Police can take cue from court on search warrants

Wednesday, Dec. 3, 2003 | 8:42 a.m.

A U.S. Supreme Court ruling involving a North Las Vegas man may have established a new method for how police should handle drug-related warrants, local law professors said Tuesday.

Tuesday's high court ruling that North Las Vegas police did not violate LaShawn Banks' rights when they waited only 15 to 20 seconds before breaking down his door may speed up the time police wait in similar cases, professors at the University of Nevada, Las Vegas' William S. Boyd Law School said. The Supreme Court ruled the time was sufficient because if police waited any longer the drugs they were searching for could have been destroyed.

The ruling means Banks, who was in the shower when police burst into his North Las Vegas apartment, will have to return to prison to serve the remaining seven years of his 11-year sentence for possession of cocaine and guns, his attorney said Tuesday.

In the past, search warrants have had to either list possible circumstances that may force police to break down a door or police have had to suspect at the scene that either their lives are in danger, evidence is being destroyed or the suspect is fleeing the scene, law professors said. These criteria are known as exigency requirements, or elements that speed up officer entry beyond what officers would consider a reasonable time for the door to be answered.

Now, under the Supreme Court ruling, all drug-related warrants will automatically assume exigency exists, UNLV law professors Kate Kruse and Raquel Aldana-Pindell said.

"There is going to be a per se assumption (in drug cases) that evidence will be destroyed regardless of whether they have any reason to believe that," Aldana-Pindell said. "It does away with the judicial oversight that was initially part of the Fourth Amendment."

Before this ruling, police who did not have prior judicial approval to expedite serving a warrant by breaking down the door had to hear people running or flushing toilets -- anything that might cue officers that the suspects were arming themselves, destroying evidence or fleeing the scene.

In the Banks case, police presented no such testimony at the evidentiary hearing, law professor Martin Geer said. Instead, officers testified that 15 to 20 seconds was a reasonable amount of time to wait.

The Supreme Court took it a step further. The justices ruled that 15 to 20 seconds was enough time to wait because drug suspects could flush evidence down the toilet if more time was allowed.

"It's reasonable that the (police officers) would have thought this. But the record does not reflect that this is what they thought," Geer said. "The fact that (the Supreme Court justices) presumed something that was in the minds of the officers is troubling to me."

In Banks' case, he said he was in the shower and did not hear police knock at the door. North Las Vegas police and federal agents said they found 11 ounces of crack cocaine and three guns in Banks' apartment.

Nevada law requires officers to knock and announce their presence, spokesmen with North Las Vegas and Metro police said. Neither department has a set time policy on how long officers are supposed to wait for a suspect to open the door, saying it depends on the situation.

"There are different situations for different search warrants," Metro vice and narcotics Capt. Frank Sutton said. "If you are serving a search warrant on an elderly person selling dope out of his house, you might give him a little bit more time than someone you know has a gun. It all depends."

North Las Vegas Police spokesman Justin Roberts agreed, adding that officers do not have to wait at all if they see the suspect or fear there is a danger to officers. By the time a search warrant is issued, police have already gathered a lot of detailed information about a suspect and generally know who they are serving, Roberts said.

"It's a case-by-case scenario, and you have to evaluate it on this case," Roberts said. "In this case, they felt that the 15 to 20 seconds was sufficient."

In the unanimous decision, the Supreme Court reversed a March 2002 9th U.S. Circuit Court of Appeals decision that police violated Banks' rights by not waiting long enough before breaking down this door.

The only reason the Supreme Court looked at the case was because of the criteria the 9th Circuit Court tried to establish for what amount of time is reasonable to wait before damaging someone's door, Geer said.