968.04 Warrant or summons on complaint.
(1) Warrants. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint or after an examination under oath of the complainant or witnesses, when the judge determines that this is necessary, that there is probable cause to believe that an offense has been committed and that the accused has committed it, the judge shall issue a warrant for the arrest of the defendant or a summons in lieu thereof. The warrant or summons shall be delivered forthwith to a law enforcement officer for service.
(a) When an accused has been arrested without a warrant and is in custody or appears voluntarily before a judge, no warrant shall be issued and the complaint shall be filed forthwith with a judge.
(b) A warrant or summons may be issued by a judge in another county when there is no available judge of the county in which the complaint is issued. The warrant shall be returnable before a judge in the county in which the offense alleged in the complaint was committed, and the summons shall be returnable before the circuit court of the county in which the offense alleged in the complaint was committed.
(c) A judge may specify geographical limits for enforcement of a warrant.
(d) An examination of the complainant or witness under sub. (1) may take place by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The judge shall place each complainant or witness under oath and arrange for all sworn testimony to be recorded, either by a court reporter or by means of a voice recording device. The judge shall have the record transcribed. The transcript, certified as accurate by the judge or reporter, as appropriate, shall be filed with the court. If the testimony was recorded by means of a voice recording device, the judge shall also file the original recording with the court.
(2) Summons.
(a) In any case the district attorney, after the issuance of a complaint, may issue a summons in lieu of requesting the issuance of a warrant. The complaint shall then be filed with the clerk.
(b) In misdemeanor actions where the maximum imprisonment does not exceed 6 months, the judge shall issue a summons instead of a warrant unless the judge believes that the defendant will not appear in response to a summons.
(c) If a person summoned fails to appear in response to a summons issued by a district attorney, the district attorney may proceed to file the complaint as provided in s. 968.02 and, in addition to endorsing his or her approval on the complaint, shall endorse upon the complaint the fact that the accused failed to respond to a summons.
(3) Mandatory provisions.
(a) Warrant. The warrant shall:
1. Be in writing and signed by the judge.
2. State the name of the crime and the section charged and number of the section alleged to have been violated.
3. Have attached to it a copy of the complaint.
4. State the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty.
5. State the date when it was issued and the name of the judge who issued it together with the title of the judge's office.
6. Command that the person against whom the complaint was made be arrested and brought before the judge issuing the warrant, or, if the judge is absent or unable to act, before some other judge in the same county.
7. The warrant shall be in substantially the following form:
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant(s))
THE STATE OF WISCONSIN TO ANY LAW ENFORCEMENT OFFICER:
A complaint, copy of which is attached, having been filed with me accusing the defendant(s) of committing the crime of .... contrary to sec. ...., Stats., and I having found that probable cause exists that the crime was committed by the defendant(s).
You are, therefore, commanded to arrest the defendant(s) and bring .... before me, or, if I am not available, before some other judge of this county.
Dated ...., .... (year)
....(Signature)
....(Title)
8. The complaint and warrant may be on the same form. The warrant shall be beneath the complaint. If separate forms are used, a copy of the complaint shall be attached to the warrant.
(b) Summons.
1. The summons shall command the defendant to appear before a court at a certain time and place and shall be in substantially the form set forth in subd. 3.
2. A summons may be served anywhere in the state and it shall be served by delivering a copy to the defendant personally or by leaving a copy at the defendant's usual place of abode with a person of discretion residing therein or by mailing a copy to the defendant's last-known address. It shall be served by a law enforcement officer.
3. The summons shall be in substantially the following form:
a. When issued by a judge:
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant)
THE STATE OF WISCONSIN TO SAID DEFENDANT:
A complaint, copy of which is attached, having been filed with me accusing the defendant of committing the crime of .... contrary to sec. ...., Stats., and I having found that probable cause exists that the crime was committed by the defendant.
You, ...., are, therefore, summoned to appear before Branch .... of the .... court of .... County at the courthouse in the City of .... to answer said complaint, on ...., ...., (year) at .... o'clock in the .... noon, and in case of your failure to appear, a warrant for your arrest will be issued.
Dated ...., .... (year)
....(Signature)
....(Title)
b. When issued by a district attorney:
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant)
THE STATE OF WISCONSIN TO SAID DEFENDANT:
A complaint, copy of which is attached, having been made before me accusing the defendant of committing the crime of .... contrary to sec. ...., Stats.
You, ...., are, therefore, summoned to appear before Branch .... of the .... court of .... County at the courthouse in the City of .... to answer said complaint, on ...., .... (year), at .... o'clock in the .... noon, and in case of your failure to appear, a warrant for your arrest may be issued.
Dated ...., .... (year)
.... (Signature)
.... District Attorney
4. The complaint and summons may be on the same form. The summons shall be beneath the complaint. If separate forms are used, a copy of the complaint shall be attached to the summons.
(4) Service.
(a) The warrant shall be directed to all law enforcement officers of the state. A warrant may be served anywhere in the state.
(b) A warrant is served by arresting the defendant and informing the defendant as soon as practicable of the nature of the crime with which the defendant is charged.
(c) An arrest may be made by a law enforcement officer without a warrant in the law enforcement officer's possession when the law enforcement officer has knowledge that a warrant has been issued. In such case, the officer shall inform the defendant as soon as practicable of the nature of the crime with which the defendant is charged.
(d) The law enforcement officer arresting a defendant shall endorse upon the warrant the time and place of the arrest and the law enforcement officer's fees and mileage therefor.
History: 1973 c. 12; 1975 c. 39, 41, 199; 1977 c. 449 ss. 480, 497; 1983 a. 535; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 151; 1993 a. 486; 1997 a. 250; Sup. Ct. Order No. 19-01, 2019 WI 44, filed 4-22-19, eff. 7-1-19.
Judicial Council Note, 1988: Sub. (1) (d) permits an arrest warrant or summons to be issued upon the basis of sworn recorded testimony received by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The telephone procedure permits faster processing of the application, while preserving a record of the basis for subsequent review. [Re Order effective Jan. 1, 1988]
To be constitutionally sufficient to support the issuance of an arrest warrant and to show probable cause, a complaint must contain the essential facts constituting the offense charged. A complaint was fatally defective in merely repeating the language of the statute allegedly violated. State v. Williams, 47 Wis. 2d 242, 177 N.W.2d 611 (1970).
A warrant was properly issued upon sworn testimony of a sheriff that an accomplice had confessed and implicated the defendant, since reliable hearsay is permitted and a confession is not inherently untrustworthy. Okrasinski v. State, 51 Wis. 2d 210, 186 N.W.2d 314 (1971).
When a complaint alleged that a reliable informant procured a sample of drugs from the defendant's apartment, the inference that the informant observed the defendant's possession of a controlled substance satisfied the Aguilar test. Scott v. State, 73 Wis. 2d 504, 243 N.W.2d 215 (1976).
A criminal prosecution is properly and timely commenced by a John Doe complaint and arrest warrant that identify the defendant solely by a DNA profile, which meets the requirement of sub. (3) (a) 4. that if the defendant's name is not known the person to be arrested must be identified by any description by which the person to be arrested can be identified with reasonable certainty. State v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366, 02-2445.
Applicable law allows electronic transmission of certain confidential case information among clerks of circuit court, county sheriff's offices, and the Department of Justice through electronic interfaces involving the Department of Administration's Office of Justice Assistance, specifically including electronic data messages about adult arrest warrants if either the warrant or the case in which it was issued has been ordered sealed by the court. OAG 2-10.
NOTE: See also the notes to Article I, section 11, of the Wisconsin Constitution.