Seconds Make a Difference With Search Warrants

“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.”