State v. Harada2/25/2002
e other occupants after gaining entry did not invoke the knock and announce requirement. Id. at 4. Likewise, the force used in preventing the door from being shut after it had been opened and Bermudes had already gained entry does not trigger the knock and announce requirement. Thus, it is essential to determine accurately, rather than glossing glibly over, when the force is used. The majority alleges that my "assertion that a breaking does not occur where force is applied subsequent to a voluntary opening of a door is disingenuous because force is being used to gain entry in any event." Id. at 17 (emphasis in original). But the majority disregards the dispositive fact that the door was open and Officer Bermudes had already gained entry. Accordingly, nearly every case cited by the majority in support of its position deals specifically with the issue of gaining entrance with or without the use of force and is, thus, irrelevant to the issue at hand. See, e.g., id. at 10 citing Dixon), 11-12 citing Leahy, Dickey, Gatewood, Beale, Syler, Raines, Iverson, Palmer, Ryals), 16 (citing Adcock), 21 (citing Seelig,Smith). All that these cases establish is that which is not at issue here: if any force is used to gain entry, such breaking must comply with the knock and announce rule -- the mere fact that a ruse was being employed makes no difference. But that is irrelevant to the issue in question here because the use of force by Officer Bermudes was used after entry had been gained.
Moreover, the majority asserts that, in Step 4 of this case, the officer's use of force was a "breaking." Therefore, the majority necessarily does not consider the door in Step 2 to be "open" for purposes of HRS § 803-37. Such reasoning, however, is contrary to this court's ruling in Eleneki. In that case, the door was opened only one foot, yet this court considered it sufficient to render the door "open." Here, however, even though the door was opened three feet, the majority maintains that the door was not "open." Though the majority selectively cites Eleneki, it ignores significant portions of that case, including the primary holding. This court plainly stated:
In the present case, the officers employed a permissible ruse, which induced [the 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 [the occupant's] resistance was not a breaking.
United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993), is factually similar to the present case. In Contreras-Ceballos, the state troopers and postal inspectors executing a search warrant claimed to be from Federal Express. Kevin See, one of the apartment's occupants, opened the door approximately twelve inches and then attempted to close it because he saw the troopers. The lead trooper put his hand through the doorway, pushed the door open, and stepped inside while he announced, "Troopers, search warrant." The Ninth Circuit held that the search did not violate the federal knock and announce statute.
The federal knock and announce statute applicable in Contreras-Ceballos provided that " he officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance . . . ." 18 U.S.C. § 3109 (1985). The Ninth Circuit noted that it had previously established that the use of a ruse to gain entry did not implicate § 3109 because there was no breaking and that these cases controlled the outcome in Contrera
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