Pubdate: Tue, 25 Feb 2003
Source: Daily Kent Stater (OH Edu)
Copyright: 2003 The Daily Kent Stater
Contact: http://www.stater.kent.edu/contact/
Website: http://www.stater.kent.edu/
Details: http://www.mapinc.org/media/1256
Author: Gina Holland

U.S. SUPREME COURT TO CONSIDER SEARCH WARRANT CONSTITUTIONALITY

WASHINGTON -- The Supreme Court agreed yesterday 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 drug suspect 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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