COURT OF APPEALS
DATED AND FILED
October 13, 2010
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
from a judgment of the circuit court for Waukesha County: robert
g. mawdsley, Judge. Affirmed.
¶<![if !supportFields]>1<![endif]> REILLY, J. Dennis Butler appeals from a judgment of the
circuit court convicting him of possession of cocaine. Butler
argues that the circuit court improperly denied his motion to suppress the
evidence obtained when he was frisked and detained. He contends that the officer did not have
probable cause or reasonable suspicion to frisk him. This appeal requires us to decide whether the
officer’s conduct fell within the “community caretaker” exception to the Fourth
Amendment’s warrant requirement, and whether the officer was justified in
frisking Butler. Because we hold that the officer was lawfully
utilizing his community caretaker function, and that his frisk of Butler was reasonable, we
affirm the circuit court’s judgment.
¶<![if !supportFields]>2<![endif]> At 1:28 a.m. on August 31,
2008, Police Officer Brian Pergande was on routine patrol when he observed a
male subject—later identified as Butler—dressed all in black standing in the
middle of an intersection. The
intersection borders northwest Milwaukee
and is considered a high-crime area. Pergande
parked his squad car and asked Butler
to come out of the traffic intersection and come over to the squad car. Pergande testified that he wanted to make
sure Butler was
alright, and that Pergande considered it dangerous for someone dressed in all
black to stand in the middle of an intersection at night. As Butler
moved towards Pergande’s squad car, Pergande instructed Butler to remove his hands from his pockets for safety
purposes. Butler complied, and provided identification
upon Pergande’s request.
¶<![if !supportFields]>3<![endif]> Pergande’s initial observation of Butler was that he was fidgeting, sweating,
and appeared lost and confused. Upon
said he was looking for the Silk Gentleman’s Club. Pergande told Butler that Silk was about one-half mile from
the intersection. During this
began walking away from the squad car and put his hands in his pockets again. Pergande testified that Butler “appeared like he wanted to get away
from me.” Based on this conduct,
Pergande decided to frisk Butler because
Pergande feared that Butler
either had a weapon on him or that he was trying to get rid of something.
¶<![if !supportFields]>4<![endif]> During the frisk Pergande felt what he thought was a crack
pipe in Butler’s
pocket. While Pergande patted him down, Butler reached into his
pocket again. Fearing for his safety,
Pergande handcuffed Butler. Afterwards, Pergande pulled out the crack
pipe from Butler’s pocket and informed Butler that he was under
arrest for possession of drug paraphernalia.
Subsequently, Pergande found a white rock substance in Butler’s pocket that turned out to be
¶<![if !supportFields]>5<![endif]> Butler
filed a motion to suppress the evidence, arguing that his stop, frisk, seizure,
and arrest by Pergande were conducted without probable cause or reasonable
suspicion. Following a suppression
hearing, the circuit court denied Butler’s
motion to suppress. Butler subsequently pled no contest and was
convicted for possession of cocaine. This
¶<![if !supportFields]>6<![endif]> This court is presented with two issues: (1) did Pergande have authority under the community
caretaker exception to the Fourth Amendment’s warrant requirement to seize Butler and (2) was Pergande justified in conducting a
frisk of Butler?
STANDARD OF REVIEW
¶<![if !supportFields]>7<![endif]> When we review a denial of a motion to suppress evidence, we
uphold the circuit court’s factual findings unless they are clearly
erroneous. State v. Pinkard, 2010 WI
81, ¶12, ___ Wis.
2d ___, 785 N.W.2d 592. Whether Pergande
properly exercised the community caretaker function consistent with
constitutional requirements is a question of law that we review de novo. See id.
¶<![if !supportFields]>8<![endif]> Likewise, we conduct a de novo review to determine whether
the facts support Pergande’s claim that he had reasonable suspicion that Butler
was armed such that he could frisk Butler.
See State v. Kyles, 2004 WI 15, ¶7, 269 Wis. 2d 1, 675 N.W.2d 449. The test for whether a frisk for weapons was
reasonable is “whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety and that of others was in danger
because the individual may be armed with a weapon and dangerous.” Id.,
¶10 (citation omitted). In determining
whether a frisk was reasonable, “[w]e may look to any fact in the record, as
long as it was known to the officer at the time he conducted the frisk and is
otherwise supported by his testimony at the suppression hearing.” State v. McGill, 2000 WI 38, ¶24,
234 Wis. 2d
560, 609 N.W.2d 795.
Community Caretaker Function
¶<![if !supportFields]>9<![endif]> Police officers exercise either law enforcement functions or
community caretaker functions. Pinkard,
785 N.W.2d 592, ¶18. “An officer
exercises a community caretaker function ‘when the officer discovers a member
of the public who is in need of assistance.’”
(citation omitted). Thus, police are not
limited to taking action only when they have probable cause that a crime was
committed. State v. Anderson, 142 Wis. 2d 162, 167, 417
N.W.2d 411 (Ct. App. 1987).
¶<![if !supportFields]>10<![endif]> We
apply a three-step test to determine whether an officer’s conduct properly
falls within the scope of the community caretaker exception to the Fourth
Amendment’s warrant requirement. When an
officer asserts that he or she is using the community caretaker function, the
circuit court must determine: (1)
whether a search or seizure within the meaning of the Fourth Amendment
occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3)
if so, whether the public interest outweighs the intrusion upon the privacy of
the individual such that the community caretaker
function was reasonably exercised. Anderson,
142 Wis. 2d
at 169. The state bears the burden of
proof. State v. Kramer, 2009 WI
14, ¶17, 315 Wis.
2d 414, 759 N.W.2d 598.
¶<![if !supportFields]>11<![endif]> There is no dispute that Pergande’s frisk of Butler constituted a search within the
meaning of the Fourth Amendment. This
court must now decide whether the State has satisfied the second and third
elements of the Anderson test.
¶<![if !supportFields]>12<![endif]> Regarding whether Pergande acted as a bona fide community
caretaker, Butler concedes that Pergande acted
appropriately when he initially stopped Butler
at the intersection. Butler,
however, argues that Pergande acted outside the scope of the community
caretaker function when he prevented Butler from
walking away from the squad car after Butler
received directions to the Silk Gentleman’s Club.
¶<![if !supportFields]>13<![endif]> We hold that Pergande properly exercised his community caretaker
function during his entire encounter with Butler. Initially, Pergande was acting as a bona fide
community caretaker when he investigated why a man dressed in all black was
standing in the middle of an intersection at 1:28 in the morning. After removing Butler
from the intersection for safety reasons, Pergande observed that Butler was fidgeting,
sweating, and appeared lost and confused.
did not obey Pergande’s command to keep his hands out of his pockets. Indeed, at one point during his conversation
with Pergande, Butler
began walking away from the squad car.
Pergande even testified that Butler
“looked like he wanted to get away from me.”
Based upon the totality of the circumstances, we are satisfied that
Pergande continued to act in his community caretaker role throughout his
encounter with Butler.
¶<![if !supportFields]>14<![endif]> Finally, regarding the third element of the Anderson test,
we hold that the public interest in safety outweighs Butler’s privacy concerns such that the community caretaker function was
Officer Pergande’s Frisk of Butler
¶<![if !supportFields]>15<![endif]> To determine whether Pergande’s frisk of Butler was reasonable,
we will apply the standard set forth by the United States Supreme Court in Terry
v. Ohio, 392 U.S. 1 (1968). In Terry,
the Court struck a balance between the need for law enforcement officers to
protect themselves from harm and the individual’s right to personal liberty. See id. at 23-25. The Court recognized the dangers faced by
police when conducting close-range investigations of suspects. Id. at
23-24. Where an officer reasonably
believes that his or her safety may be in danger because the suspect the officer
is investigating may be armed, it would be unreasonable not to allow the
officer to conduct a limited search for weapons. Id. at
¶<![if !supportFields]>16<![endif]> In order to limit the state’s power to intrude upon individual
rights, however, the Court held that to justify a frisk “the police officer must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Id. at
21. The Court went on to explain that “due weight must be given, not to [the officer’s] inchoate
and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience.” Id. at 27.
¶<![if !supportFields]>17<![endif]> Using the Terry
standard, we find that Pergande had a reasonable basis for frisking Butler. When Pergande found Butler,
standing in the middle of an intersection at 1:28 a.m. in a high-crime
neighborhood. Butler was fidgeting, sweating, and refused Pergande’s
commands to keep his hands out of his pockets.
Based on these facts, Pergande could draw a reasonable inference that Butler was armed and
dangerous. His frisk of Butler was thus justified.
¶<![if !supportFields]>18<![endif]> This court is
satisfied that Pergande lawfully seized Butler
in the role of the community caretaker function. As noted by the circuit court, this event was
all one incident; the transition from the initial questioning to the frisk was
based on Pergande’s reasonable safety concerns.
We also hold that under the Terry standard Pergande was
justified in frisking Butler.
By the Court.—Judgment
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.