77 Hawai'i 461, State v. Garcia

• Decision Date: 26 January 1995
• Docket Number: No. 16527,16527
• Citation: 887 P.2d 671
• Parties: 77 Hawai'i 461 STATE of Hawai'i, Plaintiff-Appellee, v. Charlemagne Lacara GARCIA, aka Charlie Garcia, aka Charles Garcia, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 671

887 P.2d 671

77 Hawai'i 461

STATE of Hawai'i, Plaintiff-Appellee, v. Charlemagne Lacara GARCIA, aka Charlie Garcia, aka Charles

Garcia, Defendant-Appellant.

No. 16527.

Intermediate Court of Appeals of Hawai'i.

Jan. 26, 1995.

Syllabus by the Court

1. Hawai'i Revised Statutes (HRS) § 803-37 (1985) requires the police to specifically demand entry in addition to declaring their office and business in executing a search warrant where the door to the premises to be searched is closed. A demand for entry must be affirmatively communicated and may not be implied from a knocking on the door and the police announcement of their office and business only.

2. HRS § 803-37 violates the prohibition against unreasonable searches in article I, section 7 of the Constitution of the State of Hawai'i, to the extent it authorizes police to break open any bars to entry which are not "immediately opened[.]" The police must give occupants a reasonable time to respond to a demand for entry. A reasonable time is determined by the circumstances of each case. Exigent circumstances, however, may justify breaking any bars to entry as warranted by such circumstances.

3. In this case, the police failed to affirmatively demand entrance. Additionally, exigent circumstances did not exist to justify breaking the doors to the apartment to gain entry. The occupants of the apartment were not afforded a reasonable time to respond where, in ten seconds, the police officers knocked, made their announcement, and broke through two doors to make forcible entry into the apartment.

Tom Griswold, on the brief, Wailuku, Maui, for defendant-appellant.

Rosemary Hawkins Kaholokula, Deputy Prosecuting Atty., County of Maui, on the brief, Wailuku, Maui, for plaintiff-appellee.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

ACOBA, Judge.

Defendant-Appellant Charlemagne Lacara Garcia (Defendant) appeals his conviction and the order denying his motion to suppress evidence. He argues that the police illegally executed a warrant to search his apartment because they failed to demand entry in compliance with the requirements of Hawai'i Revised Statutes (HRS) § 803-37 (1985). Alternatively, he claims that the statute violates the Constitution of the State of Hawai'i because it authorized the police to break open the door to his apartment when it was not immediately opened.

We agree with Defendant and therefore reverse the circuit court's order denying Defendant's motion to suppress.

Defendant was charged on April 13, 1992, with one count of promoting a dangerous drug in the second degree in violation of HRS § 712-1242(1)(b)(i) (Supp.1992), two counts of prohibited acts related to drug paraphernalia in violation of HRS § 329-43.5(a) (Supp.1992), and one count of promoting a dangerous drug in the third degree in violation of HRS § 712-1243(1) (1985). All of the items which are the subject matter of the counts were seized in a search conducted pursuant to a search warrant. Defendant moved to suppress the evidence obtained in the execution of the search warrant. The court entered findings of fact and conclusions of law denying the motion to suppress, on July 22, 1992. On July 27, 1992, the court filed amended findings of fact and conclusions of law with an order denying the motion to suppress.

Defendant proceeded to trial on July 14, 1992. On July 16, 1992, the jury returned a verdict of not guilty on the charge of promoting a dangerous drug in the third degree, and verdicts of guilty as to all the other counts. The court sentenced Defendant to five years probation on each count, the terms to run concurrently, and among the special conditions of probation, sentenced Defendant to one year of imprisonment. Defendant appeals from the Judgment filed on September 10, 1992.

Defendant claims, essentially, that the circuit court erred in making the following conclusions of law:

1) The police's failure to demand entry was "of no consequence [under HRS § 803-37] since by knocking and announcing, ['police, search warrant,' the police] indicated a demand to enter," and

2) HRS § 803-37 allows the police to break " 'doors, gates, or other bars to [their entry that] are not immediately opened[.]' " (Emphasis omitted.)

The circuit court's amended findings relate the following events. On March 13, 1992, police officers went to the premises at 647 Luakini Street, Apartment No. 4, in Lahaina, Maui, to execute a search warrant. ¹ Apartment No. 4 "is a small unit within a two-story structure" containing several other units. When the officers approached the front door of the apartment, "Officer Matsuura knocked and announced, 'Police, search warrant.' " "Officer Matsuura could hear voices inside the apartment, [which he believed to be] persons inside talking, or voices from a television set[.] ... [N]o one responded to his knock and announce." Officer Matsuura checked the outside screen door, found it was locked, took a hold of the door's handle with both hands, and pulled the door open, "hearing the hook and eye pop" as he did this. Sergeant Camara was instructed by Officer Matsuura to "kick open the solid wooden door inside the screen door as soon as the screen door was clear[.] ... [He then] kicked the solid wooden door ... and it opened into the ... apartment."

"Approximately ten (10) seconds elapsed from the time Officer Matsuura knocked and announced to the time forcible entry was made into the ... apartment." Sergeant Camara entered the apartment first "with Officer Matsuura close behind him." Inside the apartment, Officer Matsuura "noticed [Defendant] ... at the kitchen sink, turning to the right and heading towards the bathroom." A person known as Audito Agbayani "was seated at the kitchen table with a pair of scissors in his hand and several aluminum foil squares on the kitchen table." Socorro Jubilado and Nancy Yadao were both seated on a bed "about a chair's width from the front door ... [with] [a] small child ... on the floor near the two women." Defendant and Jubilado indicated that Agbayani "was cooking crack cocaine[.]" However, Officer Matsuura "indicated that [Defendant] was closest to the stove[.]" Defendant and Jubilado were the residents of the apartment. "The search warrant authorized a search for crack cocaine and [drug] paraphernalia...."

The relevant statute, HRS § 803-37, states:

§ 803-37 Power of officer serving. The officer charged with the warrant, if a house, store, or other building is designated as the place to be searched, may enter it without demanding permission if the officer finds it open. If the doors are shut the officer must declare the officer's office and the officer's business, and demand entrance. If the doors, gates, or other bars to the entrance are not immediately opened, the officer may break them. When entered, the officer may demand that any other part of the house, or any closet, or other closed place in which the officer has reason to believe the property is concealed, may be opened for the officer's inspection, and if refused the officer may break them.

(Emphasis added.)

In applying the statute, the circuit court, in its conclusions of law, did not require that the officer specifically "demand entrance[,]" and sanctioned the breaking of the door ² because it was "not immediately opened[.]" (Emphasis omitted.) The circuit court's conclusions of law are " 'freely reviewable' "' "' " on appeal. State v. Furutani, 76 Hawai'i 172, 180, 873 P.2d 51, 59 (1994) (quoting AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 628, 851 P.2d 321, 326 (1993)).

I.

We examine, first, the circuit court's conclusion that the failure of the officer to "demand entry" was "of no consequence since by knocking and announcing, ['Police, search warrant,'] he indicated a demand to enter."

"The starting point in statutory construction is to determine the legislative intent from the language of the statute itself." State v. Ortiz, 74 Haw. 343, 351, 845 P.2d 547, 551 (1993) (citing State v. Briones, 71 Haw. 86, 92, 784 P.2d 860, 863 (1989)).

The earliest version of the statute can be found in the 1869 Penal Code of the Hawaiian Kingdom under act 48, section 8 ³ and remains substantially unchanged to the present time. ⁴ Although not specifically citing to the statute, the court in The King v. Ah Lou You, 3 Haw. 393 (1872), referring to the execution of a search warrant, stated that, "If the doors of the building designated as the place to be searched are shut, [the officer] must declare his [or her] office and his [or her] business, and demand entrance." Id. at 395. As precedent, this proposition has not been overruled.

Moreover, on its face, the statute is clear and unambiguous. The statute directs that "[i]f the doors are shut the officer must declare the officer's office and the officer's business and demand entrance." HRS § 803-37 (emphases added). Plainly, three steps are required before the officer may physically break into the place to be searched--that the officer state his or her office, that he or she state his or her business, and that he or she demand entrance. The court, here, only found that by stating, "Police, search warrant," the officer had "announced his office" and "announced his purpose." Thus, the court's own findings indisputably establish that the police failed to specifically "demand entrance" as directed by the statute.

We cannot conclude that it was "of no consequence" that the officer failed to specifically demand entrance when such a requirement is manifestly set forth and commanded under the statute. We agree, as has been said in interpreting a like statute, that our "tradition of respect for the privacy of the home and the dignity of the citizen even when suspected of criminal behavior forecloses a 'grudging application' of the statute." United States v. Pratter, 465 F.2d 227, 230 (7th Cir.1972) (quoting Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1198, 2 L.Ed.2d 1332 (1958)) (int...