Thursday, October 16, 2003
Copyright © Las Vegas Review-Journal

FOURTH AMENDMENT ISSUE: High court hears NLV case

Man claims police didn't give him time to get out of shower

Lashawn Banks NLV resident

WASHINGTON -- U.S. Supreme Court justices on Wednesday seemed unmoved by arguments that a North Las Vegas man should have had more than 15 seconds to get out of the shower to answer a knock at his door by police wielding a search warrant.

"How long it would have taken him to complete a shower has no relevance," said Justice Antonin Scalia. "We don't know, and we don't care."

Several justices noted the 11 ounces of crack cocaine found in Lashawn Lowell Banks' apartment near Owens Avenue and Pecos Road on July 15, 1998, could have been flushed down the toilet while the police waited.

"Why isn't 15 to 20 seconds ample?" Justice Ruth Bader Ginsburg asked Banks' attorney, Randall Roske of Las Vegas. "People usually answer their phone after it rings two or three times."

Roske said 15 to 20 seconds is virtually no time and argued that 60 seconds would have been a more reasonable interval.

"It's not just the guilty who are protected by the knock-and-announce rule," Roske said, referring to a federal statute requiring police to announce themselves before entering a residence.

Roske's comment drew an immediate response from Chief Justice William Rehnquist. "The guilty benefit more than the innocent," Rehnquist said.

The justices grilled Roske and a Justice Department attorney for an hour in a case that experts say tests Fourth Amendment protections against unlawful searches and seizures. A ruling is expected within three to four months.

Banks, who did not attend Wednesday's hearing, faces an additional seven years in federal prison if the Supreme Court rules against him. He was convicted after police discovered three guns as well as the crack cocaine in his apartment.

Banks' case came to the Supreme Court after the 9th U.S. Circuit Court of Appeals overturned his conviction last year. The appellate court ruled the police violated the Fourth Amendment.

David Salmons, assistant to the Justice Department's solicitor general, acknowledged the police were required to comply with the knock-and-announce rule in the Banks case.

But he described the 15-second wait by police to be a significant amount of time. The police waited as long as they did, Salmons said, because they did not want to violate the knock-and-announce requirement.

"This is simply not a case close to the constitutional line," Salmons told the justices.

Salmons argued the 9th Circuit opinion was inconsistent with previous rulings by the Supreme Court.

Instead of complying with a rigid rule crafted by the 9th Circuit for searches and seizures, Salmons said, police should have more flexibility to make decisions based on the totality of circumstances.

But Scalia challenged Salmons' assertion that police considered the totality of circumstances in Banks' case.

"Shouldn't the police wait longer than 15 seconds before ripping my door down and exposing my property to burglars? Why is that not part of the totality of the circumstances?" Scalia asked.

Justice David Souter agreed, saying the government was taking a narrow view of the totality of the circumstances.

Salmons said the police waited long enough to conclude they had been constructively denied entry into Banks' apartment and thus were entitled to break down the door.