Opinion
SCWC-17-0000898
03-22-2022
STATE of Hawai‘i, Respondent/Plaintiff-Appellee, v. Samson K. KEANAAINA, Petitioner/Defendant-Appellant.
Victor M. Cox, Keauhou, for petitioner Stephen L. Frye for respondent
Victor M. Cox, Keauhou, for petitioner
Stephen L. Frye for respondent
RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE CRABTREE, ASSIGNED BY REASON OF VACANCY, AND McKENNA, J., DISSENTING, WITH WHOM WILSON, J., JOINS
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Defendant-Appellant Samson K. Keanaaina (Keanaaina) appeals the judgment of the Intermediate Court of Appeals (ICA) affirming the Circuit Court of the Third Circuit's (circuit court) denial of Keanaaina's motion to suppress evidence. On certiorari, Keanaaina contends that the evidence against him – specifically, the contents of a gray backpack – should be excluded because (1) Hawai‘i Police Department officers failed to comply with Hawai‘i Revised Statutes (HRS) § 803-37 ’s requirement that officers "demand entrance" before entering a building and (2) the resulting search of Keanaaina's backpack exceeded the terms of the search warrant the officers executed.
The Honorable Melvin H. Fujino presided.
Keanaaina is incorrect. First, the statutory obligation to "demand entrance" only applies when the building's entrance is "shut." It cannot feasibly be said that the entrances to the tent structure – which had multiple openings between the materials forming its walls – were shut. Thus, the officers did not need to demand entrance, nor did the officers’ actions constitute a breaking. Moreover, the purposes of HRS § 803-37 were satisfied when the officers’ entry did not create any risk of harm. Second, there was no indication that the backpack belonged to Keanaaina. The searches of the backpack consequently did not exceed the terms of the search warrant. We therefore affirm the ICA's June 5, 2020 Judgment on Appeal. I. BACKGROUND
A. Factual Background
On the morning of March 8, 2017, police officers executed a search warrant for Michelle Wright's (Wright) tent structure located in a tent encampment within the Old Kona Airport Park. The warrant authorized the search of
The residence of Michelle WRIGHT described as a homeless campsite consisting of various color and size tarpaulins at the Old Kona Airport beach park, located at the north end of Kuakini Highway, behind the Hawai‘i State Parks and Recreation maintenance building. Said campsite is situated on land belonging to the County of Hawai‘i (Old Kona Airport) and Queen Liliuokalani Trust (corner of Kuakini Hwy and Makala Blvd); to include but not limited to all rooms, boxes, toolboxes, suitcases, handbags, safes, backpacks, fanny packs, bags, storage containers, wallets, purses, papers, utility receipts and clothing located within said camp and/or stored outside-near the camp, wherever located within the County and State of Hawai‘i ... [.]
The affidavit in support of the search warrant included two photographs depicting Wright's campsite. In executing the search warrant, the officers knew that it was possible that they would find Keanaaina in Wright's tent structure.
When the officers entered the tent encampment at least fifteen feet away from Wright's tent structure, they announced their presence and asked encampment residents to exit their tents. At the time of the search, it appears that the encampment consisted of approximately seven separate campsites. It appears from the record that one campsite was covered by a single orange tarpaulin, one campsite consisted of a tent with an additional gray tarpaulin covering, one campsite consisted of a blue tarpaulin wall and silver roof, one campsite was covered by a dark material and a blue umbrella, one campsite consisted of a single tent, and one campsite was covered by a single blue tarpaulin. The seventh campsite belonged to Wright.
The officers asked encampment residents to exit their tents to ensure the officers’ safety, not to search the other tents.
Given the composition of Wright's tent structure, there was no obvious entrance or exit. However, the tent structure was "open" such that a person could enter and exit without moving any of the materials that formed its walls, the officers could look into the tent from the outside, and the officers could search inside of the tent without using flashlights.
Looking through a large opening in the tent structure, Detective Michael Hardie (Detective Hardie) saw Wright and Keanaaina sleeping on a mattress inside. Detective Hardie repeated the officers’ announcements that police were present and asked Wright and Keanaaina to exit the tent structure. After at least two minutes, Wright woke up and exited the tent structure through a small opening on the north end of the structure. Keanaaina continued sleeping. Detective Hardie attempted to wake Keanaaina by shouting into the tent structure for a few more minutes, but was unsuccessful. Wright subsequently informed the officers that Keanaaina was hard of hearing.
Based on Wright's statement, Detective Hardie entered the tent structure by "mov[ing] aside" a piece of fabric under the opening through which he observed Wright and Keanaaina. Detective Hardie also moved a couch so that he could walk in a straight line to the bed where Keanaaina was sleeping. However, Detective Hardie could have walked around the couch to enter the tent structure. Detective Hardie woke Keanaaina and instructed him to exit the tent. Before exiting the tent, Keanaaina allegedly asked Detective Hardie "where's my backpack[?]" Once Wright and Keanaaina were outside of the tent structure, the officers searched the tent structure and found, inter alia, a leopard-print backpack and a gray backpack. During an initial search inside of the tent structure, the officers found a bag of marijuana within the gray backpack. The officers took the gray backpack to the police station for a more thorough search. During the second search, the police found Keanaaina's identification, methamphetamine residue, and drug paraphernalia in the gray backpack.
Keanaaina testified that:
[State's Counsel]: Okay. In the area of that pink, the pink sheet in the front on the makai side of the tent ––
[Keanaaina]: Yes.
[State's Counsel]: –– wasn't there a couch there on the inside?
[Keanaaina]: Under the opening, yeah.
[State's Counsel]: Okay. There's a couch; right?
[Keanaaina]: No, not in the way but it's on the side. You can walk around. Michelle used that pink for block the doorway so you cannot see in.
(Emphasis added.)
The State subsequently charged Keanaaina by complaint with one count of promoting a dangerous drug in the first degree, in violation of HRS § 712-1241(1)(a) ; two counts of prohibited acts related to drug paraphernalia, in violation of HRS § 329-43.5(a) ; three counts of promoting a dangerous drug in the third degree, in violation of HRS § 712-1243(1) ; one count of promoting a detrimental drug in the second degree, in violation of HRS § 712-1248(1) ; and one count of attempted promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes, in violation of HRS §§ 705-500(1)(b), 712-1249.6(1).
HRS § 712-1241(1)(a) (Supp. 2016) provides in relevant part: "[a] person commits the offense of promoting a dangerous drug in the first degree if the person knowingly: (a) [p]ossesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of: (i) [o]ne ounce or more, containing methamphetamine ...."
A "dangerous drug" is "any substance or immediate precursor defined or specified as a ‘Schedule I substance’ or a ‘Schedule II substance’ by chapter 329, or a substance specified in section 329-18(c)(14), except marijuana or marijuana concentrate." HRS § 712-1240 (2014). Methamphetamine is a Schedule II substance. HRS § 329-16(e)(2) (2010).
HRS § 329-43.5(a) (Supp. 2016) provides in relevant part:
it is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.
HRS § 712-1243(1) (2014) provides: "[a] person commits the offense of promoting a dangerous drug in the third degree if the person knowingly possesses any dangerous drug in any amount."
HRS § 712-1248(1) (2014) provides in relevant part: "[a] person commits the offense of promoting a detrimental drug in the second degree if the person knowingly ... [p]ossesses one or more preparations, compounds, mixtures, or substances, of an aggregate weight of one ounce or more, containing any marijuana."
HRS § 705-500(1)(b) (2014) provides: "[a] person is guilty of an attempt to commit a crime if the person ... [i]ntentionally engages in conduct which, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the person's commission of the crime."
HRS § 712-1249.6(1) (2014) provides in relevant part:
Promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes. (1) A person commits the offense of promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes if the person knowingly:
(a) Distributes or possesses with intent to distribute a controlled substance in any amount in or on the real property comprising a school, public park, or public housing project or complex;
(b) Distributes or possesses with intent to distribute a controlled substance in any amount within seven hundred and fifty feet of the real property comprising a school, public park, or public housing project or complex[.]
B. Pre-Trial Proceedings
Keanaaina sought to suppress his identification and the evidence obtained from the gray backpack on the basis that the officers’ entry into the tent structure and subsequent search of the backpack violated HRS § 803-37 because the officers needed to demand entrance to the tent structure before they could search his bag.
HRS § 803-37 (2014) provides:
Power of officer serving. 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 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 opened, the officer may break them. When entered, the officer may demand that any other part of the house, or any closet, or other closed place in which the officer has reason to believe the property is concealed, may be opened for the officer's inspection, and if refused the officer may break them.
Keanaaina additionally argued that the search of his bag exceeded the scope of the warrant, which authorized the search of
The residence of Michelle WRIGHT described as a homeless campsite consisting of various color and size tarpaulins at the Old Kona Airport beach park, located at the north end of Kuakini Highway, behind the Hawai‘i State Parks and Recreation maintenance building. Said campsite is situated on land belonging to the County of Hawai‘i (Old Kona Airport) and Queen Liliuokalani Trust (corner of Kuakini Hwy and Makala Blvd); to include but not limited to all rooms, boxes, toolboxes, suitcases, handbags, safes, backpacks, fanny packs, bags, storage containers, wallets, purses, papers, utility receipts and clothing located within said camp and/or stored outside-near the camp, wherever located within the County and State of Hawai‘i ....
Specifically, Keanaaina claimed that since the warrant was targeted at Wright, it did not "support a ... search of his belongings." Keanaaina also asserted that the search warrant did not comply with constitutional prohibitions "that no warrants shall issue absent ‘... particularity describing .... [sic] things to be seized.’ "
Keanaaina superficially identified this "Particularity of Warrant" claim on appeal, but did not present any argument to the ICA pertaining to the breadth of the search warrant.
On certiorari, Keanaaina does not claim, much less argue, that the search warrant constituted an unlawful general warrant. Keanaaina therefore expressly abandoned his general warrant claim, and we do not address this basis for Keanaaina's motion to suppress any further. Hawai‘i Rules of Appellate Procedure (HRAP) Rule 28(b)(4).
Following a hearing, the circuit court denied Keanaaina's motion. As relevant here, the circuit court found that Detective Hardie "called into the structure numerous times, announcing police presence and search warrants."
The circuit court additionally found that "neither [Detective] Hardie nor any of the other officers were aware that a backpack inside the tent belonged to [Keanaaina] prior to the tent being search[ed] or whether any particular backpack belonged to [Keanaaina]." When the officers first searched the gray backpack, "contraband was found within the backpack, including marijuana and small zip bags." "When the [gray] backpack was searched at the Kealakehe Police Station, identification cards for Samson Keanaaina were observed within it and photographed."
The circuit court therefore reached three relevant conclusions of law. First, "[w]hen the officers observed the items of identification ..., the items of identification were in plain view, as the initial intrusion was justified by the valid search warrant."
Second, "[t]he officers did not need to comply with the requirements of [ HRS § 803-37 ] because there was no ‘breaking’ of any door to gain entrance to the structure." This was because "[w]hen Ms. Wright exited the Wright Residence, her ‘door’ was voluntarily opened, and there is no need for officers to knock and announce." Nevertheless, the circuit court determined that
the officers did comply by loudly announcing police presence, the police business (search warrants), and instructions to exit the tents. Having waited outside the structure for several minutes after the announcements before Ms. Wright exited the Wright Residence, then taking additional minutes to call into the tent to rouse the defendant, the officers waited a reasonable time to enter the structure.
The circuit court therefore concluded that the officers’ actions "respected the purposes of the knock and announce rule and did not offend constitutional protections."
Third, the search warrant authorized the officers "to search ‘plausible repositories’ found within the Wright Residence ...." Here, "[t]he backpack which contained [Keanaaina's] identification cards ... was not clearly the property of [Wright or Keanaaina] ..., so the search of the backpack was not improper." C. Trial Proceedings
On September 12, 2017, the case proceeded to a jury trial. The jury convicted Keanaaina for one count of prohibited acts related to drug paraphernalia; one count of promoting a dangerous drug in the third degree; one count of promoting a detrimental drug in the third degree; and one count of attempted promoting a controlled substance in, on, or near schools, school vehicles, public parks, or public housing projects or complexes.
The circuit court entered its Judgment of Conviction and Sentence on November 17, 2017.
D. ICA Memorandum Opinion
Keanaaina appealed the circuit court's Judgment of Conviction and Sentence to the ICA, arguing, inter alia, that the circuit court should have granted Keanaaina's motion to suppress. The ICA affirmed the circuit court decision.
Keanaaina also asserted that the trial court should have dismissed a juror for potential bias and that he received ineffective assistance of counsel. Keanaaina repeats these claims in his application for writ of certiorari. These arguments lack merit for the reasons discussed in the ICA's memorandum opinion.
First, the ICA concluded that the officers "complied with the requirements and purposes of HRS § 803-37 and the Circuit Court did not err when it denied Keanaaina's Motion to Suppress." Citing State v. Dixon, 83 Hawai‘i 13, 14, 924 P.2d 181, 182 (1996), the ICA noted that "[t]he purposes of this so-called knock and announce rule are 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 to privacy.’ " The ICA explained that the statute did not require the officers to "knock" on the tent, but merely to announce their presence, which the officers did repeatedly. The ICA added that there was little risk of property damage or injury when the officers could see into the tent structure and waited a reasonable time before entering to wake Keanaaina. The ICA acknowledged that the waiting period also "protected Keanaaina's privacy as much as possible."
Second, the ICA held that the officers were authorized to search the gray backpack. The ICA reasoned that, under this court's precedent in State v. Nabarro, 55 Haw. 583, 587-88, 525 P.2d 573, 576-77 (1974), a valid search warrant authorizes officers to inspect bags in the specified search area so long as the officers did not have "notice of some sort of the ownership of a belonging[.]" The ICA pointed out that "[t]here is no evidence in the record that the police knew that the gray backpack belonged to Keanaaina prior to searching it." The ICA further noted that the officers did not identify the gray backpack as Keanaaina's until the police station search, at which point the bag's contents were admissible under the plain view doctrine because they were "observed after warrant-authorized opening of the backpack[.]"
II. STANDARD OF REVIEW
A. Motion to Suppress
"[W]e review questions of constitutional law under the ‘right/wrong’ standard." State v. Jenkins, 93 Hawai‘i 87, 100, 997 P.2d 13, 26 (2000) (citing State v. Toyomura, 80 Hawai‘i 8, 15, 904 P.2d 893, 900 (1995) ). Accordingly, "[w]e review the circuit court's ruling on a motion to suppress de novo to determine whether the ruling was ‘right’ or ‘wrong.’ " State v. Kauhi, 86 Hawai‘i 195, 197, 948 P.2d 1036, 1038 (1997) (citing State v. Navas, 81 Hawai‘i 113, 123, 913 P.2d 39, 49 (1996) ).
III. DISCUSSION
A. The officers complied with the requirements of HRS § 803-37.
The text of HRS § 803-37 provides in relevant part:
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 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 opened, the officer may break them.
The statute thus creates a two-stage inquiry for determining whether and how an officer may enter a building to execute a search warrant. We first ask whether the structure is "open." If so, an officer may enter without taking any further action, and that is the end of the inquiry. If not, we then ask if the officer "demand[ed] entrance." If so, the officer may "break" any bars to entrance if they are not immediately opened and enter. If not, the officer should not enter the building or break its bars to entrance.
Applying this order of inquiry to the present case, the circuit court correctly determined that HRS § 803-37 did not require the officers to demand entrance because (1) Wright's tent structure was open and (2) Detective Hardie's actions consequently did not constitute a breaking. Additionally, although HRS § 803-37 did not require the officers to demand entrance, we note that they effectively carried out the statute's policy goals.
1. The officers did not need to demand entrance into the open tent structure.
According to Keanaaina, HRS § 803-37 obligated the officers to demand entrance to Wright's tent structure because Detective Hardie used force to lift a sheet and move a couch before entering.
This contention improperly reverses HRS § 803-37 ’s order of inquiry by assuming that the existence of any bars to entrance into a building renders the building shut for purposes of HRS § 803-37. Common sense proves otherwise. 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 is precisely the case here. The record shows that there were numerous openings into Wright's tent structure. Notably, Wright used one of these openings to exit the tent structure. The tent structure was consequently open insofar as there was an entrance that the officers could have used to enter the structure without lifting or moving any of the tarpaulins or materials that formed its walls. Under these circumstances, HRS § 803-37 ’s mandate that an officer "demand entrance" when "the doors are shut" is inapplicable. See HRS § 803-37.
For the purposes of this proceeding, this court assumes without deciding that Wright's tent structure constituted "a house ... or other building" under the terms of HRS § 803-37.
Keanaaina argues in passing that Wright "did not open the door for police entry." However, this court's precedent makes clear that a building occupant's reason for opening a door is irrelevant. See Dixon, 83 Hawai‘i at 21, 924 P.2d at 189 (holding that officers need not demand entrance when using a ruse to persuade an occupant to open a door).
2. Detective Hardie's actions could not constitute a breaking that required the officers to demand entrance.
Citing State v. Harada, 98 Hawai‘i 18, 41 P.3d 174 (2002), Keanaaina further argues that Detective Hardie's uses of force to lift a sheet of fabric and move a couch constituted breakings that triggered HRS § 803-37 ’s requirement that the officers demand entrance. However, this argument incorrectly assumes that any use of force causes a breaking for which the officers had to demand entrance. Rather, Harada makes clear that a breaking only occurs when the force is "used to gain entry." 98 Hawai‘i at 24, 41 P.3d at 180.
This distinction is particularly important where, as here, an officer's use of force to enter a building is merely incidental – and not necessary – to their entry. For instance, in Harada, we held that officers had to demand entrance because "a breaking occurred when Officer Bermudes used force to prevent Harada from closing the door." 98 Hawai‘i at 30, 41 P.3d at 186. Similarly, we explained in State v. Monay, 85 Hawai‘i 282, 283, 943 P.2d 908, 909 (1997), that an officer opening an apartment's closed, unlocked front door by using force to turn the door knob is required to demand entrance. In both of these situations, the officers were only able to gain entry to the building at issue because of their use of force.
The record shows that Detective Hardie's use of force was incidental to his entry, and therefore did not constitute a breaking. Notably, Detective Hardie could have entered the tent structure using the same opening Wright used as an exit. Detective Hardie's act of lifting a sheet of fabric consequently was not necessary to gain entry to the tent. Additionally, Keanaaina's own testimony indicated that Detective Hardie could have walked around the couch. Detective Hardie's movement of the couch was, in turn, unnecessary to gain entry.
The dissent contends that because Wright moved a tarp to the side to exit the tent, this opening was "shut" to Detective Hardie. This reasoning is flawed for two reasons. First, as our double door example illustrates, the mere fact that an obstruction may be present does not render a structure shut.
Second, by the dissent's logic, if a person opens the entrance to a structure and leaves it open, the fact that the person opened the entrance door would obligate the officers to demand entry. However, this court has already determined that such is not the case. See Dixon, 83 Hawai‘i at 21, 924 P.2d at 189 (holding that officers need not demand entrance after an occupant opened the entry door).
In sum, HRS § 803-37 ’s requirement that officers demand entrance to a shut building was not triggered because (1) Wright's tent structure was open and (2) Detective Hardie's uses of force therefore did not constitute "breakings" because the force was not necessary to gain entry.
Other courts have similarly held that an incidental use of force does not constitute a breaking. See, e.g., United States v. Thorne, 997 F.2d 1504, 1513 (D.C. Cir. 1993) (holding that no breaking occurred where "door was ajar" and officer "knocked twice and the force of the knocks further opened the door."); State v. Campana, 112 Ohio App.3d 297, 678 N.E.2d 626, 629 (1996) ("the officers knocked and then walked into the workshop through an unlocked door that was ajar. In that they did not have to break down the door or break a window to effectuate the arrest, [the knock and announce statute] is inapplicable to this case.") (emphasis added).
3. The officers nevertheless satisfied the objectives of HRS § 803-37 ’s requirement to demand entrance.
Despite the fact that HRS § 803-37 did not obligate the officers to demand entrance, Keanaaina proclaims that the purposes of the rule "were in fact frustrated." This is incorrect. The legislature enacted the "knock and announce" rule 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." Dixon, 83 Hawai‘i at 14, 924 P.2d at 182 ; see also State v. Eleneki, 92 Hawai‘i 562, 565, 993 P.2d 1191, 1194 (2000) ("Although the language of HRS §§ 803-11 and 803-37 differs, the purposes of the ‘knock and announce rule’ are identical in each context ...."). The officers’ actions fulfilled each of these goals.
First, the officers reduced the potential of violence to both occupants and police by loudly announcing their presence and demanding that Wright and Keanaaina exit the tent structure. Although Keanaaina contends that "an unannounced entry had the potential of violence," the record proves otherwise. Detective Hardie looked into the tent from a large opening. From this vantage point, Detective Hardie saw that both Wright and Keanaaina were sleeping. Detective Hardie attempted to wake Wright and Keanaaina and to order both to exit the tent. If anything, these instructions reduced the potential of violence since the tent was a small, confined area where the occupants would be in close proximity to the officers and could have access to concealed weapons. Once Wright exited the tent structure, the only remaining occupant was Keanaaina, who continued sleeping. Under these circumstances, Detective Hardie's entrance into the tent after ordering the occupants to exit did not create any potential of violence to either Detective Hardie or Keanaaina.
Second, Detective Hardie's entry into the tent did not create any risk of unnecessary property damage. Keanaaina insists that "moving a couch or opening a closed flap/barrier causes damages at least in the form of disrupting the living quarters." However, this argument disregards the knock and announce rule's purpose of preventing unnecessary property damage. See Dixon, 83 Hawai‘i at 14, 924 P.2d at 182. Regardless, given that there was no potential for violence from Detective Hardie's entry, it was similarly unlikely that the entry would have led to any property damage.
Third, Detective Hardie acted with all due respect for Keanaaina's privacy. The officers began their announcements when they entered the tent encampment, at least fifteen feet away from Wright's tent structure. This gave Wright and Keanaaina some time to wake up and collect themselves before the officers arrived at Wright's tent structure. Additionally, Keanaaina had, at best, a limited expectation of privacy inside of the tent. See State v. Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462, 466-67 (1978) (explaining that there is no reasonable expectation of privacy when observations can be made from "a non-intrusive vantage point."). The record reveals that there was at least one large, pre-existing opening in the tent structure that allowed passersby to look into the tent structure. Thus, Detective Hardie's observations through the opening did not intrude upon Keanaaina's privacy inside the tent structure. Kaaheena, 59 Haw. at 28-29, 575 P.2d at 466-67.
Detective Hardie also gave Keanaaina a reasonable period of time to respond before entering the tent. "[W]hat would constitute a reasonable period of time to respond to a knock and announcement must be determined by the circumstances of each case." Monay, 85 Hawai‘i at 284, 943 P.2d at 910 (quoting State v. Garcia, 77 Hawai‘i 461, 468, 887 P.2d 671, 678 (App. 1995) ). Once Wright exited the tent, Detective Hardie continued trying to wake up Keanaaina from outside of the tent for a few minutes. Given that Detective Hardie could see that Keanaaina was non-responsive and knew that Keanaaina was hard of hearing, it appears that Detective Hardie waited a reasonable amount of time before entering the tent structure. Monay, 85 Hawai‘i at 284, 943 P.2d at 910.
The officers’ entry into Wright's tent structure consequently satisfied HRS § 803-37 ’s purposes. Dixon, 83 Hawai‘i at 15, 924 P.2d at 182 ; Eleneki, 92 Hawai‘i at 565, 993 P.2d at 1194.
B. The search warrant authorized the officers to search Keanaaina's backpack.
Keanaaina also claims that the ICA erred in ruling that the warrant authorized the officers to search Keanaaina's backpack. Keanaaina points out that the warrant authorized the officers to search items "found to be under the control of a female party identified as Michelle WRIGHT." However, Keanaaina argues that Wright "could not have been in control of the backpack" because she was not in the tent next to the backpack at the time it was seized by the officers. Keanaaina further asserts that the officers had notice that the backpack was Keanaaina's – not Wright's – because it "was found next to [Keanaaina] on a bed where he was sleeping and the police identified the [leopard-print] backpack as belonging to Michelle Wright." These arguments are unavailing.
First, Keanaaina's insistence that Wright had to be in the tent to control the backpack – and thereby bring the backpack within the warrant's ambit – is nonsensical. By Keanaaina's reasoning, Wright lost control over all objects in the tent the moment she walked out. A defendant may not so easily evade a lawful search of their possessions. Black's Law Dictionary 416 (11th ed. 2019) defines "control" as "[t]he direct or indirect power to govern the management" of an object. (Emphasis added.) It also defines the act of control as "[t]o exercise power or influence over." Id. These definitions indicate that a person may "control" an object without actual physical possession of or proximity to the item.
Our precedent regarding possession confirms this. For instance, a person may exercise actual possession, meaning that she "has direct physical control over a thing at a given time." State v. Jenkins, 93 Hawai‘i 87, 110, 997 P.2d 13, 36 (2000). Alternatively, this person may exercise constructive possession, where she possesses "both the power and the intention at a given time to exercise dominion over [the] thing, either directly or through another person or persons." Id. Thus, Wright could still have possessed and controlled the gray backpack without actually being inside of the tent, and the officers were therefore not precluded from searching the gray backpack.
Second, the officers lacked sufficient notice to determine that Keanaaina owned the backpack. Keanaaina claims that the facts that his "gray camo backpack was found next to him ... and [that] the police identified the [leopard-print] backpack as belonging to Michelle Wright" were sufficient to notify the officers that Keanaaina had "some sort of ownership of the backpack." This court's decision in Nabarro leads us to a different conclusion. See 55 Haw. 583, 525 P.2d 573.
There, officers conducted a search of a hotel room pursuant to a warrant identifying two male occupants. Id. at 583-84, 525 P.2d at 574. During the search, Nabarro, who was a female visitor in the room, grabbed her purse before attempting to enter the bathroom. Id. The officers searched Nabarro's purse and found marijuana and paraphernalia. Id. at 584, 525 P.2d at 574-75. This court held that the evidence found in Nabarro's purse should have been suppressed 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 588, 525 P.2d at 577. This conclusion was based upon the facts that (1) the warrant identified two males as the occupants of the room, making it unlikely that the purse belonged to either of the warrant's targets; (2) the purse was in Miss Nabarro's immediate vicinity; and (3) Miss Nabarro picked up the purse "in circumstances that made it highly unlikely that the purse belonged to anyone else." Id.
None of these factors are present here. First, it is unreasonable for Keanaaina to imply that Wright could only possess one backpack. It is plausible that, as a person without permanent housing, Wright owned multiple backpacks to keep her possessions easily mobile. Indeed, the warrant recognized as much when it authorized the search of "backpacks." Furthermore, the backpack's gray coloration did not provide notice that the bag did not belong to Wright. Nothing prevents a woman from owning both a leopard-print backpack and a dark-colored backpack.
Second, the fact that the bag was in close proximity to Keanaaina also did not provide notice that the backpack belonged to Keanaaina. As a preliminary matter, we clarify that Nabarro's identification that the purse was in Nabarro's immediate vicinity must be considered in the context that purses are "characteristically female attire." See id. at 588, 525 P.2d at 577. No similar context clues existed here. Nothing about the backpack's color indicated that it belonged to Keanaaina. Furthermore, the officers only knew that Keanaaina might be in Wright's tent. The officers therefore could have fairly assumed that the items in the tent belonged to Wright regardless of their proximity to Keanaaina.
There would be significant issues in relying on proximity alone as a dispositive factor. As this court explained in Nabarro, placing a visitor's possible possessions beyond the reach of a search warrant would render effective execution impossible "since the police could never be sure that a plausible repository for items named in the warrant belongs to a resident, and hence is searchable, or to a non-resident, and hence is not searchable." Id. at 587-88, 525 P.2d at 576-77.
Keanaaina's proposed use of proximity as a dispositive factor would lead to an even more untenable circumstance than the one this court sought to avoid in Nabarro. Instead of merely preventing police from searching items that clearly belong to a visitor, Keanaaina suggests that police should not be able to search items that are near a known visitor. This would have rendered the execution of the search warrant impossible by preventing the officers from searching any items or places near Keanaaina. Contra id. at 587-88, 525 P.2d at 576-77.
Lastly, Keanaaina did not take any action that indicated that the gray backpack was his. Keanaaina did not testify that he described his bag to the officers. At most, he asked Detective Hardie "where's my backpack?" Although this inquiry would have indicated that Keanaaina may have owned a backpack in the tent, it was not sufficient to inform the officers that Keanaaina owned the gray backpack.
Under these circumstances, the officers did not have notice that Keanaaina was the owner of the backpack, and were therefore entitled to assume that the backpack was subject to search under the warrant. See id. at 588, 525 P.2d at 577 ("without notice of some sort of ownership of a belonging, the police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for the purpose of executing the warrant.").
IV. CONCLUSION
For the foregoing reasons, we affirm the ICA's June 5, 2020 Judgment on Appeal, which affirmed the circuit court's November 17, 2017 Judgment of Conviction and Sentence.
DISSENTING OPINION BY McKENNA, J., IN WHICH WILSON, J., JOINS
I. Introduction
The Majority assumes the validity of an unconstitutional general search warrant that failed to describe the place to be searched with sufficient particularity. The Majority also holds that Wright's residence was "open," contradicting existing precedent that defines the force required to constitute a breaking under Hawai‘i Revised Statutes ("HRS") § 803-37.
The Majority rulings violate the constitutional and statutory rights of our citizens without traditional, sheltered homes ("unsheltered persons"). Hence, I respectfully dissent.
I use the term "unsheltered persons" to mean those "without traditional housing." I avoid the terms "homeless" and "houseless" because for an increasing number of our citizens, tent-like structures have become their homes and houses.
II. Discussion
On March 8, 2017, officers executed Search Warrant No. 2017-030K, which directed a search of the following area:
The residence of Michelle WRIGHT described as a homeless campsite consisting of various color and size tarpaulins at the Old Kona Airport beach park, located at the north end of Kuakini Highway, behind the Hawai'i State Parks and Recreation maintenance building. Said campsite is situated on land belonging to the County of Hawai'i (Old Kona Airport) and Queen Liliuokalani Trust (corner of Kuakini Hwy and Makala Blvd); to include but not limited to all rooms, boxes, toolboxes, suitcases, handbags, safes, backpacks, fanny packs, bags, storage containers, wallets, purses, papers, utility receipts and clothing located within said camp and/or stored outside-near the camp, wherever located within the County and State of Hawai'i ...
(emphasis added). The probable cause affidavit in support of the search warrant used the same verbatim description, but also attached two photos of the campsite as Exhibit A. Keanaaina, a visitor at Wright's residence, had his backpack taken and searched under the auspices of this warrant. Evidence seized led to Keanaaina's arrest for and ultimate conviction on various drug-related charges.
A. The search warrant was an invalid general warrant subject to total invalidation
1. Wright's constitutional right against unreasonable searches and seizures
Article 1, section 7 of the Constitution of the State of Hawai‘i provides, "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. 1, § 7. This provision "safeguard[s] individuals from the arbitrary, oppressive, and harassing conduct of government officials." State v. Naeole, 148 Hawai‘i 243, 247, 470 P.3d 1120, 1124 (2020) (cleaned up).
The Fourth Amendment to the United States Constitution reads, in relevant part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. Thus, the Hawai‘i Constitution provides additional protection against "invasions of privacy."
This court has long recognized that the protection against warrantless searches and seizures can apply to residences of unsheltered persons, even when placed on government property without permission. See State v. Dias, 62 Haw. 52, 609 P.2d 637 (1980). In Dias, the trial court granted a motion to suppress gambling evidence obtained without a warrant brought by occupants of a shack built on Sand Island in an area then known as "Squatters Row." 62 Haw. at 53, 609 P.2d at 639. In affirming the suppression, we applied the two-pronged test for when a defendant has a reasonable expectation of privacy:
In determining whether the defendants in the present case had a reasonable expectation of privacy in the area searched, a two-fold test is to be applied: (1) whether they had exhibited an actual expectation of privacy, and (2) whether the expectation was one which society would deem to be reasonable. State v. Kaaheena, 59 Haw. 23, 575 P.2d 462 (1978) ; State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977). A [person's] dwelling, generally, is a place where [they] expect[ ] privacy, and except as to conduct, objects, and statements which [they] knowingly expose[ ] to public view, they] will be deemed to have exhibited an actual expectation of privacy therein. See United States v. Botelho, 30 [360] F.Supp. 620 (D. Haw. [D.Hawai'i] 1973).
Dias, 62 Haw. at 55, 609 P.2d at 639. We concluded that although the structure had been erected on government property without permission, the "long acquiescence by the government" to its existence gave rise to a reasonable expectation of privacy, "at least with respect to the interior of the building itself." Dias, 62 Haw. at 55, 609 P.2d at 640.
In this case, the area searched was a tent structure on land belonging to the County of Hawai‘i and the Queen Lili‘uokalani Trust. Wright had been living there without the government's permission since late 2015, more than one year prior to the search. Wright exhibited an actual expectation of privacy in the structure by creating an enclosure, regularly sleeping in it, and safekeeping her belongings within it. The structure contained furniture and spaces commonly found in houses, including a bed, a couch, a kitchen area, and a storage area.
Thus, Wright enjoyed a reasonable expectation of privacy within her tent structure residence. The State recognized this by seeking a search warrant of her "residence."
See also State v. Pippin, 200 Wash. App. 826, 403 P.3d 907 (2017). In Pippin, Washington police officers lifted a tarp to peer into an unsheltered man's tent without a warrant and arrested him after observing a bag of methamphetamine. 200 Wash. App. at 832, 403 P.3d at 910. On appeal, the Washington appellate court held the man's tent-like residence on public property and its contents "fell among those privacy interests which citizens of this state should be entitled to hold, safe from governmental trespass absent a warrant." Pippin, 200 Wash. App. at 846, 403 P.3d at 917 (cleaned up). The court highlighted the similarities between the man's tent and a fixed dwelling:
¶37 Pippin's tent allowed him one of the most fundamental activities that most individuals enjoy in private—sleeping under the comfort of a roof and enclosure. The tent also gave him a modicum of separation and refuge from the eyes of the world: a shred of space to exercise autonomy over the personal. These artifacts of the personal could be the same as with any of us, whether in physical or electronic form: reading material, personal letters, signs of political or religious belief, photographs, sexual material, and hints of hopes, fears, and desires. These speak to one's most personal and intimate matters.
¶38 The law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious. The temporary nature of Pippin's tent does not undermine any privacy interest. Nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. For the homeless, this may often be the only refuge for privacy in the world as it is.
Pippin, 200 Wash. App. at 840–41, 403 P.3d at 915 (cleaned up).
2. As a visitor, Keanaaina also enjoyed Wright's constitutional right against unreasonable searches and seizures
The reasonable expectation of privacy enjoyed by Wright in her residence extended to her visitor, Keanaaina. Keanaaina was an occasional visitor to Wright's residence. A guest of a homedweller shares the right of privacy of the homedweller. State v. Cuntapay, 104 Hawai‘i 109, 110, 85 P.3d 634, 635 (2004).
In Cuntapay, we also recognized that, in Hawai‘i, an open garage, which is a space not entirely enclosed by brick-and-mortar walls, still hosts an expectation of privacy. 104 Hawai‘i at 117, 85 P.3d at 642.
3. The search warrant failed to meet the particularity requirement and is subject to total invalidation
a. The particularity requirement and the consequences of failure to satisfy the requirement
Where a search warrant is required, Article 1, Section 7 of the Constitution of the State of Hawai‘i requires the warrant to describe the place to be searched with particularity. We have explained:
The particularity requirement ensures that a search pursuant to a warrant limits the police as to where they can search, for otherwise the constitutional protection against warrantless searches is meaningless. A determination regarding whether a warrant satisfies the particularity requirement must be made on a case-by-case basis, taking into account all of the surrounding facts and circumstances. While the cornerstone of such a determination is the language of the warrant itself, the executing officer's prior knowledge as to the place intended to be searched, and the description of the place to be searched appearing in the probable cause affidavit in support of the search warrant is also relevant.
State v. Rodrigues, 145 Hawai‘i 487, 494, 454 P.3d 428, 435 (2019) (cleaned up). General warrants, or warrants that do not meet the particularity requirement, are subject to total invalidation. State v. Kealoha, 62 Haw. 166, 178, 613 P.2d 645, 653 (1980).
b. The language of the warrant was overbroad, extending well beyond Wright's residence
The language in Search Warrant No. 2017-030K fails the particularity requirement because it was overbroad.
The warrant describes Wright's residence as "a homeless campsite consisting of various color and size tarpaulins at the Old Kona Airport beach park[.]" The warrant then included within its scope various objects "located within said camp and/or stored outside-near the camp, wherever located within the County and State of Hawai'i." (Emphasis added.) This language expanded the scope of the warrant to include spaces well beyond Wright's residence, including, but apparently not limited to, the entire Old Kona Airport encampment. This overbroad language was clearly insufficiently particularized.
c. The language of the warrant describing Wright's residence was also inadequate
The search warrant language also did not particularly distinguish Wright's residence from other campsites in the area.
Again, the warrant described Wright's residence as "a homeless campsite consisting of various color and size tarpaulins at the Old Kona Airport beach park[.]" The Majority acknowledges, however, that there were approximately seven separate "campsites" located within the Old Kona Airport beach park with tents and tarpaulins of different colors, or a combination thereof. State's Exhibits 201, 202, and 204 show that Wright's campsite was not the only structure that "consist[ed] of various color and size tarpaulins at the Old Kona Airport beach park, located at the north end of Kuakini Highway, behind the Hawai'i State Parks and Recreation maintenance building." Given the presence of other similar campsites in the same general area, the warrant required additional descriptions unique to Wright's residence or more precisely pinpointing of its location to satisfy the particularity requirement. Thus, the warrant did not adequately describe Wright's residence to distinguish it from other tent structures within the encampment.
d. The officers had prior knowledge sufficient to meet the particularity requirement
As noted, Rodrigues instructs that an executing officer's prior knowledge as to the place intended to be searched is also relevant in determining whether the particularity requirement has been met. 145 Hawai‘i at 494, 454 P.3d at 435. Here, the officers knew which campsite within the Old Kona Airport beach park area belonged to Wright. In his probable cause affidavit, Officer Marco Segobia ("Officer Segobia") indicated he and other vice officers "maintained constant surveillance" of a confidential informant's entrance into and exit from Wright's campsite during a controlled methamphetamine purchase. Thus, this case was not one where the place to be searched could only be narrowed with the benefit of hindsight. Cf. State v. Anderson, 84 Hawai‘i 462, 470, 935 P.2d 1007, 1015 (1997) (upholding a search warrant discovered to be overbroad only with the benefit of hindsight because its constitutionality had to be judged "in light of the information available to the police officers at the time the search warrant was issued").
Several people participated in serving the search warrant: Officers Marco Segobia, Stephen Parker, Kyle Hirayama, Edward Lewis, Joseph Stender, and Reubin Pukahi; Detectives Sean Smith, Jeremy Lewis, and Michael Hardie; and Lieutenant Sherry Bird.
There was testimony regarding the specific colors of the tarps and sheets used in Wright's structure. When asked whether there was anything distinguishing about Wright's campsite, one officer said it was "the largest camp there at that site, the most northern and the largest camp at that area." Another officer described its size as being "approximately two ten by ten tents put together with some tarps over it." Additional testimony also placed the campsite beneath the canopy of a tree and along the borderline that separated the park from the Lili‘uokalani Trust land.
Officer Segobia's probable cause affidavit used the same broad and unparticularized language as the search warrant to describe Wright's residence, but also attached two photos of Wright's campsite as Exhibit A. The photos, however, were not attached to the search warrant.
In sum, the officers could have and were therefore required to more particularly describe the area to be searched, and the more particularized description was required to be included in the warrant. The warrant was a general search warrant that also described other tent encampments at the Old Kona Airport beach park. Hence, pursuant to the particularity analysis set out in Rodrigues, this was a prohibited general search warrant subject to total invalidation.
B. The officers did not comply with HRS § 803-37
The officers also violated HRS § 803-37 by entering Wright's residence without first demanding entry. HRS § 803-37 (2014 & Supp. 2016) provides:
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. When entered, the officer may demand that any other part of the house, or any closet, or other closed place in which the officer has reason to believe the property is concealed, may be opened for the officer's inspection, and if refused the officer may break them.
(emphasis added).
1. HRS § 803-37 applies to Wright's house
In footnote 14, the Majority states that "[f]or the purposes of this proceeding, this court assumes without deciding that Wright's tent structure constituted ‘a house ... or other building’ under the terms of HRS § 803-37." The Majority then goes on to analyze HRS § 803-37, erroneously ruling that its requirements were met. But the Majority leaves open the possibility that the statute does not apply to Wright's house.
HRS § 804-37 ’s language has existed basically unchanged since the Penal Code of the Hawaiian Kingdom, Chapter XLVIII, § 8 (1869). This statute was part of a package of statutes addressing search warrants. Penal Code of the Hawaiian Kingdom, Chapter XLVIII (1869). Although there are no committee reports from the time of the statute's adoption, it is common knowledge that there were many grass houses with open doorways around that time. That the statute applied to such "houses" that then existed is supported by its third sentence, which refers to "doors, gates, or other bars to entrance." In this case, law enforcement sought a warrant recognizing the tent encampment as Wright's "residence" or "house." A clear holding that HRS § 803-37 applies to Wright's residence as a house would be consistent with the original intent of the statute.
The section then read as follows:
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 he finds it open; if the doors be shut, he must declare his office and his business, and demand entrance; if the doors, gates or other bars to the entrance be not immediately opened, he may break them. When entered, he may demand that any other part of the house, or any closet, or other closed place in which he has reason to believe the property is concealed, may be opened for his inspection, and if refused he may break them.
Penal Code of the Hawaiian Kingdom, Chapter XLVIII, § 8 (1869) (emphasis added).
2. Wright's house was not open
HRS § 803-37 explicitly requires that an officer charged with executing a search warrant (1) declare the officer's office and business; and (2) demand permission to enter if doors to a house are not "open." There is no dispute that no demand for entry was made here. The Majority holds, however, that no demand for entry was required because the house was "open." It so posits on the grounds the house contained "numerous openings" through which officers could enter and there allegedly was another "open" entry way, even though entry was not made through it. Both bases for ruling the tent was "open" are wrong.
With respect to whether the tent structure was "open," when asked whether Wright's tent had any gaps or spaces, Detective Michael Hardie ("Detective Hardie") described looking through a hole from the west side of the tent. Without moving anything out of the way, Detective Hardie could see into the tent, including Wright and Keanaaina asleep on a bed. Such a hole through which one can observe the contents of a home, however, is not an "open door"; it is tantamount to a window in a house. Windows are not open "doors."
Also, when Keanaaina described the tent as "just open," he did so in response to the State's inquiry regarding the temperature inside the tent. Keanaaina explained that the tent was hot inside and that there was no fan, only a "cross breeze" or "wind blowing in." The gaps in Wright's structure functioned as open windows of a house on a hot day. Although a house with open windows would still require a demand of entry, the Majority would hold that one is not required for a tent house.
Wright's residence was not "open" because a "breaking" was required and made for entry. Using force to enter a house constitutes a "breaking" and means a structure is not "open":
The question whether the knock and announce requirements are invoked during the execution of a search warrant focuses upon whether there has been a breaking. Although a breaking connotes some use of force, that force may be no more than that required to turn a doorknob. An unannounced intrusion into a dwelling is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed but unlocked door.
State v. Harada, 98 Hawai‘i 18, 22, 41 P.3d 174, 178 (2002) (cleaned up) (emphasis added). Detective Hardie's own testimony revealed that his pathway into the structure to reach Keanaaina was not open:
Q. How did you get into the tent?
A. I moved a couch. Appeared to be a couch that was blocking my path to the bed. I moved it to the – pushed it south a little bit enough for me to get through and then I approached the male on the bed.
Q. And from the vantage point that you had found that you were looking through, where was the couch?
A. The couch was directly below where I was looking through the – on the west side of the structure.
Q. Like you, and then whatever the tarp structure was in front of you, and then the couch?
A. The couch is butted up right against the tarps, yes.
Q. So you're able to move the couch and then did you go in?
A. Yes, I did.
Detective Hardie approached, peered into, and made his commands from the west side of the structure. To wake Keanaaina, he entered the structure from that side, moving the tarp and couch situated below his vantage point "window" to do so. Detective Hardie's actions of moving the tarp and couch to gain entry were much more than the force required to turn a doorknob and constitute a "breaking." Thus, the structure was not "open."
Keanaaina also explained that Wright intended the cover to be used for privacy:
Q. Did Officer Hardie tell you how he came into the tent?
A. No.
Q. Okay. In the area of that pink, the pink sheet in the front on the makai side of the tent –
A. Yes.
Q. -- wasn't there a couch there on the inside?
A. Under the opening, yeah.
Q. Okay. There's a couch; right?
A. No, not in the way but it's on the side. You can walk around. Michelle used that pink for block the doorway so you cannot see in.
(emphasis added).
The Majority also adopts an unprecedented new method of finding a structure "open" for purposes of HRS § 803-37. It rules that where a use of force is "incidental" and not necessary to entry, no breaking occurs. The Majority cites no authority for this proposition. It rules that any force used by Detective Hardie, whether by moving a couch or a tarp to the side, was only incidental and does not constitute a breaking because Detective Hardie could have entered using the same opening Wright used as an exit without using force. The Majority errs on both points.
First, as noted, the Majority ignores precedent regarding what constitutes a "breaking" or use of force. Harada held that the level of force required to implicate HRS § 803-37 "may be no more than that required to turn a doorknob. An unannounced intrusion into a dwelling is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or open a closed but unlocked door." Harada, 98 Hawai‘i at 22, 41 P.3d at 178 (cleaned up) (emphasis added).
Second, the Majority also erroneously rules that because Detective Hardie could have entered the tent structure through the same area in which Wright exited it, the tent was "open." According to Detective Hardie, on the north side of Wright's structure was "a small opening by a bunch of mopeds and other items." Per his instructions, Wright exited her residence via this northside access point. Officer Segobia testified, however, that in any event this pathway was also not unobstructed:
Q Did you actually see Michelle Wright come out?
A I did, yes.
Q And was she upright as she exited the tent or did she have to crawl under the tarp to get out?
A There's no actual doors in this tent. The way they had it done was (indecipherable). They had like different items holding down tarps and stuff, so she obviously would have to crawl down and move some stuff.
Q So my question again: Did you see her exit from the tent?
A Yes, I did.
Q Was she standing upright or did she crawl underneath the tarp to get out?
A She moved the tarp to the side.
(emphasis added).
Thus, contrary to the Majority, Detective Hardie would also have had to use force by moving the tarp to the side to enter Wright's structure through the north side. Force would have been required to be used to enter this way; therefore, it was not "open." In any event, this was not the entry used.
The Majority fails to apply our precedent holding that the requirements of HRS § 803-37 must be met if any level of "force" is used to gain entry to a house. The purposes of HRS § 803-37 are:
(1) to reduce potential violence to both occupants and police resulting from an unannounced entry, (2) to prevent unnecessary property damage, and (3) to protect an occupant's right to privacy. If police are not required to comply with the knock and announce rule upon applying force to gain entry, the potential for violence and unnecessary property damage will increase.
Harada, 98 Hawai‘i at 28, 41 P.3d at 184 (cleaned up). The Majority's ruling today does not further the statute's purposes. 3. The officers failed to demand entry
There is no dispute that the executing officers failed to demand entry into Wright's house. When a dwelling is not open, HRS § 803-37 expressly requires the executing officers to "declare the officer's office and the officer's business and demand entrance." HRS § 803-37 (emphasis added). While the officers satisfied the first half of this requirement, they did not comply with the latter.
The first half requires an executing officer to "declare the officer's office and the officer's business." Detective Hardie testified that he did not physically knock on the tarp because it would not have made any noise; instead, he and other officers loudly announced their presence and purpose using words, which succeeded in waking at least Wright up. As noted, however, the statute does not require a "knock." The trial court found that "[m]ore than one officer announced the presence of police and the search warrants using words to the effect of, ‘police, search warrants.’ " A loud, verbal announcement such as this satisfied the requirement that the officers declare their office and business.
It probably would have been difficult to "knock" on an open door of a grass house when the statute was passed in 1869.
However, the second half of the statute explicitly requires an executing officer to "demand entrance," which the officers here failed to do. When asked whether the executing officers demanded entrance or only asked people to come out, Detective Hardie testified, "In this situation, they requested people come out." Officer Segobia similarly stated that they asked people to come out of their tents but not that they demanded entry. The trial court found that the police only announced "police, search warrants" statements and the instructions "to exit their tents."
When executing a search warrant, however, the second requirement of demanding entry must be met to satisfy the requirements of HRS § 803-37 :
Where the knock and announce rule has been triggered, the police are required to declare their office, their business, and expressly demand entry. In other words, the requirements of the knock and announce rule are not met when police officers fail to orally demand entry, and a demand of entry cannot be implied from simply stating, "Police, search warrant."
Harada, 98 Hawai‘i at 29, 41 P.3d at 185 (cleaned up) (emphasis added). Here, there is no dispute that the officers did not demand entry. Thus, the Majority again ignores precedent by ruling that an express demand for entry was not required. Although this ruling was not necessary to the Majority ruling based on its holding that Wright's house was "open" and the other requirements of HRS § 803-37 were not triggered, and thus constitutes obiter dictum, it contravenes precedent and is therefore troubling.
4. Alleged fulfillment of the objectives of HRS § 803-37 does not constitute compliance with the statute
Like the ICA, the Majority suggests that the officers did not violate HRS § 803-37 because their actions fulfilled the three purposes of the statute. The ICA cited State v. Dixon, 83 Hawai‘i 13, 924 P.2d 181 (1996) for the holding, "Where the purposes of the knock and announce rules are not frustrated, evidence need not be suppressed." However, Dixon concerned the use of a ruse when executing an arrest warrant, not a search warrant, and the applicability of HRS § 803-11 (1993), not HRS § 803-37. Later, in State v. Eleneki, 92 Hawai‘i 562, 993 P.2d 1191 (2000), we determined that the policies supporting the two statutes were the same and that the Dixon rule permitting ruses to gain entry also applied when executing search warrants. Eleneki, 92 Hawai‘i at 566, 993 P.2d at 1195.
The instant case does not involve the use of a ruse to gain entry without force or threat of force; the officers here used force by moving furniture and moving the tarp. The officers failed to demand entry and therefore failed to comply with the statutory requirements.
To repeat, the demand for entry is a statutory requirement that must be met. The statute requires the second step of demanding entry "(1) to reduce potential violence to both occupants and police resulting from an unannounced entry, (2) to prevent unnecessary property damage, and (3) to protect an occupant's right to privacy. If police are not required to comply with the knock and announce rule upon applying force to gain entry, the potential for violence and unnecessary property damage will increase." Harada, 98 Hawai‘i at 28, 41 P.3d at 184 (cleaned up).
The Majority ignores that in State v. Maldonado, 108 Hawai‘i 436, 121 P.3d 901 (2005), adopting Harada’s requirement of strict compliance with HRS § 803-37, we explicitly rejected a "substantial compliance" standard for the "knock and announce" requirement of HRS 803-11 governing execution of arrest warrants. We stated:
HRS § 803-11, entitled "Entering house to arrest," provided then, as it does now, as follows:
Whenever it is necessary to enter a house to arrest an offender, and entrance is refused, the officer or person making the arrest may force an entrance by breaking doors or other barriers. But before breaking any door, the officer or person shall first demand entrance in a loud voice, and state that the officer or person is the bearer of a warrant of arrest; or if it is in a case in which arrest is lawful without warrant, the officer or person shall substantially state that information in an audible voice.
First, our prior case law contains no reference to substantial compliance; rather, it establishes that the knock-and-announce rule must be strictly followed. For example, in Harada, we held that "the requirements of the knock and announce rule are not met when police officers fail to orally demand entry, and a demand of entry cannot be implied from simply stating, ‘Police, search warrant.’ " 98 Hawai‘i at 29, 41 P.3d at 185. (Emphasis added.) Significantly, we held that law enforcement must explicitly make a demand for entry even though it would be reasonable to infer that if law enforcement officials standing at the entry to a residence state, "Police, search warrant," then it follows that they wish to enter the residence to execute the warrant. Thus, given that we have previously found a violation of the knock-and-announce rule where law enforcement could be deemed to have substantially complied, the ICA majority in this case correctly rejected the argument that "substantial compliance" with HRS § 803–11 is legally sufficient in the absence of exigent circumstances. To remove any remaining doubt, we now expressly reject the doctrine of substantial compliance because it violates the plain language of the statute.
Maldonado, 108 Hawai‘i at 444, 121 P.3d at 909.
We explained that substantial compliance with statutory requirements is insufficient based on the "separation of powers" doctrine:
To employ the substantial compliance analysis in a statutory reconstruction of what is plain and unambiguous in HRS § 803–11 would infringe on the legislature's prerogatives in our governmental system of separation of powers. It is true that both the fourth amendment to the United States Constitution and article I, section 7 of the Hawai‘i Constitution require only that a search or seizure must be reasonable. However, where the legislature has enacted a valid statute that provides greater protection than the constitution, conformance to the statutory mandate, and not the lower reasonableness standard set forth by the state or federal constitution, is required. Because the statute thus affords greater protection than the constitution, the constitutional reasonableness inquiry is not implicated. Accordingly, we find no room in the knock-and-announce statute for the doctrine of substantial compliance; to limit the protection afforded by HRS § 803–11 with such an overlay would violate the express language of the statute and be incompatible with this jurisdiction's viable and controlling precedents.
Maldonado, 108 Hawaii at 444-45, 121 P.3d at 909-10 (citations omitted).
As pointed out in Maldonado, there is no "reasonableness" standard applicable to the statute, as it exists in the constitutional right against "unreasonable" searches and seizures. Strict compliance with the statute is required under the "separation of powers" doctrine. Although that section of the Majority opinion is also obiter dictum unnecessary to its holding, the Majority ignores precedent by ruling that "[t]he officers nevertheless satisfied the objectives of HRS § 803-37 ’s requirement to demand entrance."
Keanaaina's motion to suppress should also have been granted due to the failure to comply with HRS § 803-37. III. Conclusion
For the foregoing reasons, I dissent and would vacate the ICA's judgment on appeal and the circuit court's judgment of conviction and order denying Keanaaina's motion to suppress. I would remand for further proceedings.