After hearing arguments in October, 2003, the U.S. Supreme Court handed down a unanimous decision in the landmark knock and announce case, United States v. Banks, 02-473 (Dec. 2, 2003). The court has determined that 15–20 seconds is a sufficient amount of time for law enforcement officers to wait before forcibly entering a dwelling to execute a search warrant.
While the decision answers some nagging questions regarding wait times, the court’s ruling also challenges some previously recommended guidelines for officers to use when determining whether to enter a dwelling after knocking and announcing.
“I would have been shocked if it went the other way,” Greg Meyer, a Captain with the Los Angeles Police Department and police tactics consultant, said. “The court seems to appreciate the difficult challenges that law enforcement faces. This is a very common sense decision that promotes public safety by affirming a reasonable procedure the police use to fight crime.”
In 1998, officers from the North Las Vegas Police Department and FBI agents executed a search warrant for drugs at the apartment of suspected drug dealer Lashawn Banks. Officers followed standard procedure when they knocked loudly on Banks’ front door and said, “Police search warrant.” There was no immediate response from inside. Officers waited 15–20 seconds before forcibly entering the apartment.
Once inside, they found Banks naked, emerging from the shower. He testified that he had never heard the police. Banks’ attorneys argued that 15–20 seconds was not a sufficient amount of time for police to wait and that Banks was deprived of the opportunity to open the door for the police. The 9th Circuit Court of Appeals agreed. The case was then appealed to the U.S. Supreme Court where it was reversed in favor of the police.
Suspect’s Shower Irrelevant
The fact that the suspect was taking a shower is not relevant in determining how long police should have waited, according to Supreme Court Justice Souter. “[T]he facts known to the police are what count in judging a reasonable waiting time, and there is no indication that they knew that Banks was in the shower and thus unaware of an impeding search that he would otherwise have tried to frustrate,” Souter said in his decision.
Judge Souter’s remarks mirror those of Judge Fisher of the Ninth Circuit Court. Judge Fisher was the only justice to oppose the lower court’s ruling in favor of Banks. Apparently, the Supreme Court gave significant weight to Judge Fisher’s dissent when crafting its own decision.
The Grand Piano Theory
In Banks, law enforcement officers had correctly presumed that the suspect’s lack of a response constituted a refusal of entry in the eyes of the court. Therefore, a suspect’s permission or refusal is not at issue in this case. The court points out that “the crucial fact is not the time it would take Banks to reach the door but the time it would take him to destroy the cocaine.”
The police argued that as soon as they declared their presence to Banks, he could have easily made a mad dash to the sink to get rid of the cocaine. Therefore, the distance to the door is not as vital as the distance between the drugs and the nearest toilet bowl or drain. As Judge Souter wisely pointed out, “a prudent dealer will keep [cocaine] near a commode or kitchen sink.”
During oral arguments, defense counsel argued that the wait time issue rested upon whether officers had waited long enough to determine they were being denied admittance by suspect Banks. The Supreme Court ultimately disagreed. By example, the Court points out that if when a suspect is hiding a stolen grand piano in his home, the same level of urgency does not exist for officers executing a search warrant.
According to the Supreme Court, there is no basis for giving a longer wait time to a suspect living in a mansion “than the resident of a bungalow or an apartment like Banks” when dealing with evidence that could be easily destroyed.
Although many other federal and state cases have cited the size of the dwelling as a key factor in determining a corresponding wait time, the Supreme Court dismisses this thinking by stressing the importance of preserving the evidence over waiting long enough for someone to answer a door. Of course, the size of a dwelling is still a critical piece of information for police, but it should not figure in the calculation of the appropriate wait time when the evidence sought could be easily destroyed.
There could also be enough room in the Supreme Court’s decision to interpret the ruling as pertaining to other types of evidence, not just to cocaine. “This case gives the police a tool to justify forced entry after a reasonable time for other types of drugs or other types of evidence, [such as] small stolen property, documents of fraud, cash and counterfeit money that could be destroyed if the police give the suspect too much time to open the door,” Meyer said.
Supreme Court Rejects List of Factors
The Ninth Circuit Court had devised a list of factors for both officers and courts to consider when determining a reasonable wait time. The factors included: a) size of the residence; b) location of the residence; c) location of the officers in relation to the main living or sleeping areas of the residence; d) time of day; e) nature of the suspected offense; f) evidence demonstrating a suspect’s guilt; g) suspect’s prior convictions and, if any, the type of offense for which he was convicted; and h) any other observations triggering the sense of the officers that reasonably would lead one to believe that immediate entry was necessary.
However, the Supreme Court rejected this piecemeal approach, stating firmly that “[N]o template is likely to produce sounder results that examining the totality of the circumstances in a given case; it is too hard to invent categories without giving short shrift to details that turn of to be important in a given instance.”
Although the Supreme Court has wrapped up one Fourth Amendment case, there are a few more scheduled to be decided during this term. The following cases are still on the Supreme Court docket:
Maryland v. Joseph Jermaine Pringle— The Supreme Court will address whether officers can arrest the owner of a vehicle after all the occupants denied ownership of drugs and a large bank roll was discovered inside the vehicle. On Oct. 15, 2003, the Supreme Court found that police were correct in their belief that the owner had knowledge and control over the evidence even though it was found in the back of the vehicle while the owner had been seated in the front of the vehicle.
Jeff Groh v. Joseph R. Ramirez, et al— The Supreme Court will determine whether police violated the Fourth Amendment when a search warrant approved by a magistrate judge excluded explicit details of the items to be searched and seized, but the affidavit in the original warrant application contained a thorough accounting of the expected items. Also, should the officer who prepared the erroneous warrant be held personally liable?
State of Arizona v. Rodney J. Gant— The Supreme Court will determine whether it was proper for police to search a vehicle after they arrested a person who was a recent occupant in that vehicle, but was not in the vehicle at the time of the arrest and was not aware of officers prior to exiting the vehicle.
Joan Hopper is a litigation paralegal at Hassett & Donnelly, P.C. in Massachusetts and may be reached at email@example.com.