Wednesday, October 15, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: A contentious docket

9th Circuit takes center stage in current Supreme Court term

Last week, we noted that the U.S. Supreme Court, in the hopes that the justices might appear to be above the political fray, often seems to shy away from controversial cases during the terms that immediately precede presidential elections.

This year may be different.

A number of items on the current docket -- including several cases from the 9th U.S. Circuit Court of Appeals announced by the Supreme Court on Tuesday -- are certain to invoke passion from many quarters.

Today, the justices will hear arguments in a Fourth Amendment case from Las Vegas, involving a raid local police conducted in 1998 at the residence of LaShawn Banks. Police had obtained a warrant to search Mr. Banks' apartment, but when they arrived, he was in the shower. After knocking on his door, announcing they had a warrant, and waiting about 15 seconds, police officers used a battering ram to break down the door. There they found Mr. Banks, dripping wet, along with 11 ounces of crack cocaine.

The court must decide whether the police allowed sufficient time to pass between announcing their presence and shattering the door. The 9th Circuit said no.

Even if they have a search warrant, the court ruled, police should not forcibly enter a private home unless they fear for their safety or have reason to believe the person they seek will flee or destroy evidence. Officers should have given Mr. Banks more than a few seconds to respond.

This Supreme Court could establish firmer boundaries for police conduct during authorized searches.

The 9th Circuit also figures prominently in several cases announced on Tuesday. The first involves a case the justices declined to hear, involving medical marijuana. Beginning in 1997, the Justice Department had threatened to revoke the licenses of physicians who prescribed marijuana to their patients in those states that had legalized the medicinal use of the substance.

A group of doctors in California -- which legalized medical pot in 1996 -- sued on First Amendment grounds. The 9th Circuit sided with them. The court said so long as physicians don't help their patients obtain marijuana, doctors had every right to "frankly and openly" advocate its usage.

By refusing the case, the Supreme Court struck a blow for free speech and state's rights; the ruling will stand as law throughout the 9th Circuit, including in Nevada.

Another drug-related case before the court involves searches of motor vehicles crossing the U.S.-Mexico border. Manuel Flores-Mantano was stopped at a check point in Southern California, and as part of a routine search of his station wagon, his gas tank was removed and 37 kilograms of marijuana bricks were discovered inside.

The 9th Circuit ruled that the marijuana could not be used as evidence, because the search was unconstitutional. Law enforcement agents cited no probable cause -- only a general desire to prevent smuggling -- before dismantling the vehicle. It's OK to, say, use drug-sniffing dogs or scanning devices to conduct a routine search of a car; disassembling it, however, demands a heightened level of suspicion. Again, this case could set much-needed limits on the ability of the government to conduct routine, invasive searches of individuals and their possessions.

Finally, the justices agreed to review the 9th Circuit's decision that considered the phrase "under God" in the Pledge of Allegiance to constitute an illegal establishment of religion. The initial ruling was silly and overwrought, and has implications that go beyond the mere recitation of the pledge. The justices should have no trouble overturning this abomination, quickly and decisively.