State v. Harada2/25/2002
rresting him did not involve a "breaking" of the door. Dickey v. United States, 332 F.2d 773, 777-78 (9th Cir.) (citations and footnotes omitted) (emphasis added), cert. denied, 379 U.S. 948 (1964).
The majority's reasoning attempts to follow this view by applying it to this case. But, here, as described in Section I, Officer Bermudes had already gained entrance and, thus, Dickey's analysis is inapplicable. More recently and more relevantly, in the 1993 case of United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993), which this court extensively relied on in Eleneki, 92 Hawaii at 567, 993 P.2d at 1196, and cited in Dixon, 83 Hawaii at 20, 924 P.2d at 188, the Ninth Circuit expressly held that the knock and announce rule does not apply to an officer's use of force to keep the door open once it has been opened. It explained,
Under Dickey and Leahy[ v. United States, 272 F.2d 487 (9th Cir. 1959)], the officers were not in violation of [the knock and announce statute] when [the occupant] opened the door in response to the officers' ruse. The officers then stated their identity, authority and purpose. At that point, the purposes of [such statute] had been fully served. Contreras-Ceballos, 999 F.2d at 435.
In other words, the Ninth Circuit noted that the knock and announce statute's applicability ended at that point. It continued, "The warrant held by the officers entitled them to search whether or not their search was resisted. Their use of force to keep the door open, and to enter, did not implicate section 3109." Id. (emphasis added); see also United States v. Salter, 815 F.2d 1150, 1152 (7th Cir. 1987) (officer's preventing door that had been partially opened by occupant from closing does not implicate knock and announce requirement); United States v. Byars, 762 F. Supp. 1235, 1238 (E.D. Va. 1991) (officer's preventing door that had been opened by occupant from closing does not implicate knock and announce requirement). Thus, the Ninth Circuit reiterated the fact that, after the door was open, the knock and announce analysis was no longer relevant. And, as if to end any further doubts about the inapplicability of the knock and announce statute after the door is open, the Ninth Circuit pointed out the folly of holding to the contrary:
To rule otherwise would dictate a nonsensical procedure in which the officers, after having employed a permissible ruse to cause the door to be opened, must permit it to be shut by the occupants so that the officers could then knock, reannounce, and open the door forcibly if refused admittance. Contreras-Ceballos, 999 F.2d at 435.
Although the majority concedes that such procedure is absurd, it contends that under its approach, officers "need only state their office, their business, and demand entry; they would not be required to wait for the door to close, or for a 'reasonable' amount of time to pass." Majority at 25. Its reasoning is relegated to a footnote, which argues only that "it would be unreasonable to require the officers to wait." Id. at 25 n.7 (citing State v. Garcia, 77 Hawaii 461, 468, 887 P.2d 671, 678 (App. 1995)) (emphasis in original). But this explanation suffers from two flaws. First, as described in Section I, the knock and announce statute requires that any force be used only after, not while, complying with the knock and announce requirements. Second, the majority cites to the Intermediate Court of Appeals' opinion in Garcia, which held only that officers must wait a reasonable amount of time to allow the occupant to respond to their demand for entry, see Garcia, 77 Hawaii at 468, 887 P.2d at 678, not, as the majority claims, that officers must wait a reasonable amount of time in waiting "for the
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