State v. Sakellson

• Decision Date: 18 December 1985
• Docket Number: Cr. N
• Citation: 379 N.W.2d 779
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Ann SAKELLSON and Jeff Sakellson, Defendants and Appellees. o. 1087.
• Court: North Dakota Supreme Court

Page 779

379 N.W.2d 779

54 USLW 2391

STATE of North Dakota, Plaintiff and Appellant, v. Ann SAKELLSON and Jeff Sakellson, Defendants and Appellees.

Cr. No. 1087.

Supreme Court of North Dakota.

Dec. 18, 1985.

Keith Reisenauer, Asst. State's Atty., Fargo, for plaintiff and appellant.

Pancratz, Yuill, Wold, Johnson & Feder, William D. Yuill (argued), Fargo, for defendant and appellee Ann Sakellson.

Bruce Erwin Aarestad, Fargo, for defendant and appellee Jeff Sakellson.

LEVINE, Justice.

In this appeal by the State from a suppression order the issue presented is whether the failure of law enforcement officers to announce their presence and mission prior to entering through an open door to a house constitutes a "breaking" under North Dakota Century Code Sec. 29-29-08 requiring suppression of the evidence seized in the subsequent search. We hold that it does and affirm the order suppressing the evidence seized during the search of defendants' residence.

1. FACTS

On June 15, 1984 agents of the North Dakota Drug Enforcement Unit received information from an informant that he regularly purchased marijuana from the defendants Jeff and Ann Sakellson. In a telephone call monitored by the agents the informant arranged for the defendants to deliver marijuana to him later that evening.

Based on this information the agents procured a search warrant for the defendants' residence. This was a standard "knock-and-announce" warrant requiring the agents to announce their authority and purpose before entering into a house. The officers were familiar with the alternative "no-knock" warrant authorizing entry without announcement, but declined to obtain one.

Five officers proceeded to the defendants' residence and observed the house for twenty to thirty minutes. The informant had apprised the officers of the general layout of the defendants' residence and of their ownership of a dangerous dog and numerous weapons. The agents observed Ann Sakellson in the residence but believed Jeff was absent because his vehicle was not present.

The defendants resided on the second floor of a two-family duplex. Each apartment in the duplex had a separate enclosed porch, mailbox, house number, and entrance. The enclosed porch to the Sakellson residence had a storm door which was closed but unlocked. Inside the porch was the main door to the residence, which was open. Located adjacent to the main door was a single doorbell. Beyond the main door was a carpeted vestibule and stairway leading to the second floor. At the top of the stairs a short hallway lead to the kitchen and living room. The doors to both rooms were open.

The officers entered through the storm door and proceeded across the porch and through the open main door. At no time did they knock, ring the doorbell, or otherwise announce their presence. The officers climbed the stairs and at the open entrance to the living room observed Ann seated and talking on the telephone. One of the officers testified that he knocked twice at the entrance to the living room, displayed his badge, and stated he had a search warrant. Ann claimed the officers entered the living room unannounced. The trial court found that the officers announced their presence and authority before entering the living room.

Following a search of the residence the officers seized a quantity of marijuana and charged the defendants with possession of a controlled substance with intent to deliver in violation of North Dakota Century Code Secs. 19-03.1-23 and 19-03.1-05. Upon the defendants' motion the district court suppressed all evidence seized during the search of the residence on the ground that the officers' failure to announce their presence and purpose before entering through the main door to the residence violated NDCC Sec. 29-29-08.

2. SECTION 29-29-08

Section 29-29-08 provides that an officer executing a search warrant may break open an outer or inner door or window of a house, or any part of the house if, after notice of his authority and purpose, he is refused admittance.

Section 29-29-08 is a codification of the common law rule that police may break into a home only after announcing their presence and purpose in seeking entry. ¹ See, e.g., Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489 (1968); see generally, Annotation, 70 A.L.R.3d 217 (1976); LaFave, Search and Seizure, Sec. 4.8(a) (1978). The primary policies underlying the knock-and-announce rule are the protection of privacy in the home and the prevention of violent confrontations. State v. LaPonsie, 136 Ariz. 73, 664 P.2d 223 (1982); State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512 (1984); see generally LaFave, supra.

The State initially argues that NDCC Sec. 29-29-08 did not require the officers to announce their presence before entering through the main door because the landing and stairway immediately inside the main door were not an "integral" part of the defendants' residence. The trial court concluded otherwise and this finding will not be reversed if it is sufficiently supported by competent evidence. State v. Ronngren, 361 N.W.2d 224 (N.D.1985).

The record demonstrates that the vestibule and stairway were not a common area open to the public. See contra United States v. Perkins, 286 F.Supp. 259 (D.C.D.C.1968), aff'd 432 F.2d 612 (D.C.Cir.1970) (entry through open door from common hallway of public rooming house not a breaking). Rather, it was a private area of the defendants' home, as evidenced by the clothing and personal effects they kept there. Thus there was sufficient evidence to support the finding that the main door was the threshold to the defendants' home therefore requiring the officers to comply with NDCC Sec. 29-29-08.

The State next claims that the officers' unannounced entry through the open door did not frustrate the policies behind Sec. 29-29-08, and thus substantially complied with that statute, because their entry only "minimally infringed upon any reasonable expectation of privacy of the defendants."

It is true that in certain cases leaving a door open may reduce the occupant's expectation of privacy. An open door may invite the gaze of curious passers-by and lessen the reasonable anticipation of privacy in the home. No such circumstances abide in this case. Whether a door is open through simple inadvertence or design, it should not subject an occupant to the unannounced entry of the uninvited. Simply because one forgot, or purposely failed to close a door, does not create a reasonable expectation of an uninvited, unannounced entry. Consequently, an officer should ordinarily declare his presence and purpose so that a resident may "know who is entering, why he is entering, and [have] a few seconds to prepare for entry." State v. Valentine, 264 Or. 54, 504 P.2d 84, 87 (1972), cert. denied, 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000 (1973).

Furthermore, an unannounced entry by officers increases the potential for violence by provoking defensive measures a surprised occupant would otherwise not have taken had he known that the officers possessed a warrant to search his home. ² State v. Carufel, 112 R.I. 664, 314 A.2d 144 (1974); see also Miller v. United States, 357 U.S. 301, 313, n. 12, 78 S.Ct. 1190, 1198, n. 12, 2 L.Ed.2d 1332 (1958) (announcement is safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder); e.g. State v. Housley, 322 N.W.2d 746 (Minn.1982) (two officers serving search warrant shot by householder who mistook them for burglars); State v. Cessna, 170 Iowa 726, 153 N.W. 194 (1915).

Consequently, the policy reasons for officers executing a warrant to announce their presence and purpose are not advanced by allowing them to enter unannounced through an open door. To condone such entries would make an open door to a home an invitation for police officers with a search warrant to enter without permission. This is inconsistent with the traditional homage we pay to the right to seek shelter in our homes free from unreasonable governmental intrusion. See Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

Rather, we hold that "breaking" includes, under ordinary circumstances, an entry made without permission. See State v. LaPonsie, supra; People v. Buckner, 35 Cal.App.3d 307, 111 Cal.Rptr. 32 (1973); People v. Lawrence, 25 Cal.App. 213, 101 Cal.Rptr. 671 (1972); People v. Norton, 5 Cal.App.3d 955, 86 Cal.Rptr. 40 (1970); People v. Arias, 6 Cal.App.3d 87, 85 Cal.Rptr. 479 (1970); People v. Beamon, 268 Cal.App.2d 61, 73 Cal.Rptr. 604 (1968) (entry through open door is a breaking); and see Keiningham v. United States, 287 F.2d 126 (D.C.Cir.1960); People v. Godinas, 176 Colo. 391, 490 P.2d 945 (1971); State v. Darroch, 8 Or.App. 32, 492 P.2d 308 (1971), aff'd sub nom. State v. Valentine, supra, (breaking means entry without permission). See generally LaFave, supra at 127. Requiring officers to knock and announce before entering through an open door promotes the policies of privacy and non-confrontation without unreasonable obstruction of law enforcement. "Breaking" includes entry by means of passkey as well as the opening of a closed but unlocked door. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1968); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). Entry through an open doorway is sufficiently similar to warrant equivalent treatment.

Defining "breaking" as an entry made without permission is also consistent with the rule that forcible entry is not necessary for a breaking under our burglary statute. NDCC Sec. 12.1-22-02; State v. Olson, 290 N.W.2d 664 (N.D.1980); see also Sabbath v. United States, supra; People v. Rosales, supra; Blakey, The Rule of Announcement And Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 449, 505 (1964) (what would be breaking of...