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LAW ENFORCEMENT & YOUTH

 

POLICY GUIDELINES

 

FOURTH EDITION

 

 

Wisconsin Juvenile Officers’ Association

INTRODUCTION

 

This manual is being provided to all law enforcement officers and related personnel, for the purpose of achieving uniform practices in regard to the handling of juvenile related cases. In addition, it is hoped that through a manual such as this, each participant in the Juvenile Justice System will gain a better understanding as to the roles and responsibilities of other members of the system. Specifically, the other members addressed include the Court, the District Attorney, the Juvenile Intake Office (Custody Intake) and the parents.

 

It is our intention in preparing this manual that it be used by each office as an easy reference, if and when they become involved with a juvenile related case. We have attempted to provide the reader with an easy to understand, step by step guide, which would answer most, if not all, questions an officer may have regarding specific juvenile related issues.

 

In order to understand the local functioning of the Juvenile Justice System, it is necessary to have a broad understanding of the philosophy and general provisions of Chapters 48, 938, and 948 of the Wisconsin Statutes.

 

Law enforcement and Juvenile Intake follow the mandate of the Wisconsin State Legislature in relation to the purpose of the Children’s Code and Juvenile Justice Code. Specifically we have taken the stance that Chapter 48 be liberally construed to effect the objectives contained in that section of the law. The best interest of the child must always be the paramount and guiding interests that must be considered in using, and interpreting, ch. 48. In addition, the paramount goal of this chapter is to protect children and if the person has reason to suspect that the health or safety of a child or of an unborn child is in immediate danger. Upon receiving such a request, the sheriff or police department shall immediately investigate to determine if there is reason to believe that the health or safety of the child or unborn child is in immediate danger and take any necessary action to protect the child or unborn child.

 

Additionally, we have taken the stance that chapter 938 be liberally construed to affect the objectives in that section of the law. It is the intent of the Juvenile Justice Code to promote a juvenile justice system capable of dealing with the problem of delinquency under a three-prong system. The equally important purposes of chapter 938 are to protect citizens from juvenile crime, hold juvenile offenders directly accountable for his or her acts, and to provide individualized assessment of each alleged and adjudicated delinquent. The juvenile offender’s need for care and treatment consistent with prevention of delinquency, each juvenile’s best interest, and protection of the public is met by allowing the judge to utilize the most effective dispositions.

 

Whether or not one agrees or disagrees with the provisions of the Juvenile Justice Code, Chapter 938/Children’s Code, Chapter 48, and Chapter 948. All of us who comprise the Juvenile Justice System are bound to carry out our daily functions based on the premises cited above, and in accordance with our individual policies and procedures. Therefore, the provision of services to juveniles in the State of Wisconsin are not based on our personal philosophy, rather we are expected to strictly conform to the purpose of the legislature, as cited above, thus making for a Uniform State juvenile Justice System.

 

The information presented in the following pages will be concerned with how we apply the provisions of Chapter 48, 938 and 948. While at the same time using the flexibility available to us whenever possible, in order to make the procedures workable in our jurisdictions.

 

Finally, it should be noted that some of the material provided might be interpretive in nature; however, the vast majority of the procedural requirements cited are as a result of strict adherence to specified State Statute. In essence, we are saying that these are not policies dictated by a Judge, Juvenile Justice, or any other agency or individual but, rather, the policies and practices are a direct result of State Statutes as enacted by the legislature.

 

Wisconsin Juvenile Officer’s Association

 

Chapter 1

 

Custodial Handling

 

CH. 48.19      Taking a child into temporary physical custody

 (1)    A child may be taken into custody under any of the following:

 

(a)      A warrant.

(b)      A capias issued by a judge under s. 48.28

(c)     An order of the judge if made upon a showing satisfactory to the judge that the child is an expectant mother, that due to the child expectant mother’s habitual lack of self-control in the use of alcoholic beverages, controlled substances or controlled substance analogs, exhibited to a severe degree. That there is a substantial risk that the physical health of the unborn child, and of the child when born, will be seriously affected or endangered unless the child expectant mother is taken into custody. That the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The order shall specify that the child expectant mother be held in custody under s. 48.207 (1).

(d)    Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:

(1)     A capias or a warrant for the child’s apprehension has been issued in this state, or that the child is a fugitive from justice.

(2)     A capias or a warrant for the child’s apprehension has been issued in another state.

(3)     The child has run away from his or her parents, guardian or legal or physical custodian.

(4)     The child is suffering from illness or injury or is in immediate danger from his or her surroundings and removal form those surroundings are necessary.

(5)     The child has violated the conditions of an order under s. 48.21(4) or the conditions of an order for temporary physical custody by an intake worker.

(2)   When a child is taken into physical custody as provided in this section, the person taking the child into custody shall immediately attempt to notify the parent, guardian and legal custodian of the child b the most practical means. The person taking the child into custody shall continue such attempt until the parent, guardian and legal custodian of the child are notified, or the child is delivered to an intake worker under s. 48.20(3), which ever occurs first. If the child is delivered to the intake worker before the parent, guardian, or legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempts to notify until the parent, guardian, and legal custodian of the child are notified.

(3)   Taking custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.

(4)   If a juvenile is to be questioned, give the juvenile the warning and waiver of rights – Miranda Warning.   Note: State v. Wood, 117 Wis (2d) 701 (1984) and the Viault v. State, 66 Wis (2d) 33, 223 NW (2d) 850 juveniles are entitled to the same Miranda pre-interrogation rights as adults. The Miranda warning must be made knowingly, intelligently, and voluntarily, and the age, education, and experience of the juvenile will determine that

(a)       If the Juvenile waives the rights, then proceed with the interrogation.

(b)       If the juvenile requests an attorney, or does not waive the right to remain silent, no further questioning will be conducted until the attorney is present, or the attorney advises the juvenile to consent to police questioning.

(c)    In giving the juvenile his/her Miranda Warnings, it is required that the juvenile, in order to waive his/her Miranda rights, waives them knowingly, intelligently and voluntarily. It is quite obvious that some juveniles are not capable of waiving their Miranda rights as they lack the sophistication or intelligence to knowingly, voluntarily, and intelligently waive them.  For those children who are incapable of waving their rights, they should be aided in their decision by a parent, guardian, or legal custodian, or an attorney.  Intake workers are not appropriate alternatives to a parent, guardian, or legal custodian.

2. Search of Juveniles

 

Procedures relating to the search of juveniles are the same as those applied to adults. Juveniles at the time they are taken into custody may be given a pat-down search. Individual agencies should designate specifically when juveniles should be searched or not searched.

If the juvenile is being searched while being detained for a curfew or ordinance violation, and the ordinance does not authorize arrest or the imposition of a forfeiture, then the search cannot be conducted as a search is incident to arrest.

Note. In the interest of J.F.F., 164 Wis (2d) 10 (ct. App. 1991)

 

3. Handcuffing

    (1)   All juveniles taken into custody may be handcuffed.

(a)   If is believed the juvenile presents an immediate danger to self or another person, or will attempt to run from custody, the officer shall use handcuffs.

(b)   In all situations, an officer shall use discretion as to the need for handcuffs. Some individual departments have policies and procedures and should be followed.

 

4. Photographing/Fingerprinting.

Wisconsin Statute 48. 396 states all juvenile records, such as photographs and fingerprints, must be kept separate from adult records and are not open to the general public.

The Attorney General has issued an opinion indicating that the photographs and fingerprints required by Wisconsin Statutes 165.83 and 165.84 applies to juveniles, as well as adults.

 

48.20   Release or delivery of child from custody

        (2)(ag) Except as provided in pars. (b) to (d), a person taking a child into custody

                   shall make every effort to release the child immediately to the child’s

                   parent, guardian, or legal custodian.

 (b)  If the child’s parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the child, the person who took the child into custody may release the child to a reasonable adult after counseling or warning the child as may be appropriate.

(c)   If the child is 15 years of age or older, the person who took the child into custody may release the child without immediate adult supervision after counseling or warning the child as may be appropriate.

 (3) If the child is released under sub. (2)(b) to (d), the person who took the child in custody shall immediately notify the child’s parent, guardian or legal custodian of the time and circumstances of the release and the person, if any, to whom the child was released. If the child is not released under sub. (2), the person who took the child into custody shall arrange in a manner determined by the court and law enforcement agencies for the child to be interviewed by the intake worker under s. 48.067(2). And shall make a statement in writing with supporting facts of the reasons why the child was taken into physical custody and shall give any child 12 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When the intake interview is not done in person, the report may be read to the intake worker.

(4)   If the child is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment. The person taking the child into physical custody, the intake worker or other appropriate person shall deliver the child to a hospital as defined in s. 40.33(2)(a) and (c) or physician’s office.

(4m) If the child is an expectant mother and if the unborn child or child expectant mother is believed to be suffering from a serious physical condition which requires either prompt diagnosis or prompt treatment. The person taking the child expectant mother into physical custody the intake worker or other appropriate person shall deliver the child expectant mother to a hospital as defined in s. 50.33(2)(a) and (c) or physician’s office.

(5)   If the child is believed to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which constitutes a substantial probability of physical harm to the child or to others. Or a very substantial probability of physical impairment or injury to the child exists due to the impaired judgment of the child, and the standards of s. 51.15 are met, the person taking the child into physical custody, the intake worker or other appropriate person shall proceed under s. 5115.

(6)   If the child is believed to be an intoxicated person, who has threatened, attempted or inflicted physical harm on himself or herself or on another. Is likely to inflict such physical harm unless committed, or is incapacitated by alcohol, the person taking the child into physical custody, the intake worker or other appropriate person shall proceed under s. 51.45(11).

(7)   (a)   When a child is interviewed by an intake worker, the intake worker shall inform any child who is alleged to be in need of protection or services and who is 12 years of age or older of his right to counsel.

(b)   The intake worker shall review the need to hold the child in custody and shall make every effort to release the child from custody as provided in par.

(c)   The intake worker shall base his or her decision as to whether to release the child or to continue to hold the child in custody on the criteria specified in s. 48.205(1) and criteria established under s. 48.06(1) or (2)

(d)   The intake worker may release the child: 1. To a parent, guardian, or legal custodian.  If the parent, guardian, or legal custodian is unavailable, unwilling or unable to provide supervision for the child. Release the child to a responsible adult, counseling or warning the child a may be appropriate, or, if a child is 15 years old or older, release the child without immediate adult supervision, counseling or warning the child a may be appropriate; or 2. In the case of a runaway child, to a home authorized under s. 48.227.

(e)   If the child is released from custody, the intake worker shall immediately notify the child’s parent, guardian, and legal custodian of the time and circumstances of the release and the person, if any, to whom the child was released.

(8)   If a child is held in custody, the intake worker shall notify the child’s parent, guardian and legal custodian of the reasons for holding the child in custody and of the child’s whereabouts

 

SEARCH AND SEIZURE LAWS

 

SEARCH’S

Typically citizens can make searches anytime, and anywhere without regards to the rules that govern and restrict police conduct (although they could subject themselves to criminal prosecution for illegal acts such as trespass or theft).

 

SCHOOL OFFICIALS

In 1985 the U.S. SUPREME COURT ruled in NEW JERSEY V. T.L.O., 469 u.s. 325 (1995) that School Officials represented a hybrid for the 4th Amendment purpose. The court held that School Officials might search privacy areas with “reasonable grounds” (a lesser standard than the “probable cause” police must meet).

 

LOCKER SEARCHES

In 1993 The Wisconsin Courts ruled in the INTEREST OF ISIAH B 176 Wis.2d 639 (1993) that schools may search lockers without “reasonable grounds” IF two factors are present (1) Schools have a written policy in place, (2) the police is widely disseminated to the student body. ( the school should list who has this authority).

 

POLICE SEARCHES IN SCHOOL

In 1997 STATE V. ANGELIA D.B. 211 Wis.2d 140 (1997) the Supreme Court has extended the lesser standard of  “reasonable suspicion” to the police under certain circumstances. That is when the police are at the request of & in conjunction with school officials.

 

CONSENT SEARCHES

For a consent search to be valid, the student’s permission or consent must be voluntary, clear and unequivocal. Consent cannot be the product of coercion or threat. The general rules that govern consent searches apply with equal force in a school setting.

 

An example, a student who is told that if he does not comply with a request to empty his pockets he will be disciplined cannot be said to have voluntarily consented to the search.

 

The courts will consider several factors, though no one factor is dispositive, in deciding whether consent was given voluntarily. These factors are (1) whether the student was informed of the right to refuse to consent. (2) The students age, intelligence, physical and mental condition. (3) Whether the student appeared to be under the influence of alcohol or other drugs when asked to give consent. (4) The student’s prior experience with the police or school officials. (5) The presence of a trusted adult. (6) The student’s cultural background

 

 

SEARCH OF THE STUDENT’S PERSON & PERSONAL BELONGINGS.

School officials may search a student’s person or personal belongings if they have reasonable suspicion that the student has violated or is violating either the law or the rules of the school, and if they have a reasonable suspicion to believe that the search of the person or specific personal belongings will reveal evidence of that violation. Under the standards established in New Jersey v T.L.O., and State v. Angelia D.B., the measures used to conduct a search of a student must be reasonably related to the objectives of the search. Additionally, the search must not be excessively intrusive in light of the student’s age, sex and the nature of the violation. This search should be done outside of other students, and with consideration of the student’s well being. This of course does not under any circumstance allow a strip search of a student.

 

DRUG-DETECTION CANINES

Wisconsin case law has held that canine searches conducted on public grounds do not engage the 4th Amendment, as it does not violate any reasonable expectation of privacy. A school wide canine inspection or “sweep” falls neatly within the definition of a general or suspicionless search and under federal law and state law this conduct need not be justified under the T.L.O.,reasonable suspicion test, much less the stricter probable cause standard.

 

DOG SNIFFS OF PERSONS AND CLOTHING

Despite the severity of the drug and weapons problem facing our schools, it is generally inappropriate to use scent dogs to examine student’s persons, including articles of clothing while the student is wearing such clothing. Scent dogs are often trained to use active or aggressive alert clues or keys including scratching, pawing, barking, and growling. Allowing dogs with active alert cues to sniff students poses an unacceptable risk to the safety and well being of students.

The next question that arises is whether school officials are authorized to order children to disrobe in order to maintain a search, becomes a seizure act, and would depend on whether or not there was a pronounced bona fide security concern.

 

DOG SNIFFS OF VEHICLES

School officials and Canines may search the exterior of student owned or an operated-parked vehicle, as one does not have reasonable expectation of privacy.

Actual inspections of the interior of the vehicle are more problematic, as the vehicle is clearly personal property for which a school can not make any claim of ownership.

However the reduced TRO standard of reasonable suspicion would govern searches of cars parked on school grounds. If school officials had a Isiah B style written policy, which states that parking on school grounds is a privilege and not a right, and thus a students election of this privilege is tantamount to a consent for school officials to search their parked cars.

 

POINT OF ENTRY/EXIT INSPECTIONS

In some school districts, school officials require students to open their bookbags and knapsacks for cursory inspection by a security officer or other school employee before they are allowed to enter or exit the school building.

While requiring a student to open a closed container for inspection clearly constitutes a “search” for the purpose of the 4th Amendment, this conduct is permissible provided that school officials follow certain rules that are designed to minimize the discretion of school employees in determining which students are subject to this form of inspection.

One of the most important safeguards is to provide students with advance notice as to when and under what circumstances they will be required to submit to this form of search. Accordingly school officials should provide all students and their parents and/or legal guardians with written notice prior to the school year that these security procedures will be implemented. In addition notice should be provided to visitors by means of posting warning signs at points-of-entry to the school where these inspections will be conducted.

The best means of protecting against arbitrary discretion is to ensure the even-handed application of the policy to all students and visitors entering he school. By subjecting everyone to this form of intrusion, there is no stigma attached to the search.

 

METAL DETECTORS

In some schools, officials have deemed it necessary to use metal detectors to discourage students from brining firearms, knives, and other metal weapons on to school grounds. The use of metal detectors is now common in airports, courthouses and other public buildings across the nation.

There are two distinct types of metal detection equipment in use today: stationary magnetometers that are strategically placed and portable hand held devices or wands. Often they are used with one and another. The use of metal detectors thus serves to reduce the number of persons who are subject to a physical “search”.

Arguably, the use of a magnetometer to scan the outer clothing or a container carried by a student for dense metal does not constitute a “search” within the meaning of the 4th Amendment.

One of the most important means to minimize the degree of intrusion caused by the use of metal detectors is to provide advance notice to students and their parents and/or legal guardians. In addition to providing notice to all enrolled students by means of publication in the student handbook, written warning notices should be posted conspicuously at entrances of the school so as to provide notice to visitors that they will be subject to this form of inspection.

 

SURVEILLANCE TECHNOLOGY & SEARCH ISSUES

In an effort to monitor school campuses for evidence of violent behavior, school personnel and liaison officers are increasingly relying upon technology such as surveillance cameras to assist them. As a general rule and within certain limits, school personnel and law enforcement may lawfully utilize surveillance technology that enhances their ability to protect the health and welfare, and safety of a school’ students and staff.

 School officials may utilize video surveillance in any place on school premises where staff or students lack a reasonable expectation of privacy. Common areas of the school in which students, staff and members of the public would probably lack a reasonable expectation of privacy include as hallways, classrooms, the cafeteria, library, and the parking lot. Just as school officials have the right to be personally present and monitor activities in these common areas, so too can they rely upon video technology to aid them in monitoring these areas.

A Wisconsin statute 944.205 prohibits the taking or possession of a photograph or making videotape of a person depicted nude or semi-nude state. Wisconsin statutes 230.86 prohibits the state from taking disciplinary action against state employees based in whole or in part through surveillance unless employee’s supervisor authorizes the surveillance and it is conducted pursuant to administrative rules.

The United States Supreme Court has long afforded constitutional protection to private conversations. As a general rule, people have a reasonable expectation of privacy in their private conversations, even if these conversations occur in places open to the public. This expectation exists whether the conversation occurs in person or through some other medium such the telephone. Absent the consent of a participant in a conversations, the monitoring and recording of a conversation through devices such as video cameras, concealed microphones, or telephone monitoring equipment constitutes an infringement of one’s reasonable expectation of privacy. United states v. Katz, 389 U.S. 347 (1967).

 

The Policy Guidelines are still under construction.  Refer to your Policy Guidelines for remaining text.  You can download the Policy Guidelines

on the downloads page of this website.

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