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 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. If an electronic device or storage media is designated as the item to be searched, the court may authorize the officer to obtain technical assistance from individuals or entities, located within or outside the State, in the examination of the item; provided that the officer shall submit a sworn statement to the judge or magistrate, certifying the reliability and qualifications of the individuals or entities and the reason their assistance is necessary; provided further that no individual or entity shall be compelled to provide technical assistance without their consent. [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; am L 2017, c 196, 4]

 

Law Journals and Reviews

 

Suppression of Evidence Without the Aid of the Fourth, Fifth, and Sixth Amendments. 8 HBJ, no. 4, at 109 (1972).

 

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 (1997).

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 (1999).

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 (2000).

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 (2000).

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 (2002).

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 (2002).

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 (2002).

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 (2002).

Section violates Hawaii 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 (1995).

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 (1995).

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 (1995).

See 3 H. 393 (1872).

 

 

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