Good Morning. It's the Police. Open Up, Please.
State v. Naeole (HSC June 22, 2020)
Background. Dawn Naeole lived on Oahu. One morning at around 6:00 a.m., sixteen police officers surrounded her home wearing militaristic uniforms, shields, body armor, and helmets. They were armed with an M4 rifle and a sidearm, a Glock 21. They had a warrant to search Naeole’s house. Officer Stephen Roe later testified at a motion to suppress hearing that he approached the front door and initiated the “knock and announce” procedure—knock three times and make an announcement.
Officer Roe testified that
it went like this:
(Knocks)
Police. We have a search warrant. Open the door now. (Knocks.). Police We have
a search warrant. Open the door now. (Knocks.) Police. We have a search
warrant. Open the door now.
There was no response
after the first two knock-and-announce procedures. After the third, he heard a
woman’s voice from inside the house that seemed to be directed at them, but he
could not make out what was being said. He did the fourth and final knock-and-announce
procedure, but there was no response. Officer Roe estimated that all four
knock-and-announce procedures lasted 25 seconds. The officers broke in and seized
enough unlawful drugs that it resulted in an indictment for five separate
narcotics counts, including promoting a dangerous drug in the first degree—a class
A felony that could result in 20 years imprisonment.
Naeole moved to suppress
the evidence. She testified that she just woke up and was in the hallway
heading to the bathroom when she heard banging. Then she saw officers inside
her home. She did not hear repeated knocking or announcements. After they were
inside her home and told her that the officers had a warrant, but they refused
to show it to her. The home is 900 square feet.
Naeole’s neighbor
testified he went to his front door that morning when he heard dogs barking. He
saw the officers “wrestling” or messing with Naeole’s front gate. He ran back
to his house to get his phone and when he came back out he saw the officers banging
on Naeole’s front door. “This is the police,” he heard them say. Then, without
waiting for any response, he saw them break down her door. He recorded the
officer breaking down the door on his phone. His video clip was entered as
evidence.
The Hon. Judge Rom Trader
of the circuit court granted the motion. The circuit court found Officer Roe’s
version more credible over the testimony of two witnesses and the video. The court
even held that the police complied with the knock and announce statute.
However, the police execution of the search warrant was unreasonable under
Article I, Section 7 of the Hawai'i Constitution. The prosecution appealed the
suppression order. The ICA vacated it and concluded that Naeole was given a reasonable
amount of time.
The Knock and Announce Rule and the Fourth Amendment. “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated[.]” Haw. Const. Art. I, Sec. 7. See also U.S. Const. Am. IV. The protection against unreasonable searches and seizures does not specifically require the police to knock and announce their presence with a warrant. That requirement comes from HRS § 803-37:
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 shall 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.
The statute’s “requirement
of prior notice of authority and purpose before forcing entry into a home is
deeply rooted in our heritage and should not given grudging application.” Miller
v. United States, 357 U.S. 301, 313 (1958). Our knock-and-announce rule predates
annexation and has its roots in the days of the Hawaiian Kingdom. See State
v. Garcia, 77 Hawai'i 461, 465, 887 P.2d 671, 675 (App. 1995); The King v.
Ah Lou You, 3 Haw. 393 (Haw. King. 1872) (“If the doors of the building
designated as the place to be searched are shut, he must declare his office and
his business, and demand entrance.”).
The modern knock-and-announce
rule is intended to “reduce the potential of violence to both occupants and
police resulted from an unannounced entry; prevent unnecessary property damage;
and protect the occupant’s right of privacy.” State v. Dixon, 83 Hawai'i
13, 14, 924 P.2d 181, 182 (1996) (numbers omitted).
The statute requires the
police, upon finding a shut door, to “state his or her office, that he or she
state his or her bueinss, and that he or she demand entrance.” State v.
Garica, 77 Hawai'i 461, 465, 887 P.2d 671, 675 (App. 1995). The demand of
entrance must be express. State v. Monay, 85 Hawai'i 282, 284, 943 P.2d
908, 910 (1997). The parties do no challenge Officer Roe’s attempt to comply
with the statute—despite the conflicting testimonies of Naeole, her neighbor,
and his video.
“Immediately Open” Means Open
in a Reasonable Time. The issue here centers on the final sentence of HRS § 803-37: “If
the doors, gates, or other bars to the entrance are not immediately opened, the
officer may break them.” A literal construction of the term “immediately opened”
contravenes the constitutional right to be free from unreasonable searches,
seizures, and invasions of privacy. State v. Monay, 85 Hawai'i at 284,
943 P.2d at 910. “The protection against unreasonable searches would mean very
little if the police, armed with a search warrant, were authorized to break
down the door of someone’s premises unless there was an ‘instant’ response.” State
v. Garcia, 77 Hawai'i at 467, 887 P.2d at 677. And so absent any exigent
circumstances, the police must give the occupants “reasonable time” to respond
to the knock and announcement before breaking in. Monay, 85 Hawai'i at
284, 943 P.2d at 910.
A reasonable time to
respond gives the occupant “sufficient opportunity to respond to authority” and
“surrender his or her privacy voluntarily.” Garcia, 77 Hawai'i at 467,
887 P.2d at 677. There is no bright-line rule on how much time is “reasonable time.”
It must be determined the circumstances of each case. Monay, 85 Hawai'i at
284, 943 P.2d at 910.
The Twenty-Five Seconds
here was Unreasonable. The HSC held that the 25 seconds the police gave Naeole to
open up was unreasonable. It was six in the morning in a modestly-sized home. According
to the HSC, most people are sleeping at 6 in the morning, just waking up, “or
otherwise indisposed by the customary activities of the early morning, such as
showering, getting dressed, or eating breakfast.” The HSC even noted that the
fact that Naole was awake did not matter. “[F]acts known to the police are what
count in judging” what is a reasonable time. Banks, 540 U.S. 31, 39
(2003). It was unreasonable to expect Naole to be alert and responsive enough
to open up her house to the police in twenty-five seconds at six in the
morning.
The HSC took pains to
emphasize that trial courts cannot just look at the time and declare if it is reasonable
or not. Like most things involving the right to be free from unreasonable
searches and seizures, “reasonableness” hinges on weighing the totality of the
circumstances. What if this was a huge mansion? Is thirty-seconds enough? What
if someone shouted “hold on! I’m coming!” What then? It appears to be very fact
specific.
No Exigency Either. The HSC also determined
that there were no exigent circumstances justifying the break in. Exigent
circumstances “reasonably call for an immediate response” such as an imminent
threat of harm, danger of serious property damage, a likelihood of escape, or the
destruction of evidence. State v. Lloyd, 61 Haw. 505, 512, 606 P.2d 913,
918 (1980).
Drugs are easy to destroy
and exigent circumstances exist when “the facts show that the occupants of the
suspected locale are aware of the police presence and are taking steps which
the police realistically fear may lead to destruction of the contraband.” State
v. Davenport, 55 Haw. 90, 99, 516 P.2d 65, 71-72 (1973). Examples include
the sound of scurrying, crashing sounds, or the flushing of toilets. Lloyd,
61 Haw. at 512-513, 606 P.2d at 918-919; Quesnel, 79 Hawai'i 185, 191,
900 P.2d 182, 188 (App. 1995). But the HSC emphasized that the mere involvement
of drugs alone does not create exigent circumstances. State v. Dorson,
62 Haw. 377, 385, 615 P.2d 740, 746 (1980). Here, the HSC held that even though
there were drugs involved, no evidence of exigent circumstances justified
breaking into Naeole’s home without giving her a reasonable chance to open the
door for the police. The HSC vacated the ICA’s decision and affirmed the
circuit court’s order granting the motion to suppress.
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