United States v. Timothy Kinney ( 1981 )

NATHANIEL R. JONES, Circuit Judge.

Timothy Kinney appeals from a jury conviction for aiding and abetting a bank robbery by force in violation of 18 U.S.C. § 2113(a). Two searches of Kinney’s residence produced evidence which contributed to his conviction. Because the second search was constitutional and based upon untainted evidence, we affirm the district court’s judgment.

I.

On February 22,1979, Kenneth Workman robbed the Superior Savings and Loan Association in East Cleveland, Ohio. When a teller unlocked the door to begin the morning’s business, Workman forced his way into the bank at gun point. Moments thereafter, a bank teller who knew Kinney saw him in front of the bank. She went into the bank just as the robbery began. After locking the tellers in the vault, Workman escaped with $36,500 in unmarked currency.

The teller who knew Kinney identified the robber as someone named “Kenny” whom she had seen in the bank with Kinney. FBI agents got Kinney’s address from the bank and went to that address, which was Kinney’s mother’s home. Kinney arrived while the agents were speaking to his mother and admitted being at the bank that morning. He told the agents that he had been convicted of shooting his brother-in-law. Kinney also told the agents that he lived with his girlfriend in her apartment on Faye Street.

After agreeing to show the agents where “Kenny” lived, Kinney accompanied them to another neighborhood where he pointed out a house. A resident of a different house in the same neighborhood told them that his brother-in-law was named Kenny Workman. The description of Workman matched that of the bank robber. Subsequently, three of the tellers identified Workman as the bank robber.

On March 1, 1979, when Workman was arrested, he told agents that he and Kinney discussed the bank robbery and that they went to the bank together on the morning of the robbery. After the robbery they divided the money at Kinney’s girlfriend’s apartment.

An arrest warrant was issued for Kinney. Not certain which apartment belonged to Kinney’s girlfriend, agents saw Kinney’s car parked behind an apartment on Faye Street and placed it under surveillance. Later a man entered the car and drove off, and after several miles it was stopped by agents. Upon being questioned the driver identified himself as a friend of Kinney’s. He told the police no one was at the apartment, and that he had borrowed the car from Kinney before Kinney went to work.

The agents returned to the apartment where Kinney lived with his girlfriend in the downstairs apartment of the two story building. Assisted by local police, the agents surrounded the building. Eight men participated in the arrest: three went behind the apartment; two went to a side door; and three went to the front door. The agents at the front, side, and back of the apartment knocked on the doors and said, “FBI, open up.” The agent at the back door heard someone ask, “Who’s there,” and heard a scuffling sound. The agent at the side door heard a male voice ask, “Who’s there?” The agent replied, “FBI, open up.” He saw a hand pushing a curtain away from the window next to the door. The agent at the side door then prepared to force his way in.

The agent at the front door testified that after he knocked on the door he waited several minutes. When the front door opened and the agent said, “Timothy, FBI,” Kinney started to close the door. The agent then grabbed Kinney’s arm and pulled him out of the apartment onto the porch. He was arrested and handcuffed while on the porch.

The agents at the side and back doors of the apartment subsequently entered the apartment through the front door. As a crowd gathered outside the apartment, the arresting agent took Kinney back into the house instead of placing him in a car and exiting from the scene. The reason given was the presence of the crowd and because Kinney’s shirt was unbuttoned.

Agents entered the apartment before Kinney and the arresting officer and conducted a protective sweep. Its alleged purpose was to protect the agents from anyone who might be in the apartment. During the sweep the agents examined the rooms and closets closely enough to determine that no one else was in the apartment. The agents confiscated a gun and some cartridges which were in plain view. The agents then made a sweep of the basement and the upstairs apartment.

Kinney’s girlfriend was reached by telephone by agents who asked for her permission to search the apartment. She refused. Upon her refusal to consent, agents then secured the apartment, took Kinney to the FBI office, and successfully sought a search warrant. The warrant which issued was based on an affidavit which mentioned the gun found during the protective sweep.

Kinney contends that the protective sweep was unlawful because the agents had no lawful reason to enter his apartment after the arrest. He asserts that the search warrant which issued was based on evidence which was seized unlawfully. The district court held that the agents’ sweep of the apartment was lawful because of the agents’ fear of potential danger.

II.

PROTECTIVE SWEEP

The Fourth Amendment of the Constitution prohibits unreasonable searches and seizures. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1964); Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Absent extraordinary circumstances, government agents have no right to search a dwelling when an arrest is effectuated outside it. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The Supreme Court recently reaffirmed this principle:

In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Payton, police officers entered a home with probable cause to arrest the occupant, but without an arrest warrant. Payton makes clear that, in invading the privacy of a person’s home, government agents must show an exigent circumstance of constitutional magnitude.¹ In this case, there were no exigent circumstances which meet the burden required to justify a warrantless search.

The Government vigorously argued at oral argument and in its brief that the search was justifiable because the FBI agents had a reasonable fear of potential danger from others inside defendant’s apartment. However, even if they made this arrest inside the apartment pursuant to an arrest warrant, agents could only have searched the immediate area within the defendant’s control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The decisions which hold that police officers have a right to make protective sweeps of an arrested persons residence are distinguishable. In those cases the police had grounds to believe that there were other persons inside the residence who were potentially dangerous. United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); McGeehan v. Wainwright, 526 F.2d 397 (5th Cir. 1976); United States v. Sellers, 520 F.2d 1281 (4th Cir. 1975), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 728 (1975); United States v. Smith, 515 F.2d 1028 (5th Cir. 1975). In Bowdach and Smith, armed accomplices were not in custody and the searches resulted in the arrest of those accomplices. Similarly, in Sellers the defendant was allegedly traveling with armed confederates. These cases establish that protective sweeps are lawful only if a serious and demonstrable potential for danger exists. United States v. Smith, 515 F.2d at 1031.

In contrast, no objective facts support a reasoned fear on the part of the FBI agents at the defendant’s apartment.² The agents had already arrested the defendant’s only accomplice. In fact, at the time of the arrest and the initial search of the residence Workman was already in custody. No weapons were brandished by anyone in the house and there were not any cars around the apartment. An opposite holding would permit government agents to infer danger from any occupied dwelling. The indicia of danger in this case, the movement at the window and the noise at the back door, are likely to occur in any occupied dwelling. These noises do not constitute a physical threat. Therefore, we hold that the government has failed to demonstrate exigent circumstances which would justify a warrantless search.

The government also contends that it was necessary to enter Kinney’s apartment because he was not fully clothed and because a crowd formed outside his home. Neither contention has merit. The defendant did not request permission to secure additional clothing and did not consent to an entry of his home. Entry cannot be justified on these grounds. See, United States v. Mason, 523 F.2d 1122 (D.C.Cir. 1975). The crowd outside the apartment was not threatening. If the FBI agents’ wished to protect themselves from the crowd, leaving promptly with the defendant would have been the prudent action to take. Judge Kennedy’s suggestion that “March” weather justified taking the defendant back into his house is not supported by the record. There is no evidence that the defendant gave the police permission to enter his home. In fact, as discussed above, the agents unsuccessfully attempted to get permission for a search from Kinney’s girlfriend before securing a warrant for the second search of his apartment.

The second search was constitutional. The government included fruits of the illegal search in the affidavit submitted to obtain the search warrant for the defendant’s apartment. However, substantial evidence which was not tainted by the search supported the search warrant for the defendant’s residence. The search warrant is invalid and the defendant is entitled to a new trial without the illegally seized evidence only if tainted evidence is of more than minor importance. United States v. Grunsfeld, 558 F.2d 1231 (6th Cir. 1977).

Accordingly, the judgment of the district court is AFFIRMED.

1 . The Supreme Court held in Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409-(1970), that the burden to show the existence of an exception to the requirements for a warrant rests with the Government. The Court in Vale listed five exceptions:

(a) consent, (b) police responding to an emergency, (c) hot pursuit, (d) goods in the process of destruction, and (e) objects about to be removed from the jurisdiction.

2 . Judge Kennedy would uphold a protective sweep on facts that report only a part of the record. Th'e dissent seeks to justify the search on the possible presence of a dangerous person by noting that the defendant “had been observed in the company of other young men, one of whom, Mr. Westbrook, had just left the residence, and was on parole for armed robbery ...” and another associate, Kenneth Workman, a confessed bank robber. To give a complete picture, we must add several other facts from the record: the government agents had briefly interrogated the defendant on an earlier occasion without incident; the agents knew at the time of arrest that the defendant had not performed the armed robbery; and Westbrook had been stopped moments before defendant’s arrest and quizzed without incident. The record viewed in its entirety demonstrates no exigent circumstance that would permit a warrantless search.

In addition, the dissent has misread the Supreme Court’s decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), as vindicating broad intrusions into the defendant’s home. The Supreme Court in Chimel permitted the police officers to perform a very limited search of the area within the reach of an arrested person. Terry permits police officers to frisk suspected criminals in public. In this case, the defendant was handcuffed on the porch outside his apartment, so that nothing inside the apartment was within his reach.

Obviously, the Constitution does not limit the government officers’ rights to protect themselves from assault when their fear is reasonably based on objective facts. However, as Judge Kennedy admits, the Courts of Appeal which have considered this question have almost uniformly held that significant indicia of danger must be present to warrant a protective sweep. The record shows the absence of any such indicia in this case. Citizens have a right to be free from any unnecessary government intrusion. The dissent suggests that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), authorized the agents to go back into defendant’s apartment. Since the record uncontrovertably demonstrates that the arrest was accomplished on the porch outside of the dwelling, Payton provides no basis for entry. In fact, Payton made clear that, even with probable cause, the government must first secure an arrest warrant in order to invade the privacy of a defendant’s home. The limiting language in Payton cannot be transmitted into the basis for eviscerating the Fourth Amendment safeguards established in Chimel and its progeny.