The pat-down search of Kaulfuerst was lawful because police had probable cause to arrest him for disorderly conduct, even though police had not arrested him for that offense.
Police responded to a call about a disturbance and found an intoxicated and agitated Kaulfuerst, his knuckles swelling from punching a street sign. Kaulfuerst told police he had been wrestling with his brother, who lived nearby, and became upset after losing a match. The police decided to drive Kaulfuerst to his brother’s house to check on the welfare of the brother, and before they put Kaulfuerst in the squad car they did a pat-down search on him. The search turned up marijuana. (¶¶3-5).
The search was lawful under the reasoning of State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277, which upheld the search of Sykes’s wallet because police had probable cause to arrest Sykes for trespass, even though the police hadn’t in fact arrested Sykes for that offense:
¶11 The case now before us is very similar. Here, officers were aware of the following facts prior to the challenged search: around 11 p.m. in a residential neighborhood, Kaulfuerst had intentionally struck a street sign hard enough to injure his knuckle and loud enough to disturb at least one local resident, and when the resident addressed the matter with Kaulfuerst, Kaulfuerst confronted him on his property in a highly agitated state and with fists clenched.
¶12 …. The objective facts possessed by the officers constituted probable cause to believe Kaulfuerst had engaged in conduct which was unreasonably loud or otherwise disorderly and did so under circumstances which tended to cause or provoke a disturbance. See Sykes, 279 Wis. 2d 742, ¶31. While we do not know whether a jury ultimately would have convicted Kaulfuerst of disorderly conduct if that offense would have been charged and tried, the officers had probable cause to arrest him for the offense prior to the search of his person. ….