Rob Cerullo and Randy Means
Two new U.S. Supreme Court decisions provide guidance and insight for drug enforcement. Both are winners for police. One deals with what is a reasonable amount of time to wait before forcing entry into a private residence with a search warrant. The other deals with a traffic stop that turns out to involve narcotics and multiple suspects.
United States v. Banks
A cornerstone of Fourth Amendment law is the concept of "reasonableness." Naturally, this is true in the execution of search warrants. The manner of execution must be reasonable under the totality of the circumstances at the time of service. Normally, this requires officers serving the warrant to knock and announce their presence and purpose and give the occupants a reasonable amount of time to open the door before entry is forced. The Supreme Court had not said how long a reasonable amount of time is, leaving lower courts to make this determination. This lack of guidance has been great fodder for suppression hearings and has caused much anxiety and confusion among the rank-and-file officers who serve search warrants each day. This is particularly true in the world of narcotics search warrants, where an officer executing a warrant must balance legal concerns with officer safety issues and the possible destruction of evidence. Any officer who has stood on a drug dealer's front doorstep with a battering ram in one hand and a search warrant in the other has struggled with how long to wait before going in.
Recognizing the difficulty of this balancing act, the U.S. Supreme Court has now weighed in. In United States v. Banks, decided December 2, 2003, police officers executed a search warrant for cocaine at the defendant's small two-bedroom apartment. After knocking and announcing with no response from the occupant, the officers waited approximately 15-20 seconds before forcing entry. On appeal the defendant claimed that the forced entry violated his Fourth Amendment rights because the officers did not wait a reasonable amount of time before entering. The Ninth Circuit U. S. Court of Appeals agreed and ordered the evidence suppressed.
The Circuit Court justified this ruling based in part on the small size of the defendant's apartment, the time of day, and the nature of the offense. The Court reasoned that because there were no specific exigent circumstances requiring immediate entry and because forcing entry required the destruction of property, the officers should have waited for the defendant to refuse them admittance. The appeals court found that because there was no response from inside the residence, the officers should have waited longer than 15-20 seconds to enter to "satisfy constitutional safeguards."
The U.S. Supreme Court reversed the Ninth Circuit and found that "the issue comes down to whether it was reasonable to suspect imminent loss of evidence after the 15-20 seconds the officers waited prior to forcing their way. . . . We think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer." The Court was not swayed by the lower courts' emphasis on the size of the residence and instead focused on the defendant's opportunity to destroy evidence. The Court reasoned that "it is imminent disposal, not travel time to the entrance, that governs when police may reasonably enter . . . and no reliable basis [exists] for giving the proprietor of a mansion a longer wait than the resident of a bungalow or apartment."
After Banks, an officer executing a search warrant must still balance the knock, announce, and wait requirements against both officer safety and evidence destruction concerns, and the entry must still conform to a reasonableness standard. But Banks makes it clear that in most cases involving search warrants for small quantities of easily disposable narcotics such as cocaine and heroin, 15-20 seconds is a reasonable amount of time to wait before forcing entry.
Maryland v. Pringle
Another recent U.S. Supreme Court case that will be helpful to narcotics investigators is Maryland v. Pringle, decided December 15, 2003. In Pringle, an officer on a traffic stop was given consent to search a vehicle with three occupants. Pringle was sitting in the right front passenger seat, directly in front of the glove box in which the officer found a roll of $763.00 in cash. The officer also found five individually packaged baggies of cocaine hidden in the back seat armrest, accessible to all three occupants. All three occupants denied knowledge of the drugs and the officer arrested them all. After being booked, Pringle gave a full confession and the other two suspects were released.
Pringle appealed his conviction, claiming that his confession should have been suppressed because the officer lacked probable cause to arrest him. The state appeals court found that "the mere finding of cocaine in the back armrest when Pringle was a front seat passenger . . . is insufficient to establish probable cause for an arrest for possession." The state court ruled that in order to establish probable cause to arrest, the officer needed some other evidence to show Pringle had knowledge of the drugs.
Upon review the U.S. Supreme Court reversed and found that the officer did in fact have probable cause to arrest all three suspects. The Court reasoned that the mere finding of the drugs undisputedly established probable cause to believe that one of the three suspects was in possession of cocaine, and that the only question was which one. The Court went on to say, "We think it is an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine." The Court based this finding on the belief that a "car passenger will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing."
The Court went on (in dicta) to make some interesting and helpful observations about the nature of probable cause. In discussing it, the Court referred to it as simply "a reasonable grounds for belief of guilt" and said that a preponderance of the evidence requirement has "no place in the probable cause decision." While the Court refused to quantify probable cause in terms of a numerical percentage of likelihood, its statement that the preponderance of evidence standard "has no place" in the probable cause decision could easily mean that probable cause is not as demanding a standard as the preponderance of the evidence. The "preponderance" or "greater weight" of the evidence presumably is represented (at its lowest point) by a roughly 51 percent likelihood. If that's so, and if probable cause is less demanding than "preponderance," one concludes that the probable cause requirement may be satisfied by evidence that makes guilt less than mathematically likely. In other words, probable cause (at its lowest levels) could be represented by mathematical likelihood in the 40 to 50 percent range, for example. Such analysis adds fuel to the argument, already made by a number of legal scholars and lower courts, that probable cause does not require nearly as much as many in the past have thought.
In both Banks and Pringle we see a Supreme Court cognizant of the difficult decisions officers must make, particularly in the fight against illegal drugs. Both decisions indicate that the Court will provide officers with some latitude in making those hard choices. The Fourth Amendment "balancing test" will not always yield victory for criminal defendants.
Editor's note: Rob Cerullo, a former narcotics detective with the Chesterfield County Police Department in Chesterfield, Virginia, is a part-time police officer with the department, a full-time law student at the University of Richmond, and a legal intern for his prosecutor's office. Randy Means is a career police legal advisor.