State v. Harada2/25/2002
t the officer must declare the officer's office and the officer's business, and demand entrance." Under § 803-37 and Garcia, if the occupants do not open the door after the officers knock and announce, the officers may break the door after giving the occupants a reasonable time to respond. In the present case, the officers employed a permissible ruse, which induced Foster to open the door approximately one foot. This was sufficient to render the door "open" for purposes of the statute. Therefore, the officers were not required to knock and announce before entering, and the force used by the officers to further open the door against Foster's resistance was not a breaking. Eleneki, 92 Hawai'i at 566-67, 993 P.2d at 1195-96 (emphases added).
As emphasized above, Eleneki states, first, that the knock and announce statute was implicated (based on the officer's use of force) and, second, that it was not implicated (because the force used by the officers did not constitute a breaking). Notwithstanding this internal conflict, it was unnecessary inEleneki to resolve whether the statute was implicated because the officers had complied with the knock and announce rule by declaring "police, search warrant, we demand entry" as they were pushing open the door. Id. at 567, 993 P.2d at 1196. In this case, however, the officers failed to state "we demand entry" as they entered and, thus, did not comply with the knock and announce rule. As such, this case presents us with the opportunity to correct the conflicting language in Eleneki.
The analysis in Eleneki relies primarily on State v. Dixon, 83 Hawaii 13, 924 P.2d 181 (1996), and United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993). Our review of those two cases and the cases upon which they rely demonstrate that the use of force in gaining entry is not only relevant to whether the knock and announce statute is implicated, it is a primary factor in making such determination.
In Eleneki, we held that "the rule established in Dixon [regarding the execution of arrest warrants] also applies to the execution of search warrants[.]" Eleneki, 92 Hawaii at 566, 993 P.2d at 1195. The Dixon rule, to which we referred inEleneki, was that the applicable knock and announce statute "is not implicated where entry is gained through an open door without use of force." Dixon, 83 Hawaii at 21, 924 P.2d at 189 (emphases added). The logical corollary is that, where force is used to gain entry, the statute is implicated. In Dixon, it was unnecessary to determine as much because force was not used.
In arriving at the Dixon rule, this court surveyed numerous federal and state cases that have held that gaining entrance via the use of a ruse without force or threat of force does not violate the knock and announce rule. See id. at 18-20, 924 P.2d at 186-88 (citing: (a) Leahy v. United States, 272 F.2d 487, 489 (9th Cir. 1959) (holding that the officers were not required to knock and announce because no "breaking" occurred where a ruse was employed to open the door without the element of force); (b) Dickey v. United States, 332 F.2d 773, 778 (9th Cir. 1964) (holding that "the employment of a ruse to obtain the full opening of the [defendant's] door unassociated with force was not a 'breaking'" (emphasis added)); (c) Gatewood v. United States, 209 F.2d 789, 791 (D.C. Cir. 1953) (holding that officers' entrance "through falsehood followed by force, without first disclosing . . . the true reason they desired to enter" constituted an unlawful breaking); (d) United States v. Beale, 445 F.2d 977, 978 (5th Cir. 1971) (holding, on petition for rehearing, that entrance gained by deception, and "wholly without application of force," is not governed by the k
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