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State v. Harada2/25/2002
wise, the purpose of notifying residents of impending governmental intrusion is simply disregarded. Notification of the police presence becomes immaterial if the objective is to gain entry past unsuspecting residents.
When a ruse is employed, violence is not necessarily avoided. In the instant case, there was conflicting testimony about whether the police in fact announced their office before forcibly entering. What is undeniable is that an unsuccessful ruse in this case, as in State v. Eleneki, 92 Hawaii 562, 993 P.2d 1191 (2000), seeinfra Section IV., resulted in the use of force by police to gain admittance. As the court said in finding No. 8, "Officer Bermudes used 'quite a bit' of force to open the door and had bruises all over his body the next day."
Moreover, surprise and confusion are likely to result at a resident's realization that entry is being made by someone who was not expected, or for some unknown purpose, engendering the risk of mistaking the identity of the intruder or the reason for the entry. None of the officers here were in uniform, the court observing in finding No. 5 that members of the "search team [were] dressed in plainclothes with HPD logo shirts or jackets [and that s]ome wore ski-masks[.]" A ruse is a practice pregnant with potential for tragic consequences and heightens the risk that "officers . . . might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there." Garcia, 77 Hawaii at 468 n.9, 887 P.2d at 678 n.9 (internal quotation marks and citation omitted).
The implications of sanctioning ruses in the execution of search warrants is far reaching. As this case demonstrates, the police will simply resort to a ruse and dispense with statutory requirements altogether to "make entry easier." With the shedding of such requirements, the purposes effectuated by a prior notification requirement and the attendant exigent circumstances formulation become irrelevant.
IV.
A.
In circumstances similar to the present case, Eleneki departed from the plain language of HRS § 803-37 and its prior construction in Garcia and Quesnel, in holding that "the use of a ruse is not prohibited in the execution of a search warrant." Eleneki, 92 Hawaii at 563, 993 P.2d at 1192. In Eleneki, the police, armed with a search warrant, made no attempt to comply with the requirements of HRS § 803-37 but instead "decided to employ a ruse to have the occupants open the door." Id. After several entreaties of, "Open the door, Ripper," one of the residents "opened the door approximately one foot." Id. The officer "then used some amount of force to further open the door as [an occupant] tried to close it." Id. According to the officer, "he simultaneously announced, 'Police, search warrant, we demand entry.'" Id.
Despite the plain language of HRS § 803-37, it was held that "the [Hawaii] statutes are silent on the issue whether the use of a ruse is permissible, [therefore] we look beyond the plain language of the statutes." Id. at 565-66, 993 P.2d at 1194-95. As related above, in mandating the methods by which search warrants are to be executed, the statute distinctly allowed service only in the manner stated. Under the facts in Eleneki, the police made no pretense of following the statute since they made no attempt to comply with it before effecting entry, but only recited the necessary announcements after having gained a foothold in the entrance.
In Eleneki, as in this case, the use of a ruse actually engendered the use of force between the police and the occupants, as those on the outside of the entrance attempted to expand the opening in the doorway, while another on the inside attem
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