State v. Harada2/25/2002
s-Ceballos. The court stated:
Under Dickey [v. United States, 332 F.2d 773, (9th Cir. 1964),] and Leahy [v. United States, 272 F.2d 487 (9th Cir. 1959)], the officers were not in violation of section 3109 when See opened the door in response to the officers' ruse. The officers then stated their identity, authority and purpose. At that point, the purposes of section 3109 had been fully served . . . . Their use of force to keep the door open, and to enter, did not implicate section 3109. Contreras-Ceballos, 999 F.2d at 435. See alsoUnited States v. Salter, 815 F.2d 1150, 1152 (7th Cir. 1987) ("Even if, as Salter says, the officers blocked the doorway and then pushed the door fully open . . . there was no force used in this case that would implicate § 3109.").
In the present case, as in Contreras-Ceballos, Foster opened the door approximately twelve inches in response to the officers' ruse, then attempted to close the door. The officers met his resistance and pushed the door open further, announcing "Police, search warrant, we demand entry." They repeated the announcement once inside. Their entry violated neither the terms of HRS § 803-37 nor the purposes of the knock and announce statute. Eleneki, 92 Hawaii at 566-67, 993 P.2d at 1195-96.
Given that this court has already held that a door opened one foot is considered "open" for purposes of the knock and announce statute, it follows, a fortiori, that a door opened three feet must be considered "open" for purposes of the same statute.
In this regard, I only follow the principle of precedent. Because this court has already expressly decided that opening a door one foot is "sufficient to render the door 'open' for purposes of the statute," id. at 566, 993 P.2d at 1195, I reason -- if not am bound to decide -- that opening a door three feet must be sufficient to render the door "open" for purposes of the statute. Second, the majority overlooks the second half of my position, which is explained in Section IV: although the knock and announce requirements are not implicated when a door is considered "open," the reasonableness standard secured by the state and federal constitutions does apply. Thus, under some circumstances, the officers may well be required to knock and announce.
To avoid the reasoning in Eleneki, the majority attempts to distinguish the facts in that case from the facts here by claiming that the officers in the former "complied" with the knock and announce statute. The majority repeatedly insists, " t was unnecessary in Eleneki to resolve whether the statute was implicated because the officers had complied with the knock and announce rule by declaring 'police, search warrant, we demand entry' as they were pushing open the door." Majority at 10 (emphasis added). But the statute and this court have incontrovertibly established that compliance with the knock and announce requirements must occur before, not while, using force to gain entry. The knock and announce statute, which is the linchpin of the majority's argument, actually reads:
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. When entered, the officer may demand that any other part of the house, or any closet, or other closed place in which the officer has reason to believe the property is concealed, may be opened for the officer's inspection, and if refused the officer may break them. HRS § 803-37.
Likewise, this court in Dixon expressly specified that force in breaking a door may be used "only after complying with the knock and announce req
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