Justice Sandra Day O'Connor wonders if it's unconstitutional to bash down someone's door if he shouts, "Wait, I'm in the shower, I'm coming." Salmons seems to feel that the suspect may "have the drugs with him in the shower." If his crack was dirty, say, from the last time he flushed it down the toilet.
Stevens is still hung up on the statute. The statute requires "refusal" to admit the cops. Silence is not refusal, he says. Salmons replies, "That is the way the statute is worded. But this court has never construed the statute to be read literally."
Hold the phone.
This is a court that is rabid about construing statutes literally. This is a court that would read Dada poetry literally. They are strangely satisfied with this answer.
Justice Stephen Breyer suggests that "refusal" alone cannot trigger 3109: As he posits: Suppose the person behind the door says, "Oh, the police! Welcome! Just wait one minute while I flush these drugs down the toilet—it'll just take a sec." That isn't refusal to open the door. Salmons repeats that 3109 is not meant to be read literally.
Randall J. Roske represents Banks. He starts by warning the justices that this case is about whether their doors are sacred. This "next-time-it-could-be-you" tactic never works with the justices since they so rarely deal crack from their homes.
Chief Justice Rehnquist asks why the 9th Circuit stressed the property-damage aspect of Banks' case. Roske starts to say that in Las Vegas "we have a statute …"
The chief interrupts with: "Well, we have a case, Ramirez, which the 9th Circuit didn't even cite!" Roske tells him the court could find the 9th Circuit "flat wrong" and still affirm their decision. He's practically begging: Cut those loonies loose!
Here's where Breyer points out that other circuits have found 10 to 15 seconds a permissible wait; that one even found six seconds OK. Roske responds that "the modern marvel of indoor plumbing provides one with the opportunity to destroy evidence … and also to shower oneself."
Scalia has had it with the showers. "What does the shower have to do with it? Your constitutional reasonableness is the time it takes someone to complete a shower, dry himself, and grab a towel? Why is the shower relevant?" Roske replies that we have no idea how long Mr. Banks would have continued his shower.
"We don't know and we don't care," retorts Scalia.