 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
State v. Harada2/25/2002
e searched, may enter it without demanding permission if the officer finds it open. If the doors are shut the officer must declare the officer's office and the officer's business, and demand entrance. If the doors, gates, or other bars to the entrance are not immediately opened, the officer may break them. . . . (Emphasis added.) Thus, an officer must comply with the knock and announce rule if the door is "shut." This court, in State v. Dixon, 83 Hawai`i 13, 924 P.2d 181 (1996), explained that an officer must comply with such requirements only if there is a "breaking" -- where force is involved in gaining entry of a shut door. Id. at 21, 924 P.2d at 189. In addition, this court specifically held that a ruse effectuating voluntary opening of a door is not a "breaking." Id.
In Eleneki, this court further instructed that the knock and announce requirements are not invoked where force is used after a door is "open." 92 Hawaii at 566-67, 993 P.2d at 1195-96. An analysis of the following sequence of events in Eleneki clarifies this court's holding:
1. Officer employs ruse. 2. Occupant opens door one-foot-wide. 3. Occupant quickly tries to close door. 4. Officer meets resistance and pushes door further open announcing, "Police, search warrant, we demand entry." 5. Officer repeats announcement once inside. See id. at 563, 993 P.2d at 1192.
For purposes of HRS § 803-37, this court held that the door was considered "open" in Step 2. See id. Thus, the force used by the officer in Step 4 was not considered a "breaking" because the door was already "open." See id. Accordingly, this court concluded that the officer did not violate the terms of HRS § 803-37. In other words, after a door is considered "open," the police officers do not need to comply with the knock and announce requirements. Whether force is subsequently used is irrelevant to this determination.
Here, the majority claims that the ruse was accompanied by the use of force to gain entry and, as such, the officers were required to comply with HRS § 803-37:
In the present case, the officers employed a ruse while executing the search warrant at Harada's apartment. In response, Harada opened the door, but then quickly attempted to close it. Officer Bermudes used force to prevent the door from being closed and succeeded in gaining entry. At the point that Harada opened his door in response to the ruse, there was no breaking within the meaning of HRS § 803-37. However, a breaking occurred when Officer Bermudes used force to prevent Harada from closing the door. Consequently, the requirements of HRS § 803-37 were triggered, and the officers were required to declare their office, their business, and demand entrance. Majority at 26 (citations omitted).
But an examination of the sequence of events in this case reveals that the majority mischaracterizes the fact pattern and is inconsistent with Eleneki, which it cites approvingly:
1. Officer employs ruse. 2. Occupant opens door three-feet-wide ("'three-quarters' of the way open") and officers yell, "Police! Search Warrant!" 3. Occupant quickly tries to close door. 4. Officer uses force to prevent door from closing and officer yells, "Police. Search Warrant. Get on the ground." See id. at 3-4.
In this case, the ruse (Step 1) was not actually "accompanied by the use of force," as claimed by the majority, id. at 8 (emphasis added), but rather followed by the use of force (Step 4). The close proximity in time of the opening of the door (or gaining of entry) and the officer's use of force does not mean that the knock and announce rule is implicated. Indeed, the majority has no doubt that the force used in "securing" Harada and th
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Hawaii Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|