Lashawn Banks of North Las Vegas was taking a shower when masked and heavily armed officers used a battering ram to break into his Las Vegas apartment on July 15, 1998, looking for drugs. Officers found 11 ounces of crack cocaine and three firearms during their search.
In March 2002, the 9th U.S. Circuit Court of Appeals ruled the drugs found in Banks’ home should not have been used as evidence because police did not wait “a reasonable time” for Banks to respond to police demands for entrance.
The court of appeals relied on high court rulings as recent as 1997 that police must knock and announce themselves unless they have reason to believe a suspect presents a danger or might destroy evidence.
But by 2003 -- continuing the ongoing erosion of the Fourth Amendment’s protections, often under the rubric of the “War on Drugs” -- the high court opted to overrule the 9th Circuit in the Banks case, holding a 20-second delay was ample, since any longer might give drug suspects time to flush evidence down the toilet.
Now, the court is being asked to allow police to wait -- no time at all.
In another case originating back in 1998, Detroit police did not bother knocking on Booker Hudson’s door, at all, when they arrived with a warrant to search for drugs. Police testify that instead they merely shouted that they had a warrant, and broke in 3 to 5 seconds later.
Police found crack cocaine. But in this new case addressing the same question, the Supreme Court debated Monday whether the drugs can be used as evidence against Hudson because officers were wrong not to knock and give Hudson time -- any time -- to come to the door. (Hudson, of Detroit, was given probation. Banks, of North Las Vegas, is serving 11 years.)
The state of Michigan, backed by the Bush administration, argues that even though officers made a mistake by rushing into Hudson’s home, the blunder was not related to the finding of the drugs and should not require a judge to bar that evidence.
Retiring Justice Sandra Day O’Connor -- who may or may not vote in the final decision -- seemed ready to rule against police, pointing out the Detroit officer testified he routinely went into houses without knocking and giving the homeowner any time to come to the door. She predicted that if the court levies no penalty, that policy would be adopted by “every police officer in America.”
In fact, local cops are actually writing letters about this case to the editor of my home-town paper, arguing that since most people don’t answer their doors in less than 30 seconds, anyway, and given that the current required wait is an essentially pointless 20 seconds, why not just “go for zero,” since it’s safer for the officers?!
(Hint to the irony-deprived: This expert testimony should result in the required wait being extended considerably longer than 30 seconds.)
It’s commonly argued that only the guilty need more time to answer the door -- the innocent have “nothing to fear.”
But the courts already allow police to explain to a judge the “special circumstances” that require a (presumably rare) “no-knock” warrant. The question here is whether police should, in effect, be allowed to turn the service of every warrant into a three step process in which they break down the door unannounced, race into the house and hold all occupants at gunpoint, and then shout, “Police! Warrant!”
And the “normalization” of that procedure certainly could hurt the innocent.
Upon opening the door and being given a chance to peruse a warrant, an innocent person might, at least in theory, have a chance to point out the address on the warrant does not match these premises. A law-abiding resident might also reasonably ask, “Please give me a second to chain up Fido so your men don’t shoot him.”
In fact, there are numerous jurisdictions in this country (simply Google “home invaders impersonating police”) where outlaw home-invaders have taken to yelling, “Police! Warrant!” in hopes of freezing their victims into inactivity for long enough to disarm them -- whereupon the raping and robbing can proceed with less risk to the perpetrators.
While the correct response to a uniformed policeman presenting a warrant in a calm and orderly manner is to peacefully comply, there are thus places in this country where it is not an irrational response for the head of the household to grab his own firearm when armed strangers dressed all in black break down the door unannounced in the middle of the night. Unnecessary deaths have been known to result.
These are the murky waters into which the high court will lower us, should the justices hold that breaking down doors without giving the occupants a chance to peacefully respond should now become “standard operating procedure.”
No, officers should not be required to stand around watching the minute hands of their watches if they hear the screams of hostages being executed behind a closed door. But in most cases, the time to plead special circumstances is when the search warrant is being sought -- assuming for the moment we still believe that officers still actually go hat in hand with sworn affidavits before skeptical magistrates, who apply such strict standards that they refuse as many warrants as they OK.