Appeal from the United States District Court for the Eastern District of Wisconsin. No. 81-CR-12 -- Terence T. Evans, Judge.
Pell, Circuit Judge, Floyd R. Gibson, Senior Circuit Judge,*fn* and Eschbach, Circuit Judge.
GIBSON, Senior Circuit Judge.
Douglas Paul Mattes appeals his conviction for possession of a firearm by a felon. 18 U.S.C. app. § 1202(a) (1) (1976). He asserts that the firearm should not have been admitted into evidence because it was obtained by means of an illegal search. Mattes makes two arguments in support of his position: (1) the City of Milwaukee police officer who searched Mattes had no official authority in the city where the search was conducted, the City of South Milwaukee, and (2) even if the officer had authority, he was not justified in searching Mattes.
In the early morning hours of November 29, 1980, Milwaukee police officer Eugene Grabowski responded to a complaint at a Milwaukee tavern. The tavern owner told Grabowski that there had been a fight between two customers resulting in glass being thrown and shots being fired into the jukebox and ceiling. The owner recognized one of the suspects as a member of the "Milwaukee Outlaws Motorcycle Club" (Outlaws), who was later identified as Edward Anastas. The owner could not identify the other suspect but described him as a 6'3", 225 pound, 25 to 27 year old white male with shoulder-length blond hair.
Later that day Grabowski was contacted by Sergeant Eric Slamka of the South Milwaukee Police Department. Slamka said that Anastas was in another bar, this one in South Milwaukee, along with several other members of the Outlaws. Grabowski and other Milwaukee police officers met with Slamka several blocks from the South Milwaukee bar to discuss plans for entering it to arrest Anastas. The group of officers entered the bar through its only two doors, some of them carrying shotguns. Mattes was one of five patrons in the bar, and he was wearing a cap with an Outlaws emblem. Grabowski saw Mattes stand up, look away from Grabowski, and move his hand to the area near his waist. Grabowski ordered all the patrons to put their hands on the bar and they complied. All the patrons, including Mattes, were frisked. Grabowski said that he frisked Mattes because he fit the description of the unidentified suspect. Mattes testified that he is 6'5" tall and weighs 320 pounds. Grabowski found a loaded.38 caliber pistol in Mattes's pocket. The district court found that the police entry into the bar took place about twenty-three hours after the incident in the first bar.
Mattes was indicted on January 27, 1981. On April 3, 1981, an evidentiary hearing was held before a magistrate on Mattes's motion to suppress physical evidence obtained as a result of the search in the bar. The magistrate, after finding the facts as described above, held that the search of Mattes was not justified because Mattes's hand gesture could not have given Grabowski reasonable grounds to fear for his safety, particularly in light of the number of officers at the scene. The district court declined to follow the magistrate's recommendation to grant Mattes's motion to suppress, saying that Mattes's semblance to the other suspect and his hand gesture gave Grabowski reason to fear for his safety; the police's advantage in numbers meant little when one bullet could end a life. The district court adopted the magistrate's recommendation in all other respects. The district court did not take issue with the facts as found by the magistrate. Rather it disagreed with the magistrate's conclusion that under those facts Grabowski did not have reason to fear for his safety. The district court also rejected Mattes's argument that Grabowski lacked authority in South Milwaukee.
Mattes was tried before a jury and was convicted on October 14, 1981. The district court imposed a sentence of one year and one day in prison.
Mattes's first argument is that Officer Grabowski, of the Milwaukee Police Department, lacked authority to make an arrest in South Milwaukee. His argument is based on the general rule in Wisconsin that police officers have no authority outside of the political subdivision in which they are officers. See Wis. Stat. Ann. § 66.32 (West 1965). However, there is an exception to this general rule when there is a request for assistance: "Upon the request of any law enforcement agency, . . . the law enforcement personnel of any other law enforcement agency may assist the requesting agency within the latter's jurisdiction, notwithstanding any other jurisdictional provision." Wis. Stat. Ann. § 66.305(1) (West Supp. 1981-1982).
The exception applies in the instant case. A representative of the South Milwaukee police, Sergeant Slamka, met with the Milwaukee officers in South Milwaukee, helped plan the strategy for entering the bar, and accompanied the Milwaukee officers into the bar. Even if Sergeant Slamka did not expressly ask for assistance, his involvement was certainly an implicit request for assistance.*fn1
Mattes's other argument is that Grabowski was not justified in frisking him. There is no question that a frisk implicates the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16-19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The Supreme Court has stated that a frisk can be justified even if an officer lacks probable cause to arrest if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27. The Court made clear that a mere "hunch" was not sufficient justification for a frisk. Id. Rather, "the police officer must be able ...