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State v. Harada2/25/2002
he door forcibly if refused admittance. Contreras-Ceballos, 999 F.2d at 435.
What would be gained by demanding, as is required by the majority's insistence that the knock and announce statute applies, that the officers (1) permit the "open door" to be closed and (2) re-knock, re-announce, and open the door forcibly if refused admittance (as surely would occur)? Under these circumstances, requiring the police to allow a defendant to close his door then to wait a reasonable period of time before breaking in would not further serve the purpose of the knock and announce rule. In an attempt to mitigate the senselessness of this nonsensical procedure, the majority introduces a new exception to the knock and announce rule -- if any part of the requirement is "unreasonable" based on the "totality of the circumstances," it is eliminated. Majority at 25 n.7. Thus, the majority asserts that officers need not wait for the door to close or for a reasonable amount of time. See id. at 25. Applying the same exception to the case at bar, is it not unreasonable to require the officer to "orally demand entry," id. at 26, even though the officer has already announced, "Police. Search Warrant. Get on the ground." and is contemporaneously using force to prevent the door from being shut? Is there really any question that the officer who is pushing on the door and demanding Harada to "get on the ground" is effectively demanding entry? Does the majority believe that reciting the mantra, "we demand entry," has a magical effect that no other similar command possesses? If the majority believes that the "lawfulness of the execution of a search warrant should be judged under a standard of reasonableness," id. at 26 n.7, why does it rigidly impose the straitjacket of intoning a specific catchphrase, while rejecting functionally equivalent phrases different only in form? Does not the reasonableness analysis also apply to the officer's demanding entrance? If " nder the circumstances described [in Contreras-Ceballos], it would be unreasonable to require the officers to wait," id. (emphasis in original), thereby eliminating that requirement, is it not, under the circumstances described in this case, also unreasonable to require the officer to orally demand entrance when he has effectively already done so, thereby eliminating that requirement? Cf. Monay, 85 Hawaii at 285, 943 P.2d at 911 (Ramil, J., joined by Nakayama, J., concurring and dissenting) ("[The officers'] behavior taken as a whole, did translate into a demand for entry . . . . These actions were reasonable and realized the intent behind HRS ยง 803-37."). The majority, applying the knock and announce rule in this case, should apply all of the rule. It cannot freely pick and choose only those elements that it fancies.
Here, with respect to the first purpose of the knock and announce rule -- reducing potential violence to both occupants and police resulting from an unannounced entry -- not only are the occupants aware of the officers' desired entry, but also the threat of violence is not reduced by blindly adhering to the knock and announce rule. Indeed, the potential for violence may actually increase by providing the occupant with additional time to rebuff the police's entry. Second, mandating that the officers allow the door to be closed before entering may actually increase the amount of unnecessary property damage because it practically guarantees that the door, at least, must be broken down. In contrast, if the officers are able to keep the door open by force, the damage to the door and other property will likely be lessened. Third, this court has already held that the occupant's right to privacy is minimal because (1) the occupant voluntarily opened his or her door to the
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