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State v. Harada2/25/2002
pted to close it. Inexplicably, it was said in Eleneki that "' use entries such as that in the present case lack the element of surprise, thereby reducing the chance of confrontation,'" id. at 566, 993 P.2d at 1195 (quoting State v. Dixon, 83 Hawaii 13, 22-23, 924 P.2d 181, 190-91 (1996) (internal quotation marks and citation omitted), when in truth, the facts recounted in Eleneki were that a confrontation did take place. Moreover, the view expressed in Eleneki that "'the occupant's right of privacy is severely limited where the police have satisfied the Fourth Amendment's probable cause and warrant requirements'" merely begs the question. Id. (quoting Dixon, 83 Hawaii at 23, 924 P.2d at 191 (internal quotation marks and citation omitted). Cf.Payton, 445 U.S. at 589 ("To be arrested in the home . . . an invasion of the sanctity of the home[, which] is simply too substantial an invasion to allow without a warrant, in the absence of exigent circumstances,even when it is accomplished under statutory authority and when probable cause is clearly present." (Emphasis added.)).
For inherent in an analysis of our constitution's counterpart of the Fourth Amendment is the premise that the execution of a search warrant must be reasonable, inasmuch as an unreasonable execution of a warrant, even if that warrant satisfies "probable cause and warrant requirements," will invalidate the subsequent search and the fruits thereby obtained. SeeWilson v. Arkansas, 514 U.S. 927, 934 (1995) (stating that " iven the longstanding common-law endorsement of the practice of announcement, . . . the method of an officer's entry into a dwelling among the factors to be considered in assessing the reasonableness of a search or seizure," and that "in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment").
The rationale adopted in Eleneki led to the tortured conclusion that the requirements of HRS § 803-37 had been met in that case. It was said that
the officers employed a permissible ruse, which induced [an occupant] to open the door approximately one foot. This was sufficient to render the door "open" for purposes of the statute. Therefore, the officers were not required to knock and announce before entering, and the force used by the officers to further open the door against [that occupant]'s resistance was not a breaking. Eleneki, 92 Hawaii at 566-67, 993 P.2d at 1195-96 (emphasis added).
The language of HRS § 803-37 is manifestly to the contrary. HRS § 803-37 pronouncements may be forborne "if the officer find [the premises] open." Obviously, the officers did not "find it open"; they tricked the occupants into partially opening the door. Had the police found the door open, there would have been no reason to employ a ruse to have it opened. The federal cases cited in Eleneki were inapposite. They applied a statute that rendered no direction at all as to the appropriate conduct of the law enforcement officers in the event the door was found "open" or not and is less solicitous of the privacy rights of occupants than HRS § 803-37.
B.
In applying HRS § 803-37, Eleneki adopted the rationale applied in Dixon to HRS § 803-11, the statute pertaining to service of arrest warrants. In Dixon, the defendant was the subject of an outstanding arrest warrant. Using the hotel's security guard to obtain entry to defendant's hotel room on the pretense of "check on the air conditioning," 83 Hawaii at 15, 924 P.2d at 183, the police entered and arrested defendant. In moving to suppress evidence obtained at the time of arrest, the defendant maintained that HRS § 803-11 was violated. HRS § 803-11 provides as follows:
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