§803-37  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.
[PC 1869, c 48, §8; RL 1925, §3965; RL 1935, §5417; RL 1945, §10722; RL 1955,
§255-22; HRS §708-37; ren L 1972, c 9, pt of §1; gen ch 1985]



 



Law Journals and Reviews



 



  Suppression of Evidence Without the Aid of the Fourth, Fifth,
and Sixth Amendments.  8 HBJ 109.



 



Case Notes



 



  Plain language of this section requires police to expressly
demand entrance when doors to a place to be searched are shut before attempting
forcible entry.  85 H. 282, 943 P.2d 908.



  Compliance with "knock and announce" requirement of
this section at outer door of residence before entering was sufficient, and
once inside, officers were not required to comply again before entering
defendant's closed bedroom; officers have the discretion to "knock and
announce" on inner doors once they have entered a building.  90 H. 16, 975
P.2d 773.



  The use of a ruse to gain entry is not prohibited in the
execution of a search warrant.  92 H. 562, 993 P.2d 1191.



  Where officers employed permissible ruse which induced
occupant of apartment to open door approximately one foot, this was sufficient to
render door "open" for purposes of this section; thus, officers were
not required to knock and announce before entering as required by this
section.  92 H. 562, 993 P.2d 1191.



  Where a ruse is accompanied by the use of force to gain entry
during the execution of either a search or arrest warrant, police officers are
required to comply with the knock and announce rule.  98 H. 18, 41 P.3d 174.



  Where officer used force to prevent defendant from closing a
door partially opened in response to a ruse, a breaking occurred, triggering
the requirements of this section; as none of the officers expressly demanded
entrance as they entered defendant's apartment, their entry failed to comply
with the knock and announce rule of this section.  98 H. 18, 41 P.3d 174.



  As there could be no objectively reasonable expectation of
privacy at the exterior doors or in the public areas of the commercial
establishment, which was open to public ingress and egress during regular
business hours, the police, when executing the search warrant, were not
required to knock and announce when entering the exterior door.  100 H. 210, 58
P.3d 1257.



  This section does not apply to the interior office door of a
store; however, as an objectively reasonable expectation of privacy exists at
the interior office door of a store, police are required to provide reasonable
notification of their presence and authority before making a forced entry;
police satisfied this requirement by knocking three times, announcing
"police department, search warrant", and waiting fifteen seconds
before forcibly entering the locked interior office door of the store.  100 H.
210, 58 P.3d 1257.



  Section violates Hawai`i constitution to the extent that it
permits the police to break into the place to be searched if "bars"
to their entrance are not immediately opened; section requires that before
attempting forcible entry, police must specifically "demand
entrance".  77 H. 461 (App.), 887 P.2d 671.



  Recovery of contraband in execution of prior search warrant
is not an exigency of, and does not justify immediate forcible entry in,
execution of a subsequent search warrant for the same premises.  79 H. 185
(App.), 900 P.2d 182.



  While "a reasonable period of time to respond ... must
be determined by the circumstances of each case", generally, three to five
seconds would not afford the occupants "a reasonable time to
respond".  79 H. 185 (App.), 900 P.2d 182.



  See 3 H. 393.