State v. Jones

• Decision Date: 31 December 1985
• Docket Number: No. 84-549,84-549
• Citation: 127 N.H. 515,503 A.2d 802
• Parties: , 54 USLW 2391 The STATE of New Hampshire v. Jeffrey JONES.
• Court: New Hampshire Supreme Court

Page 802

503 A.2d 802

127 N.H. 515, 54 USLW 2391

The STATE of New Hampshire v. Jeffrey JONES.

No. 84-549.

Supreme Court of New Hampshire.

Dec. 31, 1985.

Stephen E. Merrill, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on the brief, and Andrew L. Isaac, Asst. Atty. Gen., orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

KING, Chief Justice.

The defendant was found guilty of the crime of aggravated felonious sexual assault, RSA 632-A:2, in a jury-waived trial before the Superior Court (Nadeau, J.) and was sentenced to 7 1/2 to 15 years at the New Hampshire State Prison.

Prior to trial, the defendant moved to suppress all evidence seized by the police incident to his arrest on the ground that the police failed to comply with the "knock and announce rule." After a hearing, the court denied the motion. The defendant then filed a motion to reconsider in which he alleged that his arrest under a pre-existing bench warrant was improper since it was a pretext to question him regarding the sexual assault. The court also denied this motion. From the denial of these motions the defendant appeals, and we affirm.

On May 16, 1984, Deputy Police Chief David Mancini and other Pittsfield police officers were investigating a rape that had occurred earlier that day. Based upon the victim's description of her assailant, the police began to suspect the defendant. The victim told police that her assailant had informed her that he had to be in court later that morning on a DWI charge. The Pittsfield police checked with Concord District Court officials, who told the police that the defendant had been in court that morning on a DWI charge, but had just left. In reviewing their files, the police learned that a bench warrant had been issued for the defendant's arrest eight months earlier, following his failure to pay a fine.

The police had been conducting interviews in the victim's neighborhood, seeking information about the rape. Believing that the defendant was still in Concord, the police decided to finish up the neighborhood interviews. Deputy Chief Mancini and another officer went to the home of the defendant's father, which was across the street from the victim's house, to question the elder Mr. Jones.

Deputy Chief Mancini later testified at the hearing on the motion to suppress, as follows with respect to what happened next:

"We returned to Broadway Street and started with the residences [sic] of Mr. Jones' father, I was aware he lived across the street from the victim's residence. We went to that building, I walked to the door, knocked on the door, the door is a single door with a large pane of glass in the top half. I received no response. As I was standing there waiting to get a response I looked through the doorway and could see a person laying on the couch, his face pointed toward me. I recognized it to be Mr. Jeffrey Jones. I again knocked on the door, this time considerably louder than the first time, and again received no response. The person on the couch, Mr. Jones, had not moved. I tried the door handle, it was open. Myself and the other officer entered the premises and placed Mr. Jones under arrest at that particular time, under the warrant issued by the Court [the pre-existing bench warrant]."

While they were arresting the defendant, the police saw a number of items on or near the couch that matched the victim's description of certain articles used by her assailant. The seizure of these items by the police is challenged by the defendant.

There has long been a rule at common law that an officer seeking to gain admission to a private dwelling in order to execute a warrant must first make his presence known, give his identity and purpose and ask for admission. If denied admission, the officer may then forcibly gain entrance. The rule was stated in an English case decided in 1604:

"In all cases when the King ... is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors...."

Semayne's Case, 5 Coke 91, 77 Eng.Rep. 194, 195 (1604). The rule is commonly referred to as the knock and announce rule. The reasons most often cited for the common law rule are the protection of an individual's right of privacy in his house, and the prevention of violence. Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 1757, 20 L.Ed.2d 828 (1968).

The knock and announce rule has been widely adopted in the United States. The Congress of the United States codified the common law rule for federal law enforcement officials in 18 U.S.C. § 3109 (1985). Numerous states have also adopted the common law knock and announce rule either through case law, e.g., People v. Lujan, 174 Colo. 554, 559, 484 P.2d 1238, 1241 (1971); State v. Johnson, 102 R.I. 344, 351-52, 230 A.2d 831, 835 (1967); or by statute, e.g., Deering's Cal. Penal Code, § 1531 (1982); Mich.Comp. Laws Ann. § 764.21 (1982).

This court has never before determined whether, under New Hampshire law, a police officer is required to knock and announce prior to entry into a residence. On two occasions we have addressed the question in dicta. In State v. Smith, 1 N.H. 346 (1818), we upheld a homeowner's conviction for resisting an officer and for assault where the officer, while attempting to serve criminal process, broke open the doors of the house after he demanded entry and was refused. In Smith, the court noted:

" 'For when a felony has been committed, or dangerous wound given, or even where a minister of justice comes armed with process founded on a breach of the peace, the party's own house is no sanctuary for him; but the doors may be forced after the notification, demand and refusal, after mentioned.' "

Id. at 347 (quoting 1 East C.L. 324 ch. 5, sec. 88). In Gordon v. Clifford, 28 N.H. 402, 415-16 (1854), we held that a tax collector could lawfully break open the outer door of a residence after he was refused entry, where the tax delinquent being sought had fraudulently taken up residence there to avoid the tax collectors.

Today, we hold that New Hampshire police officers, before forcibly entering a dwelling, should knock, identify themselves and their purpose, and demand admittance. This knock and announce rule will protect citizens' rights to privacy in their homes and prevent unnecessary violence which could result from unannounced entries.

The defendant has asked us to find that the New Hampshire knock and announce rule has its basis in the New Hampshire Constitution. Specifically, the defendant asks the court to hold that a police violation of the rule renders a search or seizure unreasonable under part I, article 19 of the State Constitution. The defendant does not claim, on appeal, that the police failure to knock and announce violated the Federal Constitution.

When faced with the question whether violation of the Oregon knock and announce statute amounted to a violation of that State's constitution, the Oregon Supreme Court, in State v. Valentine, 264 Or. 54, 504 P.2d 84 (1972), cert. denied, 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000 (1973), held that a failure to announce presence and purpose does not make an otherwise lawful search and seizure unreasonable under the Oregon Constitution. The court reasoned that:

"the interest of the momentary protection of the privacy of the householder and the interest in protecting innocent persons from the violence that may stem from an unannounced entry are not of sufficient substance to rise to constitutional stature and require the exclusion of otherwise competent evidence."

Id. at 66, 504 P.2d at 89.

Similarly, in United States v. Nolan, 718 F.2d 589 (3d Cir.1983), the United States Court of Appeals for the Third Circuit considered the relationship of the federal knock and announce statute (18 U.S.C. § 3109) to the fourth amendment of the Federal Constitution, and noted:

"While the purposes and origins of the knock and announce and of the fourth amendment requirements are similar, they are not identical, and the purposes of the latter properly should be more carefully guarded. The fourth amendment was originally fashioned to outlaw the use of general warrants and writs of assistance, which allowed agents of the government arbitrarily to conduct searches for evidence of wrongdoing, to the detriment of individual privacy; ... The goal of curbing arbitrary government power to intrude at will into an individual's privacy differs from the goals of the knock and announce requirement, which addresses only the manner in which a legitimate and inevitable government intrusion into the target person's privacy is to take place. Such an intrusion, it is true, can be made in a way so violative of the privacy and property rights of the occupants of the dwelling as to be unreasonable within the meaning of the fourth amendment, see Ker [v. California, 374 U.S. 23, 47, 83 S.Ct. 1623, 1636, 10 L.Ed.2d 726 (1963) ] supra, but not every violation of the statute will present such an unreasonable intrusion."

Id. at 602.

We hold that our knock and announce rule has its basis in the common law rather than the New Hampshire Constitution, and that therefore, a violation of the knock and announce rule is not per se unconstitutional under part I, article 19 of the State Constitution. We do not foreclose the possibility that a failure to knock and announce may be so flagrant that it will influence whether a subsequent entry violates the State Constitution's prohibition against unreasonable searches and seizures. N.H.CONST. pt. I, art. 19. See People v. Wolgemuth, 69 Ill.2d 154, 166, 13 Ill.Dec. 40, 45-46, 370 N.E.2d 1067, 1072-73 (1977), cert. denied, 436 U.S. 908, 98 S.Ct. 2243, 56 L.Ed.2d 408 (1978).

Generally, the knock and announce rule is given...