Plаintiff-appellant State of Hawaii (the prosecution) appeals from the circuit court’s July 5, 1995 findings of fact (FOF), conclusions of law (COL) and order granting defendant-appellee Henry A Dixon’s (Dixon), aka Henry Lee Flazer, motion to suppress evidence retrieved by the Honolulu Police Department (HPD) during the execution of a valid arrest warrant. The prosecution argues that the trial court erred, as a matter of law, when it concluded that the HPD officers’ entry into Dixon’s hotel room was illegal. The prosecution maintains that entry was lawful because: (1) employing a ruse to effect a voluntary and nonviolent opening of the hotel room door did not implicate or violate Hawaii Revised Statutes (HRS) § 803-11 (1993); and (2) Dixon’s constitutional protections were not impaired.
As discussеd below, we agree with the proposition that entrance gained by the use of a ruse to execute a valid warrant is permissible as long as force is not involved. We also agree that Dixon’s constitutional protections were not impaired by the use of a ruse because the purposes of the “knock and announce” rule, which 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 of privacy, were not frustrated. Accordingly, we reverse the circuit court’s order suppressing the evidence.
I. BACKGROUND
At the hearing on Dixon’s motion to suppress evidence, the prosecution and Dixon agreed thаt the police report of HPD Officer Philip V. Camero constituted the undisputed facts of the case. The court accepted the parties’ stipulation and received the four- *15 page report into evidence. The following are the facts as stated in the report.
On January 28, 1992, Parole Officer Collin Fukunaga informed HPD Officer Stuart Yano that Dixon had violated the conditions of his parole and that a parole revocation warrant had been issued for Dixon’s arrest. Officer Yano relayed this information to Officer Camero, who obtained a “mug” photo of Dixon and learned that Dixon’s aliases were “Henry Lee Flazer” or “Henry Lee Frazer.”
On January 31, 1992, at 1:00 a.m., the police received information that Dixon might be staying at a hotel in the airport area and thаt he was planning to leave the island sometime that day. HPD Officer Thomas Toyozaki made telephonic inquiries and, at 2:45 a.m., determined that a man matching Dixon’s physical description was registered at the Plaza Hotel under the name of Henry Lee Flazer.
Shortly thereafter, seven HPD officers arrived at the Plaza Hotel. At approximately 8:40 a.m., Officers Toyozaki, Yano, and Camero positioned themselves at either side of the door to room No. 1104. Officer Came-ro was in civilian clothes, wearing his shoulder holster, and displaying a police badge on a chain hung around his neck. Through the peephole in the hotel room door, Officer Camero observed that there was a light on inside the room, and he could also hear voices coming from within the room.
Brian DeMusis, a Plaza Hotel security guard, was positioned directly in front of the hotel room door. DeMusis knocked on the door, and, when a female voice asked “Who is it?,” DeMusis responded that he was the hotel’s security- guard. The female asked “What do you want?,” and DeMusis replied that he was there to check on the air conditioning. Officer Camero heard the door being unlocked from the inside, and, as the door swung open, he saw a black male, whom he recognized from the police photograph to be Dixon, standing in the hallway behind the female.
Officers Yano and Camero entered the room simultaneously, announcing “in an assertive tone of voice” that they were the police and ordering Dixon to get down. “As Officer Yano and [Officer Camero] spoke [they] moved direсtly towards him.” Officer Camero pushed Dixon onto one of the beds in the room and Officer Yano handcuffed him. Once Dixon was handcuffed, Officer Camero noticed a clear plastic ziploek bag, containing a white powdery substance resembling cocaine, on the bed where Dixon had been handcuffed. Five more transparent bags containing white powder were observed on the nightstand. Officer Camero also noticed a large amount of currency and a photo I.D. of Dixon, held together with a rubber band, lying on the floor between the two beds. On the second bed was a black brief case with a numbered combination lock and a grey colored scanner with no antenna. 1
On November 15,1994, Dixon was indicted for Promoting a Dangerous Drug in the First Degree, in violation of HRS § 712-1241(l)(a)(i) (1993), Promoting a Dangerous Drug in the Second Degree, in violation of HRS § 712-1242(l)(b)(i) (1993), and Unlawful Use of Drug Paraphernalia, in violation of HRS § 329-43.5(a) (1993).
On May 10, 1995, Dixon filed a motion to suppress evidence, contending that, because the HPD officers failed to follow the “knock and announce” procedures of HRS § 803-11 before entering the hotel room, their entry was unlawful and in violation of his right to privacy; thus, Dixon contends that all evidence obtained from the unlawful entry must be suppressed. HRS § 803-11 provides that:
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 bear *16 er of a warrant of arrest; or if it is a ease in which arrest is lawful without warrant, the officer or person shall substantially state that information in an audible voice.
At the hearing on Dixon’s motion, the motions court orally granted the motion, stating:
The Court does believe that under 803-11 the reasonable inference and interpretation is that initially the police are required to knock and announce their presence, identifying themselves and the purpose for which they’re there, and, in this case, to execute an arrest warrant. True this is not a search warrant but nevertheless, clearly, I think 803-11 does indicate that there has to be a knock-and-announcing before entry is made and that 803-11 then goes on to prescribe the procedures to bе used if entry is refused but—but a knock- and-announce is—is required.
Also, this State Constitution has a provision that is not in the United States Constitution. That is the right to privacy. And I think under that provision as well the defendant is entitled to—or the police are required to knock and announce then-presence in executing the warrant. And in this case, since there was no such knocking and announcing, the Court does believe that the H.P.D.’s entry into this hotel room was improper and illegal and, as such then, the motion to suppress is granted.
Subsequent to the filing of the court’s FOF, COL and Order, the prosecution timely appealed, 2 challenging the following COL:
2. Under Hawaii Revised Statute[s] Section 803-11 and the reasonable inferences therefrom, police are required to “knock and announce” who they are and their purpose for entering, prior to entry.
3. The Hawaii State Constitution provides for the Right to Privacy which is consistent with the “knock and announce” doctrine.
4. The Honolulu Police Department violated the procedures as set forth in Hawaii Revised Statute[s] [Section] 803—11[,] since they failed to knock and announce prior to entering.
5. The entry into room 1104 of the Plaza Hotel was illegal.
6. All items seized as a result of the illegal entry must be suppressed.
II. DISCUSSION
“A court’s COL are reviewed under the right/wrong standard. Under the right/ wrong standard, we examine the facts and answer the question without being required to give any weight to the trial court’s answer to it.”
State v. Naeole,
A. There was no “breaking” within the meaning of HRS § 803-11.
The issue in this case—whether use of a ruse, without force or threat of force, constitutes a “breaking” within the meaning of the “knock and announce” statute, HRS § 803-11, requiring HPD officers to announce their presence and purpose, and demand entry—is one of first impression in this jurisdiction.
“The starting point in statutory construction is to determine the legislative intent from the language of the statute itself.”
State v. Garcia,
The knock and announce statute, HRS § 803-11, appeared virtually verbatim in the 1869 Penal Code of the Hawaiian Kingdom,
3
and there is no legislative history from which we can discern the intended meaning of “force an entrance” or “breaking.” The United States Supreme Court, called upon to interpret the federal counterpart of the knock and announce statute, 18 U.S.C. § 3109,
4
in
Miller v. United States,
The Court, examining the common law origins of the knock and announce rule determined that it
was pronounced in 1603 in Semayne’s Case, 5 Co. Rep. 91a, 11 E.R.C. 629, 77 Eng. Repr. 194, at 195: “In all cases where the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]’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 doors. ...” (Emphasis supplied.)
Id.
at 308,
The United States Supreme Court ruled directly on the meaning of “breaking,” within the context of 18 U.S.C. § 3109, in
Sabbath v. United States,
Considering the purposes of § 3109, it would indeed be a “grudging application” to hold, as the Government urges, that the use of “force” is an indispensable element of the statute. To be sure, the statute uses the phrase “break open” and that connotes some use of force. But linguistic analysis seldom is adequate when a statute is designed to incorporate fundamental values and the ongoing development of the common law. Thus, the California Supreme Court has recently interpreted the common-law rule of announcement codified in a state statute identical in relevant terms to § 3109 to apply to an entry by police through a closed but unlocked door. And it has been held that § 3109 applies to entries effected by the use of a passkey, which requires no more force than does the turning of a doorknob. An unannounced intrusion into a dwelling—what § 3109 basically proscribes—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, as here, open a closed but unlocked door.
Id.
at 589-90,
Federal courts interpreting 18 U.S.C. § 3109 have held, virtually universally, that the use of deception, without force, to effect entry into a house is not a “breaking” within the meaning of the statute, and, thus, there is no requirement to knock and announce. In
Leahy,
a revеnue agent, with a valid arrest warrant, gained entrance to appellant’s home by purporting to be an agent from the County Assessor’s office. Once inside, he and fellow agents arrested the appellant, searched the premises, and seized certain articles. The Ninth Circuit held that the arrest was made in accordance with law, and the search and seizure were incident to a lawful arrest.
As authority for the proposition that deception alone does not constitute “breaking,” the Leahy court, like the Miller Court, turned to the common law:
[I]n Rex v. Backhouse, 98 Eng. Rep. 533, Lofft, 62 (1763) an officer gained entrance *19 into Backhouse’s home on the pretense of having a note which Backhouse would be glad to see. Once inside, he made the arrest, “... and Backhouse said his house was his castle” and aimed what the officer took for a pistol (actually a sugar hammer). The officer fled. Lord Mansfield in holding Backhouse guilty of assault necessarily held the entry by the officer legal. Hеnce the distinction exists in common law that falsehood alone does not invalidate an arrest and applying that distinction here we have a different picture than presented in Gatewood v. United States, supra, where there was fraud followed by force.
Id. at 490 (citation omitted). In a concurring opinion, Judge Pope commented that “[m]y research has failed to turn up any case equating a ruse or fraud with force.” Id. at 491 (Pope, J., concurring).
In
Dickey v. United States,
[h]ad entry into Dickey’s hotel room beеn gained by use of the pass key, this would have been a “breaking” of the door within the meaning of section 3109. But entry was not gained by that means and the noise made when the key was inserted into the lock had no more significance than a knock at the door.
Had the officers obtained, by ruse, a partial opening of Dickey’s door, and if they had then forced open the door the rest of the way to gain entrance, this would have been a “breaking” in the sense of section 3109. But the employment of a ruse to obtain the full opening of the Dickeys’ door unassociated with force, was not a “breaking.” And since the door was then wide open, the subsequent entry into Dickey’s room for the purpose of arresting him did not involve a “breaking” of the door.
Id.
at 777-778 (citations and footnotes omitted). Therefore, the
Dickey
court held that there was no necessity for the officers to notify Dickey of their authority and purpose before entering.
Id.
In
United States v. Beale,
In determining whether entrance obtained by a ruse may be considered a “breaking” within the meaning of 18 U.S.C. § 3109, the Beale court acknowledged that “[t]his court has held that entrance gained by fraud or other use of deception for purpose of effecting an arrest is permissible as long as force is not involved. That is to say, such an entrance is not a breaking within the meaning of § 3109.” Id. (citations omitted). The *20 Beale court, however, was persuaded that the United States Supreme Court’s rationale in the more recently decided Sabbath case compelled a different result and reversed appellant’s conviction, holding that “the agents’ failure to announce their purpose and identity invalidates appellant’s arrest and makes inadmissible the fruits of the search made incident thereto.” Id. at 575.
On rehearing, the same panel, with one dissent, reversed its original decision “insofar as it held that the underlying rationale of
Sabbath ...
required that we hold that entry secured by deception and without use of force is governed by 18 U.S.C. § 3109” and affirmed appellant’s conviction.
In
Syler,
agents with a valid arrest warrant approached appellant’s front door simultaneously with a serviceman who was there to connect the gas. The front door to the house was open, but the screen door was closed. The serviceman knocked on the door and called out, “Gas man.” The serviceman then left at the agents’ instructions. When no one came to the door, one of the agents yelled “gas man,” and appellant unlatched and partially opened the screen door. The agents then pulled the door open further and entered. The court held that there was no “breaking” within the meaning of 18 U.S.C. § 3109 because the agent merely completed the operation voluntarily initiated by appellant and “[n]o attempt was made to bar his way and no force was applied in gaining entry.”
Id.
at 70.
See also United States v. Raines,
State courts, interpreting either knock and announce statutes or the common law knock аnd announce rule, have also generally held that an entry obtained by ruse, without use of force, is not a breaking requiring officers to first announce their authority and purpose.
See, e.g., State v. Iverson,
In
Commonwealth v. Duncan,
The variations in interpretation of similar knock and announce statutes relate, essentially, to the element of force. The Sabbath Court stated that the use of force was not required to find a breaking, but rather that 18 U.S.C. § 3109 proscribed any unannounced intrusion. As the Seventh Circuit noted in Beale, however, all of the examples of breaking mentioned in Sabbath involved some force. Federal courts, even after Sabbath, generally continue to hold that, where there is no force used to obtain entry, 18 U.S.C. § 3109 is not implicated, and, therefore, there is no requirement for officers to knock and announce before entry. See, e.g., Beale, Syler, Raines, and Contreras-Ceballos. Some state courts, however, interpret their knock and announce statutes as requiring officers to knock and announce even in the absence of forcible entry. See, e.g., Duncan and Myers.
Unlike18 U.S.C. § 3109 or the state knock and announce statutes interpreted in the cited cases, HRS § 803-11 expressly refers to the use of force: “the officer or person making the arrest may force an entrance by breaking doors or other barriers [,] ” but only after complying with the knock and announce requirements. (Emphasis added.) Thus, it would be inconsistent with the plain language of the statute to interpret the use of a ruse to effect voluntary opening of the door, through which the officers enter without any use of force, as a breaking, requiring compliance with the knock and announce requirements of HRS § 803-11. We hold, therefore, in accordance with the plain language of the statute and the great weight of authority, that HRS § 803-11 is not implicated where entry is gained through an open door without use of force.
Dixon argues that, even if that is the ease, there was force used in this case because, once the door to the hotel room was voluntarily opened, “the officers had to use some force to gain entrance into the room. Officer Camero and Officer Yano needed to get past the security officer, the woman in the hallway and a partially closed door in order to gain entrance into the room which housed the Defendant.” The motions court made no finding of fact, however, that force was used to gain entry, and nothing in the stipulated facts would have supported such a finding. Officer Camero’s police report states only that “[t]he door was then unlocked from the inside and as it began to open from my position I could see [Dixon].... Both Officer Yano and I entered the room simultaneously.” The motions court did not conclude that the officers violated HRS § 803-11 because they used force to gain entry without first knocking and announcing; rather, the court apparently concluded that compliance with HRS § 803-11 is required for any entry, whether or not “breaking” or force is involved. For the reasons stated above, we hold that the motions court’s COL 2 and 4, to the extent they conclude that HRS § 803-11 requires announcement and demand for entry even in the absence of a “breaking” or use of force, are “wrong.”
B. Dixon’s Constitutional Protections Were Not Violated.
Although the motiоns court’s order granted Dixon’s motion to suppress based upon its interpretation of HRS § 803-11, it also concluded that “[t]he Hawaii State Constitution provides for the Right to Privacy which is consistent with the ‘knock and announce’ doctrine.” COL 3. Both article I, section 7 of the Hawai'i Constitution
5
and
*22
the fourth amendment to the United States Constitution
6
provide for the right of the people to be secure in their houses against unreasonable searches and seizures, and article I, section 7 additionally protects specifically against unreasonable invasions of privacy. The United States Supreme Court recently held that the common law principle of announcement is an element of the reasonableness inquiry under the fourth amendment.
Wilson v. Arkansas,
- U.S. -, -,
Even before
Wilson,
several jurisdictions assumed that the knock and announce rule implicated the fourth amendment and, in some cases, specifically addressed whether the seizure of evidence pursuant to an entry obtained by ruse, without announcement, was constitutionally unreasonable. The analysis of the fourth amendment reasonableness of a “ruse entry” by the Washington Supreme Court in
Myers
represents the approach taken by most courts considering the issue. In
Myers,
the police used a fictitious arrest warrant in order to gain entry to execute a valid search warrant. In response to a police officer’s knock, the defendant opened the wooden inner door to his house, leaving the wrought iron gate closed and locked. The officers identified themselves, informed the defendant that they had a traffic warrant for his arrest, and in response to the defendant’s claim that it must be a mistake, asked if they could come in and use the phone to clear things up. Once inside the gate, the officers advised defendant that they had a search warrant. The subsequent search produced heroin, drug paraphernalia, and cash, and the defendant was arrested.
The Washington Supreme Court reasoned that:
The guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a “breaking” under the Fourth Amendment should be whether the tactic frustrates the purposes of the “knock and announce” rule. Those purpоses are: (1) reduction of potential violence to both occupants and police resulting from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant’s right to privacy.
It appears obvious that a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and the surprised occupant and that of preventing unnecessary property damage. Ruse entries such as that in the present case lack the element of surprise, thereby reducing the chance of confrontation.
Id. at 42 (citations omitted). With respect to the third purpose of the knock and announce rule, protecting the privacy of the occupant, the court explained that
*23 [t]he occupant’s right of privacy is severely limited where the police have satisfied the Fourth Amendment’s probable cause and warrant requirements. In such a case, the officers possess the authority to intrude upon the privacy of the home regardless of the occupant’s wishes and irrespective of his activity at the time of the intrusion.... Ruse entries are invariably characterized by some degree of advance notice; the occupant is expecting an entry. The entry is consensual, if the ruse works.
Id.
at 42-43 (citations omitted). The court held that, because the underlying purpose of protecting the privacy of the home was not threatened by ruse entries, “the mere fact that a ruse has been used does not violate a defendant’s right to be free from unreasonable search and seizure.”
Id.
at 43.
See also State v. Moss,
The reasoning of cases such as Myers and Moss is persuasive. Where the purposes of the knock and announce rule are not frustrated, and may, indeed, be furthered by the use of a ruse to obtain entry to execute a valid warrant, the tactic is not constitutionally unreasonable and, therefore, not violative of fourth amendment protections.
As the motions court noted, however, article I, section 7 of the Hawai'i Constitution provides broader protection than the fourth amendment to the United States Constitution because it also protects against unreasonable invasions of privacy. Nonetheless, because protection of the occupant’s privacy is one of the purposes of the knock and announce rule considered under the fourth amendment inquiry, the result does not differ. The privacy interest protected by the knock and announce rule is minimal, inasmuch as it is only the occupant’s privacy for the sрan of time between the announcement and the actual entry that is implicated. Where the entry is obtained by ruse, there is no unwarranted intrusion on the occupant’s privacy because the occupant has voluntarily surrendered his or her privacy by opening the door. We hold, therefore, that the use by the police of a ruse to effect the voluntary opening of a door and the subsequent entry without use of force for the purpose of executing a lawful arrest warrant, is reasonable under both the Hawai'i and United States Constitutions. Accordingly, the motions court’s COL 5 and 6 are “wrong.”
C. The suppression order was wrongly granted.
Because the officers’ entry into the hotel room to execute the valid arrest warrant violated neither HRS § 803-11 nor Dixon’s constitutional protections, it was not “illegal”; thus, the seizure of thе cocaine, cash, and scanner inadvertently observed therein was permissible under the plain view doctrine. “[Wjhere a governmental agent is engaged in a lawful intrusion and inadvertently observes evidence of a crime, the seizure of such evidence does not require any further constitutional protections.”
Meyer, 78
Hawaii at 317,
The items found in the clutch bag and the briefcase were also wrongly suppressed. The police appropriately secured the bag and the briefcase for safekeeping and searched them only after obtaining a search warrant.
See, e.g., State v. Wong,
III. CONCLUSION
Based on the foregoing, we hold that the seizure of evidence from Dixon’s hotel room was not in violation of HRS § 803-11 or of Dixon’s federal or state constitutional rights. Accordingly, we reverse the circuit court’s order suppressing evidence and remand this case for further proceedings.
Notes
. Although not mentioned in the police report, the record indicates that, in addition to the briefcase, there was a brown clutch bag on the second bed. Both the briefcase and the clutch bag were seized, pending a search warrant. At the time the briefcase and clutch bag were searched, pursuant to a valid search warrant, officers found, inter alia, coins in envelopes, more white powder resembling cocaine, and two hypodermic needles in a biohazard container.
. HRS § 641-13 (1993) provides, in pertinent part, that "[a]n appeal may be taken by and on behalf оf the State from the district or circuit courts to the supreme court, subject to Chapter 602, in all criminal cases, in the following instances: ... (7) From a pretrial order granting a motion for the suppression of evidence^]”
. See P.C. 1869, c 49 § 10. HRS § 803-11 differs only in that it was made gender neutral.
. Section 3109 provides in pertinent part that “[t]he officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” The statute, although referring explicitly to the execution of a search warrant, has also been held to apply to the executiоn of arrest warrants and warrantless arrests.
See, e.g., Leahy v. United States,
In
Garcia,
the Intermediate Court of Appeals (ICA) held that cases interpreting 18 U.S.C. § 3109 were not applicable to the determination whether officers who announced their presence and purpose, but did not explicitly "demand entrance” before breaking two doors, were in violation of HRS § 803-37 (1993), which provides in pertinent part that, before an officer may break doors to execute a search warrant, he or she "must declare the officer’s office and the officer’s business, and demand entrance." HRS § 803-37. The ICA reasoned that 18 U.S.C. § 3109 differs significantly from HRS § 803-37 because the federal statute does not affirmatively require the officers to "demand entrance."
The issue in this case, however, is not whether HRS § 803-11 also requires officers executing an аrrest warrant to demand entrance; that requirement is explicit in the statute and was noted in
Garcia. Id.
at 466 n. 7,
. Article I, section 7 of the Hawai'i Constitution states:
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; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly de *22 scribing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.
. The fourth amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
. The Court had previously suggested as much in
Ker v. California,
. We note that, in other contexts, we have held that use of deception by police is not
per se
unconstitutional.
See State v. Kelekolio,