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State v. Harada2/25/2002
uirements." Dixon, 83 Hawaii at 21, 924 P.2d at 189. Again, this court inState v. Monay, 85 Hawaii 282, 943 P.2d 908 (1997), observed that the "plain and unambiguous language of HRS ยง 803-37 requires police to expressly demand entrance when the doors to a place to be searched are shut before attempting forcible entry." 85 Hawaii at 284, 943 P.2d at 910. In addition, this court in Eleneki explicitly rejected the majority's assertion by specifying that the knock and announce statute was not even invoked, no less complied with. See Eleneki, 92 Hawaii at 566-67, 993 P.2d at 1195-96 ("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." (Emphasis added.)).
The majority then asserts that the Eleneki court relied on what the majority terms the "Dixon rule," which states: "The applicable knock and announce statute 'is not implicated where entry is gained through an open door without use of force.'" Majority at 10 (brackets and emphases in original). The majority believes that this rule and its "logical corollary . . . that, where force is used to gain entry, the statute is implicated," answers the question raised here. Id. at 11. But the majority overlooks a key detail: entry had already been gained through an open door. Thus, the Dixon rule and its logical corollary are irrelevant in addressing the issue presented in this case: whether the knock and announce requirements are implicated where force is used after entry is gained through an open door. Similarly, the majority's subsequent string citation of surveyed cases cannot help this court resolve the issue at hand. See id. at 11-13. Seven of the nine cases listed deal with the situation where force is not used at all. I, too, agree that where no force is applied to gain entry, that the knock and announce requirements are not implicated. But that is the easy case. And not the case in question here. Rather, this court must decide whether the knock and announce requirements are implicated where entry is gained through an open door and force is used after such door is opened and entry has been gained. Of the remaining two cases dealing with force, one is inapplicable to the issue here, while the other, indeed, counters the majority's claim. First, the 1953 case of Gatewood v. United States, 209 F.2d 789 (D.C. Cir. 1953), deals with force accompanying, not following, the ruse. Second, the 1970 case of United States v. Syler, 430 F.2d 68 (7th Cir. 1970), actually contradicts the majority's proposition. There, the officer identified himself as a "gas man." As the occupant "unlatched the outer screen door and began to open it, [the officer] pulled it open further, entering the house with the other two officers." Id. at 69. Only as the officer "came through the door," did he announce that he was "a federal officer and that he had a warrant for her arrest." Id. The Seventh Circuit held:
We also agree with the district court's finding that force was not employed to gain entrance to the bungalow and no violation of the principles of Sabbath v. United States occurred. The facts conceded by defendant show that the front door was already open. Apparently responding to the announcement of the arrival of the "Gas man," defendant unlatched the screen door and partly opened it. [The officer] merely completed the operation voluntarily initiated by defendant. No attempt was made to bar his way and no force was applied in gaining
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