State v. Dennis Butler, 2010AP864-CR, District 2, 10/13/10
court of appeals decision (1-judge, not for publication); for Butler: Kathleen A. Lindgren; BiC; Resp.
Frisk upheld, where initial contact came within community caretaker function, and Butler then gave cause to believe he was armed and dangerous.
¶13 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. Furthermore, Butler did not obey Pergande’s command to keep his hands out of his pockets. Indeed, at one point during his conversation with Pergande, Butlerbegan 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.
…
¶17 Using the Terry standard, we find that Pergande had a reasonable basis for frisking Butler. When Pergande found Butler, Butler was 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.
