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State v. Harada2/25/2002
actions of the defendants, but in the failure of the police's own ruse. The police cannot justify entry by creating their own exigency. For example, in State v. Barnett, 68 Haw. 32, 703 P.2d 680 (1985), the fact that the police knew a defendant was aware of their presence and had told her what they were looking for did not create an exigency to justify entry without a warrant.
At most, these facts may have led the police to assume that evidence would not be secure while a warrant was obtained. However, more than this is required [for exigent circumstances]. . . . " he mere subjective belief of the police that evidence is in imminent danger of removal or destruction is never enough as a basis for a finding of exigent circumstances." Id. at 36, 703 P.2d at 683 (quoting State v. Dorson, 62 Haw. 377, 386, 615 P.2d 740, 747 (1980)).
Moreover, it was pointed out that "nowhere do the findings contain 'specific and articulable facts from which it may be determined that the action [the police] took was necessitated by the exigencies of the situation.'" Id. (quoting Dorson, 62 Haw. at 388, 615 P.2d at 748 and State v. Dias, 62 Haw. 52, 57, 609 P.2d 637, 640-41 (1980)).
The correct application of the exigent circumstances rule in that circumstance where the police are executing a warrant rests on the police's objectively supported belief that unforseen circumstances have arisen justifying immediate entry. SeeQuesnel, 79 Hawaii at 192, 900 P.2d at 189. The record of the instant case is totally devoid of any officer's belief that exigent circumstances justified the entry, inasmuch as such a claim would be logically inconsistent and factually inaccurate in the face of the officers' own testimony that they gained partial entry by way of a ruse and completed entry by use of force.
To the credit of the police witnesses, they did not engage in an "exigent circumstances" subterfuge. Nor did the trial court in its findings depart from the facts presented to it, that is, that the officers used force to gain entry after a failed ruse, and not because of exigent circumstances. The majority opinion does not adopt the prosecution's position that the exigent circumstances circumstance should apply in this case, apparently because to apply it, as the defense contends, would be a significant departure from the precedent of State v. Rodrigues, 67 Haw. 496, 692 P.2d 1156 (1985), where it was held that a claim of exigent circumstances not raised below by the prosecution in a suppression case is waived. Nevertheless, despite the lack of any basis in the record, the majority holds out the possibility that, absent waiver, the doctrine of exigent circumstances may apply in this case.
VI.
There is no "knock and announce" rule pertinent to our jurisdiction except as set forth in HRS §§ 803-11 and 803-37. Our knock and announce statute differs from the federal knock and announce statute,seeGarcia, 77 Hawaii at 466, 887 P.2d at 676 ("the third requirement of 18 U.S.C. section 3109 is clearly different from that of HRS section 803-37 which affirmatively requires that the police demand entrance"), and is unique in its express and explicitly-directed tripartite requirements. There is nothing to be gained, then, in consulting case law from other jurisdictions, as did Eleneki and Dixon, except perhaps as the statutes themselves may contravene the federal constitution or our own constitution. SeeGarcia, 77 Hawaii at 467, 887 P.2d at 677 (referring to Illinois cases in determining that under article I, § 7 of the Hawaii Constitution, reasonableness of search involves judgment of whether occupants were given reasonable amount of time to respond to a demand for entry).
Hence
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