by Douglas Ankney

The Supreme Court of Hawai’i held that a search of a residence was unreasonable where officers knocked and announced their presence four times within 25 seconds and then forced entry.

At 6:15 a.m. on September 4, 2015, officers from the Honolulu Police Department (“HPD”) executed a search warrant on the 900-square-foot home of Dawn Naeole. She was suspected of dealing drugs. Officer Stephen Roe and 15 other HPD officers assembled outside the home. Roe knocked on the front door of the home and announced: “Police. We have a search warrant. Open the door now.” He repeated the knock and the announcement two more times. After the third time, he heard a female voice coming from inside but could not discern the words. He conducted a fourth knock and announcement, but there was no response. HPD officers then broke down the door. The elapsed time from the beginning of the first knock until the door was breached was 25 seconds. Police recovered large amounts of methamphetamine, Lorazepam tablets, Tramadol tablets, marijuana, various drug paraphernalia, and cash.

Naeole was charged with numerous drug-related offenses. She moved to suppress the evidence, arguing HPD’s execution of the warrant violated Hawai’i Revised Statute (“HRS”) § 803-37 and article 1, section 7 of the Constitution of the State of Hawai’i (“State Constitution”). After a hearing, the circuit court found that the HPD had complied with the statute but had conducted the search in an unreasonable manner in violation of the State Constitution by forcing entry within 25 seconds of the first knock. The court ordered all evidence seized pursuant to the warrant be suppressed. The State appealed, and the Intermediate Court of Appeals (“ICA”) reversed. The Hawai’i Supreme Court granted Naeole discretionary review.

The Court observed “[t]he ‘knock-and-announce’ procedure is not a mere formality or police tactic; it is an essential restraint on the power of the State which has deep roots in both the Anglo-American and Hawaiian legal systems.” Miller v. United States, 357 U.S. 301 (1958). The modern knock-and-announce statute was traced back to the 1869 Penal Code of the Hawaiian Kingdom in State v. Garcia, 887 P.2d 671 (Haw. Ct. App. 1995).

A search warrant serves to protect individuals’ constitutional right to be secure in their persons, houses, papers, and effects against unreasonable searches, and the knock-and-announce rule is one mechanism that protects that right. State v. Diaz, 58 P.3d 1257 (Haw. 2002). The rule’s purpose is to give the person time to respond, avoid violence and destruction of property, and protect privacy. State v. Quesnel, 900 P.2d 182 (Haw. Ct. App. 1995). HRS § 803-37 provides that after officers have announced their presence and purpose, they must also demand entrance. Garcia.

The statute also provides that officers may break “the doors, gates, or other bars to the entrance” if they “are not immediately opened.” However, the Hawai’i Supreme Court has previously held that a literal construction of the term “immediately” would violate the constitutional right to be free from unreasonable searches. State v. Monay, 943 P.2d 908 (Haw. 1997). Absent existence of exigent circumstances, police must afford occupants a reasonable time to respond to an announcement before forcing entry. Id.

Exigent circumstances include an imminent threat of harm to a person, danger of serious property damage, danger of a suspect escaping, or danger of evidence being destroyed. State v. Lloyd, 606 P.2d 913 (Haw. 1980). Drugs by their nature are easily destroyed, so exigent circumstances exist when there are facts to show the occupants are destroying the contraband. State v. Davenport, 516 P.2d (Haw. 1973). But merely because the search is for drugs doesn’t mean exigent circumstances exist. State v. Dorson, 615 P.2d 740 (Haw. 1980).

The determination of what constitutes a reasonable time to respond depends on the circumstances of each case. Monay. In Garcia, police executed a warrant on a small apartment at 7:07 p.m. The officer knocked and announced. After 10 seconds elapsed, police kicked the door in. The ICA held that allowing the occupants 10 seconds to respond was “constitutionally unreasonable” and reversed a circuit court’s denial of a motion to suppress.

In Diaz, officers executed a warrant at a video store during normal business hours. An officer knocked on an office door inside the store and announced, “[P]olice department, search warrant.” There was no response. After 15 seconds, he kicked the door open. The court held that 15 seconds was sufficient because the occupant of an interior office during business hours can be expected to be alert and responsive.

In the present case, the search was conducted at a modest-sized home. It was at 6:15 a.m. when most people are not alert and responsive but are either sleeping, showering, dressing, or otherwise indisposed. While the search was for drugs, there were no exigent circumstances because there was no indication contraband was being destroyed, e.g., no sounds of flushing toilets or people scurrying about. The Court concluded that under these circumstances, 25 seconds was a constitutionally unreasonable amount of time for a response.

Accordingly, the Court vacated the judgment of the ICA, affirmed the circuit court’s order granting the motion to suppress, and remanded to the circuit court for further proceedings consistent with the Court’s opinion. See: State v. Naeole, 470 P.3d 1120 (Haw. 2020). 

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