State v. Harada2/25/2002
but is presented here and supports their overruling, is the now established fact that HRS §§ 803-11 and 803-37 have been largely abrogated by those decisions. Resting on the Dixon formulation, the police may now completely circumvent the requirements of those statutes by use of a ruse, as the officer in the instant case related, to "make entry easier."
If the requirements of the statutes are not followed, the purposes they serve are nullified. Thus, in construing these statutes to permit ruses, the majority has effected a judicial repeal of them, a violation of our obligation and our separate function as the third branch of government to avoid such a result. SeePotter v. Hawaii Newspaper Agency, 89 Hawaii 411, 422, 974 P.2d 51, 62-63 (1999) ("Our rules of statutory construction require us to reject an interpretation of a statute that renders any part of the statutory language a nullity." (Citations omitted)); Konno v. County of Hawaii, 85 Hawaii 61, 71, 937 P.2d 397, 407 (1997) ("' tatutory construction dictates that an interpreting court should not fashion a construction of statutory text that effectively renders the statute a nullity or creates an absurd or unjust result.'" (Quoting Dines, 78 Hawaii at 337, 893 P.2d at 188 (Ramil, J., dissenting.) (Citation omitted.)); Levy v. Kimball, 51 Haw. 540, 545, 465 P.2d 580, 583 (1970) ("In the construction of a statute the general law is that a statute should be so interpreted to give it effect; and we must start with the presumption that our legislature intended to enact an effective law, and it is not to be presumed that legislation is a vain effort, or a nullity." (Citations omitted.)); State v. Isomura, 9 Haw. App. 333, 341, 839 P.2d 1186, 1190 (1992) (" statute should be interpreted to give it effect and to avoid a construction that would render it a vain legislative effort or a nullity." (Citation omitted.)).
In light of the foregoing, the justifications for overruling Dixon and Eleneki are far more than compelling. SeeState v. Garcia, 96 Hawaii 200, 206, 29 P.3d 924, 925 (2001) (" court should 'not depart from the doctrine of stare decisis without some compelling justification.'" (Quoting Hilton v. South Carolina Pub. Ry. Comm'n, 502 U.S. 197, 202 (1991).) (Emphasis omitted.)).
VIII.
As this case illustrates, the refusal to apply the statute as written only perpetuates the fruitless search for some unifying proposition. The majority's holding that, in a ruse, the HRS § 803-37 pronouncements are triggered if officers use force to force entry, see majority opinion at 2, is lacking in principled basis. Indeed, such a rule has been found objectionable. See, e.g., State v. Reynaga, 5 P.3d 579, 582 (N.M. Ct. App.) (2000) (holding in suppressing evidence recovered that, where police used force following a ruse to gain entry into a mobile home, that "for a ruse to be a reasonable and constitutional alternative to knocking and announcing, the State must demonstrate that, at the time of the execution of the warrant, . . . that exigent circumstances exist " (citation omitted)); Commonwealth v. Martinelli, 729 A.2d 628, 630 (Pa. Super. Ct. 1999) (suppressing evidence from search warrant execution where police used a ruse to encourage the defendant to open the door slightly, and pushed open the door while simultaneously announcing, " olice, search warrant," because " he purpose of the 'knock and announce' rule[,] to prevent violence, . . . protect an occupant's privacy expectation, . . . and to prevent property damage . . . may be achieved only if the police officer awaits a response for a reasonable period of time after his [or her] announcement of identity, authority, and purpose"); Commonwealth v. Ceriani, 600 A.2d 1282, 1287-8
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