State v. Harada2/25/2002
y being closed,
would dictate a nonsensical procedure in which the officers, after having employed a permissible ruse to cause the door to be opened, must permit it to be shut by the occupants so that the officers could then knock, reannounce, and open the door forcibly if refused admittance. Contreras-Ceballos, 999 F.2d at 435.
Although we agree that the procedure described by the court in Contreras-Ceballos is nonsensical, police officers in the situation described would actually need only state their office, their business, and demand entry; they would not be required to wait for the door to close, or for a "reasonable" amount of time to pass. Moreover, none of the cited cases require that the police, in response to an occupant's attempt to close the door, first allow the door to be closed and then mechanistically comply with the knock and announce statute.
Accordingly, we hold that, where a ruse is accompanied by the use of force to gain entry during the execution of either a search or arrest warrant, police officers are required to comply with the knock and announce rule.
Where the knock and announce rule has been triggered, the police are required to declare their office, their business, and expressly demand entry. See State v. Monay, 85 Hawaii 282, 284, 943 P.2d 908, 910 (1997); State v. Garcia, 77 Hawaii 461, 466, 887 P.2d 671, 676 (App. 1995); HRS §§ 803-11 (1993) and 803-37. In other words, the requirements of the knock and announce rule are not met when police officers fail to orally demand entry, and a demand of entry cannot be implied from simply stating, "Police, search warrant." Monay, 85 Hawaii at 284, 943 P.2d at 910.
In the present case, the officers employed a ruse while executing the search warrant at Harada's apartment. In response, Harada opened the door, but then quickly attempted to close it. Officer Bermudes used force to prevent the door from being closed and succeeded in gaining entry. At the point that Harada opened his door in response to the ruse, there was no breaking within the meaning of HRS § 803-37. See Eleneki, 92 Hawaii at 566-67, 993 P.2d at 1195-96; Dixon, 83 Hawaii at 21, 924 P.2d at 189. However, a breaking occurred when Officer Bermudes used force to prevent Harada from closing the door. Consequently, the requirements of HRS § 803-37 were triggered, and the officers were required to declare their office, their business, and demand entrance. See Monay, 85 Hawaii at 284, 943 P.2d at 910. It is undisputed that none of the officers expressly demanded entrance as they entered Harada's apartment. Thus, the officers' entry did not comply with the knock and announce rule of HRS § 803-37.
B. Exigent Circumstances
On appeal, the prosecution alternatively contends that exigent circumstances at the time the warrant was executed excused the police officers' compliance with HRS § 803-37. However, Harada contends that the prosecution failed to properly preserve the issue whether there were exigent circumstances and, therefore, has waived the issue. See State v. Rodriques, 67 Haw. 496, 498, 692 P.2d 1156, 1158 (1985) (holding that the prosecution waived the issues of "good faith" and "exigent circumstances" exceptions to the exclusionary rule because it failed to raise the issue at trial). We agree with Harada.
IV. CONCLUSION
Based upon the foregoing, we hold that a breaking occurred when Officer Bermudes used force to prevent Harada from closing the door. Consequently, the requirements of HRS § 803-37 were triggered, and the officers' failure to expressly demand entrance as they entered Harada's apartment constituted an unlawful breaking, in violation of the knock and ann
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