- The Washington Times - Monday, February 24, 2003

WASHINGTON, Feb. 24 (UPI) — The Supreme Court will decide whether police have to wait a certain length of time between announcing their presence and breaking down a door to serve a warrant, the justices indicated Monday.

A lower court has suppressed drug evidence found by police after one such forcible entry, saying officers had failed to wait a reasonable amount of time for a defendant to open the door.

For centuries under English and U.S. common law, police have been required to "knock and announce" their presence before entering a home.

This sometimes consists of officers yelling "police" before breaking down a door. But officers have argued in the past that they must enter a dwelling quickly to prevent destruction of evidence or prevent a suspect from getting a gun.

In the afternoon of July 15, 1998, Las Vegas police and the FBI served a search warrant at the apartment of Lashawn Lowell Banks.

An investigation had shown that Banks was selling cocaine at the apartment, according to court records.

Officers gathered at the front and rear of the two-bedroom unit. Officers loudly knocked on the front door and announced "police search warrant" loud enough for the officers in the rear of the apartment to hear it, according to court records.

When there was no response after approximately 15-20 seconds, the officers used a battering ram to knock down the front door.

Banks claimed he did not hear the officers knock because he was in the shower, but he did hear the battering ram. Officers found him standing naked just outside his bathroom. They handcuffed him and sat him on a kitchen chair, eventually giving him some underwear to cover himself, the court record said.

A search turned up three pistols, a bullet-proof vest, rock and crack cocaine and a scale.

Banks was charged with possession of a controlled substance with intent to distribute and unlawful possession of a firearm.

At trial, his lawyer argued that Banks's Fourth Amendment rights were violated because of the manner of the police forcible entry, and said that the evidence would be suppressed. When a judge rejected the argument, Banks pleaded guilty to two counts, reserving the right to appeal.

A divided federal appeals court in San Francisco reversed the judge on the suppression request.

The court ruled 2-1 that the officers had failed to wait a reasonable amount of time before forcing entry, rendering the search unconstitutional and in violation of U.S. law.

It came down to "exigent circumstances" — legal talk for whether there was a reason for entering so soon, such as preventing a suspect from destroying evidence.

There were no "exigent circumstances" in the Banks entry, the court majority said. In order for officers to evaluate such a necessity, the majority said, they should take into account the size of a residence, its location, the time of day, the offense and a suspect's prior convictions, among other things.

In asking the Supreme Court to review the appeals court's decision, the Justice Department said the ruling "threatens to complicate and confuse the process of executing search warrants, and to subject law enforcement personnel to unnecessary, and unacceptable risks."

The case should probably be heard early next term.

(No. 02-473, United States vs. Banks)

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