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State v. Harada2/25/2002
r is not considered use of force to gain entry." J. Ramil, dissenting op. at 11-12. To the contrary, the boldly emphasized language above clearly indicates that the court in Syler determined that no force was used and no attempt was made to bar the officer's from entering the premises. Thus, Syler supports rather than contradicts our holding today.
Finally, Justice Ramil indicates that seven of the nine Dixon cases are from the 1950s, 60s, and 70s, the remaining two being a 1986 opinion from the Florida District Court of Appeal and a 1983 opinion from the Alabama Court of Criminal Appeals. J. Ramil, dissenting op. at 12-13. Interestingly, Justice Ramil does not explain how any of these cases are "bad law" -- and, in fact, they are not. With the exception of Eleneki and Contreras-Ceballos -- both of which are extensively discussed in this opinion, -- Justice Ramil does not cite to any cases that stand for propositions contrary to the Dixon cases. Moreover, that these "old" cases have not been overruled or contradicted underscores the fact that the rationale expressed in each of them is not only directly relevant today, but has steadfastly stood the test of time.
Moreover, some of the cases cited specifically addressed the situation where officers force open a door that the occupant has voluntarily opened, but is then attempting to close. See Leahy v. United States, 272 F.2d 487, 489 (9th Cir. 1959) (distinguishing the facts of Leahy from cases in which the occupant had voluntarily opened the door and then attempted to close it because the element of force was not present in Leahy), cert. granted, 363 U.S. 810, cert. dismissed, 364 U.S. 945 (1960); Dickey v. United States, 332 F.2d 773, 777-78 (9th Cir.) (noting that, if the officers had obtained a partial opening and had forced the door open the rest of the way to gain entrance, that would have been a "breaking"), cert. denied, 379 U.S. 948 (1964); United States v. Beale, 445 F.2d 977, 978 (5th Cir. 1971) (noting that Sabbath v. United States, 391 U.S. 585 (1968), "left undisturbed the existent distinction between entry where some force is employed and entry where force is not an element at all"), cert. denied, 404 U.S. 1026 (1972).
As stated above, after surveying the foregoing cases, this court, in Dixon, held that the knock and announce statute "is not implicated where entry is gained through an open door without the use of force." Dixon, 83 Hawaii at 21, 924 P.2d at 189 (emphases added); see also, e.g., United States v. Covington, 385 A.2d 164 (D.C. 1978) (citing a number of courts that have "approved the use of a ruse to gain peaceful entry" and noting that " he critical factor in each of those cases . . . was that the police used force to prevent the door from being closed without first announcing their authority and purpose") (cited with approval in Coleman v. United States, 728 A.2d 1230 (D.C. 1999)); Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998) (" ederal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry gained through the use of deception, accomplished without force, is not a 'breaking' requiring officers to first announce their authority and purpose."). Based upon the foregoing, the use of force in gaining entrance into a place to be searched is clearly relevant to whether the officers must "knock and announce." Consequently, Justice Ramil's conclusion that the use of force is irrelevant to that determination is clearly unfounded.
Justice Ramil's dissenting opinion seems to focus on the fact that the force used was subsequent to the door being voluntari
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