Should police wait after knocking?
High court hears search-and-seizure case Wednesday that will impact the war on terrorism.
WASHINGTON — Just before 2 p.m. on July 15, 1998, Lashawn Banks stepped into the shower in the bathroom of his two-bedroom apartment in Las Vegas.
As he soaped up, heavily armed men in bulletproof vests and black ski masks circled his building, taking up positions at both the front and back doors.
Amid the din of running water in his shower, Mr. Banks did not hear the knock at his front door. Nor did he hear the announcement that immediately followed the knock: "Police, search warrant."
What Banks did hear - 15 to 20 seconds later - was the crash of his front door being bashed in by members of a drug task force who had come to take down a suspected crack cocaine dealer.
The task force encountered Banks, wet, soapy, and naked, a few steps outside his bathroom.
Wednesday, in a case with implications for how the war on terror is waged, the US Supreme Court will examine whether the police tactics used in the Banks case amount to an unreasonable search and seizure in violation of Banks's Fourth Amendment privacy rights.
More specifically, they will consider what constitutes a reasonable amount of time between the initial knock and police announcement and the breaking down of a door by law-enforcement officers armed with a search warrant.
In addition, the court may also examine what the appropriate sanction should be in instances when police are too quick with a battering ram. Should all recovered evidence and statements be excluded from use at trial?
The search of Banks's apartment turned up three pistols, a bullet-proof vest, a scale, $6,000 in cash, and 11 ounces of crack cocaine. Banks, known on the street as "Shakes," pleaded guilty to possession of cocaine with intent to distribute and illegal possession of a firearm. He was sentenced to serve 11 years in prison.
But he reserved his right to appeal a key issue - whether the police had violated Fourth Amendment protections by failing to wait a "reasonable" amount of time before breaking down his door.
The reasonable delay is to give anyone inside the structure time to answer the door and either admit or refuse to admit the police. When in possession of a valid search warrant, police are authorized, if denied access, to break the door down to gain entry.
If no one answers, police may infer that the occupant is simply refusing to answer. But the critical question is how long must police wait after coming to that conclusion?
A federal appeals court agreed with Banks that the police acted too hastily in breaking down his door. The court ordered that everything seized by law-enforcement officials in the apartment could not be used as evidence against Banks.
It is now up to the justices to decide whether the appeals court got it right. Because the standard is one of "reasonableness" there are no obvious rules for when a particular police tactic used in a "knock and announce" case violates Fourth Amendment protections.
Instead, judges must balance the particular circumstances faced by law- enforcement officials at the scene against the privacy interests of the occupant of the home.
"Had the officers ... paused just a bit longer, it might have afforded respondent the chance to have met the intruders with the small dignity of a towel," says Banks's lawyer, Randall Roske of Las Vegas, in his brief to the court.
Law-enforcement officials take a different view. "That argument ignores the fact that such an interval would also allow for the complete destruction of evidence or successful escape," says Solicitor General Theodore Olson in his brief to the court. "Officers executing a search warrant routinely are required to make quick judgments based on reasonable probabilities and without knowing what is going on inside a residence," Mr. Olson says.
Tracey Maclin, a professor and Fourth Amendment scholar at Boston University School of Law, says that courts routinely uphold police in knock-and-announce cases because they typically involve suspects who are caught with guns or drugs.
But he adds, "Sometimes innocent people get caught up in these cases and there can be real harms. Even though you can replace a door or window, I'm not sure you can put a dollar sign on the fright and terror [of having a SWAT team burst through your front door]."
In 1994, a SWAT team in Boston chased retired Rev. Accelynne Williams, 75, through his home, breaking down his front door and then his bedroom door in a fruitless search for drugs. Mr. Williams later died of heart failure. Police discovered their warrant authorized searching the apartment above the Williams home.
Mr. Maclin says such mistakes happen more frequently than the public is aware. But such tragedies are unlikely to reshape the high court's approach to this area of the law, he says. "The court is not likely to think 15 seconds is a problem," Maclin says.
Other federal appeals courts have reached similar conclusions. The Fifth Circuit and Sixth Circuit have ruled that 15 to 20 seconds is reasonable before breaking down a door. The Eighth Circuit has upheld 20 seconds. The Tenth Circuit has upheld five to 12 seconds. The First Circuit has upheld 10 seconds, and the Seventh Circuit has upheld seven seconds.
But Maclin questions whether 15 seconds is a reasonable period of time when assessed from the perspective of a resident. "Time yourself," he says. "See how long it takes to get out of bed, put on a robe, go downstairs and answer the door. It will take at least 30 seconds, and that is assuming you are awake with the first knock," he says.