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State v. Harada2/25/2002
ies are empowered to rewrite statutes to suit their notions of sound public policy when the legislature has clearly and unambiguously spoken." 1 N. Singer, Sutherland Statutory Construction § 3.06, at 55 (5th ed. 1992-94).
Thus, the constitutional impact of ruses becomes an issue only because Dixon, Eleneki, and the majority in this case permit the circumvention of service requirements by sanctioning ruses. Assuming arguendo that the requirements of HRS §§ 803-11 and -37 may be cast aside, Dixon's own analysis is inherently faulty in at least two ways.
X.
As noted previously, Dixon found little constitutional impediment to ruses. However, in contrast to the United States Constitution, the right against unreasonable searches and invasions of privacy is expressly confirmed in article I, § 7 of the Hawaii Constitution. In light of that expression, we have construed our provision as affording broader protection to persons in our state than might be recognized by United States Supreme Court and federal court decisions construing the prohibition against unreasonable searches and an implied right of privacy in the federal constitution. See cases cited infra Part X.C.
Dixon's trivialization of the Hawaii Constitution's right to privacy as "minimal," in the context of governmental entries into the home, finds no support in prior case law or the history of section 7 and is based on two untenable grounds: (1) that " he privacy interest protected by the knock and announce rule is minimal, inasmuch as it is only the occupant's privacy for the span of time between the announcement and the actual entry that is implicated," 83 Hawaii at 23, 924 P.2d at 191, and (2) that " here the entry is obtained by ruse, there is no unwarranted intrusion on the occupant's privacy because the occupant has voluntarily surrendered his or her privacy by opening the door." Id.
The right to privacy implicated transcends "the span of time between the announcement and the actual entry." Id. The privacy interest involved is that expectation against government intrusion in one's own place of abode that society recognizes as reasonable. " he home the situs of privacy." Mallan, 86 Hawaii at 444, 950 P.2d at 183 (emphasis omitted). See also State v. Apo, 82 Hawaii 394, 401, 922 P.2d 1007, 1014 (App. 1996) (holding that police officer's entry into the living room constituted a "'search' in the constitutional sense," because the officer invaded defendant's legitimate expectation of privacy in his home (citation omitted)).
A.
What Dixon mistook for a minimal privacy interest was in fact that constitutional rule of reasonableness in the execution of a warrant imposed on officers to afford a reasonable time for the occupant to respond after their announcement and before entry:
he amount of time allowed to lapse between announcement and entry is relevant in determining the reasonableness of the officers' conduct in executing a search warrant. It follows, then, that a person should be afforded sufficient opportunity to respond to authority before a forcible entry is made. Thus, even where the operative statute does not require the officers to demand entrance, a reasonable amount of time to respond must be given to the occupants. Hence, one commentator has summed up the rule as follows: "An officer must wait a reasonable period of time before he or she may break and enter into the premises to be searched. That is, the occupant must be given a reasonable opportunity to surrender his or her privacy voluntarily." 2 W.Lafave Search and Seizure § 4.8(c), at 278 (1987) (footnote omitted). Garcia, 77 Hawaii at 467, 887 P.2d at 677 (some internal quotation marks and c
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