*1 possession, manu- prohibit any strued facture, made hypodermics or law- use of America, of UNITED STATES 620.09of the Codified Ordi- by ful Section Plaintiff-Appellee, nances. used vio- (f) Any drug paraphernalia KINNEY, Timothy Defendant-Appellant. be seized and lation of this section shall Municipality. forfeited No. 79-5247. any of this section or (g) provision If any person Appeals, thereof to or of applicatiоn United States Court invalid, the invalidi- is held circumstance Sixth Circuit. or provisions does not affect other
ty Argued April 1980. which can be applications of section provision without invalid given effect 15, 1981. Decided Jan. provi- this end application, or 13, 1981. Rehearing Denied Feb. sions of this section severable. provi- (h) violates any Whoever (a), (c) (b), guilty or is paragraphs of
sions degree. of the second
of a misdemeanor has been con-
If the offender (a), of paragraphs
victed violation of (c), subsequent violation
(b), or of is a misdemeanor paragraph
same any of degree.
first Whoever violates (d) guilty of provisions paragraph degree.” a misdemeanor of the first
of 3. That Section 620.04
Section Ordinances, by Ordi- enacted
Codified 228-75, be, February passed nance is, repealed. hereby hereby this That Ordinance
Section emergency measure nec-
declared be preservation for the immediate
essary health, safety welfare public Parma, and for the further reason
City of drug paraphernalia is a
that sale use and serious
presently-existing regula-
youths requires immediate
tion, this imme- Ordinance shall become
diately upon receiving effective affirm-
ative vote two-thirds all members approval the May-
elected to Council and
or, the earliest otherwise from allowed law.
period Kuczma /s/ Kenneth G. 7,1980 January
PASSED: OF COUNCIL PRESIDENT ATTEST: January 9,1980 Bernard J. APPROVED: Survoy /s/ OF CLERK COUNCIL /s/ Petruska John PARMA, OF MAYOR, WITH THE CITY FILED OHIO January 9,1980 MAYOR:
The Kinney teller who knew identified the robber “Kenny” as someone named whom she had seen in the bank with Kin- ney. agents got Kinney’s address from address, the bank and went to that Kinney’s Kinney mother’s home. ar- agents speaking rived while the to his being mother and at the bank that admitted morning. agents He told the that he had shooting been convicted brother-in- agents Kinney law. also told the that he apartment lived with his in her girlfriend Faye on Street. agreeing agents
After to show the where lived, “Kenny” Kinney accompanied them neighborhood pointed another where he Jacobs, L. CJA), Thomas (court-appointed out a A house. resident a different Cleveland, Ohio, Russell Bensing, for de- neighborhood house the same told them fendant-appellant. that his Kenny brother-in-law was named se. Timothy Kinney, pro description Workman. The of Workman matched that of the bank robber. Williams, James R. Subse- Atty., U. S. John M. quently, three the tellers identified Siegel Stidham, Cleveland, Ohio, R. J. and Workman as the bank robber. plaintiff-appellee. March On when Workman was EDWARDS, Before Chief Judge, arrested, Kinney he told that he and JONES, Judges. KENNEDY and Circuit discussed the bank robbery together morning went the bank on JONES, NATHANIEL R. Judge. robbery. robbery they After Timothy Kinney appeals jury from a con- divided the money girlfriend’s Kinney’s at viction aiding abetting a bank rob- bery by force in violation of 18 U.S.C. An arrest warrant was for Kinney. issued 2113(a). § Two sеarches of Kinney’s resi- Not certain which apartment belonged to dence produced evidence which contributed Kinney’s girlfriend, agents saw to his conviction. Because the second parked car behind an apartment Faye search was constitutional and upon based placed Street under surveillance. evidence, untainted we affirm the district off, Later man entеred the car and drove judgment. court’s stopped by several miles it was agents. Upon being questioned the driver I. Kinney’s. identified himself as a friend of 22,1979, On February Kenneth Workman He told apart- no one at the Superior robbed the Savings and As- Loan ment, and had borrowed the car Cleveland, sociation in East Ohio. When a from Kinney went to work. Kinney teller unlocked the door to begin the morn- business, ing’s forced his apartment returned to the into point. the bank at gun Moments girlfriend where lived with his thereafter, a bank teller who apartment knew story downstairs of the two saw him in front of the bank. went building. police, She Assisted local the bank began. building. as the robbery Eight surrounded the men After locking the vault, tellers Work- participated in the arrest: three went be- man escaped $36,500 in unmarked cur- apartment; hind the two went tо a side rency. door; and three went to the front door. front, side, secured the and back office, sought a successfully and FBI on the doors knocked which issued was warrant. The warrant at the said, “FBI, open up.” which mentioned the ask, on an affidavit based “Who’s heard someone back door during gun found there,” scuffling sound. and heard *3 a male voice the side door heard agent at the that cоntends ask, replied, agent The “Who’s there?” agents the because sweep was unlawful a “FBI, pushing saw a hand up.” He open apartment his no lawful reason to enter the the window next to away curtain from the the that search arrest. He asserts the side door then agent The at door. was evi- warrant which issued based to in. prepared force unlawfully. The was seized dence which agеnts’ sweep the district court held that testified that The at the front door agent was apartment the lawful because the on the door waited after he knocked danger. agents’ potential fear of When the front door several minutes. FBI,” said, “Timothy, agent the opened and II. close the door. The Kinney started to arm and grabbed Kinney’s then PROTECTIVE SWEEP apartment onto the pulled him out of the Amendmеnt Con The Fourth was arrested and handcuffed porch. He unreasonable searches prohibits stitution porch. while on the 643, v. 367 U.S. Mapp and seizures. at the side and back doors agents (1964); 1081 1684, L.Ed.2d Wolf 81 6 S.Ct. the apartment subsequently the entered Colorado, 93 338 U.S. S.Ct. a apartment the front door. As through (1949). extraordinary L.Ed. 1782 Absent the gathered crowd outside the circumstances, have no government agents the arresting agent back into dwelling to a when an arrest is right search in a placing house instead of him car Louisiana, Vale outside it. effectuated given The reason exiting from the scene. 90 S.Ct. 26 L.Ed.2d the presence the because (1970). Supreme recently reaf Court Kinney’s shirt was unbuttoned. principle: firmed this the Agents entered apply equally In terms that to seizures of arresting the con- officer and property persons, seizures of alleged pur- ducted a Its a firm Fourth Amendment has drawn agents from pose protect was to line at the entrance to the house. Absent apartment. During who be might in circumstances, that threshold exigent examined the rooms agents a may reasonably be crossed without enough closely and closets to determine warrant. apartment. no one else was in 573, 100 v. New and some car-
agents
gun
confiscated
(1980).
Payton,
In
tridges
plain
which
view. The
proba
home with
officers entered a
then made a
of the basement
occupant,
cause
arrest the
but with
ble
upstairs apartment.
and the
Payton makes clear
out an arrest warrant.
that,
person’s
invading
girlfriend was reached
tele-
home,
show an
government agents
her
must
phone by agents
pеrmis-
who asked for
magn
of constitutional
exigent
sion to
refused.
circumstance
apartment.
search the
She
consent,
case,
Upon
itude.1 In this
there were no
her refusal to
then
Louisiana,
consent,
(a)
(b)
responding
to an
1. The
held in Vale
Court
emergency,
(c)
(d) goods
pursuit,
409-
hot
U.S.
90 S.Ct.
26 L.Ed.2d
destruction,
(e) objects
(1970),
process
about
that the burden
show
existence
jurisdiction.
exception
requirements
from the
an
to the
for warrant
to be removed
rests
in Vale
with the Government. The Court
exceptions:
listed five
Smith,
re-
armed accomplices
circumstances
meet
the burden
were not in
quired
justify
warrantless
search.
custody and the searches
resulted in the
arrest
accomplices.
of those
Similarly,
vigorously argued
The Government
Sellers was allegedly
defendant
travel-
oral
and in
argument
its brief
ing with armed
justifiable
because
confederates.
These cases
FBI
establish that
potential
protective sweeps
had a reasonable fear of
are lawful
from others
only
inside defendant’s
if a
potential
serious and demonstrable
even if
made
Smith,
exists. United States v.
for danger
apartment pursuant
this arrest
inside the
Accordingly, the testified, car. Hamilton “Once lowed the is AFFIRMED. court car) (the we observed that this driver Timothy was not Kinney, we asked EDWARDS, Judge, concurring. Chief Kinney was.” Timothy Westbrook where told them that panel unanimously Our holds that the Westbrook him the car. Westbrook also told conviction in this case must be affirmed loaned war- of armed rob- validity because of the search them he had been convicted Chapman, my F.2d I 1078-79 stated views on the 1977). (6th search issue in the context of a case Cir. entry. where there was lawful See United 638 F.2d —22 The officers testified that reentered Fay then returned
bery. the additional reason that the residence for Street. caused a shotguns sight by three agents, five FBI assisted There majority holds that gather. with shot- police officers city uniformed reason to reenter this was an insufficient Two the arrest. guns, made A menаcing. unless the crowd was home, one at a side rear of the placed at the not wait to determine police officer should The uniformed offi- exit, and two front. unfriendly friendly or whether the crowd rear, at the one at the placed cers were by could be avoided any problem where Hamilton side, Agent in front. and one door. The con- simply stepping inside the front door and announced pounded on the permitting defendant duct of the officers delay was some presence. There completing the complete dressing and opened by was defendant. On the door rights arrest inside with an advice of Hamilton, spoken who had seeing Agent to, as, pro- preferable reasonable if not before, day him the defendant tried shut majority of whisk- suggested by cedure рulled Hamilton defendant out door. away. ing the defendant of the two- the door onto the front Further, hold that a I would residence, where he was story, two-family justified was under the cir- defendant’s flat was dressed. handcuffed. cumstances of this case. Hamilton, there- gathering. A crowd was residence, fore, Kinney back into the cases recognize in most of the rights where he was read his constitutional to the approving the threat completed. Agents made a and the arrest apprehension than their greater sweep through prem- Briddle, cursory search or here. But see United States 1970). ises to look for other individuals. The dis- (8th As stated F.2d Cir. Gardner, checked trict court found Ninth United States (9th 1980): drawers and cabi- open closets but did not 627 F.2d 909-10 Cir. sup- nets. The facts are because the sparse pеrson When officers have arrested a pression hearing largely concerned residence, circum- inside his *6 thoroughly with whether the officers exception stances permits later, searched the house at that time or search of or all of the residence the search warrant. A they secured reasonably when the believe that officer gun was found on the bed in the bedroom on the might persons there be other No one playing. where the television premises pose who could some house, although agents was found in the them. heard noises in the rear of the house and safety their apprehension The officers’ for at a observed movement window. for justified. here was It was reasonable them to there was another
The arrest warrant authorized conclude that residence, in view of the Kinney’s to enter residence to effect his individual in the the back of the arrest. v. New of officers at 445 U.S. observations (1980). premises. they may What heard well S.Ct. Be- television, been which was on in the pulled Kinney through cause the had bedroom, have no of doorway they onto the when he started but would door, knowing conducting majority prohib- to shut the would a reсord Kinney The officers knew that had entering premises the officers from being He was arrested without first of serious offenses. securing Kinney’s permission. robbery. It He had advised is doubtful that would consider it for armed bank probation he was on necessary Agent to ask whether he wished Hamilton that shooting his brother-in-law. to reenter the house when he had been compa- pulled been observed through dоorway, whom, men, clothed, Cleveland, young on March in East of some other ny Westbrook, who had left resi- Ohio. dence, robbery. armed parole America, his associ- STATES also knew another of UNITED
The officers Plaintiff-Appellant, Workman, other bank Kenneth ates was course, jail, was in robber. Kin- a clue to provides he nonetheless but al., W. R. et WALTERS offi- likely associates. ney’s Defendant-Appellee. to know the whereabouts ought cers including in the residence persons other America, STATES UNITED might who undertake to members family Plaintiff-Appellant, no- misguided under some release him. helping tion of this to indicate FIRE nothing case HUNDRED SIXTY-TWO
There TWO ARMS, Defendant-Appellee. sweep or the either uncontradict- gave pretextual. The No. 78-3653. reason for testimony ed as to the it was conducted. Appeals, and the manner in which Court perilous officer is Sixth Circuit. occupation permitted enough even when officers Argued Aug. 1980. for their safe- precautions take reasonable Decided Jan. The additional intrusion ty. slight. interest was slight intrusions Court has endorsed such police. purpose protecting
for the instance, Terry v.
For (1968), permits L.Ed.2d 889
S.Ct. in the case of weapons search for stop. Chimel (1969), permits of an opening vicinity of drawers in the protection
arrested defendant for the ap-
arresting officers. the officers’ Since precau- was reasonable and the
prehension reasonable,
tions took were would
hold the lawful. *7 would, therefore, judgment affirm the
of the district court for these additional
reasons.