State v. Harada, 22356.

• Court: Supreme Court of Hawai'i
• Citation: 41 P.3d 174,98 Haw. 18
• Docket Number: No. 22356.,22356.
• Parties: STATE of Hawai`i, Plaintiff-Appellant, v. Kenny HARADA, Faavesi Save, and Glenn Aoki, Defendants-Appellees.
• Decision Date: 25 February 2002

41 P.3d 174

98 Haw. 18

STATE of Hawai`i, Plaintiff-Appellant, v. Kenny HARADA, Faavesi Save, and Glenn Aoki, Defendants-Appellees.

No. 22356.

Supreme Court of Hawai`i.

February 25, 2002.

As Amended February 27, 2002.

Bryan K. Sano, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellant.

Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, for defendant-appellee Kenny Harada.

Louis Michael Ching, on the briefs, Honolulu, for defendant-appellee Faavesi Save.

Logan F. Young, on the briefs, Honolulu, for defendant-appellee Glen Aoki.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ.

Opinion of the Court by MOON, C.J.

Plaintiff-appellant State of Hawai`i (the prosecution) appeals the first circuit court's<sup>1</sup> grant of defendant-appellee Kenny Harada's motion to suppress evidence, in which co-defendants-appellees Faavesi Save and Glen Aoki joined [hereinafter, defendants' motion to suppress]. On appeal, the prosecution essentially contends that: (1) the trial court erred when it concluded that the Honolulu Police Department (HPD) officers' use of force to prevent Harada from closing his door, without demanding entry, constituted an unlawful breaking, in violation of the "knock and announce" requirements of Hawai`i Revised Statutes (HRS) § 803-37 (1993);² and (2) even if force was used, exigent circumstances existed that required the officers to enter the residence excusing their compliance with the knock and announce rule. Based on the discussion below, we hold that a breaking occurred when the police officer used force to prevent Harada from closing the door. Consequently, the requirements of HRS § 803-37 were triggered, and the officers' failure to expressly demand entrance as they entered Harada's apartment constituted an unlawful breaking, in violation of the knock and announce rule. We also hold that the prosecution failed to properly preserve the issue whether there were exigent circumstances at the time the warrant was executed that excused the officers' compliance with HRS § 803-37. Consequently, the issue has been waived. Accordingly, we affirm the trial court's order granting the defendants' motion to suppress.

I. BACKGROUND

Harada filed a pretrial motion to suppress evidence gathered after the allegedly unlawful execution of a search warrant for narcotics at his residence (the residence). The following relevant facts were adduced at the suppression hearing on February 12, 1999.

Pursuant to a valid search warrant, HPD Officer Murumoto and other HPD officers executed a search of Harada's residence on October 29, 1998. Prior to executing the search warrant, HPD Detective Struss determined that a ruse should be used to enter the residence. The ruse involved the use of two plain-clothes undercover female officers, whom Harada had previously met through a friend. On October 29, 1998, the female officers knocked on the door of Harada's residence and called out his name. Although he looked through the peephole, Harada did not see any of the other HPD officers waiting to execute the search warrant.

Upon seeing the door knob begin to move, the undercover female officers jumped aside to allow the search team to enter the residence. Harada testified that he opened the door approximately eight to twelve inches then quickly attempted to shut the door when he felt someone begin to push the door open.

Although Harada testified that he was unaware that a police officer was pushing the door open, the circuit court specifically found the testimony of Officer Bermudes, the officer closest to the door, credible. Officer Bermudes testified that Harada opened the door "three-quarters" of the way open, or approximately three feet, and that he saw Harada's face before Harada attempted to close the door. Officer Bermudes also testified that, as Harada opened the door, other search team members immediately began yelling, "Police! Search Warrant!" As Harada attempted to shut the door, Officer Bermudes used his body and arm to completely open the door by using "quite a bit" of force. In addition, while forcing the door open, Officer Bermudes yelled, "Police. Search Warrant. Get on the ground." No officers, however, expressly demanded entry into the residence to execute the search warrant. In addition to securing Harada, after entering the apartment, the officers secured codefendants Aoki and Save in the living room. The officers also secured another male, Karl Koja, after he ran from the living room into the bathroom, and a woman, Tok Kwon, in the living room.

After securing the residence, the officers conducted a search and discovered three ziplock bags of methamphetamine and various drug paraphernalia. At the time of the warrant's execution, with the exception of Harada, the other four persons were seen within approximately five feet of the seized contraband.

At the conclusion of the hearing, the circuit court orally granted Harada's motion to suppress and subsequently entered the following pertinent Findings of Fact (FOF) and Conclusions of Law (COL):

FINDINGS OF FACT

. . . .

4. The Narcotics/Vice officers determined that a "ruse" should be used and had two plain-clothes female police officers approach the door, knock and call out, "Kenny." The officers executing the search were out of sight of the peephole in the door.

5. As soon as the female officers saw the door handle begin to move, they jumped aside to allow the search team access. . . .

6. [Harada] opened the door several inches and then Officer Bermudes and the rest of the search team entered the apartment a few seconds after, some members of the Search team yelled, "Police! Search Warrant!"

7. While [Harada] attempted to shut the door, Officer Bermudes, who was the first officer in line at the door, used his arm and body to completely open the door to allow entry. He yelled, "Police! Search Warrant! Get on the ground," after the door started opening.

. . . .

9. No one demanded to be allowed to enter the apartment.

CONCLUSIONS OF LAW

3. The use of a ruse by the police is legal and appropriate. The ruse in this case failed only because of the method and timing of the actual entry of the uniformed officers.

. . . .

6. Dixon's cite [(referring to State v. Dixon, 83 Hawai`i 13, 924 P.2d 181 (1996))] to Dickey v. United States, 332 F.2d 773 (9th Cir.), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964), that "[h]ad the officers obtained, by ruse, a partial opening of Dickey's door, and if they had then forced open the door the rest of the way to gain entrance, this would have been a breaking . . ." (Dixon, [83 Hawai`i] at 19 [924 P.2d 181], citing Dickey, [332 F.2d] at 777-778), is applicable in the instant case to determine a breaking occurred.

. . . .

8. The use of force to complete the opening of the door in the instant case rendered the ruse illegal under Dixon.

9. Concomitantly, the [c]ourt finds there was no proper "knock and announce" under HRS § 803-37.

The prosecution timely appeals the trial court's order granting the defendants' motion to suppress.

II. STANDARDS 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

The prosecution contends that the method and manner in which the search warrant was executed was lawful. In the alternative, the prosecution contends that, if the knock and announce rule of HRS § 803-37 was invoked, exigent circumstances existed that excused the officers' compliance with the knock and announce rule of HRS § 803-37.

A. The Knock and Announce Rule

The question whether the knock and announce requirements are invoked during the execution of a search warrant focuses upon whether there has been a breaking. See State v. Dixon, 83 Hawai`i 13, 16, 924 P.2d 181, 184 (1996)

. Although a breaking "connotes some use of force," that force may be no more than that required to turn a doorknob. See id. at 18, 924 P.2d at 186 (stating that "[a]n unannounced intrusion into a dwelling . . . is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or . . . open a closed but unlocked door" (citation and emphasis omitted)). However, where the police gain entry into a place to make an arrest or to search via the use of a ruse without the use of force, there is no breaking; thus, the knock and announce rule is not implicated. Id. at 21, 924 P.2d at 189; State v. Eleneki, 92 Hawai`i 562, 566, 993 P.2d 1191, 1195 (2000) (holding that the use of a ruse does not necessarily violate HRS § 803-37).³ But, where a ruse is accompanied by the use of force to gain entry during the execution of a search warrant, police officers are required to comply with HRS § 803-37. See id. at 566, 993 P.2d at 1195. Thus, where a breaking occurs or force is used, officers are required to comply with applicable knock and announce requirements regardless of whether they are executing a search or an arrest warrant. Id.

In his dissenting opinion, Justice Ramil, also citing Eleneki, concludes that, "after a door is considered `open,' police officers do not need to comply with the knock and announce...