United States v. Lashawn Lowell Banks

282 F.3d 699 UNITED STATES of America, Plaintiff-Appellee, v. Lashawn Lowell BANKS, Defendant-Appellant. No. 00-10439. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 10, 2001. Filed March 5, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Randall J. Roske, Las Vegas, NV, for the defendant-appellant. J. Walter Green and Karyn Kenny, USLV-Office of the U.S. Attorney, Las Vegas, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada, Johnnie B. Rawlinson, District Judge, Presiding. D.C. No. CR-98-00269-JBR. Before: POLITZ, * W. FLETCHER, and FISHER, Circuit Judges. Opinion by Judge POLITZ; Partial Concurrence and Partial Dissent by Judge FISHER. POLITZ, Circuit Judge. 1 Lashawn Lowell Banks appeals his guilty plea conviction for possession of a controlled substance with intent to distribute, and for being a drug user in possession of a firearm. His plea followed the district court's denial of his motion to suppress certain evidence. Banks reserved his right to appeal. A close review of the record, counsel's arguments, and guiding principles, persuades us that a reversal and remand is in order.…

Opinion by Judge POLITZ; Partial Concurrence and Partial Dissent by Judge FISHER.

Lashawn Lowell Banks appeals his guilty plea conviction for possession of a controlled substance with intent to distribute, and for being a drug user in possession of a firearm. His plea followed the district court’s denial of his motion to suppress certain evidence. Banks reserved his right to appeal. A close review of the record, counsel’s arguments, and guiding principles, persuades us that a reversal and remand is in order.

BACKGROUND

The present action concerns the execution of a search warrant on Banks’ apartment by North Las Vegas Police Department officers and FBI agents. The officers positioned themselves at the front and rear of the apartment and followed the statutory “knock and announce” procedure by knocking loudly on the apartment door and announcing “police search warrant.” See 18 U.S.C. § 3109 . After fifteen to twenty seconds without a response, armed SWAT officers made a forced entry into Banks’ apartment.

Once inside, the officers found Banks in the hallway outside his bathroom. Banks, who obviously had just emerged from his shower, was forced to the floor and handcuffed. He…

dissenting in part, concurring in part.

The majority rules the entry in this case unconstitutional and in violation of § 3109 because the officers delayed only 15 to 20 seconds after knocking loudly on Banks’ apartment door and announcing “police search warrant.” Simply put, the police should have waited longer — how much longer is not specified — before they could lawfully assume that their knock and announcement had been heard, that Banks was not going to open the door voluntarily and that they were justified in forcing the door open with a battering ram. Op. at 704. I share my colleagues’ concerns that officers not peremptorily and forcibly invade the privacy of a suspect’s home, and it is disquieting to visualize Banks’ shock and embarrassment as he emerged naked and still soapy from his shower and confronted the officers who had just burst through his front door. Cf. United States v. Becker, 23 F.3d 1537, 1540 (9th Cir.1994) (“The sanctity of a person’s hopie, perhaps our last real retreat in this technological age, lies at the very core of the rights which animate the [fourth] amendment.”). Nonetheless, although this case admittedly is a close call, I cannot agree that the…