Court agrees to consider limits of police searches

WASHINGTON -- The Supreme Court said Monday that it would consider a government appeal that asks if a SWAT team went too far by breaking down the door of a suspected drug dealer while he took a shower.

An appeals court ruled that authorities acted unreasonably by using a battering ram to knock down Lashawn Lowell Banks' door just 15 to 20 seconds after demanding entrance. The masked officers found Banks naked and soapy, emerging from the bathroom.

They also found cocaine, but the San Francisco-based 9th U.S. Circuit Court of Appeals determined that the evidence could not be used because the officers violated the constitutional ban on unreasonable searches and seizures.

The case is a follow-up to the Supreme Court's 1997 ruling that police armed with warrants to search for drugs must knock and announce themselves in most cases.

The Bush administration urged the Supreme Court to use the case to clarify how long officers must wait during raids like the one on Banks' Las Vegas apartment in 1998. Justices will hear arguments in the case this fall.

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.

"Fourth Amendment rules that are unduly complicated cannot give officers the guidance needed to make difficult on-the-spot judgments in the heat of the moment," Olson said in the filing.

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 base, 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 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."

He said the case is significant because law officers frequently use so-called "knock-and-announce" policies during searches.

Justices have sided with law enforcement in several recent Fourth Amendment search and seizure cases, including a ruling last June that police can question passengers on buses and trains and search for evidence without informing them that they can refuse.

The case is United States of America v. Banks, 02-473.