By GINA HOLLAND, The Associated Press
WASHINGTON (AP) -- A case involving a drug suspect who emerged from a shower to find armed officers in his apartment is giving the Supreme Court a chance to clarify how long police must wait before breaking into a home to serve a warrant.
While some justices seemed sympathetic to the plight of the soapy suspect during arguments Wednesday, they did not appear ready to give officers a strict time limit.
Police are concerned that it could take just seconds to flush away drugs or other evidence being sought, several justices said.
The case presents the issue of what is a reasonable wait before officers can presume they are being denied entry. Justices have never directly considered how long is required.
The case was brought by LaShawn Banks, whose shower was interrupted in 1998 by masked and heavily armed officers who were looking for drugs in his Las Vegas apartment. They had knocked and announced themselves, then waited 15 seconds to 20 seconds before using a battering ram to break down the door.
Banks’ lawyer, Randall Roske, told the justices that amount of time “is virtually nothing at all if you’re in the bathroom on the toilet, in the bedroom naked.”
But Bush administration lawyer David Salmons said it was a painfully long time to the officers, who worried that he was destroying evidence or preparing for a confrontation.
Salmons argued that 15 seconds to 20 seconds is “nowhere close to the constitutional line” and to rule otherwise “poses threats to officers on the front lines.”
The Supreme Court has said that in most cases officers are required to knock and announce themselves, under the Constitution’s Fourth Amendment ban on unreasonable searches. There are exceptions, for example if police have reason to believe a suspect would be dangerous or destroy evidence. Officers usually must get a special warrant from a judge for a no-knock raid, but sometimes can make on-the-scene judgments.
Police raids such as the one at Banks’ apartment are common, and sometimes are filmed for police television shows.
In May, a New York City woman went into cardiac arrest and died after a dozen heavily armed officers broke into her home at dawn _ and realized they had the wrong apartment soon after they entered.
The Las Vegas police and federal officers found 11 ounces of crack and three guns during the raid of Banks’ apartment. He served four years of an 11-year prison sentence before his conviction was overturned.
The 9th U.S. Circuit Court of Appeals said officers should wait “a significant amount of time” before making a nonforced entry, and a “more substantial amount of time” between knock and entry if property would be destroyed. The court did not define what is significant or substantial.
Justice Antonin Scalia questioned if an officer should not have to wait a little longer than usual “before he rips my door down.”
Other justices asked who pays when officers damage a home. The government, Salmons said.
There also were concerns about whether someone could ask for a copy of the warrant before opening the door, and whether there was an official law enforcement recommendation for how long to wait.
“Does it make a difference if the person says `Wait a minute, I’m in the shower. I’m coming?”’ Justice Sandra Day O’Connor asked.
Salmons said that police have to worry about suspects getting rid of evidence and cannot wait.
“The question, ultimately, is going to be how long does 15 or 20 seconds seem to them,” said Susan Herman, a professor at Brooklyn Law School. She does not expect the court to use the case to give officers strict rules to follow.
Justice Ruth Bader Ginsburg pointed out that 20 seconds is long enough for most people to answer the telephone but that extra time probably would not have given Banks enough time to finish his afternoon shower.
Scalia joked that they could use his case to spell out “the shower rule” for law officers.
The case is United States v. Banks, 02-473.