State v. Eleneki, No. 21761.

• Decision Date: 29 February 2000
• Docket Number: No. 21761.
• Citation: 92 Haw. 562,993 P.2d 1191
• Parties: STATE of Hawai`i, Petitioner-Appellant, v. Jasmine K. ELENEKI, Respondent-Appellee.
• Court: Hawaii Supreme Court

993 P.2d 1191

92 Haw. 562

STATE of Hawai`i, Petitioner-Appellant, v. Jasmine K. ELENEKI, Respondent-Appellee.

No. 21761.

Supreme Court of Hawai`i.

February 29, 2000.

Richard K. Minatoya, Deputy Prosecuting Attorney, on the briefs, for petitioner-appellant on the writ.

Vickery J. Russell, on the briefs, for respondent-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, JJ., and Circuit Court Judge VICTORIA S. MARKS, Assigned by Reason of Vacancy.

Opinion of the Court by NAKAYAMA, J.

Petitioner-appellant State of Hawai`i (the prosecution) applies to this court for a writ of certiorari to review the opinion of the Intermediate Court of Appeals (ICA) in State v. Eleneki, 92 Hawai`i 688, 994 P.2d 620 (App. 1999) (mem.op.) [hereinafter, the "ICA's opinion"], affirming the circuit court's findings of fact, conclusions of law, and order granting the defendant's motion to suppress the evidence seized pursuant to a search warrant. The prosecution argues that the ICA erred in affirming the order because: (1) the door was already open when the officer used force to open it further, and, therefore, there was no "breaking" and Hawai`i Revised Statutes (HRS) § 803-37 (1993) and State v. Garcia, 77 Hawai`i 461, 887 P.2d 671 (App.1995), did not apply; (2) the ICA's opinion is contrary to the purposes of the "knock and announce" rule; and (3) the ICA's opinion would require the police to perform the useless gesture of allowing a door to close after a failed ruse and then knocking, announcing, and demanding entry.

We hold that the use of a ruse is not prohibited in the execution of a search warrant. However, when the police use force to gain entry, they are required to comply with HRS § 803-37 and Garcia. Under the circumstances of this case, the requirements were met and the entry was not illegal. Therefore, we vacate the ICA's opinion and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

On July 15, 1997, vice narcotics officers of the Maui Police Department went to the Kamaole Sands Resort in K&imacrhei, Maui to execute a search warrant for unit number 9-408. The officers decided to employ a ruse to have the occupants open the door. Officer Clarence Kenui knocked on the door and said, "Open the door, Ripper." A female voice asked, "Who is it[?]" Officer Kenui again said, "Open the door, Ripper." Officer Kenui heard someone fumbling with the locks. A male then came to the door and asked who was there. Officer Kenui repeated, "Open the door, Ripper."

Llewellyn Foster then opened the door approximately one foot and looked around the door to see who was there. Foster recognized Officer Kenui and attempted to close the door. Officer Kenui then used some amount of force to further open the door as Foster tried to close it. According to Officer Kenui's testimony, he simultaneously announced, "Police, search warrant, we demand entry." He and the other officers entered the apartment and Officer Kenui repeated, "Police, search warrant, we demand entry." The officers found Foster, Jasmine Eleneki, and Eleneki's sister in the apartment. The three were secured in the living room while the officers searched the premises. In securing Foster and searching the unit, the officers found drugs and other various contraband.

On October 13, 1997, the grand jury indicted Eleneki on the following counts arising from the items seized: (1) promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) (1993 & Supp.1996); (2) prohibited acts relating to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993); and (3) promoting a detrimental drug in the third degree, in violation of HRS § 712-1249(1) (1993). On April 17, 1998, Eleneki filed a motion to suppress all evidence seized during the search. A hearing was held on June 18, 1998. Both Foster and Officer Kenui testified at the suppression hearing. On July 1, 1998, the circuit court issued its findings of fact and conclusions of law and order granting the motion to suppress. The circuit court ruled that State v. Dixon, 83 Hawai`i 13, 924 P.2d 181 (1996), did not apply because Dixon addressed the execution of an arrest warrant. Because the present case involved a search warrant, the circuit court concluded that:

9. Because Officer Kenui and the members of the Maui Police Department executing the search warrant in this case found the door shut, they were mandated by HRS Sec. 803-37 to comply with the knock and announce requirement;

10. The use of the ruse to open the door does not mean that the officer found it open and did not equate with a declaration of the officer's office, the officer's business and a demand for entry;

11. Consequently, while the use of a ruse does not violate HRS Sec. 803-11 [(1993)], it clearly violates the plain language of HRS Sec. 803-37 as well as the case law set by State v. Garcia, 77 [Hawai`i] 461, 887 P.2d 671 ([App.] 1995)....

The prosecution filed a timely notice of appeal on July 21, 1998. In its opening brief, the prosecution argued that the circuit court erred in granting the motion because the constitutional parameters of the knock and announce rule are the same for the execution of an arrest warrant under HRS § 803-11 and a search warrant under HRS § 803-37, and, thus, the use of a ruse to gain entry is permissible in both instances.

The ICA, in a memorandum opinion filed on August 26, 1999, affirmed the order, but on different grounds. ICA's opinion at 1. The ICA disagreed with the circuit court and held that "if the use of a ruse causes a door to open and eliminates the need to use force to enter, HRS § 803-37's declaration and demand requirement is not applicable." ICA's opinion at 4. However, the ICA held that "this case is governed by the rule of Dixon that if force is involved to gain entry, the requirements of HRS § 803-37 and Garcia must be satisfied. In Eleneki's case, these requirements were not satisfied." ICA's opinion at 5. According to the ICA, because the officers did not comply with those requirements after the ruse failed, the search warrant was improperly executed.

On September 21, 1999, the prosecution filed the present timely application for a writ of certiorari.

II. STANDARD OF REVIEW

We review a circuit court's findings of fact in a pretrial ruling according to the following standard:

Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the clearly erroneous standard. A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.

State v. Okumura, 78 Hawai`i 383, 392, 894 P.2d 80, 89 (1995) (citations and internal quotation marks omitted). "The circuit court's conclusions of law are reviewed under the right/wrong standard." State v. Pattioay, 78 Hawai`i 455, 459, 896 P.2d 911, 915 (1995) (citation omitted).

State v. Wilson, 92 Hawai`i 45, 48, 987 P.2d 268, 271 (1999).

III. DISCUSSION

A. Existing Hawai`i case law

In State v. Garcia, 77 Hawai`i 461, 887 P.2d 671 (App.1995), the ICA held that police officers executing a search warrant must expressly demand entrance, in addition to stating their authority and purpose, and that the officers must give the occupant a reasonable time to respond. Garcia was convicted of one count of promoting a dangerous drug in the second degree and two counts of prohibited acts related to drug paraphernalia. Id. at 463, 887 P.2d at 673. All of the items that were the subject of the charges were seized pursuant to a search warrant. Garcia argued that the search warrant was improperly executed.

When the police officers approached the door to Garcia's apartment, they knocked and stated, "Police, search warrant." After waiting approximately ten seconds for someone to respond, the officers made a forced entry. They pulled open a locked screen door and kicked open the wooden door behind it. Id. at 464, 887 P.2d at 674. The ICA vacated the judgment of conviction and reversed the trial court's order denying Garcia's motion to suppress because the officers had not demanded entry as required by HRS § 803-37 (1985) and had not given Garcia a reasonable time to respond before making a forced entry. We have previously cited Garcia with approval. See, e.g., State v. Monay, 85 Hawai`i 282, 943 P.2d 908 (1997)

.

In State v. Dixon, 83 Hawai`i 13, 924 P.2d 181 (1996), we held that HRS § 803-11 (1993) permitted the use of a ruse to gain entry in the execution of an arrest warrant. Dixon had been indicted for promoting a dangerous drug in the first and second degrees and unlawful use of drug paraphernalia. Dixon, 83 Hawai`i at 15,924 P.2d at 183. The items that formed the basis for the charges were seized when the police entered Dixon's hotel room to execute a warrant for his arrest for parole violations. The trial court granted Dixon's motion to suppress the evidence because the police had improperly executed the warrant.

Three Honolulu Police Department officers accompanied a hotel security guard to the door of Dixon's room. The guard knocked on the door and said that he was a hotel security guard who was there to check on the air conditioning. When the door was opened, the officers entered. Id. On appeal, we reversed the trial court's order granting the motion to suppress and held that the requirements of HRS § 803-11 did not apply because there had not been a "breaking." We further held that "entrance gained by the use of a ruse to execute a valid warrant is permissible as long as force is not involved." Id. at 14, 924 P.2d at 182.

B. The use of a ruse in executing a search warrant is not prohibited.

The present case raises the issue whether our holding in Dixon—that a ruse is permissible to gain entrance in the execution of an arrest warrant—applies in the...