¶1dissenting.
¶2I agree with the majority’s conclusion that the affidavit in this case was sufficient to establish probable cause to issue a search warrant. I also agree with the majority’s exposition of the legal principles governing the court’s “knock-and-announce” analysis, but I disagree with the conclusion that the majority reaches. This case does not involve a dispute about the historical facts; thus, as the majority notes, the ultimate determination of reasonable suspicion is reviewed de novo by this court. I would conclude, based on the circumstances presented here, that a reasonable suspicion of an exigent circumstance had not yet matured and that the district court should have sustained Lammers’ motion to suppress the evidence obtained from the search of his residence. Thus, I respectfully dissent.
¶3I begin by noting the reasoning with which the U.S. Supreme Court approved the reasonableness of the search conducted in United States v. Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003). In Banks, as the majority notes, the court concluded it was reasonable to suspect an imminent loss of evidence 15 or 20 *693seconds after the police had knocked and announced their presence. The Court stated that on the record in that case,
what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. That is, when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter; since the bathroom and kitchen are usually in the interior of a dwelling, not the front hall, there is no reason generally to peg the travel time to the location of the door, and no reliable basis for giving the proprietor of a mansion a longer wait than the resident of a bungalow, or an apartment like Banks’s. And 15 to 20 seconds does not seem an unrealistic guess about the time someone would need to get in a position to rid his quarters of cocaine.
¶5The Court’s analysis in Banksmust be read in light of the Court’s earlier holdings in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), and Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). In Wilson, the police officers executing the search warrant announced their presence at the same time that they entered the residence. The Court reversed the Arkansas Supreme Court’s affirmance of the resulting conviction, explaining that the knock-and-announce principle formed a part of the Fourth Amendment inquiry into the reasonableness of a search. At the same time, the Court cautioned that the flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignored countervailing law enforcement interests. See Wilson, supra.
¶6In Richards, supra,the Wisconsin Supreme Court had concluded that police were never required to knock and announce their presence when executing a search warrant in a felony drug investigation. The U.S. Supreme Court rejected the Wisconsin *694court’s conclusion that the Fourth Amendment permitted a per se exception in drug cases to what the Court now characterized as the “knock-and-announce requirement.” 520 U.S. at 388. The Court held that in order to justify a no-knock entry, police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. See id.But the Court refused to create a per se exception for felony drug investigations, stating that if it created such an exception, even for a category of offenses with a considerable risk of destruction of evidence, “the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.” 520 U.S. at 394.
¶7Obviously, under Wilson, supra,police cannot satisfy the knock-and-announce requirement by simultaneously announcing their presence and entering a residence, and Richards, supra,makes clear that the fact that drugs are easily disposable does not change the requirement of Wilson. But it is equally obvious that pursuant to United States v. Banks, 540 U.S. 31, 124 S. Ct. 521, 157 L. Ed. 2d 343 (2003), officers are permitted to force entry if they wait long enough, under the circumstances, to have a reasonable suspicion that waiting longer would permit the destruction of evidence. The instant case falls somewhere in the middle. The Court in Bankscautioned against distorting the “totality of the circumstances” principle by resorting to categorical schemes, and I recognize that the line in these cases can be difficult to draw. But, as Justice Holmes wrote, “the constant business of the law is to draw such lines.” Dominion Hotel v. Arizona, 249 U.S. 265, 269, 39 S. Ct. 273, 63 L. Ed. 597 (1919).
¶8In a rare concession, the Court stated in Banksthat the “call,” in that case, was “a close one.” 540 U.S. at 38. This case, in my opinion, crosses the line, and the district court should have concluded that the search was unreasonable under the Fourth Amendment. In Banks, police entered the residence of a suspected drag dealer after 15 to 20 seconds. The Court specifically noted that the exigency of possible destruction of evidence was heightened because the “prudent dealer” will be prepared to quickly dispose of evidence. See 540 U.S. at 40.
¶9*695In this case, on the other hand, police entered the residence after only 10 to 12 seconds, and had apparently determined to do so before they even reached Lammers’ residence a few minutes after 7 a.m. The facts known to the police prior to executing the search warrant, as summarized in the majority opinion, do not particularly suggest that Lammers was a sophisticated drug dealer; the police did not seek a no-knock warrant. Rather, the record just as easily suggests that Lammers was certainly a consumer, and not a very prudent consumer at that. The fact that Lammers dropped his drugs at the bank indicates that he was not particularly cautious or discreet. I would conclude, considering the totality of the circumstances in this case, that the exigent circumstance claimed by the police — reasonable suspicion of the possible destruction of evidence — had not yet matured at the time that the police forced entry into Lammers’ residence.
¶10Nebraska law requires that in the absence of judicial direction, an officer executing a search warrant effectively give “notice of his office and purpose” before breaking into a building. See Neb. Rev. Stat. § 29-411 (Reissue 1995). Both the U.S. Constitution and § 29-411, however, permit the issuance of a no-knock search warrant when proof is presented that evidence may be easily disposed of or destroyed, or that danger to the executing officer may result. See Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). While Richardscautioned against the overgeneralization associated with a per se rule permitting no-knock warrants in felony drug cases, the Court certainly did not preclude a no-knock search warrant when circumstances justify one. “[W]hen the officers know, before searching, of circumstances that they believe justify a no-knock entry, it seems more consistent with the Fourth Amendment to ask a neutral judge for approval before intruding upon a citizen’s privacy.” U.S. v. Scroggins, No. 03-2279, 2004 WL 574495 at *4 (8th Cir. Mar. 24, 2004). The majority’s determination in this case, however, comes perilously close to permitting police to sidestep the procedure established by § 29-411 for obtaining a no-knock warrant. The police could obtain an ordinary search warrant, and then satisfy the knock-and-announce requirement with what is, in my opinion, a perfunctory announcement of their presence before a nearly immediate forced entry.
¶11*696In order for Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995); Richards, supra; and § 29-411 to have continued vitality, the knock-and-announce requirement must be meaningfully implemented. I do not believe that, at 7:10 in the morning, waiting 10 to 12 seconds before breaking down Lammers’ door was a meaningful announcement of police presence, and I conclude, after a de novo review, that the search was unreasonable under the Fourth Amendment. I would hold that the district court erred in denying Lammers’ motion to suppress on that basis.