State v. Sakellson

379 N.W.2d 779, 54 U.S.L.W. 2391, 1985 N.D. LEXIS 456

• Court: North Dakota Supreme Court
• Decided: December 18, 1985
• Docket: Cr. 1087
• Status: Published

Opinions

LEVINE, Justice.

In this appeal by the State from a suppression order the issue presented is whether the failure of law enforcement officers to announce their presence and mission prior to entering through an open door to a house constitutes a “breaking” under North Dakota Century Code § 29-29-08 requiring suppression of the evidence seized in the subsequent search. We hold that it does and affirm the order suppressing the evidence seized during the search of defendants’ residence.

1. FACTS

On June 15, 1984 agents of the North Dakota Drug Enforcement Unit received information from an informant that he regularly purchased marijuana from the defendants Jeff and Ann Sakellson. In a telephone call monitored by the agents the informant arranged for the defendants to deliver marijuana to him later that evening.

Based on this information the agents procured a search warrant for the defendants’ residence. This was a standard “knock- and-announce” warrant requiring the agents to announce their authority and purpose before entering into a house. The officers were familiar with the alternative “no-knoek” warrant authorizing entry without announcement, but declined to obtain one.

Five officers proceeded to the defendants’ residence and observed the house for twenty to thirty minutes. The informant had apprised the officers of the general layout of the defendants’ residence and of their ownership of a dangerous dog and numerous weapons. The agents observed Ann Sakellson in the residence but believed Jeff was absent because his vehicle was not present.

The defendants resided on the second floor of a two-family duplex. Each apartment in the duplex had a separate enclosed porch, mailbox, house number, and entrance. The enclosed porch to the Sakell-son residence had a storm door which was closed but unlocked. Inside the porch was the main door to the residence, which was open. Located adjacent to the main door was a single doorbell. Beyond the main door was a carpeted vestibule and stairway leading to the second floor. At the top of the stairs a short hallway lead to the kitchen and living room. The doors to both rooms were open.

The officers entered through the storm door and proceeded across the porch and through the open main door. At no time did they knock, ring the doorbell, or otherwise announce their presence. The officers climbed the stairs and at the open entrance to the living room observed Ann seated and talking on the telephone. One of the officers testified that he knocked twice at the entrance to the living room, displayed his badge, and stated he had a search warrant. Ann claimed the officers entered the living room unannounced. The trial court found that the officers announced their presence and authority before entering the living room.

Following a search of the residence the officers seized a quantity of marijuana and charged the defendants with possession of a controlled substance with intent to deliver in violation of North Dakota Century Code §§ 19-03.1-23 and 19-03.1-05. Upon the defendants’ motion the district court suppressed all evidence seized during the search of the residence on the ground that the officers’ failure to announce their presence and purpose before entering through the main door to the residence violated NDCC § 29-29-08.

2. SECTION 29-29-08

Section 29-29-08 provides that an officer executing a search warrant may break open an outer or inner door or window of a house, or any part of the house if, after notice of his authority and purpose, he is refused admittance.

Section 29-29-08 is a codification of the common law rule that police may break into a home only after announcing their presence and purpose in seeking entry.¹ See, e.g., Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489 (1968); see generally, Annotation, 70 A.L.R.3d 217 (1976); La-Fave, Search and Seizure, § 4.8(a) (1978). The primary policies underlying the knoek- and-announce rule are the protection of privacy in the home and the prevention of violent confrontations. State v. LaPonsie, 136 Ariz. 73, 664 P.2d 223 (1982); State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512 (1984); see generally LaFave, supra.

The State initially argues that NDCC § 29-29-08 did not require the officers to announce their presence before entering through the main door because the landing and stairway immediately inside the main door were not an “integral” part of the defendants’ residence. The trial court concluded otherwise and this finding will not be reversed if it is sufficiently supported by competent evidence. State v. Ronngren, 361 N.W.2d 224 (N.D.1985).

The record demonstrates that the vestibule and stairway were not a common area open to the public. See contra United States v. Perkins, 286 F.Supp. 259 (D.C.D.C.1968), aff'd 432 F.2d 612 (D.C.Cir.1970) (entry through open door from common hallway of public rooming house not a breaking). Rather, it was a private area of the defendants’ home, as evidenced by the clothing and personal effects they kept there. Thus there was sufficient evidence to support the finding that the main door was the threshold to the defendants' home therefore requiring the officers to comply with NDCC § 29-29-08.

The State next claims that the officers’ unannounced entry through the open door did not frustrate the policies behind § 29-29-08, and thus substantially complied with that statute, because their entry only “minimally infringed upon any reasonable expectation of privacy of the defendants.”

It is true that in certain cases leaving a door open may reduce the occupant’s expectation of privacy. An open door may invite the gaze of curious passers-by and lessen the reasonable anticipation of privacy in the home. No such circumstances abide in this case. Whether a door is open through simple inadvertence or design, it should not subject an occupant to the unannounced entry of the uninvited. Simply because one forgot, or purposely failed to close a door, does not create a reasonable expectation of an uninvited, unannounced entry. Consequently, an officer should ordinarily declare his presence and purpose so that a resident may “know who is entering, why he is entering, and [have] a few seconds to prepare for entry.” State v. Valentine, 264 Or. 54, 504 P.2d 84, 87 (1972), cert. denied, 412 U.S. 948, 93 S.Ct. 3001, 37 L.Ed.2d 1000 (1973).

Furthermore, an unannounced entry by officers increases the potential for violence by provoking defensive measures a surprised occupant would otherwise not have taken had he known that the officers possessed a warrant to search his home.² State v. Carufel, 112 R.I. 664, 314 A.2d 144 (1974); see also Miller v. United States, 357 U.S. 301, 313, n. 12, 78 S.Ct. 1190, 1198, n. 12, 2 L.Ed.2d 1332 (1958) (announcement is safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder); e.g., State v. Housley, 322 N.W.2d 746 (Minn.1982) (two officers serving search warrant shot by householder who mistook them for burglars); State v. Cessna, 170 Iowa 726, 153 N.W. 194 (1915).

Consequently, the policy reasons for officers executing a warrant to announce their presence and purpose are not advanced by allowing them to enter unannounced through an open door. To condone such entries would make an open door to a home an invitation for police officers with a search warrant to enter without permission. This is inconsistent with the traditional homage we pay to the right to seek shelter in our homes free from unreasonable governmental intrusion. See Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).

Rather, we hold that “breaking” includes, under ordinary circumstances, an entry made without permission. See State v. LaPonsie, supra; People v. Buckner, 35 Cal.App.3d 307, 111 Cal.Rptr. 32 (1973); People v. Lawrence, 25 Cal.App. 213, 101 Cal.Rptr. 671 (1972); People v. Norton, 5 Cal.App.3d 955, 86 Cal.Rptr. 40 (1970); People v. Arias, 6 Cal.App.3d 87, 85 Cal.Rptr. 479 (1970); People v. Beamon, 268 Cal.App.2d 61, 73 Cal.Rptr. 604 (1968) (entry through open door is a breaking); and see Keiningham v. United States, 287 F.2d 126 (D.C.Cir.1960); People v. Godinas, 176 Colo. 391, 490 P.2d 945 (1971); State v. Darroch, 8 Or.App. 32, 492 P.2d 308 (1971), aff'd sub nom. State v. Valentine, supra, (breaking means entry without permission). See generally LaFave, supra at 127. Requiring officers to knock and announce before entering through an open door promotes the policies of privacy and non-confrontation without unreasonable obstruction of law enforcement. “Breaking” includes entry by means of passkey as well as the opening of a closed but unlocked door. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1968); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). Entry through an open doorway is sufficiently similar to warrant equivalent treatment.

Defining “breaking” as an entry made without permission is also consistent with the rule that forcible entry is not necessary for a breaking under our burglary statute. NDCC § 12.1-22-02; State v. Olson, 290 N.W.2d 664 (N.D.1980); see also Sabbath v. United States, supra; People v. Rosales, supra; Blakey, The Rule of Announcement And Unlawful Entry: Miller v. United Stales and Ker v. California, 112 U.Pa.L.Rev. 449, 505 (1964) (what would be breaking of the outer door in burglary is equally breaking by the sheriff).

Nor does compliance with the knock-and-announce requirement hinder law enforcement. Under the proper circumstances a no-knock warrant may be issued. NDCC § 29-29-08; § 19-03.1-32. Furthermore, even without a no-knock warrant, announcement prior to entry may be excused under certain exigent circumstances.³ The State does not maintain that such exigencies existed in this case.

In sum, defining a nonconsenual entry through an open main door as a breaking under ordinary circumstances, fully promotes the policy considerations behind the announcement requirement: protection of privacy is maximized and potential for violence is minimized. The burden of complying is slight. It can hardly be questioned that the right to privacy is one of the unique values of our society and protected by the fourth amendment. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 196, 93 L.Ed. 153 (1948). It also enjoys the protection of the statutory requirement of prior notice of police authority and purpose for entering our homes. That requirement “should not be given grudging application.”⁴ Miller v. United States, supra at 357 U.S. at 313, 78 S.Ct. at 1197-1198.

Here all that the officers had to do was ring the doorbell and announce their purpose. The trial court correctly deemed their failure to do so did not comply, substantially or otherwise, with NDCC § 29-29-08.

3. REMEDY

The State argues that although announcement before entry is required by NDCC § 29-29-08, it is not constitutionally mandated. The State therefore maintains that suppressing the evidence seized in the search of the defendants’ home is neither the necessary nor appropriate remedy for the officers’ failure to abide by § 29-29-08. We disagree.

The rule of announcement is more than a statutory requirement. It is a constitutional imperative implicit in the fourth amendment prohibition against unreasonable searches and seizures. Ker v. California, supra. As stated in Ker v. California, supra at 347 U.S. at 38, 83 S.Ct. at 1632:

“Since the petitioners’ federal constiu-tional protection from unreasonable searches and seizures by police officers is here to be determined by whether the search was incident to a lawful arrest, we are warranted in examining the arrest to determine whether, notwithstanding its legality under state law, the method of entering the home may offend federal constitutional standards of reasonableness and therefore vitiate the legality of an accompanying search_” [Emphasis added.]

Although Ker involved a warrantless entry for the purposes of making an arrest, we believe it is equally applicable to the execution of a search warrant. State v. Carufel, supra; see generally LaFave, supra at 123-124. A police officer’s method of entry in executing a knock-and-announce search warrant is therefore subject to fourth amendment standards of reasonableness. Ker v. California, supra; United States v. Baker, 638 F.2d 198 (10 Cir.1980); People v. Rosales, supra; State v. Dusch, 259 Ind. 507, 289 N.E.2d 515 (1972); People v. Floyd, 26 N.Y.2d 558, 312 N.Y.S.2d 193, 260 N.E.2d 815 (1970); State v. Rhodes, 54 N.C.App. 193, 282 S.E.2d 809 (1981); Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971); State v. Carufel, supra; State v. Coyle, 95 Wash.2d 1, 621 P.2d 1256 (1980); State v. Cleveland, 118 Wis.2d 615, 348 N.W.2d 512 (1984); see generally Sonnenreich & Ebner, No-Knock and Nonsense, An Alleged Constitutional Problem, 44 St. John’s L.Rev. 626, 643 (1970).

While an unannounced entry may be reasonable under special circumstances, no such circumstances are present in this case. See footnote 3. Consequently, the officers’ unannounced entry in violation of NDCC § 29-29-08 also violated both Article I, § 8, of the North Dakota Constitution and the fourth and fourteenth amendments to the United States Constitution thereby necessitating the suppression of the evidence obtained. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Phelps, 286 N.W.2d 472 (N.D.1979); see, e.g., Commonwealth v. DeMichel, supra; State v. Carufel, supra.

The State also invites this Court to adopt a “good faith” exception to the exclusionary rule. The State asserts that even if the defendants’ constitutional rights were violated, the officers’ conduct was reasonable and in good faith. Consequently, the State claims that exclusion of the evidence is an inappropriate remedy.

The State cites United States v. Williams, 622 F.2d 830 (5 Cir.1980), cert. den., 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1980), as authority for adopting a good faith exception to the exclusionary rule. Williams held that:

“[E]vidence is not to be suppressed under the exclusionary rule where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized.” 622 F.2d at 840.

The Williams court went on to emphasize that:

“[T]he belief, in addition to being held in subjective good faith, must be grounded in an objective reasonableness. It must therefore be based upon articulable premises sufficient to cause a reasonable, and reasonably trained, officer to believe he was acting lawfully.” 622 F.2d at 841, n. 4a.

The State argues that the officers’ conduct was reasonable, taken in good faith, and therefore the Williams “good faith” exception should allow use of the evidence seized.

The rationale for the Williams good faith exception appears to be to ameliorate the harshness of the exclusionary rule in a situation where there is but a technical violation by police. Here it was no mere technicality that the veteran officers, aware of the availability of no-knock warrants, well briefed on the layout of the premises, and without belief there were exigent circumstances, entered through the open main door without knocking or ringing the doorbell. Even under Williams the officers’ conduct was not objectively reasonable.⁵

We hold that under the facts in this case the officers’ unannounced entry through an open door to execute a search warrant did not comply with § 29-29-08 and consequently constituted an unreasonable search and seizure in violation of Article I, § 8, of the North Dakota Constitution and the fourth and fourteenth amendments of the United States Constitution. Therefore, the district court’s suppression order is affirmed.

MESCHKE and GIERKE, JJ„ concur.

1 . The common law rule is traceable to Se-mayne's Case, 77 Eng.Rep. 194 (K.B.1603), where the court stated:

"In all cases where the King is a party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or do other execution of the King’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming and to make request to open the door.”

For a discussion of the history and development of this rule see Blakey, The Rule of Announcement and Unlawful Entry: Miller v. United States and Ker v. California, 112 U.Pa.L.Rev. 499 (1964); Sonnenreich & Ebner, No-Knock and Nonsense, An Alleged Constitutional Problem, 44 St. John’s L.Rev. 626 (1970); Note, 7 Loy.L.A.L.Rev. 162 (1974); Note, 80 Yale LJ. 139 (1970).

2 . NDCC §§ 12.1-05-06 through -08 provide that the use of force, including deadly force, in defense of premises is justified if it is used to prevent an unlawful entry and trespasses in and upon the premises.

3 . Generally, officers are excused from the usual notice requirements when (1) reasonably acting to prevent destruction or disposal of evidence; (2) when notice would "increase the peril of the officers or others;” and (3) when notice would be a useless gesture. See generally, LaFave, supra pp. 131-138; Annot. 17 A.L.R.4th 302.

4 . We recognize there is contrary authority, i.e., unannounced entry through an open door is not a breaking. See United States v. Valenzuela, 596 (9 Cir.1979); cert. den., 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979); United States v. Morell, 524 F.2d 550 (2 Cir.1975); United States v. Williams, 351 F.2d 475 (6 Cir.1965), cert. den., 383 U.S. 917, 88 S.Ct. 910, 15 L.Ed.2d 671 (1966); State v. Rudisill, 20 N.C.App. 313, 201 S.E.2d 368 (1973); State v. Steingraber, 296 N.W.2d 543 (S.D.1980). These decisions are not binding precedent, and, because they do not advance the policies of the announcement rule, are not persuasive. Therefore, we decline to follow them.

5 . The State asserts that the reasoning for adopting a good faith exception to the exclusionary rule found in United States v. Leon, 468 U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should be followed in utilizing such an exception in this case. However, under Leon, as in Williams, the officers’ conduct must be objectively reasonable, Leon, 104 S.Ct. at 3421. In this case it was not. Consequently, Leon is of no assistance to the State.