968.255 Strip searches.

(1) In this section:

(a) “Detainee" means any of the following:

1. A person arrested for any felony.

2. A person arrested for any misdemeanor under s. 167.30 (1), 940.19, 941.20 (1), 941.23, 941.231, 941.237, 948.60, or 948.61.

3. A person taken into custody under s. 938.19 and there are reasonable grounds to believe the juvenile has committed an act which if committed by an adult would be covered under subd. 1. or 2.

4. A person arrested for any misdemeanor not specified in subd. 2., any other violation of state law punishable by forfeiture or any local ordinance if there is probable cause to believe the person is concealing a weapon or a thing which may constitute evidence of the offense for which he or she is detained.

5. A person arrested or otherwise lawfully detained or taken into custody, if the person will be incarcerated, imprisoned, or otherwise detained in a jail or prison with one or more other persons. Subject to subd. 3., for the purpose of this subdivision, “detainee" does not include a juvenile who is taken into custody under s. 938.19 and held in custody under s. 938.209.

(ag) “Jail" includes municipal prisons and rehabilitation facilities established under s. 59.53 (8) by whatever name they are known, but does not include lockup facilities.

(ar) “Lockup facilities" means those facilities of a temporary place of detention at a police station that are used exclusively to hold persons under arrest until they can be brought before a court and that are not used to hold persons pending trial who have appeared in court or have been committed to imprisonment for nonpayment of fines or forfeitures.

(b) “Strip search" means a search in which a detainee's genitals, pubic area, buttock or anus, or a female detainee's breast, is uncovered and either is exposed to view or is touched by a person conducting the search, except that if the detainee is a person defined in par. (a) 5., “strip search" means a search in which a detainee's genitals, pubic area, buttock or anus, or a female detainee's breast, is uncovered and exposed to view but is not touched by a person conducting the search unless the touching is necessary to gain the detainee's cooperation with the search or unless the touching is necessary to assist a disabled detainee's cooperation with the search.

(2) No person may conduct a strip search unless all of the following apply:

(ag) The person subject to the search is a detainee.

(am) The person conducting the search is of the same sex as the detainee, unless the search is a body cavity search conducted under sub. (3).

(b) The detainee is not exposed to the view of any person not conducting the search.

(c) The search is not reproduced through a visual or sound recording.

(d) A person conducting the search has obtained the prior written permission of the chief, sheriff or law enforcement administrator of the jurisdiction where the person is detained, or his or her designee, unless there is probable cause to believe that the detainee is concealing a weapon.

(e) A person conducting the search prepares a report identifying the person detained, all persons conducting the search, the time, date and place of the search and the written authorization required by par. (d), and provides a copy of the report to the detainee.

(3) No person other than a physician, physician assistant or registered nurse licensed to practice in this state may conduct a body cavity search. A physician, physician assistant, or registered nurse acting under this section, the employer of any such person, and any health care facility where the search is conducted have immunity from civil or criminal liability under s. 895.535.

(4) A person who intentionally violates this section may be fined not more than $1,000 or imprisoned not more than 90 days or both.

(5) This section does not limit the rights of any person to civil damages or injunctive relief.

(6) Each law enforcement agency, as defined in s. 165.83 (1) (b), and each facility where a strip search may be conducted pursuant to this section, shall establish written policies and procedures concerning strip searches which at least meet the minimum requirements of this section and shall provide annual training regarding the policies and procedures to any employee or agent of the agency or facility who may conduct a strip search.

(7) This section does not apply to a search of any person who:

(a) Is serving a sentence, pursuant to a conviction, in a jail, state prison or house of correction.

(b) Is placed in or transferred to a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g).

(c) Is committed, transferred or admitted under ch. 51, 971 or 975.

(d) Is confined as a condition of probation under s. 973.09 (4).

History: 1979 c. 240; 1981 c. 297; 1987 a. 332; 1991 a. 17; 1993 a. 95, 105; 1995 a. 77, 154; 1997 a. 35; 1999 a. 9; 2001 a. 109; 2005 a. 344; 2011 a. 35; 2013 a. 317; 2015 a. 149; 2015 a. 195 s. 83; 2015 a. 206, 238.

A visual body cavity search is more intrusive than a strip search. It is not objectively reasonable for police to conclude that consent to a strip search includes consent to scrutiny of body cavities. State v. Wallace, 2002 WI App 61, 251 Wis. 2d 625, 642 N.W.2d 549, 00-3524.

This section is a regulatory statute aimed at controlling law enforcement officers' conduct via criminal penalties. It does not mention probable cause and authorizes no motions to quash or limit the search. When there was no violation of any constitutional right but merely of the statute itself, the violation of the statute provided no basis for a suppression motion. State v. Minett, 2014 WI App 40, 353 Wis. 2d 484, 846 N.W.2d 831, 13-0634.

Intrusive searches of the mouth, nose, or ears are not covered by sub. (3). However, searches of those body orifices should be conducted by medical personnel to comply with the 4th and 5th amendments. 71 Atty. Gen. 12.