Mock and announce.

Oral argument from the court.
Oct. 15 2003 6:48 PM

Mock and Announce

How long does it take to flush the 9th Circuit down the toilet?

There must be some unwritten opinion-writing law for 9th Circuit judges that holds:

Where at all possible, decide close cases for the defendant, particularly if he is indisputably guilty. Take the most extreme possible position you can, then craft a holding that reaches far beyond the facts of this case. Under no circumstances shall you cite controlling authority from the Supreme Court, or contradictory cases from your own or other circuits. Strive to write the opinion as though you are God and you invented The Law yesterday.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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I'm in the odd position of having witnessed two oral arguments in two consecutive weeks at which the party who prevailed in the 9th Circuit is unable to defend its reasoning. Increasingly, it feels as if there are always three parties at oral argument—both parties to the dispute and the 9th Circuit, lingering there, incomprehensible to all.

Today's case will have a profound effect on how police, and the writers of Law & Order, do business in the future. In United States v. Lashawn Banks the question is how long the police must wait before bashing down your door to search your home. The Fourth Amendment bars the state from unreasonable searches and seizures. One of the things that makes a search constitutionally "reasonable" is the presence of a warrant. Another is an old common-law requirement: the so-called knock-and-announce rule. The rule is codified in 18 USC § 3109, which provides that in executing a search warrant, "an officer may break open any outer or inner door or window of a house, or any part of a house … if, after notice of his authority and purpose, he is refused admittance." In cases of likely destruction of the evidence, or danger to life, the cops are free to bash first and knock later.

Illustration by Mark Alan Stamaty

All this means, as you'll recall from Wednesday nights, that Lennie and Ed and must usually knock, yell, "Police! Open the door," then wait some respectful interval before summoning the guys with the battering ram. How long? Well, the boys on the 9th Circuit seem to be of the opinion that one should give the drug dealer in question the opportunity to flush the coke, touch up his highlights, purchase a ticket from Orbitz, then climb out the fire escape, as the cops (to quote Ross from last week's Friends) count Mississippi-ly in the hall.

The 9th Circuit judges in question—one of whom was, in fairness, a 5th * Circuit judge sitting by designation (who died shortly after authoring the opinion in question, so one wants to be careful with the sarcasm)—were particularly moved by the fact that Mr. Banks was in the shower when the police only waited 15 to 20 seconds before bashing his door in. The word "soapy" appears several times in the opinion. Unclear if they might have decided differently had Banks been given an opportunity to rinse and repeat. The soapiness is clearly cause for heightened constitutional scrutiny. The panel, ignoring reams of precedent, chose to set up an elaborate decision matrix, with level of exigency on one axis and the need to damage property on another. It would take a team of NASA scientists to calculate when a no-knock entry or a brief wait would be appropriate using this calculus. The result is a rigid, yet incomprehensible, rule that would have cops waiting some unspecified "longer" period of time than 15 to 20 seconds in non-exigent cases where doors will be bashed.

Defendant Banks, by the way, wants to suppress the evidence found as a result of that search, including the three guns, 11 ounces of crack, a scale, and $6,000 in cash. Even though, as the 9th Circuit dissenter points out, the cops could have waited 50 seconds and Banks still would have been in the shower, unable to hear them knock.

Justice David Souter offers a hypothetical that carries through today's oral argument, questioning David Salmons, of the solicitor general's office, with a scenario in which a piano is the evidence in question (pianos being—I'm sure we can all agree—fairly hard to flush). Souter wants to know whether drug cases are different since the flushability of the key evidence almost by definition creates exigency. This is an obvious observation, but somewhat precluded by a 1997 case, Richards v. Wisconsin, in which the Supreme Court refused to uphold a per se rule getting rid of the knock-and-announce requirement in drug cases. Drugs (flushable or otherwise) can't automatically create exigency.

Salmons' position is that there can be no hard and fast rule dictating how long cops should wait. Officers on the scene must assess the totality of the circumstances. He says the only relevant question is how long it would take the suspect to get to the door.

No, says Justice John Paul Stevens, the important question under 3109 is not how long it would take the suspect to get to the door, but how long it would take "for the police to conclude he's not coming to the door." Because the statute only lets you knock down the door once you've been refused entry. That's right, we're listening for sounds of not-coming today.

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