SECONDS MAKE A DIFFERENCE WITH SEARCH WARRANTS

How Much Time Should Officers Give Suspects To Come To The Door Before
Breaking It Down. With Courts Offering Varied Guidelines, The Answer
Remains Unclear.

"Open the door! Police search warrant!"

Lashawn Banks, who had been taking an afternoon shower, said he didn't
hear the command. But he did hear the loud boom 15 to 20 seconds
later, when officers used a battering ram to crack open his apartment
door.

Officers found him in the hallway, naked and soapy, and seized guns
and cocaine in his North Las Vegas, Nev., apartment. Banks pleaded
guilty to federal drug-related charges. Nearly four years later, the
U.S. 9th Circuit Court of Appeals in San Francisco voided the
conviction, after ruling 2 to 1 that officers had not given Banks
enough time to respond to their request.

How much time officers should give suspects to come to the door before
breaking it down is hotly debated in courts nationwide. And with no
specific time guidelines in place, the answer is basically unclear.

"Those seconds count," says Sheriff's Deputy Tim Carr, who trains
deputies in how to execute search warrants at the Los Angeles County
Sheriff's Academy. "It's allowing someone to arm themselves" or
destroy evidence, he says.

Those who challenge searches, meanwhile, invoke constitutional privacy
protections under the 4th Amendment, which prohibits unreasonable
searches and seizures.

One thing all can agree on is that there is a lot at stake in this
debate.

In cases where a judge can be convinced that not enough time elapsed
between the door knock and a forced entry, incriminating evidence
obtained in the search can be tossed out, making prosecution difficult.

Cases at issue generally concern searches in which damage is done to
private property. If officers enter a home through an unlocked door,
for example, it is difficult to challenge the search on the grounds
that not enough notice was given.

Another exception comes when knocking would endanger officers' lives
or allow a suspect to flee or evidence to be lost. Magistrates in some
states, though not in California, can even hand out "no-knock"
warrants if they agree in advance that it would be dangerous or
ineffective for officers to announce their presence .

The U.S. Supreme Court ruled in the mid-1990s that officers are
required under both common and constitutional law to knock and
announce their presence in most searches.

But other than requiring knocking, the Supreme Court decided that the
framers of the Constitution did not intend for specific rules to be
established.

Police officers must decide at the scene, after taking in a variety of
factors, such as the time of day and the size of the residence and
whether there are exigent circumstances. Later, judges are often asked
to rule on whether they were correct or incorrect.

Because searches are reviewed on a case-by-case basis, one court may
approve a 10-second delayed entry while another may find it
unreasonable, depending on the circumstances officers faced.

"The courts like the 'reasonableness' standard," says Charles
Whitebread, a USC criminal law professor. "Sadly, what I think they
don't consider is that it leaves the police confused as to what they
can do."

Prosecutors in the Banks case have asked the appeals court for a
rehearing, arguing that the original panel's overturning of the search
goes against what other circuit courts across the country have held.

In the panel's decision, Justice Henry A. Politz wrote: "The officers
heard no sound coming from the small apartment that suggested that an
occupant was moving away from the door, or doing anything else that
would suggest a refusal of admittance."

The officers, Politz continued, "were required to delay acting for a
sufficient period of time before they could reasonably conclude that
they impliedly had been denied admittance."

The dissenting justice, Raymond C. Fisher, wrote that because the
apartment was small, the officers could have reasonably believed that
Banks heard them knocking and was refusing to open the door.

Under those circumstances, "15 to 20 seconds is not an insignificant
amount of time to wait after a loud knock and announcement. Knock,
then count out the time to see for yourself," Fisher wrote.

A survey of 9th Circuit decisions in the last few decades shows how
several searches fared under judicial scrutiny. In 1964, the court
upheld a search in which officers kicked down a house door five
seconds after they knocked. In that case, they saw through a window an
occupant of the house turn and run from them and heard "footsteps
running in the wrong direction."

In August, on the other hand, the court found unreasonable a
five-second delay in an early morning search of a suspected drug
trafficker's apartment. The court ruled that the defendant, who shot
and wounded two officers in the belief he was being robbed, had not
been given enough time to ascertain who was at the door and respond to
the request to open it.

While 15 to 20 seconds was deemed insufficient by the majority in the
Banks case, similar time lapses were upheld in two cases in the 1970s.

In 1973, the court upheld a search in which officers knocked, heard
scampering sounds and forced entry after waiting 10 seconds. And in a
1974 case, it allowed a search in which federal narcotics agents
forced open the door of a Burlingame, Calif., resident 10 to 20
seconds after knocking and hearing a dog bark and some movement within.

Some legal observers say that, for the sake of uniformity, courts
should set specific standards.

"One would think that some fixed period would be acceptable," such as
waiting at least 20 seconds unless there are suspicious sounds coming
from inside the residence, USC's Whitebread says.

Yale Kamisar, a specialist in criminal procedure at the University of
Michigan Law School, agrees that guidelines are needed.

"You ought to have a bunch of veteran police officers get together and
work out some rules and regulations," Kamisar says. "You don't want to
lose a case because you didn't wait long enough."

Police say the results could be disastrous if they were constrained by
such rules while executing searches, which sometimes turn into
life-or-death situations.

"I don't think that's a fair burden to put on the Police Department,"
says Sgt. John Pasquariello, a Los Angeles Police Department
spokesman. "We don't stand there and look at our watches.

"A few seconds might be reasonable, if it's a one-bedroom
apartment.... If it's a multistory, cavernous place [where] someone
might have to walk a long way to get to you, it might take a little
longer," he adds. "We have to base it on what we feel is reasonable at
the time. Then again, it can always be challenged in the court."