personally observe erratic driving. State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, 98-3541.

968.24 Annotation When a caller identifies himself or herself by name, placing the caller’s anonymity at risk, and the totality of the circumstances establishes a reasonable suspicion that criminal activity may be afoot, the police may execute a lawful investigative stop. Whether the caller gave correct identifying information, or whether the police ultimately could have verified the information, the caller, by providing the information, risked that the caller’s identity would be discovered and cannot be considered anonymous. State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877, 00-2614.

968.24 Annotation It was reasonable to conduct a Terry, 392 U.S. 1 (1968), search of a person who knocked on the door of a house while it was being searched for drugs pursuant to a warrant. State v. Kolp, 2002 WI App 17, 250 Wis. 2d 296, 640 N.W.2d 551, 01-0549.

968.24 Annotation Terry, 392 U.S. 1 (1968), and this section apply to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. Reasonable suspicion is not a prerequisite to an officer’s seeking consent to enter a private dwelling. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641 N.W.2d 474, 01-0904.

968.24 Annotation To perform a protective search for weapons, an officer must have reasonable suspicion that a person may be armed and dangerous. A court may consider an officer’s belief that the officer’s or another’s safety is threatened in finding reasonable suspicion, but such a belief is not a prerequisite to a valid search. There is no per se rule justifying a search any time an individual places the individual’s hands in the individual’s pockets contrary to police orders. The individual’s hand movements must be considered under the totality of the circumstances of the case. State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, 02-1540.

968.24 Annotation Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778.

968.24 Annotation The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of other innocent inferences that could be drawn, the officers have the right to temporarily detain the individual for the purpose of inquiry. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578.

968.24 Annotation When a person who is temporarily detained for investigation pursuant to a Terry, 392 U.S. 1 (1968), stop is then moved to another location, courts conduct a two-part inquiry: 1) was the person moved within the vicinity of the stop; and 2) was the purpose in moving the person within the vicinity reasonable? Ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion. In order for the transporting of a defendant to a hospital that was not in the vicinity of the stop to have been lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function. State v. Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26, 13-2107.

968.24 Annotation Although this section and s. 345.22 pertain only to crimes and violations of traffic regulations, neither statute forecloses traffic stops to enforce non-traffic civil forfeiture offenses. State v. Iverson, 2015 WI 101, 365 Wis. 2d 302, 871 N.W.2d 661, 14-0515.

968.24 Annotation The statement in Popke, 2009 WI 37, that a police officer may conduct a traffic stop when, under the totality of the circumstances, the officer has grounds to reasonably suspect that a crime or traffic violation has been or will be committed, did not purport to circumscribe the universe of possible scenarios within which traffic stops permissibly may occur, or to make such limits contingent on whether the legislature has titled a particular law a “traffic regulation.” A reasonable suspicion that a violation of the littering statute, s. 287.81, a non-traffic civil forfeiture offense, had occurred justified a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. State v. Iverson, 2015 WI 101, 365 Wis. 2d 302, 871 N.W.2d 661, 14-0515.

968.24 Annotation The principles of Terry, 392 U.S. 1 (1968), permit a state to require a suspect to disclose the suspect’s name in the course of a Terry stop and allow imposing criminal penalties for failing to do so. Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004).