Presence of the Defendant
The defendant appears before the court by Summons or Arrest. Alternatively, law enforcement may have the discretion to issue a citation for misdemeanors.
Summons
Following the issuance of a criminal complaint, the legal system requires a method to bring the defendant to court. In Wisconsin, the law offers two primary options for this: a summons or an arrest warrant. The district attorney, upon a criminal complaint's issuance, has the discretion to issue a summons instead of an arrest warrant in any criminal case. Wis. Stat. § 968.04(2)(a). This option can be exercised for both misdemeanor and felony cases, but is generally reserved for minor offenses or when the defendant is expected to respond to a summons. It is also used when dealing with corporations facing criminal charges. Upon issuing a summons, the complaint must then be filed with the clerk of court.
Arrest
Definition and Validity
Understanding the Constitutional Basis of Arrests
Arrests in the United States are governed by the Fourth Amendment of the U.S. Constitution, which safeguards against unreasonable searches and seizures. The legitimacy of an arrest, as dictated by this constitutional amendment, hinges on the concept of "probable cause." This principle is implemented across states, and hence, the specifics of what constitutes a lawful arrest can vary from one jurisdiction to another. However, the underlying requirement of probable cause for an arrest is a universal standard across the country.
Core Concept of an Arrest
The essence of an arrest lies in the act of taking a person into custody or detaining them in a manner that places their freedom under the direct control of the arresting individual. This action or detention can be manifested through verbal commands or physical restraints. Importantly, the subjective intentions of the officers are not part of this equation; what matters are the actions and communications they openly display.
Determining the Point of Arrest
The point at which an individual is considered to be under arrest is subject to an "objective test," focusing on the perspective of a reasonable person in the suspect's shoes. The pivotal question is whether a reasonable person would feel they were in custody, based on the level of restraint imposed upon them under the given circumstances.
The Wisconsin Supreme Court has further refined this determination by introducing a "totality of the circumstances" test under the Fourth Amendment. This approach assesses an array of factors to ascertain when an arrest occurs, offering a more nuanced evaluation that goes beyond mere physical restraint.
In summary, the constitutional framework for arrests is built on probable cause and the perception of being placed under restraint. State laws provide additional context and detail, but the fundamental rights protected by the Fourth and Fourteenth Amendments establish a national standard for lawful arrests.
DNA Collection
DNA Collection Procedures in Wisconsin for Felony Offenses
In Wisconsin, when an individual is arrested for a felony offense, law enforcement is required to take a DNA specimen. This specimen is defined as "a biological specimen for deoxyribonucleic acid (DNA) analysis." The collection of the DNA specimen is part of the arrest procedure and occurs alongside the collection of fingerprints or other identifying data.
Collection Timing Based on Arrest Circumstances
Without Warrant: If the arrest was made without a warrant, the transmission of DNA samples to a central database typically waits until a court determines there is probable cause that the defendant committed a felony.
Waiver or Failure to Appear: The transmission of the sample can also occur if the defendant decides to waive the right to a preliminary hearing or fails to appear for either the initial appearance or the preliminary hearing.
Post-Arrest DNA Sample Handling
If Not Convicted: Should the individual not be ultimately convicted of a felony, or if the conviction is vacated at a later time, there are provisions for the destruction of the DNA sample. Specifically, the arrested individual can request to have their DNA sample destroyed and all related identifying information expunged from the database.
Warrantless Arrests
The Wisconsin Supreme Court has established a ruling consistent with modern federal law that allows police officers to arrest an individual without a warrant if they have probable cause. However, there is a significant exception to this rule concerning the privacy and respect historically accorded to individuals' homes. Specifically, law enforcement is generally required to obtain a warrant before they can enter someone's home to carry out an arrest.
Probable cause for an arrest is a constitutional requirement in the U.S., rooted in the Fourth Amendment, and is also recognized by the Wisconsin Constitution. Both "reasonable grounds" and "probable cause" are seen as equivalent in Wisconsin law, representing more than mere suspicion. Probable cause for an arrest exists when an officer, based on facts and reasonably trustworthy information at their disposal, believes a person is committing or has committed a crime. This standard of evidence is lower than that required for a trial or conviction but must be based on an objective assessment of the circumstances. The totality of circumstances, including hearsay and circumstantial evidence, informs probable cause, which is determined at the time of arrest. Officers can rely on collective departmental information to establish probable cause, but if the underlying assumptions are incorrect, the arrest is deemed illegal, and resulting evidence can be suppressed. Courts review probable cause decisions differently, treating historical facts with deference but applying legal principles de novo.
Arrests with a Warrant
An arrest warrant in Wisconsin is a formal document authorized by the state, directing law enforcement officers to apprehend an individual and present them before a magistrate. This procedure is governed by Wis. Stat. § 968.02. The warrant becomes active once it is signed by a judge and leaves the judge's possession, signaling its readiness for execution.
Importantly, having an arrest warrant isn't always necessary for a lawful arrest. Wisconsin law allows for warrantless arrests under specific conditions. Similarly, if an individual has already been lawfully arrested without a warrant or appears before a judge voluntarily or after receiving a summons, issuing an arrest warrant based on the complaint isn't required.
The primary purposes of an arrest warrant are to notify the accused of the charges against them and to ensure they appear before a magistrate, thereby granting the magistrate personal jurisdiction over the accused. However, acquiring jurisdiction over the individual doesn't hinge on the arrest warrant itself; it depends on the accused being physically present in court with a constitutionally adequate accusatory pleading.
The Wisconsin Supreme Court has clarified that the critical factor for personal jurisdiction in criminal cases is the adequateness of the complaint rather than the method used to bring the defendant to court. The extent of criminal acts that Wisconsin courts can exercise jurisdiction over is outlined in Wis. Stat. § 939.03. As such, starting a criminal proceeding with a complaint under Wis. Stat. § 939.03 and 967.05(1) fulfills the criteria for establishing personal jurisdiction over a defendant.
Misdemeanor Citations
Wis. Stat. § 968.085 allows law enforcement officers the discretion to issue a citation for misdemeanors, which they believe someone has committed, rather than proceeding with an arrest. This citation requires the individual to appear in court for the criminal charges but cannot replace the need for a criminal complaint. Additionally, a citation does not prevent the later issuance of a summons or an arrest warrant for the same offense.
Officers may issue a citation either in the field, at the police station, or after making an arrest. The decision to issue a citation can be influenced by several factors, including:
Whether the accused has provided proper identification.
Willingness of the accused to sign the citation.
Potential danger the accused might pose to themselves or others.
Demonstrated ties to the community.
Previous failure to appear in court or respond to a citation.
Necessity of arrest or detention for furthering a police investigation.
If issued a citation, the person must be released on their own recognizance.
Last updated
Was this helpful?