SUPREME COURT TO CONSIDER CONSTITUTIONALITY OF POLICE SEARCH

WASHINGTON -- The Supreme Court agreed Monday to consider how long police
with a search warrant must wait before breaking down a door, using as a test
case the arrest of a Las Vegas man who was in the shower when the SWAT team
stormed in.

An appeals court ruled that authorities acted unreasonably in using a
battering ram to knock down Lashawn Lowell Banks' door just 15 to 20 seconds
after demanding entrance.

The commotion interrupted Banks' shower -- and also violated the
constitutional ban on unreasonable searches and seizures, the San
Francisco-based 9th U.S. Circuit Court of Appeals ruled.

The Supreme Court will consider this fall whether narcotics found during the
search of Banks' Las Vegas apartment could have been used as evidence.

In 1997 the Supreme Court ruled that police armed with court warrants to
search for drugs must knock and announce themselves unless they can show
they had reason to believe a suspect would be dangerous or would destroy
evidence if alerted to the raid. The Banks case is a follow-up to that
decision.

The Bush administration urged the justices to use the case to clarify how
long officers must wait during raids like the one on Banks' small apartment
in 1998.

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 during the afternoon raid.

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 basis, 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 were told by an informant that a drug dealer known as "Shakes"
lived in the apartment. They 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."

James Tomkovicz, a criminal law professor at the University of Iowa, said it
would be hard for the court to tell law officers how many seconds, or
minutes, they have to wait before entering a home.

"There's no way they'll put a stopwatch on this," Tomkovicz said.

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