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.

Editorial Note: The Need for a Knock and Announce Revival. When peace officers are decked from head to toe with shields, rifles, and militaristic equipment, the potential for explosive violence and confrontation is very and tragically real. As the HSC points out, announcing one’s presence and giving the occupant a chance to let the police in is important without breaking down doors with guns drawn de-escalates tension. It can also save lives. Look at what happened to Breonna Taylor.

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