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State v. Harada2/25/2002
nth Circuit did not expressly indicate that it was attempting to modify or overrule any previous decision. Based on the foregoing, we disagree that Contreras-Ceballos contradicts Dickey or that it effected a change in federal law.
In further support of his assertion that "recent federal cases do not support the majority's position," J. Ramil, dissenting op. at 13, Justice Ramil cites to United States v. Phillips, 149 F.3d 1026, 1029 (9th Cir. 1998), which he asserts "reaffirmed [the proposition] that 'knock and announce' requirements apply only to closed -- not open -- doors[.]" J. Ramil, dissenting op. at 16. Phillips, however, is factually inapposite to this case. Phillips did not involve the execution of a search warrant or the use of a ruse; rather, the police were called to a home by its owner, who left a door unlocked and opened. Thus, the officers not only entered with the consent of the owner, but they also did so due to exigent circumstances (that is, the defendant, who was not welcome in the home, was apparently high on methamphetamine and threatening to forcibly remove a third person from the home). Phillips, 149 F.3d at 1028-29. Moreover, Phillips cites cases from 1970 and 1971 for the very proposition that Justice Ramil purports is not supported by recent federal cases. Specifically, Phillips states:
[The knock and announce statute] requires that police officers "not open the closed door of a dwelling until they have been refused admittance." Contreras-Ceballos, 999 F.2d at 434. We agree with the district court that the statute does not apply to officers who enter through open doors. See United States v. Valenzuela, 596 F.2d 1361, 1365 (9th Cir. 1979) ("entry through an open door is not a 'breaking' within the meaning of the statute"); United States v. Vargas, 436 F.2d 1280, 1281 (9th Cir. 1971) ("thrust of Section 3109 ... is aimed at the closed or locked door"). Moreover, the district court correctly noted that exigent circumstances and the owner's consent in this case would serve to negate any violation of the statute. Id. at 1029 (bold emphasis added).
Based on the foregoing, Phillips is completely inapposite, not only to the case at bar, but also to the law surrounding the use of ruses in the execution of warrants.
Even if the Ninth Circuit intended to alter the existing rule, a proposition with which we disagree, such a holding would be contrary to the great weight of authority in the aforementioned cases. See United States v. Seelig, 498 F.2d 109, 113 (5th Cir. 1974) (determining that the force used by officers to physically enter an apartment implicated the knock and announce rule even though the agents had employed a ruse to cause the door to be opened slightly) (citing Sabbath v. United States, 391 U.S. 585 (1968); Smith v. United States, 357 F.2d 486, 488 n.1 (5th Cir. 1966) (noting that "entrance gained by fraud or other use of deception for the purpose of effecting an arrest is constitutionally permissible so long as force is not employed" (emphasis added)).
Furthermore, notwithstanding its statement that the statute was not implicated, the court's holding in Contreras-Ceballos was clearly based on the fact that, when the door was opened in response to the ruse, the officers "stated their identity, authority and purpose" because, " t that point[,] the purposes of [the statute] had been fully served." Contreras-Ceballos, 999 F.2d 435. Similarly, in Eleneki, this court stated:
[the occupant] opened the door approximately twelve inches in responses to the officers' ruse, then attempted to close the door. The officers met his resistance and pushed the door open further, announcing "Police, search warrant, we demand entry
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