Justices hear case on `knock and announce'

Court ruled police search for drugs unconstitutional


WASHINGTON - When the police arrived at a Las Vegas apartment in July 1998 to execute a warrant to search for drugs, they knocked on the front door and called out: "Police search warrant." But LaShawn L. Banks, the resident, was taking a shower and did not hear them. After waiting 15 or 20 seconds, the officers used a battering ram to knock the door down. Entering the apartment, they found crack cocaine, three guns and $6,000 in cash.

Whether the officers should have waited longer was the question in a Supreme Court argument yesterday. The justices' answer could clarify a particularly murky area of criminal law: how the "knock and announce" requirement that the court has identified as a hallmark of a reasonable search of a private home is supposed to work in actual police practice. Assuming the police do knock and announce their presence, what happens next?

The case is an appeal by the federal government of a ruling by the 9th U.S. Circuit Court of Appeals in San Francisco, which found the search unconstitutional and the evidence therefore inadmissible at Banks' trial on federal narcotics and weapons charges.

Without saying exactly how long the police should have waited for Banks to open the door, the appeals court said that the 15- to 20-second interval was not long enough, given that there were no special circumstances involved in executing the week-old warrant to justify the nearly instantaneous destruction of property.

David B. Salmons, an assistant solicitor general arguing the government's appeal, said the question was whether the officers' entry was reasonable under the "totality of the circumstances," a test he called the "hallmark" of the Supreme Court's approach to applying the Fourth Amendment's prohibition on unreasonable searches. He called the 9th Circuit's approach "rigid" and insufficiently flexible, adding that 15 to 20 seconds "is a substantial amount of time" to wait given how easy it is to dispose of drugs behind a closed door.

Randall J. Roske, arguing for Banks, conceded that the "modern marvel of indoor plumbing does give the opportunity to destroy evidence." But Roske told the justices that it also provides the opportunity to take a shower in the privacy of one's home, as Banks was doing when members of a joint police-FBI task force burst in.

"What does a shower have to do with it?" Justice Antonin Scalia asked. "Is it your contention that a reasonable time is how long it takes to complete a shower?"

"We don't know how long Mr. Banks would have continued showering," Roske started to answer. Scalia interrupted. "We don't know, and we don't care," he said.

Earlier in the argument, various justices appeared skeptical of aspects of the government's argument, particularly the insistence by Salmons that whether the police destroy a door or enter through an unlocked one should have nothing to do with the determination of whether a particular length of time before entering was reasonable.

"You're telling me that it's just as reasonable to have to wait 15 seconds when entry requires walking in and when entry requires bashing the door down?" Scalia said to Salmons in an incredulous tone. "That doesn't reflect the totality of the circumstances," he added.

But whatever questions they had about the government's case, the justices appeared singularly unpersuaded by Roske's defense of the 9th Circuit's decision. Those whose votes he needed to have a chance of prevailing gave him little encouragement.

"Why isn't 15 to 20 seconds ample time to get to the door in a small apartment?" Justice Ruth Bader Ginsburg asked, noting that a telephone rings two or three times in that interval and "usually people pick up ... after the second ring."

And Justice David H. Souter observed that while "there might be all sorts of reasons" why a particular suspect could not get to the door - "they might be asleep or sick in bed with a virus" - the question was what time was reasonable "under the circumstances known to the officers."

Several justices emphasized the ease of destroying evidence when drugs were involved.

A federal law authorizes officers to break a door down if they are "refused admittance" after announcing their presence. But the justices seemed to agree that the statute did not literally depend on an explicit refusal.

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