Executing search warrants on unsheltered people living in tents (and those with double-door entrances) got a little easier

 State v. Keanaaina (HSC March 22, 2022). Background. Police get a warrant to search Michelle Wright’s tent at an encampment inside the Old Kona Airport Park on the Big Island. The warrant authorized the police to search her campsite and “all rooms, boxes, toolboxes, suitcase, handbags, safes, backpacks, fanny packs, bags, storage containers” and other enclosed things in the camp. The officers get to the camp sight and announce their presence asking everyone to get out of their tents. There were seven separate sites at the time. There was no obvious entrance or exit for Wright’s camp sight, but officers were able to get into the tent without moving materials that formed its walls. 

Detective Michael Hardie looked into the tent and saw Wright and Samson Keanaaina asleep on a mattress. He again announced his presence. Wright woke up and got out through an opening on one end of the structure. Keanaaina slept through the police shouting at him. Wright explained he was hard of hearing. Det. Hardie went into the tent by moving a piece of fabric underneath the opening of the tent and moved a couch so he could walk directly to the mattress. Det. Hardie later testified that he did not need to move the couch and could have walked around it to enter the tent. He woke up Keanaaina and told him to get out.

 

The officers searched the tent and found a gray backpack and a leopard-print backpack. In the gray backpack they found Keanaaina’s identification and narcotics. He was charged with narcotics offenses and moved to suppress the evidence on the grounds that the officers violated the knock and announce statute. The circuit court with the Hon. Judge Melvin Fujino presiding denied the motion. Keanaaina went to trial, was found guilty, and appealed. The ICA affirmed. He petitioned to the HSC.

 

The Knock and Announce Statute, People who live Outside, and the Double-Door Hypothetical. The HSC held that the officers did not violate the knock and announce statute.

 

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 officers finds it open. If the doors are shut the officer must 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 open, the officer may break them.

 

HRS § 803-37. The HSC noted that the statute creates a “two-stage inquiry.” First, the court determines if the structure is “open.” If it is, the police can enter without any further action and the statute is not violated. If it is not, then the police must “demand entrance” and if the “bars to the entrance are not immediately open,” the police can break in.

 

The HSC rejected Keanaaina’s argument that Wright’s tent was not “open.” According to the HSC, “common sense” rejects the assumption that “any bars to entrance into a building renders the building shut[.]” The HSC provided this hypothetical to explain:

 

For example, a building may have a double door entry. If one of the two doors is shut, it would form a bar to entrance. However, so long as the other door is open, the building is also open for purposes of HRS § 803-37.

 

That, according to the HSC, is what happened here. Wright had several openings into her tent. Wright even used one of these openings to get out of the tent and the police were able to get into the tent without having to lift any of the materials that formed its walls. The HSC held that the structure was “open” and no further action was needed under HRS § 803-37.

 

Use of force that is “incidental” and not “necessary” to gain entry is not a “breaking” the entrance under the statute. The HSC also rejected Keanaaina’s argument that lifting the fabric and moving the couch to get into the tent constituted “breaking” the entrance. The HSC explained that the argument “incorrectly assumes that any use of force causes a breaking for which the officers had to demand entrance.” The HSC noted that to break in, the officers must use force for the express purpose of gaining entry. State v. Harada, 98 Hawai'i 18, 24, 41 P.3d 174, 180 (2002). When the officers use force that is merely incidental and not necessary to the entry, it does not constitute a breaking of the entrance. See, e.g., State v. Monay, 85 Hawai'i 282, 283, 942 P.2d 908, 909 (1997) (opening apartment’s closed, unlocked front door by turning its knob to get inside is “breaking”).

 

The HSC held that Det. Hardie did not “break” any entrance by removing a tent flap and moving the couch. He could have gone into the tent the same way Wright got out so lifting the tent flap was not necessary to gain entry and he could have walked around the couch.

 

The police did not thwart the legislative purpose underlying the HRS § 803-37. The HSC rejected Keanaaina’s argument that the police here “frustrated” the purpose underlying the statute. HRS § 803-37 was enacted to “(1) reduce the potential of violence to both occupants and police resulting from an unannounced entry; (2) prevent unnecessary property damage; and (3) protect the occupant’s right of privacy.” State v. Dixon, 83 Hawai'i 13, 14, 924 P.2d 181, 182 (1996). The HSC held that the officers met each of the three objectives. They announced themselves and demanded Wright and Keanaaina get out of the tent thereby reducing the potential for violence. Second, Det. Hardie did not risk any property damage by moving a couch and removing a tent flap. Finally, the police “acted with all due respect for Keanaaina’s privacy.” They gave him time to wake up and collect himself before conducting the search.

 

But what if they did? This last analysis is intriguing. The HSC interpreted HRS § 803-37 and held that the tent was not “open.” That would mean the police could go inside without doing anything else under the statute. The HSC also held that Det. Hardie did not “break” the entrance (even though the tent is “open” and that part of the statute technically did not apply). Finally, the HSC took the time to reject the argument that the police frustrated the legislative purpose underlying the statute. Does this mean that even when the statute’s interpretation is clear, courts may still examine the spirit and purpose underlying it?

 

That kind of statutory construction harkens back to Justice Bernard Levinson’s approach laid out in Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.3d 220 (1967):

 

We are aware of the many canons of construction which are supposed to aid a court in construing a statute. But we are also aware that for every construction exhorting a court to a literal interpretation of a statute there is a contrary one which justifies construction in a more liberal manner. A statute must be interpreted with a view to the problems with which it is intended to deal and not by reference to the too often vague concept of legislative intent.

 

Id. at 153, 433 P.2d at 223. That seems to be what the HSC is doing here by examining plain language of the statute and then holding that the legislative purposes were not undermined by the police. What would happen if the legislative purpose is thwarted, but the language of the statute seems to be unoffended? Justice Levinson seems to suggest that the construction of the statute must give way. Would the HSC nowadays agree?

 

The warrant authorized a search of Keanaaina’s backpack. The HSC rejected Keanaaina’s argument that the police had adequate notice that the gray backpack belonged to him while the leopard-print backpack was Wright’s and therefore it was not within the scope of the search warrant. In rejecting the argument, the HSC distinguished this case from State v. Nabarro, 55 Haw. 583, 525 P.2d 573 (1974).

 

In Nabarro, the police searched the hotel room of two men in Hilo pursuant to a warrant and found a woman in the room. She grabbed her purse before trying to go into the bathroom. The police stopped her, searched the purse, and found cannabis. The HSC held that the evidence in the purse was inadmissible because “there was no question that the police had notice, prior to the search, that Miss Nabarro . . . was the owner of the purse.” Id. at 58, 585 P.2d at 577. According to the HSC, the holding was based on the fact that the warrant identified two men in the hotel room “making it unlikely that the purse belonged to them.” The purse was in her vicinity and Nabarro took the purse “in circumstances that made it highly unlikely that the purse belonged to anyone else.” Id. at 588, 585 P.2d at 577.

 

The HSC held that this case was different. It was unreasonable to imply that Wright had just one backpack and the gray color did not necessarily mean it was Keanaaina’s as opposed to Wright’s. “Nothing prevents a woman from owning both a leopard-print backpack and a dark-colored backpack.” Moreover, the backpack was not in Keanaaina’s vicinity and Keanaaina did not “take any action that indicated that the gray backpack was his.” The HSC distinguished Nabarro and held that the police did not have notice, prior to the search that Keanaaina was the owner. The conviction was affirmed.

 

Justice McKenna’s Dissent. Justice McKenna dissented. She wrote that the warrant itself was too vague and did not satisfy the particularity requirement in Article I, Section 7 of the Hawai'i Constitution. See State v. Dias, 62 Haw. 52, 603 P.2d 637 (1980).

 

Justice McKenna also took issue with the majority’s analysis of HRS § 803-37. She believed that the tent was not “open” under the language of the statute. While there were many openings in the tent, Justice McKenna pointed out that these “openings” were holes, gaps, and ways to get a cross breeze or air flowing through the structure. This was akin to a house with open windows. For Justice McKenna, “the residence was not ‘open’ because a ’breaking’ was required and made for entry.” Det. Hardie had to remove a couch “blocking [his] path to the bed.” The couch was “butted up right against the tarp” walls. This meant the tent was not “open” and the police violated HRS § 803-37. She also took issue with the majority’s analysis that the police did not thwart the purposes underlying the statute. Justice Wilson joined.