Supreme Court to consider constitutionality of police search

WASHINGTON -- The Supreme Court agreed Monday to consider how long police with a search warrant must wait before breaking down a door, using as a test case the arrest of a Las Vegas man who was in the shower when the SWAT team stormed in.

An appeals court ruled that authorities acted unreasonably in using a battering ram to knock down Lashawn Lowell Banks' door just 15 to 20 seconds after demanding entrance.

The commotion interrupted Banks' shower -- and also violated the constitutional ban on unreasonable searches and seizures, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled.

The Supreme Court will consider this fall whether narcotics found during the search of Banks' Las Vegas apartment could have been used as evidence.

In 1997 the Supreme Court ruled that police armed with court warrants to search for drugs must knock and announce themselves unless they can show they had reason to believe a suspect would be dangerous or would destroy evidence if alerted to the raid. The Banks case is a follow-up to that decision.

The Bush administration urged the justices to use the case to clarify how long officers must wait during raids like the one on Banks' small apartment in 1998.

The appeals court decision "creates significant uncertainty -- and needless and potentially dangerous delays -- in a recurring aspect of police practice," justices were told in a filing by Solicitor General Theodore Olson, the administration's top Supreme Court lawyer.

Olson said Banks could have flushed drugs down the toilet while officers waited outside during the afternoon raid.

Banks' attorney, Randall Roske, said if officers had waited just a few more seconds, "it might have afforded (Banks) the chance to have met the intruders with the small dignity of a towel. It is just this sort of privacy interest which is at the very core of the Fourth Amendment."

He also said in filings that the Supreme Court should not set rigid rules that a 20-second delay during a police raid is constitutional. Courts should handle questionable searches on a case-by-case basis, Roske told the court.

Banks was sentenced to 11 years in prison for possession of drugs with intent to distribute and possession of a gun.

Officers were told by an informant that a drug dealer known as "Shakes" lived in the apartment. They knocked down the door after knocking and announcing that they had a search warrant. They forced Banks to the floor and handcuffed him, then moved him to a kitchen chair for questioning. Officers gave him some underwear, court records show.

"They only knocked once, that could become an issue. Should they have knocked twice?" said John Wesley Hall Jr., a specialist in search and seizure cases who sits on the board of the National Association of Criminal Defense Lawyers. "The poor guy was naked coming out of the shower. Fifteen seconds is not enough time."

James Tomkovicz, a criminal law professor at the University of Iowa, said it would be hard for the court to tell law officers how many seconds, or minutes, they have to wait before entering a home.

"There's no way they'll put a stopwatch on this," Tomkovicz said.

The case is United States of America v. Banks, 02-473.

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