State v. Harada2/25/2002
").
B.
The statute is clear and unambiguous. On its face, HRS § 803-37 permits entry "without . . . permission" when serving a search warrant only "if the officer finds [the premises] open." It is without dispute that the officer here did not "find" the door to the premises open. "Find" in its ordinary and common sense meaning denotes " o come upon," " o discover,"Blacks Law Dictionary 631 (6th ed. 1990), or "to come upon often accidentally." Merriam Webster's Collegiate Dictionary 436 (10th ed. 1993). The police did not "come upon" or "discover" the door open; they fomented the circumstances which caused it to be partially ajar. Hence, the police cannot be said to have found the door open within the meaning of HRS § 803-37. Under the statute, finding the door open is the only circumstance that permits the officer to "enter [the premises] without demanding permission." HRS § 803-37.
Because the police did not find the door open, but "shut," they were obligated to "'declare [the officer's] office and [the officer's] business, and demand entrance.'" State v. Garcia, 77 Hawaii 461, 465, 887 P.2d 671, 675 (App. 1995) (quoting The King v. Ah Lou You, 3 Haw. 393, 395 (1872)) (emphasis in original). The court's finding No. 9 "indisputably establish that the police failed to specifically 'demand entrance' as directed by the statute." Id. Thus, " he police, here, having failed to follow the statute's mandate, illegally entered the premises. The entry being illegal, any items seized as a result of the illegal entry must be suppressed." Id. at 466, 887 P.2d at 676 (citation omitted).
Because HRS § 803-37 prescribes the manner in which search warrants are to be served, it is to be given paramount effect within the territorial boundaries of this jurisdiction. The statutes of our state admit of no other manner in which search warrants are to be served, thus afortiorari purported service in a manner other than that authorized by HRS § 803-37 is invalid, the entry illegal, and, thus, the fruits of the search tainted. By authorizing entry in two specific ways -- upon finding the door open, or if shut, then after the required pronouncements -- the statute excludes all other manner of entry by those charged with serving a search warrant.
" statute which provides for a thing to be done in a particular manner or by a prescribed person or tribunal implies that it shall not be done otherwise or by a different person or tribunal; and the maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies to such statute." State ex rel. Battle v. Hereford, 133 S.E.2d 86, 90 (W.Va. 1963) (citations omitted). SeealsoAmantiad v. Odum, 90 Hawaii 152, 163, 977 P.2d 160, 171 (1999) (applying maxim of expressio unius est exclusio alterius to HRS § 386-73, stating that "'original court action to settle controversies involving the workers' compensation law'" were precluded, and that the circuit court was relegated "'to a secondary role'") (quoting Travelers Ins. Co. v. Hawaii Roofing, Inc., 64 Haw. 380, 384, 641 P.2d 1333, 1336 (1982); Travelers Ins. Co., 64 Haw. at 387, 641 P.2d at 1338 (also applying maxim to HRS § 386-73, stating that "'appellant [may not] properly bring an original action in the circuit court which would bar the operative effect of [an administrative] order'") (quoting Ras v. Hasegawa, 53 Haw. 640, 641, 500 P.2d 746, 747, reh'g denied, 53 Haw. 640, 500 P.2d 746 (1972)).
II.
The exception to the statutory requirements allowed in our jurisdiction permits the police in executing a warrant to immediately enter the premises if exigent circumstances justify such an entry. HRS § 803-37 does not
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