Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 CR 79--J. P. Stadtmueller, Chief Judge.
Before RIPPLE, MANION, and KANNE, Circuit Judges.
Gregory Brown was convicted of three federal offenses stemming from two separate incidents where he illegally possessed a firearm. On appeal he challenges all three convictions on the ground that he was denied his right to choice of counsel as guaranteed by the Sixth Amendment. He also attacks his conviction on the third offense alleging that his arrest and the seizure of incriminating evidence violated his Fourth Amendment rights. We find no Sixth Amendment infringement, but remand for an additional finding on the Fourth Amendment question.
At about 10:30 p.m. on November 24, 1993, Milwaukee Police Officers Rebecca Pixley and Curtis Rueda were dispatched to investigate a complaint of prowlers at 3259 North 48th Street, a high-crime area in Milwaukee. An agitated woman met them at the scene and described the prowlers as two black males about twenty-five years old, one approximately 5 feet7 inches tall, stocky, and wearing an Army jacket, a hood, and dark clothing, and the other about the same height, thin, and wearing a black knit skull cap, black jacket, and black pants.
Meanwhile just down the street, Officers Joseph Erwin and Jesse Benitez were driving south on 48th Street with their headlights off when they noticed a black male in dark clothing sitting in the front passenger seat of a maroon station wagon parked north-bound at 3236 North 48th Street. A second black male in dark clothing (defendant Brown as it turned out) walked from the south side yard of that address, entered and started the station wagon, and drove away northbound at a normal speed with the headlights on. The officers immediately turned their squad car around and joined Officers Pixley and Rueda at the scene where they obtained a quick description of the alleged prowlers. Believing the profile matched the two men they had just observed driving away, Officers Erwin and Benitez caught up with and stopped Brown and his passenger about six blocks away. There is no indication that Brown was speeding or ever attempted to flee.
Concerned with what he might encounter, Officer Erwin yelled to Brown to shut off the car, step out, and come back to the squad car. Brown complied and Officer Erwin immediately handcuffed him, patted him down, and placed him in the squad car. While this was occurring, Officer Benitez had the passenger, Ronald Jones, step out of the car for questioning. As a safety precaution, Officer Benitez then scanned the vehicle with his flashlight for weapons. Under direct examination at an evidentiary hearing, Officer Benitez testified to what followed:
Q. And when you did that, did you observe anything?
A. Yes, I did. I seen--I observed a black bag.
Q. Was there anything about that black bag that drew your attention?
A. It was partially open. Inside the black bag was a shiny chrome object, it looked like to be metal of some kind.
Q. And did you have your flashlight on this object?
Q. What did you do upon seeing the shiny chrome object?
A. I thought it to be a weapon so I took another--moved in closely and took another look at it and opened the bag a little bit farther up to see what was in that, what kind of object, shiny object it was.
A. I seen a very large handgun.
The black bag also contained a second handgun, ammunition, handcuffs, a black knit mask, and a scanner. Officer Benitez then handcuffed Jones, placed him under arrest and put him in another squad car that had just pulled up. Officers Pixley and Rueda arrived soon thereafter. ...