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State v. Harada2/25/2002
f law are reviewed under the right/wrong standard." State v. Pattioay, 78 Hawaii 455, 459, 896 P.2d 911, 915 (1995) (citation omitted). State v. Wilson, 92 Hawaii 45, 48, 987 P.2d 268, 271 (1999).
III. DISCUSSION
The prosecution contends that the method and manner in which the search warrant was executed was lawful. In the alternative, the prosecution contends that, if the knock and announce rule of HRS § 803-37 was invoked, exigent circumstances existed that excused the officers' compliance with the knock and announce rule of HRS § 803-37.
A. The Knock and Announce Rule
The question whether the knock and announce requirements are invoked during the execution of a search warrant focuses upon whether there has been a breaking. See State v. Dixon, 83 Hawaii 13, 16, 924 P.2d 181, 184 (1996). Although a breaking "connotes some use of force," that force may be no more than that required to turn a doorknob. See id. at 18, 924 P.2d at 186 (stating that " n unannounced intrusion into a dwelling . . . is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or . . . open a closed but unlocked door" (citation and emphasis omitted)). However, where the police gain entry into a place to make an arrest or to search via the use of a ruse without the use of force, there is no breaking; thus, the knock and announce rule is not implicated. Id. at 21, 924 P.2d at 189; State v. Eleneki, 92 Hawaii 562, 566, 993 P.2d 1191, 1195 (2000) (holding that the use of a ruse does not necessarily violate HRS § 803-37). But, where a ruse is accompanied by the use of force to gain entry during the execution of a search warrant, police officers are required to comply with HRS § 803-37. See id. at 566, 993 P.2d at 1195. Thus, where a breaking occurs or force is used, officers are required to comply with applicable knock and announce requirements regardless of whether they are executing a search or an arrest warrant. Id.
In his dissenting opinion, Justice Ramil, also citing Eleneki, concludes that, "after a door is considered 'open,' police officers do not need to comply with the knock and announce requirements." J. Ramil, dissenting op. at 3-4. Justice Ramil goes on to say -- and seemingly concludes -- that " hether force is subsequently used is irrelevant to [determining the officers' need to comply with the knock and announce requirements]." Id. at 4. In other words, if a door is open, no matter how slight, police officers need not knock and announce regardless of whether force is used. The foregoing conclusion, however, is contrary to Hawaii and most federal and state case law.
Given the internal inconsistencies contained within Eleneki, Justice Ramil's position is not completely unfounded. The relevant analysis as set forth in Eleneki is as follows:
In Dixon, we held that "HRS § 803-11 is not implicated where entry is gained through an open door without use of force." 83 Hawai'i at 21, 924 P.2d at 189. In the present case, although the ruse prompted Foster to partially open the door, Officer Kenui had to use force to gain entry because Foster attempted to close the door after recognizing Kenui. Because force was used, the officers were required to comply with HRS § 803-37 and Garcia. The circuit court did not reach the issue whether the officers complied with HRS § 803-37 and Garcia; the ICA held that the requirements were not satisfied. We disagree with the ICA.
HRS § 803-37 provides that officers executing a search warrant "may enter [the place to be searched] without demanding permission if the officer finds it open. If the doors are shu
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