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State v. Harada2/25/2002
entry. Id. at 70 (citations omitted) (emphases added).
Thus, according to the reasoning of this case cited by the majority, an officer's further opening of an already open door is not considered use of force to gain entry.
Even assuming arguendo that Dixon holds the answer to the question in this case, it appears to support my position:
In Syler, agents with a valid arrest warrant approached appellant's front door simultaneously with a serviceman who was there to connect the gas. The front door to the house was open, but the screen door was closed. The serviceman knocked on the door and called out, "Gas man." The serviceman then left at the agents' instructions. When no one came to the door, one of the agents yelled "gas man," and appellant unlatched and partially opened the screen door. The agents then pulled the door open further and entered. The court held that there was no "breaking" within the meaning of 18 U.S.C. § 3109 because the agent merely completed the operation voluntarily initiated by appellant and " o attempt was made to bar his way and no force was applied in gaining entry." Id. at 70. See alsoUnited States v. Raines, 536 F.2d 796, 800 (8th Cir.) ("A police entry into a private home by invitation without force, though the invitation be obtained by ruse, is not a breaking and does not invoke the common law requirement of prior announcement of authority and purpose, codified in § 3109."), cert. denied, 429 U.S. 925 (1976); United States v. Salter, 815 F.2d 1150 (7th Cir. 1987) (holding that where officer, identifying himself as hotel clerk, telephoned appellant requesting her to come to hotel desk, and other officers positioned outside hotel room door waited until appellant opened door, prevented her from closing door, and entered hotel room, there was no "intrusion," and section 3109 was not implicated by entry through an open door); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993) (officer's use of force to keep open door that was voluntarily opened in response to officer's ruse, and to enter, did not implicate section 3109). Dixon, 83 Hawaii at 20, 924 P.2d at 188 (emphases added).
The majority describes nine irrelevant cases from Dixon, without focusing on the two cases in Dixon that actually deal with the question at issue here.
Finally, the irrelevant cases cited by the majority do not carry substantial weight -- seven of the nine cases are from the 1950s, '60s, and '70s, with the two most recent being a 1986 opinion from the Florida District Court of Appeal and a 1983 opinion from the Alabama Court of Criminal Appeals. If, as the majority asserts, these cases from decades ago have "steadfastly stood the test of time," majority at 15, where are the recent cases testifying to this? If the claim is that the case law is the same today as they were yesterday, then why would the majority insist on referring only to yesterday's cases? The answer lies in the fact that recent federal cases do not support the majority's position.
II. FEDERAL CASE LAW
The Ninth Circuit addressed this very issue in question, and has answered it in the same manner as Eleneki -- and in diametric contradiction to the majority's proposition. In 1964, the Ninth Circuit stated:
Had the officers obtained, by ruse, a partial opening of Dickey's door, and if they had then forced open the door the rest of the way to gain entrance, this would have been a "breaking" in the sense of section 3109. But the employment of a ruse to obtain the full opening of the Dickeys' door unassociated with force, was not a "breaking." And since the door was then wide open, the subsequent entry into Dickey's room for the purpose of a
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