 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
State v. Harada2/25/2002
ly opened. Specifically, Justice Ramil states that "the majority mischaracterizes the fact pattern" by describing the ruse as "accompanied by the use of force." J. Ramil, dissenting op. at 4. In Justice Ramil's view, "the ruse . . . was not actually 'accompanied by the use of force,' as claimed by the majority, but rather followed by the use of force[.]" Id. (citation omitted) (emphases in original). We disagree. The assertion that a breaking does not occur where force is applied subsequent to a voluntary opening of a door is disingenuous because force is being used to gain entry in any event. Therefore, the force used constitutes a breaking. Moreover, the focus in determining the applicability of the knock and announce statute is properly on whether there has been a breaking. See Dixon, 83 Hawaii at 16, 924 P.2d at 184.
Justice Ramil maintains that the Ninth Circuit's decision in United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993), is "in diametric contradiction" to the Dickey analysis that we adopt. J. Ramil, dissenting op. at 13.
In Contreras-Ceballos, the Ninth Circuit stated:
This court has not squarely faced the question whether use of force after achieving, by means of deception, a voluntary partial opening of an entryway implicates the knock-and-announce statute. In earlier decisions, however, we have held that a law enforcement officer's use of a ruse to gain admittance does not implicate [the federal knock and announce statute] because it entails no breaking. Dickey v. United States, 332 F.2d 773, 777-78 (9th Cir.), cert. denied, 379 U.S. 948 (1964); Leahy v. United States, 272 F.2d 487, 489 (9th Cir.1959), cert. granted, 363 U.S. 810 (1960), and cert. dismissed, 364 U.S. 945 (1961).
These decisions leave us with little alternative but to uphold the action of the officers in this case. Under Dickey and Leahy, the officers were not in violation of [the federal knock and announce statute] when [an apartment occupant] opened the door in response to the officers' ruse. The officers then stated their identity, authority and purpose. At that point, the purposes of [the statute] had been fully served. The warrant held by the officers entitled them to search whether or not their search was resisted. Their use of force to keep the door open, and to enter, did not implicate [the statute]. Accord United States v. Salter, 815 F.2d 1150, 1152 (7th Cir.1987). Contreras-Ceballos, 999 F.2d at 435 (emphases added).
Although the Ninth Circuit stated that the officer's use of force did not implicate the federal knock and announce statute, the court was also attempting to follow Dickey and Leahy.
In Dickey, agents gained entry into the premises by disguising their voices and answering, " t's Lacey, open up" when the occupant asked, " ho's there?" The door was then opened, and the officers at no time used force. Analogously, in Leahy, an agent gained admittance into the defendant's premises by stating that he was an agent from the County Assessor's office. Once inside, he stated his real purpose; again, no force was ever used. The courts in both Dickey and Leahy distinguished the facts of their respective cases from situations where force is applied after the door is open in order to gain entry. See Dickey, 332 F.2d at 777-78 (noting that, if the officers had obtained a partial opening and had forced the door open the rest of the way to gain entrance, there would have been a "breaking"); Leahy, 272 F.2d at 489 (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).
In Contreras-Ceballos, the Ni
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Hawaii Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|