U.S. v. Banks, Lashawn (12/02/2003)

Questions presented: Whether law enforcement officers executing a warrant to search for illegal drugs violated the 4th Amendment and 18 U.S.C. 3109, thereby requiring suppression of evidence, when they forcibly entered a small apartment in the middle of the afternoon 15-20 seconds after knocking and announcing their presence?

BY SHWETA GOVINDARAJAN, MEDILL NEWS SERVICE

On the afternoon of July 15, 1998, a team of North Las Vegas police officers in SWAT uniforms raided the apartment of Lashawn Banks, a suspected drug dealer. Executing a warrant, they knocked and waited about 15 seconds before breaking down the apartment door with a battering ram.

The sound was like a boom. Banks ran into the living room wet, naked and still soapy from an interrupted shower. He was confronted by a swarm of officers and ordered to drop to the ground. He lay face-down while a hooded police officer pinned him with one knee and handcuffed him, according to Banks.

Still naked, Banks was questioned for 45 minutes, according to police testimony. While the interrogation continued, officers ransacked his apartment. According to his lawyer, Banks was given underwear only after the interrogation began. The officers found 11 ounces of crack cocaine, as well as three guns, a bulletproof vest and a scale.

In December 1999, before the case was to come to trial, Banks filed a motion with the District Court for Nevada to suppress the evidence gathered that afternoon, citing the officers unlawful entry into his apartment. According to Banks recollection of the events, he scrambled out of the shower after hearing the commotion and found a team of hooded officers with guns drawn in the hallway. He said he was scared and wasnt sure whether the men were officers or robbers.

Banks testified that he told the officers he had been up taking drugs the night before the raid, but according to court records, officers said Banks did not appear to be intoxicated during questioning. They also testified that although Banks had asked to speak with his lawyers before answering questions, the interrogation continued.

"When a Miranda warning is given to a suspect and they make a request for counsel, thats where the interrogation has to cease," says Randall Roske, Banks defense lawyer.

After a judge denied Banks motion, he pleaded guilty and was sentenced to 11 years in federal prison. According to Roske, who is Banks third lawyer, Banks did not want to enter a guilty plea but was pressured to do so by his attorney at that time. When Roske was finally assigned to the case, he filed a motion to pull Banks guilty plea as well as to challenge the illegal search, Roske says.

"[The officers] heard nothing on which they could base a forced entry," Roske argues. "That's what makes this difficult to justify."

On Mar. 5, 2003, a divided 9th Circuit Court of Appeals panel reversed, holding that Banks 4th Amendment rights were indeed violated.

According to two appeals judges, Henry Politz and William Fletcher, Banks case raised two issues: whether the officers identified themselves as such outside of Banks door and whether they were refused admittance.

"Our task is to determine what constitutes a reasonable waiting period before officers may infer that they have been denied admittance," Politz wrote. According to Politz, the factors that an officer should consider before making a decision to enter without "an affirmative denial" include "size of residence, location of the residence, locations of the officers in relation to the main living or sleeping areas of the residence, time of day, nature of the suspected offense, evidence demonstrating the suspects guilt, suspects prior convictions and, if any, the type of offense for which he was convicted, and any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary."

In concluding, 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. Under these circumstances, we are not prepared to conclude that the delay of fifteen to twenty seconds after a single knock and announcement before forced entry was, without an affirmative denial of admission or other exigent circumstances, sufficient in duration to satisfy the constitutional safeguards."

The safeguard in question is the "knock and announce" procedure as it has evolved from the 4th Amendment, according to Roske. Although officers had a search warrant, they failed to properly knock and announce their presence, he says.

Judge Raymond Fisher dissented in part, writing, "Although this case admittedly is a close call, I cannot agree that the officers here acted outside the limits of established case law or more to the point even the criteria the majority articulates É Banks did not hear the knock or announcement in the first place; thus it would have made no practical difference if the officers waited substantially longer than 15 or 20 seconds."

Although Banks argued that his responses during the interrogation were obtained through coercion and therefore in violation of his 5th Amendment rights, Politz wrote, "The interrogating agents testified [that] neither detected any indication that Banks was under the claimed adverse influence, and both described him as calm and able to reason because the evidence supports the district courts conclusion that Banks statements were the product of rational intellect and free will, we hold that the district court did not err in finding a knowing and voluntary waiver."

Banks also argued that his statements were extracted in violation of his Miranda right to counsel. According to Politz, "The record reflects that when the agents asked Banks a question regarding his suppliers, he responded that he wanted to speak to an attorney before revealing his suppliers to see if he could secure some consideration, what one might deem a quid pro quo, for his cooperation with the officers. The agents reasonably understood Banks statement to mean he was willing to answer some questions but not others. That conclusion is fully supported by the record."

On Feb. 24, 2003, the U.S. Supreme Court accepted review in the case, and allowed Banks to have his case heard without costs.

On Dec. 2, 2003, the Court unanimously reversed, holding that the police actions in breaking down the door did not violate Banks' 4th Amendment protection against unreasonable searches.

In writing the Court's opinion Justice David Souter stressed that reasonableness is to be considered on a case-by-case basis from the perspective of the circumstances known to the officers at the time. The Court concluded that after 15 to 20 seconds without a response, the officers could reasonably have suspected that Banks would flush away the cocaine if they remained reticent.