William H. Rehnquist: We'll hear argument now in No. 02-473, the United States v. LaShawn Lowell Banks. Mr. Salmons.
David B. Salmons: Thank you, Mr. Chief Justice, and may it please the Court: The officers in this case went to respondent's apartment on a weekday afternoon to execute a valid search warrant for drugs. They knocked loudly and announced their purpose. They waited at least 15 to 20 seconds without hearing any response and then forcibly entered the apartment. Those actions were reasonable under the Fourth Amendment. The Ninth Circuit concluded otherwise based on its adoption of a rigid, four-part categorical approach to knock and announce cases that is fundamentally at odds with this Court's precedents in two critical respects. First, it is inconsistent with the flexibility that is an essential feature of this Court's totality of the circumstances test, and second, it turns primarily on the need to damage some property in order to effectuate an entry, a factor that under this Court's reasoning in Ramirez should have no relevance to whether the entry at a particular time was itself lawful.
Antonin Scalia: Did the court here say that these were the only... the only four factors?
David B. Salmons: No, Your Honor. What the court here did... and I would refer the Court to... to page, I believe, 6a of the appendix to the petition for certiorari, actually beginning on page 5a. What the court does is it first creates four basic categories of knock and announce cases, and those categories are defined by two factors, one being the presence of exigent circumstances and the other being the need to damage property. And then on page 6a, what it does is its says that the essential question of whether the entry was reasonable is approached in the following way. First, we characterize... and this is the first full paragraph on page 6a. In addressing that inquiry, we characterize entries as either forced or non-forced, meaning either property is damaged or not damaged. The reasonableness must then be determined in light of the totality of the circumstances. Now, the court does list a number of factors that it thinks are relevant.
Antonin Scalia: And... and it says that... that those factors are not exclusive. They say they're... they include but are not limited to.
David B. Salmons: That's correct, Your Honor. And we take no issue with its list of non-exclusive factors in terms of whether those factors are relevant to the question under the totality of the circumstances test. The difficulty we have with the Ninth Circuit's approach in this case is that it has engrafted a rigid property destruction rule onto the Fourth Amendment's flexible standard of reasonableness and onto this Court's totality of the circumstances test. In other words, what the court of appeals does is it requires that where an entry is non-forcible, again meaning no property need be destroyed, then the officers must wait a significant amount of time before entry. But where some property damage is required, it would require, quote, an explicit refusal of admittance or the lapse of an even more substantial amount of time. And we think that that both is inconsistent with the totality of the circumstances standard because it imposes this rigid rule of property damage, and it's inconsistent with Ramirez which makes clear that the need to damage property, although it's certainly relevant to the ultimate question of whether the manner of the execution of the warrant is reasonable under the Fourth Amendment, it's not a relevant inquiry into whether the entry at a particular time is itself lawful.
David H. Souter: Doesn't... excuse me.
John Paul Stevens: Go ahead.
David H. Souter: No, please.
John Paul Stevens: I just had this... I was just curious about one aspect of property damage and so forth. If a citizen's property is damaged by this, who pays for the damage?
David B. Salmons: Well, Your Honor, there is... there is a statute that Congress has enacted and that is 31 U.S.C. 3724, and that authorizes the Attorney General to pay out sums of money up to, I believe, $50,000 to pay for any damage to property that may result from law enforcement activities. The way that it typically works, as I understand it, Your Honor, is that there is a significant fund set up based on forfeiture assets, and that those funds are used to pay for damage to property that may result during the course of... of a search or... or other law enforcement activities. Typically what happens is the law enforcement officers will not leave the premises until it is at least secured, and then they provide forms or other information so that individuals can make claims--
John Paul Stevens: I see.
David B. Salmons: --for any property that is damaged. And... and at least with regard to Federal law enforcement practices, those claims are readily paid out and there are funds to do so through the forfeiture proceeds.
John Paul Stevens: Of course, that would have... that would not apply. This was really a State search rather than a Federal search even though it was--
David B. Salmons: This was a joint search, Your Honor. This was a... the... the search was conducted by a joint task force. There were both local police officers. They were at the front door. There was an FBI agent at the back door. We think that this search, although it's not in the record... I don't know exactly how it occurred in this case with regard to whether any claims made for damage to the door. But because the FBI was involved in the search, typically that... they... they... that information would be provided.
John Paul Stevens: --I see.
Anthony M. Kennedy: Do they pay the claim if... if in fact the... the person is arrested and is there and is... and does have marijuana?
David B. Salmons: Your Honor--
Anthony M. Kennedy: Do... do you pay only if you're... do you get paid only if you're innocent?
David B. Salmons: --It... it depends, Your Honor. There are... there are factors that are considered. I'm... I'm not entirely sure of... of what all of them are. If there is... I would... my understanding is that if there is... certainly if there was another individual that lives in the home or... or otherwise, that even though the entry was... was reasonable and the need to destroy or damage property was reasonable, if there were other people in the home, the officer... the... the Federal law enforcement officials typically pay that.
Anthony M. Kennedy: Well--
David B. Salmons: And even when there's not, they often do as well.
Anthony M. Kennedy: --Well, this is a background issue, and... and I don't mean to take you away from talking about the Ninth Circuit's case in response to Justice Scalia's question.
David H. Souter: Mr. Salmons, may I ask you one question on... on your timing point? Your claim is that the... that the issue of property damage is irrelevant to the question of reasonable timing as distinct from reasonable execution. I understand your argument when we are dealing with a situation in which there is an... an exigency, a set of circumstances that said you've got to act fast. My question, though, goes to the situation in which there is no exigency. You're... you're executing a warrant for... to seize a stolen grand piano or something. No property is going to be destroyed if you wait a little bit longer. In that case, where there is no exigency, not at the beginning, none develops while you're waiting, doesn't the issue of property damage have some relevance to the question of timing? In other words, if there's no risk that anything is going away, isn't it reasonable for the police to say, okay, give them another minute or something like that?
David B. Salmons: We submit, no, Your Honor, and for the following reason, that in... typically the... the standard would... that would be applied in this kind of a context would be whether the officers had waited sufficiently long so that they could reasonably conclude that there was a constructive denial of admittance or that, as you indicate, other law enforcement... excuse me... other law enforcement concerns may justify a more prompt entry. In the hypothetical that you gave, none of those other law enforcement concerns are present, and so the question then, we submit, would be whether the officers could reasonably conclude that they had been constructively denied admittance. And there, the need to damage some property, if it exists at all, is a consequence of the denial of admittance, not a factor as to whether the denial had in fact occurred.
David H. Souter: But when... when you're dealing... let's... let's take the case in which the exigency develops while you're waiting. One reason why it is reasonable to... to suspect that you are being denied admittance, let's say, in a case where drugs are easily disposable is that there is good reason to believe that somebody would... another 10 or 20 or whatever seconds will use the 20 seconds to get rid of the drugs, if possible. You don't have any basis for drawing that kind of a conclusion in the grand piano case, and there... there is less reason to believe, less reason to suspect that you are actually being denied admittance as opposed to simply being the victim of somebody who's slow at getting the... to the door. Isn't that a fair line of reasoning?
David B. Salmons: I mean, I think the distinction Your Honor makes between those types of cases is a legitimate one. We still think though, however, that the need to damage property is really not a factor that goes into whether entry at a particular time was reasonable under the circumstances. It's a consequence of the denial... excuse me. It's a consequence of the occupant's failure to respond within a reasonable time period.
Speaker: But... but maybe--
Ruth Bader Ginsburg: --Are there... are there guidebooks? Is there any manual that Federal law enforcement officers use that will say in... in a knock and announce situation, these are the relevant factors? Do they suggest a time, a time span that would be appropriate?
David B. Salmons: Your Honor, there is training that occurs, although to my understanding, there's not a specific amount of time that's... that's provided to officers that they need to wait as some sort of minimum. Rather, consistent with this Court's cases, the... the guidelines and... and the training that's conducted teaches the officers that they must take into account the totality of the circumstances. That would include factors like how large of... of a dwelling it is, what time of day it is.
Ruth Bader Ginsburg: But there's nothing... nothing written down that suggests how many seconds, no manual that Federal law enforcement--
David B. Salmons: To my knowledge, that is correct. The... it used to be the case, as I understand it, that there was a suggested amount of time and that was 30 seconds when there are no other law enforcement concerns that are at issue, but that currently the training that is conducted just focuses on the totality of the circumstances and that they need to wait a reasonable period of time, and if there are no other law enforcement concerns at issue, then that reasonable period of time is typically considered to be how long it would take to conclude that you were constructively denied admittance--
Antonin Scalia: --But not if there are... but not if there are other law enforcement concerns.
David B. Salmons: --That's correct. If there are other concerns--
Antonin Scalia: I mean, what troubles me is you... you can't simply announce that... that the rule is you wait a reasonable amount... what... what constitutes a reasonable of time is how long it would be expected someone would take to get to the door. You... you can't adopt that as your uniform rule because otherwise, you'd have to use the same amount of time whether there are exigent circumstances or not.
David B. Salmons: --That... that--
Antonin Scalia: If it takes 20 seconds usually, it takes 20 seconds.
David B. Salmons: --That... you are correct, Your Honor.
John Paul Stevens: That's not right. Is it?
David B. Salmons: And that's a function... I'm sorry.
John Paul Stevens: That isn't right. Right? Because certainly in a motel room, it would be less time than it would in a mansion.
David B. Salmons: No. Absolutely.
Antonin Scalia: No. I'm just saying the exigent circumstances would not alter what is a reasonable time.
David B. Salmons: And that's why we submit that the relevant question is not just how long it would take for a person under those circumstances to get to the door. The... the analysis must take into account as well valid law enforcement concerns. And... and all this... what I think all this illustrates is what this Court has repeatedly said, which is this is a contextual analysis that has to be based on the totality of the circumstances. There's no mechanical rule--
John Paul Stevens: Well, but may... may I just interrupt?
David B. Salmons: --or a reasoned way to apply it.
John Paul Stevens: It's not how long it would take a person to get to the door. It's how long a period must elapse before it's reasonable to infer that the person has refused to come to the door.
David B. Salmons: You're correct. You're correct, Your Honor. That... and that would be... that would be where there are no other valid law enforcement concerns that would warrant--
Antonin Scalia: Well, yes, but... but that also is not affected by the existence or nonexistence of... of exigent circumstances. So the exigent circumstances sort of override--
David B. Salmons: --Yes.
Antonin Scalia: --how long it would take a reasonable person to get to the door.
David B. Salmons: That... that's... that is my understanding, Your Honor, and I think that's exactly right. I would also--
Sandra Day O'Connor: Mr. Salmons, are you relying on exigent circumstances here because it was a drug case or not?
David B. Salmons: --Your Honor, in this case, let me begin by pointing out that we submit that the 15 to 20 seconds that the officers delayed in this case is a substantial amount of time. And it's no... it's really nowhere close to the constitutional line.
Sandra Day O'Connor: Well, could you answer my question? Are you relying? We have to reweigh this, I assume, and do you want us to treat this as an exigent circumstance case or not? Yes or no?
David B. Salmons: No, Your Honor, to the extent that--
Sandra Day O'Connor: Okay.
David B. Salmons: --by your question you're referring--
Sandra Day O'Connor: That's what I'm asking.
David B. Salmons: --The only reason I hesitated is because I think the term exigent circumstances can be a bit ambiguous, and this is not a case where the Government has suggested that the officers were entitled to forego knocking and announcing at any point in the process.
Sandra Day O'Connor: This was a small apartment, was it?
David B. Salmons: Yes. This was a small apartment. It was in the middle of the afternoon.
Sandra Day O'Connor: What size?
David B. Salmons: It was a two-bedroom apartment. I'm not sure of the square footage. There are some diagrams of the apartment in the joint appendix. The testimony of the officers was that it was sufficiently small that the officers located in the back of the apartment could hear the knock and announce at the front door.
Sandra Day O'Connor: Does it make any difference if the occupant says, wait a minute, I'm in the shower, I'm coming?
David B. Salmons: Well, certainly that would be a factor that would then go under the totality of the circumstances standard. Whether or not... I mean, there are a lot of other things that the officers would have to consider, including whether they're being truthful, whether they can hear water running, whether there's still a risk that they may have drugs with them in the shower, dumping them down the drain.
Sandra Day O'Connor: But in response to Justice O'Connor's question, there are no exigent circumstances of the type that would eliminate the need to knock and announce at all.
David B. Salmons: That's correct, but there are still--
Anthony M. Kennedy: Are you going to go on to say that there are some other exigent circumstances that are in the background here that--
David B. Salmons: --Well, certainly--
Anthony M. Kennedy: --that counsel against waiting more than 20 seconds?
David B. Salmons: --Absolutely, Your Honor. In fact, even though there may not be sufficient concerns about officer safety or the destruction of evidence to forego knocking and announcing altogether, those are still valid law enforcement concerns in the context of a case like this where the officers are there to execute a warrant for drugs. The officers are... have strong evidence that there are, in fact, drugs in the apartment. They did a controlled buy not long before they went to execute the warrant, and there is the risk at a minimum of the destruction of evidence, and that those are factors that have to be taken into account.
Anthony M. Kennedy: And that would be true in almost any drug case where the officers know that drugs are in... are... are in the premises or have reason to believe that drugs are in the premises.
David B. Salmons: Certainly I think the potential for that concern is present in almost all... and not just drug cases, but any case where the... the evidence to be sought through the search is subject to... to readily destruction and--
Antonin Scalia: And you say that's not enough to forego knock and announce, but it is enough to shorten the time period that you have to wait.
David B. Salmons: --Yes, Your Honor, that... that it's not enough to... at least in the context of this case, that there was not enough reasonable suspicion of those concerns to forego knocking and announcing altogether, but those factors still have to be taken into account under the totality of the circumstances in evaluating whether the officers here waited a reasonable period of time.
David H. Souter: Well, Mr. Salmons, as I--
Anthony M. Kennedy: --It sounds to me you're asking us to adopt the kind of per se rule that we rejected in the case that came to us from Wisconsin in... in the Richards... in the context of... of determining how long is... is... they're required to wait.
David B. Salmons: No. I think not, Your Honor. We're not suggesting some rigid rule that applies in all cases. What we're suggesting is that as part of the totality of the circumstances, it... it must be the case that the officers that are going to execute the warrant can take into account the fact that the evidence they're seeking is readily disposable. That... all we're suggesting is that should be a factor. It should into the analysis, and generally that would be a factor that would tend to cut in favor of a prompter entry.
John Paul Stevens: But isn't it true that the... the purpose of the analysis is to decide whether or not the silence is the equivalent of a refusal? Because the statute requires a refusal. And if that's true, I... I am really kind of puzzled as to why the possibility of disposing of drugs affects the time period.
David B. Salmons: Your Honor, I think we would disagree with your characterization of the purpose of the inquiry at least in part, and that is that as Justice Souter's question earlier pointed out, in a case where there are no concerns that would... that would warrant a more prompt entry, we think the question is whether a reasonable officer could conclude that he had been constructively denied admittance. But... but where there are those concerns, even if they don't rise to the level of foregoing knocking and announcing altogether--
John Paul Stevens: But isn't--
David B. Salmons: --they're factors that cut in favor of a prompter entry.
John Paul Stevens: --But isn't it true, if you just look at the language of the statute, the inquiry is always has there been a refusal?
David B. Salmons: That is the way--
John Paul Stevens: If you're not relying on exigent circumstances, when you just go on in anyway.
David B. Salmons: --That is the way in which the statute is worded, Your Honor. This Court has--
John Paul Stevens: And that's what it means too, isn't it?
David B. Salmons: --Well, we think not, Your Honor. This Court has never felt that the... that the terms of this statute are to be construed literally. In fact, if the Court were to start doing so, it would need to overturn a number of its prior cases, including in Miller, where it read the statute to reach arrest warrants... or even arrests without warrants; Sabbath, where it read forcibly break to not require any chilling of force. What the Court has held that it really--
Antonin Scalia: Those... those are all breaks in favor of the... of the citizen. This is a break that is not in favor of the citizen. There... there may be some of us who are willing to twist the statute for the benefit of the citizen, but not for the benefit of the Government.
William H. Rehnquist: Maybe others who feel equally.
David B. Salmons: --Your Honor, I think-- [Laughter] I think there may be a more benign explanation, which is this Court has recognized that what this statute does is it filled a gap. There's a historical explanation that this statute filled a gap that then existed in Federal law because this Court had not incorporated or... or subsumed the common law principles of knock and announce into the Fourth Amendment and many States had. And so what Congress did was... and this Court reaffirmed this in Ramirez not long ago, that what the statute does is it codifies the common law tradition of knock and announce, and that includes all the exceptions to knock and announce.
Ruth Bader Ginsburg: Mr. Salmons?
Stephen G. Breyer: How do they get out of it? Because how do you say... I mean, suppose the person from behind the door says, oh, police, you'd like to come in. I'll let you in. Come right in, but just wait 1 minute while I flush the drugs down the toilet.
Speaker: [Laughter]
Stephen G. Breyer: Now, he's not refusing him admittance. I mean, he's welcoming him. So how... how is the Court... with open arms. He's delighted to have him in. He says, it'll just take a second.
Speaker: [Laughter]
Stephen G. Breyer: And... now, how... how... how has the law reconciled that which is obvious that he ought to... the police ought to be able to get in there... with the statute that says they cannot come in unless he refuses the police admittance? And he hasn't.
David B. Salmons: Right. You point out a very good point, Your Honor, and that's why this Court has said that... that the statute can't be read literally and instead--
Stephen G. Breyer: I don't think they read it--
Antonin Scalia: --I don't think it's a good point at all. I think refusing admittance means refusing prompt admittance. It doesn't say you can come in next week. That's refusing admittance. Knock, knock, I want to come in. You can't come in now. You can come in next week.
David B. Salmons: --The... the point I was attempting to make, Your Honor--
Antonin Scalia: That's refusing admittance.
David B. Salmons: --The point I was attempting to make, Your Honor was that what this Court has recognized repeatedly, and it said in Ramirez it was now decisively holding and resolving the question, and that is that the statute here, 3109, is not to be read literally but merely is to be read as a codification of the common law tradition of knock and announce. And as this Court indicated in its decision in Wilson, that common law tradition is a flexible one, and it's one--
Ruth Bader Ginsburg: Does that flexibility mean that there really isn't this bright line between exigent and nonexigent? There's kind of a spectrum. So while it's not exigent enough to do away with the knock and announce, there is then a difference between the case Justice Souter posed of the grand piano and the warrant is to search for drugs which could easily be... be disposed of.
David B. Salmons: --We submit so, Your Honor. We think that--
Ruth Bader Ginsburg: So it's not 100 percent exigent, but neither can one say it's nonexigent.
David B. Salmons: --That's... I believe that is our position, that... that although there were not sufficient exigencies in this case to justify foregoing knocking and announcing altogether, that the officers here were... were permitted to take into account the risks inherent in executing a warrant in this kind of a context, including the risk of destroying of that--
John Paul Stevens: May I ask this question? Does a citizen have a right to make sure that they're really officers by getting a copy of the warrant or something like that? Could he... could a citizen come to the door and say, slide the warrant under the door and I'll look at it and I'll let you in if I think you're genuine?
David B. Salmons: --I'm not aware of case law on that, Your Honor. I... I... presumably they... they are permitted to do that. Again, all of that would go into the totality of the circumstances. Any response from the occupants I think are things that the officers--
John Paul Stevens: Because the occupant... I can conceive of situations in which an occupant might be concerned that perhaps it's not a genuine law enforcement officer. It's somebody who wants to hold up the house, you know.
David B. Salmons: --Well... well, certainly one of the purposes of the knock and announce rule, Your Honor, is to provide notice to the occupants that it is the police that are attempting to come in so that it increases public safety and... and protects both the officers and the occupants.
William H. Rehnquist: What time did this take place?
David B. Salmons: This took place at 2 o'clock on a Wednesday afternoon, Your Honor. I think one of the remarkable things about the Ninth Circuit's decision in this case is that the officers' delay here really was nowhere close to the constitutional line. 15 to 20 seconds is a substantial delay. Even if this Court were to conclude this case based only on the question of whether they had been constructively denied admittance, we think these other factors warranted a prompter entry here. And in fact, the testimony of the officers in this case suggests that. The officer from the Nevada police that was at the front door stated that he waited a long time in this case because he thought there was some chance that the case may go to Federal court, and he wanted to make sure that there were no knock and announce concerns. The FBI agent at the back of the... of the apartment testified that he... he became concerned about the length of the delay. He described it as unusually long and stated that he was concerned that the occupant might be attempting to flee from another way. This is simply not a case that's close to the line, and for the Ninth Circuit to hold that the officers in this case were required to wait some additional period of time that's unspecified, in addition to the 15 to 20 seconds, really does pose threats to law enforcement officials engaged in the front-line law enforcement activities in the jurisdictions covered by the Ninth Circuit.
Anthony M. Kennedy: Going back to Justice Scalia's initial question, the Ninth Circuit opinion is wrong because?
David B. Salmons: Your Honor, the Ninth Circuit opinion is wrong because it adopts a rigid property destruction rule and engrafts it onto the totality of the circumstances test. And that rule is one not flexible enough to be consistent with the totality of the circumstances test and, two, is inconsistent with this Court's decision in Ramirez which indicated that the question of the timing of an entry is distinct from the question of the manner in which the entry and the warrant itself are executed. The destruction of property may very well constitute a violation of the Fourth Amendment if it is needless or wanton, but that, as this Court said in Ramirez, does not make the entry unlawful and it doesn't require suppression. And so--
Ruth Bader Ginsburg: Do you... do you think that the dissenting judge Fisher got it essentially right?
David B. Salmons: --Well, certainly we think that Judge Fisher was correct when he indicated that one of his concerns about the court of appeals... the panel's decision in this case was that it didn't follow its own list of factors. We also think Judge Fisher was correct when he indicated that all one needs do is do a thought experiment and think to yourself, police, search warrant, and count out 15 to 20 seconds to see how long a period of time this really was.
Antonin Scalia: Do you... do you say that the... the property line is improper only when there are exigent circumstances or in all situations?
David B. Salmons: Your Honor, we submit that it is not relevant to the question of the timing of the entry in all circumstances.
Antonin Scalia: You mean a... a police officer shouldn't wait any longer before he rips my door down, leaving the house exposed to... to burglars than he... than he has to wait when that isn't necessary, when the door is open and he can just walk in?
David B. Salmons: That... that's correct, Your Honor, and let me explain why.
Antonin Scalia: Why isn't that part of the totality of the circumstances?
David B. Salmons: The reason we think, one, flows from this decision in Ramirez where the Court differentiated between the timing of the entry and the need to damage property. And two, it's important to keep in mind what the officers in that situation have to take into account. They're... they're waiting and they have to... they have to consider how long they have to wait to either conclude that they've been constructively denied admittance--
Antonin Scalia: Right.
David B. Salmons: --or that there are valid law enforcement concerns that require entry at that time.
Antonin Scalia: I'm... I'm excluding the latter. I'm saying there are no other exigent circumstances, not even the... the moderate exigent circumstances that are not enough to enable you to go in without knock and announce. There are just no other exigent circumstances.
David B. Salmons: Your Honor, in that case--
Antonin Scalia: There's no reason whatever. All they're looking for is how long is it reasonable to wait for me to come to the door. And you're... you're telling me it is just as reasonable for them to have to wait only 15 seconds when their entry simply requires walking in and still 15 seconds when it requires them to bash in the door. That doesn't seem to me to be a... an application of totality of the circumstances.
David B. Salmons: --Your Honor, we would disagree because, first of all, it's... it's going to be... it's often going to be the case that the officer, at the time he makes the decision that he's been constructively denied admittance, doesn't know whether the door is locked or not, and he really can't be put in a position where he has to check the doors and windows to see whether any are unlocked before he's allowed to enter. He's... he has a warrant that authorizes him to go in, forcibly if necessary, secure the premises and search for the evidence covered by the warrant. That's what happened here. The fact that the door happened to be locked or unlocked is really not a factor that the officers can take into account at that stage of the process. And it--
David H. Souter: Should we consider these two possibilities in Justice Scalia's case? Possibility one, no exigency again, just take his premises as... as he gave it. Possibility one, the police knock on the door; they say, police, search warrant. A guy on the inside says, I don't want to see you. The police say at that point, come on, we're serious. We've got a warrant out here. Open up. Possibility two, same thing. The guy says, I don't want to see you. The police bash the door down. Isn't the fact that the police could say, come on open up, we're serious a factor to take into consideration in deciding whether, at the point the fellow says I don't want to see you, it's right for them to bash the door down?
David B. Salmons: --Again, Your Honor, we think the relevant inquiry is whether a reasonable officer could conclude that he had been constructively denied admittance.
David H. Souter: Exactly, and if that's--
David B. Salmons: And it seems to me under your hypothetical, he probably could.
David H. Souter: --And I... I think so too. That's why I put it that way.
David B. Salmons: And so--
David H. Souter: If that is the only question that you ask, I think you are taking a very narrow view of totality of circumstance.
David B. Salmons: --Well, again, Your Honor, in... in... I see my time is almost up. We think that flows from the principle this Court followed in Ramirez that the timing of the entry needs to be separated from the manner in which the entry and the search is conducted. That's where property concerns come into play. If I may, I'd like to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Salmons. Mr. Roske, we'll hear from you.
Randall J. Roske: Mr. Chief Justice, and may it please this Court: This case is about whether your door, my door, and everyone's door is worth 15 seconds. This case presents the component of the knock and announce statute that's the refusal component that this Court has not addressed previously in any of its decisions. In Wilson, you said that this rule is of constitutional magnitude, and in the Wisconsin v. Richards case, you said there can be no blanket exceptions to knock and announce just based on the... the kind of case it is. And then we see in Ramirez the Court talks about 3109 and... and so we see a line of cases where from Miller where we were dealing with sort of an oversight of the... the Court's decisions overseeing the criminal justice system from a Federal standpoint--
Sandra Day O'Connor: Well, now, wasn't Ramirez a no-knock entry where the door--
Randall J. Roske: --That's true.
Sandra Day O'Connor: --was bashed in?
Randall J. Roske: That's true. And there were--
Sandra Day O'Connor: And this Court said that could comply with the Fourth Amendment?
Randall J. Roske: --Yes. And the... the Court in... in Ramirez noted that there were all kinds of indications and evidence known to the officers of the person, the suspect, the fugitive that they were looking for being armed, dangerous, likely to resist forcibly the officers, and officer safety exceptions--
Sandra Day O'Connor: But we didn't apply the statute literally there.
Randall J. Roske: --No. You never have, as far as I understand the Court's decisions, applied a literal interpretation of the 3109.
William H. Rehnquist: Ramirez was a break-in... a... an entry into not the house of the person who was... who was sought, but someone else's house where he was thought to be staying. The... the damage was done not... not... to someone who was concededly innocent.
Randall J. Roske: Well, he wasn't concededly--
William H. Rehnquist: Well, he had a... he was a felon in possession they found.
Randall J. Roske: --That is correct. That case involved a fugitive who was not the known occupant of the residence, and they had developed information that this individual was, however, staying at the Ramirez residence.
William H. Rehnquist: One thing I thought that the Ninth Circuit opinion really was contrary to Ramirez was its stress on property damage, which... which Ramirez made quite clear was not determinative.
Randall J. Roske: Well, I think that the circuit, Ninth Circuit, has focused on property damage as, you know, we have a statute that talks about breaking, and it sees that in... in the context of delay as requiring more time.
William H. Rehnquist: Well, we also have an opinion, e.g., Ramirez, which the Ninth Circuit didn't even cite, which says that property damage is not controlling.
Randall J. Roske: Well, and that's true and I... I concede that is so. And I would submit to the Court that you can decide that those guideposts cited by the Ninth Circuit are flat wrong and reach the ground there that it is entirely reasonable under a totality of the circumstance test that you affirm the decision. You can do a decision saying that the guideposts are simply wrong under Ramirez, but the result under a totality of the circumstances test is correct.
Stephen G. Breyer: When you say it's wrong, well, the argument the other way is what they said. In the lower court, the Ninth Circuit says that the police waited a maximum of 15 to 20 seconds, and the police say and the Government says that's way more than enough time to flush the drugs down the toilet. All right? So every other circuit has said 10 seconds, 15 seconds, is the maximum, 6 seconds, and even the Ninth Circuit has normally held that 15 to 20 seconds is long enough to wait when it's a small house, daylight so people are awake, and all it would take is about 2 seconds to get rid of the evidence. So they've all said that. And this case, they say, is an outlier. This is well beyond what every other circuit has done and doesn't make any sense. Because the drugs will just be destroyed. Now, what's your response to that? That's the basic argument. I'd like to hear your response.
Randall J. Roske: Well, the response would be that, yes, the modern marvel of indoor plumbing does provide an avenue for the destruction of evidence. It also provides people the opportunity to shower themselves. And this is the archetype kind of activity that occurs in the home which the privacy concerns are the greatest for. And... and--
Stephen G. Breyer: So your view is the Fourth Amendment then says even though you have a warrant, probable cause for believing there are drugs there, and it's easy to get rid of them, there's just nothing the police can do about it except not prosecute the drug cases in these situations.
Randall J. Roske: --15 seconds is a... is virtually no time at all to respond to a door.
Ruth Bader Ginsburg: Why is--
Antonin Scalia: --What does the shower have to do with it? Is... is it your contention that a reasonable time is how long it takes somebody to complete a shower?
Randall J. Roske: No, but that's the kind of--
Antonin Scalia: Well, then... then of what relevance is the shower?
Randall J. Roske: --The relevance--
Antonin Scalia: It seems to me it's of no relevance at all. This fellow said he was taking a shower. Well, surely you don't have to wait as long as it takes the normal person to complete a shower.
Randall J. Roske: --I agree.
Antonin Scalia: And presumably dry himself and presumably put on a towel.
Randall J. Roske: Grab a towel. In this case, we don't know how long Mr. Banks would have continued the shower, whether he would have become aware of the... of the officers at his--
Antonin Scalia: We don't know and we don't care because that surely does not determine what's a reasonable time to wait.
Randall J. Roske: --Right. But the... but the point of the shower is this. Anybody that's in... in a home, in a dwelling, and in a community such as we have that's 24 hours, anything could be being... sleeping and other activities where that would cause someone to be unable to respond within 15 seconds can occur.
Stephen G. Breyer: First, just a quibble. But I read the lower court as saying 15 to 20 seconds, and I take it as 20 seconds because given that statement, had this been 20 seconds, they would have said it was unlawful. And so if in fact you concede that 20 seconds is too long, then I guess I'd have to reverse or is... you know. So... so what I want... I'm... I'm taking the outer limit of what they said. Now, on that, I want to be sure I've got a complete answer from you because I was pushing you, and so far I've said all the circuits say 15 to 20 seconds is certainly enough time for the policemen to wait where it's a drug case, a small house, and you could easily get rid of the evidence. In response to that, you said that you thought that 15 seconds... but you should say 20... is... is actually... they have to wait that long. Now, is there anything other than your opinion, which I respect, but... but what I'd like to know is whether there is any basis in authority or reason or something, other than that, that would support your position.
Randall J. Roske: All of the cases that were cited in the briefs I tried to distinguish as having differences that were fundamental to the case, the sole occupant, for instance, they know--
Ruth Bader Ginsburg: Well, why don't we take the Ninth Circuit's own subsequent case where it has a footnote? This is Chavez-Miranda--
Randall J. Roske: --Right, Your Honor.
Ruth Bader Ginsburg: --where the court said, Banks appears to be a departure from our prior decisions. As noted by the trial court, we have found a 10 to 20-second wait to be reasonable in similar circumstances.
Randall J. Roske: I think that the court in Chavez-Miranda focused on the fact there were numerous occupants in the... in the residence and that even if... if one or two were engaged in some kind of private activity, the others would be able to respond quickly to the door.
Ruth Bader Ginsburg: But why is... isn't 15 to 20 seconds ample, if the question is reasonable time, in a small apartment to get to the door to open it?
Randall J. Roske: It's not reasonable because it's virtually no time at all. If you're in the bathroom on the toilet, if you're in the bedroom naked--
Ruth Bader Ginsburg: It's the time... it is the time in which a telephone would ring at least twice and perhaps three times. Usually people pick up a phone after the second ring. If they can manage to do that, why wouldn't one expect the same interval would apply in getting to the door?
Randall J. Roske: --Well, there are plenty of times that you may be home and you don't get to the phone in time because you're engaged in some activity that... that prevents you from immediately responding. And that's the point of this case. They had--
Ruth Bader Ginsburg: No, but isn't... isn't the problem that... that Justice Ginsburg is asking you about what is a reasonable time, and your answers always get to the point of saying, well, there are particular facts that might have taken somebody longer than a reasonable time.
David H. Souter: And... and that, of course, is always true. They might have been asleep at 2:00 in the afternoon. They might have been sick with a virus so that they couldn't get up quickly. There are all sorts of reasons. But the issue is... is an issue of a reasonable time under the circumstances known to the officer. Isn't that correct?
Randall J. Roske: --I believe that we cannot simply measure the... the test from the eyes of the officer. You have a duty--
David H. Souter: Well, they're the ones who have to decide how long to wait.
Randall J. Roske: --Right, and they... what did they know? They knew nothing in terms of exigent circumstances. And I would like to call the Court's attention--
David H. Souter: Yes, but--
Ruth Bader Ginsburg: --They... they knew they were dealing with drugs, that the warrant was to search for drugs.
Randall J. Roske: --They knew that they were searching for drugs, yes, and not grand pianos. But the Fourth Amendment, as you... as you interpreted it in your cases, that... you know, we just don't get rid of the refusal component or the knock and announce rule simply because drugs are involved.
Ruth Bader Ginsburg: You don't get rid of it, but as I suggested to Mr. Salmons, maybe there isn't this dichotomy between exigent and nonexigent, but that it's not exigent enough to avoid knock and announce altogether. On the other hand, it isn't like the grand piano. That's not going down the toilet.
Randall J. Roske: Well, if you look at the appendix, joint appendix, at page 75, and see what the officer said about why he entered, he simply said that he thought that 15 seconds was reasonable and that this case might go Federal and they've heard about problems with this. And he doesn't mention anything about a concern that evidence is being flushed or that he heard anything. And remember, again, this is a small apartment. If he heard the toilet flushing, presumably he'd heard that.
Antonin Scalia: Let me... let me talk about the small apartment. Might it not be the rule that when... when there are exigent circumstances, the amount of time you have to give has nothing to do with how long it takes to get to the door. It has to do with how long it's reasonable to wait with... without impairing the law enforcement purpose that is threatened by the exigent circumstances? I cannot imagine, can you, that... that people dealing with drugs are perfectly safe so long as they do it in a really big house with lots of toilets?
Speaker: [Laughter]
Antonin Scalia: Okay? So you have to wait 45 seconds. They could way over at the other end of the house. What is a reasonable time for this house? It's 45 seconds. So let's do all of our... all of our drug activity in... in a big house. That can't be the rule. It seems to me the reasonable time is what is reasonable to go in in order to prevent the exigent circumstance from frustrating law enforcement. Doesn't that make more sense?
Randall J. Roske: I think that the test should be a protecting of the individual's rights from intrusions that are unreasonable, and that all deference should not be given to law enforcement officers' decisions. In this case, he didn't suggest at all that he had to go in because he thought drugs were being chucked in the commode. It's not there in the record and nowhere in... in... below or in the Ninth Circuit did the Government argue such a theory. They simply said it was a reasonable period of time.
William H. Rehnquist: Well, but if... if we're to decide this case on the basis of reasonableness, certainly we've got to take into consideration common sense factors that may be suggested other than by the officer at the door.
Randall J. Roske: Well, that's correct, but I think this Court has a supervisory power and it has to not abdicate all decisions to the officer at the door. And this officer has simply made a subjective decision there, saying that was what he understood would be reasonable. There was an earlier--
John Paul Stevens: Mr. Roske, do you... do you have a period of time that you would agree was reasonable?
Randall J. Roske: --Well, I do note that the Ward case cited in my brief talked about the FBI adopting some 60-second rule. Obviously, that would have been about 45 seconds more time than... than was here. I think that you can't set a bright line rule and... and that it has--
John Paul Stevens: Can you set a rule for the facts of this case?
Randall J. Roske: --Well, we need to set a prophylactic rule that recognizes the... the dignity and the importance of the refusal component. In this case--
John Paul Stevens: I know, but what do you think that rule is?
Antonin Scalia: Length-of-the-shower rule.
Speaker: [Laughter]
Antonin Scalia: For this case.
Randall J. Roske: --I'm... I'm suggesting that--
John Paul Stevens: Well, no. I think you have agreed the fact he's in the shower really is irrelevant because the officers didn't know it, and you must judge these things ex ante not ex post.
Randall J. Roske: --Right. And I... I agree. Just as they... if they had heard the toilet flushing repeatedly, that might be a factor to hasten their--
John Paul Stevens: No, but I'm still curious if you... if you do have a view as to what would be reasonable on the facts of this case.
Randall J. Roske: --Well, I think that... that certainly 15 seconds was an unreasonably short period of time, and that--
John Paul Stevens: I understand you think 15 to 20 seconds is unreasonable. Do you have a view as to what would have been reasonable?
Randall J. Roske: --I believe that a... a wait towards a minute might be more reasonable under these facts where they have absolute... see, they're confronted with silence at the door. It's not as if there's anything giving them any--
John Paul Stevens: Yes, but so you have to be contending that the Constitution requires them to wait... the Constitution and the statute required them to wait a certain period of time that was longer than 15 to 20 seconds.
Randall J. Roske: --What we're--
John Paul Stevens: And if so, I just wonder if you have a theory as to how much longer.
Randall J. Roske: --Well, I... I--
John Paul Stevens: I know say that 60 minutes... 60 seconds would have been okay.
Randall J. Roske: --Honestly, I don't know what would be a figure to put on that. I just know that this 15 to 20 seconds was too little time.
Sandra Day O'Connor: Well, would you be making the same argument if it had been 30 seconds? Let's put it that way. Would you be here--
Randall J. Roske: It would--
Sandra Day O'Connor: --making this same argument?
Randall J. Roske: --My argument would be less strong as more time passed. In this fair city, you're given 30 seconds to cross a major boulevard according to the... the flashing time, and Mr. Banks had less than 15 to respond to his door.
Sandra Day O'Connor: I thought it was 15 to 20, the point Justice Breyer made.
Randall J. Roske: Well--
Sandra Day O'Connor: You keep saying 15, but I thought... I thought we took the facts--
Randall J. Roske: --Well--
Sandra Day O'Connor: --as 15 to 20. Do we not?
Randall J. Roske: --The officer--
Sandra Day O'Connor: Is there something else?
Randall J. Roske: --The officer conducting the entry testified that it was at least 15 seconds. Now, the FBI officer... or agent in the back of the building thought it was closer to 20. I submit that the officer who--
Sandra Day O'Connor: And what did the court below treat it as?
Randall J. Roske: --15 to 20 seconds.
Sandra Day O'Connor: So don't we just take that as a given in resolving it? You don't want us to redetermine the facts, do you?
Randall J. Roske: No, I do not wish the Court to... to redetermine the facts. I just simply point out that of the two time frames that were cited below in the record, the officer at the door was in the better position, I believe, to know how much time elapsed since he was conducting the entry.
Ruth Bader Ginsburg: But... and he says it's a minimum... a minimum of 15, and you used the word maximum a few times. There's no evidence of 15 maximum.
Randall J. Roske: At least 15 seconds is the quote that I have at... at page 75 of the joint appendix of the officer Wilson. And the refusal component of the... of the knock and announce statute is, of course... it's not frozen in time, I understand, but it was considered to be an important element and component of the... of the knock and announce statute. It wasn't some... it had dignity. It had purpose, and its purpose is served, including the protection of the officers, when they come to the door and knock at a citizen's residence. And they knock at a substantial number of innocent citizens' residents, and their doors were 15 seconds to 20 seconds, absent any kind of exigent circumstance at all, that they may just simply believe that they're going to find drugs at the residence. I cited in--
Ruth Bader Ginsburg: It's not that they believe. They've... they've established probable cause before a magistrate, probable cause to believe that there's contraband in the apartment.
Randall J. Roske: --They did, Your Honor. And... but what I want to point out is that they waited 7 days from the time they got the warrant to execute it. They couldn't wait more... a few more seconds at the time they were at the threshold.
Antonin Scalia: Well, I mean, you're not inclined to flush it down the toilet when there's nobody knocking at the door.
Randall J. Roske: Well--
Antonin Scalia: I mean, this is valuable stuff. You're going to get rid of it during those 7 days? You're going to get rid of it after you hear somebody saying, police at the door.
Randall J. Roske: --Well, but in this case there was no effort and there was nothing in the record to suggest there was any destruction of evidence by Mr. Banks in this case. And I think that it's an overbroad assumption that every time the officers come on a search warrant for drugs that the person that they're going to be searching is going to go to the commode and chuck it.
Antonin Scalia: Well, he was taking a shower. He probably didn't even hear them at the door.
Randall J. Roske: He did not--
Antonin Scalia: Had he not been taking a shower, he might have been flushing the toilet.
Randall J. Roske: --Well, we... we know... all we know is that he was in the shower and that he made no effort, upon hearing the door crash in, to... to take any step in that direction.
Ruth Bader Ginsburg: And given his condition when he did come to the door, it's likely that 30 seconds wouldn't have made any difference. Isn't it so?
Randall J. Roske: Well, the inevitable discovery doctrine I know has been much raised here by the Solicitor General's office in their brief, but it has no application in a prophylactic rule that, of course, as the... the refusal component should be. Obviously, it's not a situation this Court was confronted with in Nix where there was an independent investigation finding a... a young girl's body, that the investigation by the community to find that was wholly independent of the law officers' efforts there to a... a confession. So it just has... if... if you find that there is a violation here that... that the inevitable discovery doctrine simply would have no... no purpose or effect in... in your determination, because if you do decide that, as the Seventh Circuit has, that inevitable discovery doctrine applies to all knock and announce issues, you'll essentially have no judicial review. You have the title, I suppose, 1983 actions that might be brought occasionally but those are of no real deterrent to law enforcement. They--
Ruth Bader Ginsburg: Going back to... to not getting into the inevitable discovery rule, but you have said that the judgment of the Ninth Circuit was right although not its opinion. So if you were to explain why that judgment is right, what would you say? What would you say about destroying the... the door? What would you say about the 15 to 20 seconds? What would be the opinion that you would write to justify this judgment?
Randall J. Roske: --I would... I would focus on the fact that we're dealing with a dwelling and not an office, that we're dealing with a habitation where private activities occur and routinely, and that in this case there was absolutely nothing to give the officers at the threshold any additional reason or justification for acting with haste. I would say that the court--
William H. Rehnquist: What about the... the drugs, the... the fact that it was a drug charge and that drugs were thought to be on the premises? Do you not think that gives then officers at least a factor other than the simply bare bones thing?
Randall J. Roske: --Well, yes, I... I would agree that, you know, obviously if it were televisions or if it were grand pianos, the idea that somebody is going to chop them into splinters or into fragments and the... thwart the officer's whole purpose would entirely evaporate. It was argued by the Solicitor General that in fact they thought that maybe the place wasn't even occupied and therefore they were doing an... a senseless or a needless act by... by delaying and knocking and announcing repetitively. In any event, I think that this case is... is one where if they truly believed it was unoccupied, that there would be no harm and foul on the officer erring on the side of caution and waiting.
David H. Souter: Mr. Roske, going back to your inevitable discovery point, was that raised by the Government in the district court?
Randall J. Roske: Not at the district court, not at the Ninth Circuit.
John Paul Stevens: May I ask another question? We talked about the case as though it involves just searches for drugs. But isn't it true that in this case and in fact in many cases, the officers will also pick up substantial amounts of cash and weapons, which are not apt to be... neither of which is apt to be flushed down the toilet, I wouldn't think.
Randall J. Roske: In... in fact, in this case there were three firearms recovered from Mr. Banks' apartment. One of them was out on the couch in the front room. Two weapons were back in the south... I believe... east bed... west bedroom, excuse me. Southwest bedroom. And yes, and there was about $6,000 of currency located throughout the apartment. The dimensions of the apartment were not developed below, but basically the place is about 20 by 33. The... the layout of the residence is put in a diagram that's part of the appendix. And I just want to point out that in... in King Edward I's reign, this is where we get the knock and announce statute. He lived in unsettled times, and he was actually out of his kingdom when the word that his father had died came to him. He was on a trip from the Holy Land, and he was in Genoa. And he had to rush back to his kingdom to find it in disarray. His men were running amuck. And the knock and announce statute, which hails from the... this ancient time, was passed, just to prevent the kinds of abuses that we can see happening today. There was a reverend in Boston that that lost his life as a result of the law enforcement erroneously searching a residence. Had he been given the knock and announce and been able to respond to the door, maybe he would he wouldn't be dead. There's another instance I cited in my brief about a Fortune 500 executive who had... in the middle of the night, had is home searched erroneously for drugs, and he was shot several times defending his habitation. These are important considerations that it's not just the guilty that are protected by the knock and announce rule. It is... it is everyone that... that benefits, the innocent and the guilty.
William H. Rehnquist: Well, the guilty perhaps benefit more than the innocent.
Speaker: [Laughter]
Randall J. Roske: True enough, but that... but... but when... when we have a suppression, when we have a case where the court acts as it has in the Banks case, that provides a lesson for law enforcement that they do heed, and it has a deterrent effect. Your opinions do matter greatly. And I just think that the wise decision here wouldn't be to create a bright line rule, to set in stone any kind of time limit, that the totality of the circumstances test decided by the Ninth Circuit is the one that needs to be used. And I know that the Ninth Circuit struggled with the fact that the common law knock and announce provision, you know, dealt with concerns of destruction of the door and destruction of the habitation and concerns of privacy, a man's home being his castle. And we do that no honor when in 15 seconds to 20 seconds that door goes down. And there was no refusal in this case, and the record is entirely barren of that. And that component was required at common law. And I understand at... the Constitution was not frozen, you know, at the time of the enactment of the Bill of Rights. It has developed and evolved, but all of the... all of the exceptions that... that have been applied by the lower courts in this area are distinguishable from Banks. And I thank the Court if the Court has no further questions of me.
William H. Rehnquist: Thank you, Mr. Roske. Mr. Salmons, you have 2 minutes remaining.
David B. Salmons: Thank you, Mr. Chief Justice. Unless the Court has any further questions, the Government submits that the judgment below should be reversed.
Antonin Scalia: I have a question just with regard to your opposing counsel's last assertion. Do... do you know whether the rule you're arguing for would have been applied in 1791?
David B. Salmons: Well, Your Honor, what I do know is that as this Court indicated in its decision in Wilson where it incorporated the common law tradition into the Fourth Amendment standard of reasonableness, that the standard at common law was a flexible one. It didn't require knock and announce in all cases, and it took into account a variety of law enforcement concerns and, we would submit, including the risk that there might be dangers to the officer's safety or that evidence might be disposed of. So we think that our rule is perfectly consistent both with the common law tradition and with this Court's decision in Wilson that incorporated it.
John Paul Stevens: But you don't disagree with the fact that the... or the... the claim that the statute does apply? There was a duty to knock and announce.
David B. Salmons: That's correct, Your Honor. We're not suggesting there was some exception to the knock and announce rule.
William H. Rehnquist: Thank you, Mr. Salmons. The case is submitted.