State v. Harada2/25/2002
outside world and (2) the only privacy interest in question is for the short "span of time between the announcement and the actual entry," Dixon, 83 Hawaii at 23, 924 P.2d at 191. Accordingly, the majority should heed the earlier advice of this court: "The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. at 22, 924 P.2d at 190 (quoting Wilson v. Arkansas, 514 U.S. 927, 934 (1995)). Requiring compliance with the knock and announce rule in this case would be to insist on a formality, which has outlived its usefulness and may very well be counter to its original purpose.
In fact, the majority neglects to explain how requiring the officers in this case to orally demand entry -- even putting aside the knock and announce requirement that the door be closed -- would have further served the purpose of the rule. Does the majority believe that orally demanding entry in this case would be any different? Would it have actually advanced any of the three policy reasons in any way? The real-life result of the majority's position is that police officers will be rigidly required to recite the mantra, "Police, search warrant, we demand entry," even where, like this case, it serves no purpose.
Given that the majority recognizes the viability of Eleneki, see majority at 7-13, the majority must agree that the door in this case is undoubtedly "open" for purposes of the knock and announce rule. Once the door is opened, even if only partially, the purposes of the statute, as described earlier, have already been satisfied. The plain language of the statute supports such reading -- it does not distinguish between "partially open" and "open." Rather, a door is either "open" or "shut." After all, despite what the majority suggests, one cannot "close" a door that is not "open." Similarly, a "breaking," even one by the majority, see id. at 17, cannot occur on an already "open" door, see HRS ยง 803-37 ("If the doors, gates, or other bars to the entrance are not immediately opened, the officer may break them.") (emphases added). The majority focuses, instead, on when a "breaking" occurs, which is, in turn, defined as "where force is used to gain entry." See majority at 25. But that merely begs the question of what it means to "gain entry." The ultimate question remains whether the three policy reasons underlying the statute are satisfied. Here, the officers "gained entry" when Harada voluntarily opened the door about three feet and Officer Bermudes entered. At that point, the three policies underlying the knock and announce statute had been achieved. After the door was "open" and entry had been "gained," the knock and announce requirements were no longer relevant, by both the terms of the statute and its underlying policies.
IV. CONSTITUTIONAL REASONABLENESS
Granted, there are still concerns with the use of force, but such concerns are now properly addressed by the reasonableness standard secured by the state and federal constitutions. " he standards by which any governmental search is to be judged is always its reasonableness, in light of the constitutional guarantee of freedom from unreasonable searches and seizures." Monay, 85 Hawaii at 284, 943 P.2d at 910 (quoting Garcia, 77 Hawaii at 467, 887 P.2d at 677) (citation omitted). As specified in Dixon, " oth article I, section 7 of the Hawaii Constitution and the fourth amendment to the United States Constitution provide for the right of the people to be secure in their houses against unreasonable searches and seizures, and article I, section 7 additionally protects specifically against unreasonable invasions of privacy." 83 H
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