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                                                         Electronically Filed
                                                         Supreme Court
                                                         SCWC-XX-XXXXXXX
                                                         22-JUN-2020
                                                         07:47 AM

           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                              ---o0o---


                        STATE OF HAWAIʻI,
                 Respondent/Plaintiff-Appellant,

                                 vs.

                           DAWN NAEOLE,
                  Petitioner/Defendant-Appellee.


                          SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
             (CAAP-XX-XXXXXXX; CR. NO. 1PC161001997)

                           June 22, 2020

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY WILSON, J.

          Among the rights guaranteed by the Constitutions of

the United States and the State of Hawaiʻi is the fundamental

right of the people to be secure in their homes from

unreasonable searches, seizures, and invasions of privacy.

See U.S. Const. amend. IV; Haw. Const. art. I, § 7.      “Both the

fourth amendment to the United States Constitution and article




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I, section 7 of the Hawaiʻi Constitution ensure that an

individual’s legitimate expectations of privacy will not be

subjected to unreasonable governmental intrusions.”      State v.

Meyer, 78 Hawaiʻi 308, 311-12, 893 P.2d 159, 162-63 (1995).

“Every householder, the good and the bad, the guilty and the

innocent, is entitled to the protection designed to secure the

common interest against unlawful invasion of the house.”      Miller

v. United States, 357 U.S. 301, 313 (1958).     To safeguard this

constitutional guarantee, “[t]he standards by which any

governmental search is to be judged is always its

reasonableness[.]”   State v. Garcia, 77 Hawaiʻi 461, 467, 887

P.2d 671, 677 (App. 1995) (quoting State v. Martinez, 59 Haw.

366, 368, 580 P.2d 1282, 1284 (1978)).     More specifically, when

the police demand entrance to a person’s home pursuant to a

search warrant, they are constitutionally required to afford the

occupants of the home a “reasonable time” to respond before

forcing entry.   State v. Monay, 85 Hawaiʻi 282, 284, 943 P.2d

908, 910 (1997) (quoting Garcia, 77 Hawaiʻi at 468, 887 Hawaiʻi

at 678).

           In this case, we consider whether the Honolulu Police

Department (“HPD”) gave Petitioner/Defendant-Appellee Dawn

Naeole (“Naeole”) a reasonable amount of time to respond to

their demand for entry when they executed a search warrant at

her home in the early morning of September 4, 2015.      Naeole, who


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was suspected of illegal drug activity, had the front door of

her 900 square foot home broken down at approximately 6:15 a.m.

after the police knocked, announced their presence, and demanded

entry four times within the span of twenty-five seconds.      A

police officer heard a female voice inside the house after the

third “knock-and-announce,” but the HPD officers had no reason

to believe that Naeole was fleeing or that any evidence was

being destroyed.   Under these circumstances, we hold that the

amount of time afforded to Naeole to respond to the demand for

entry was not reasonable, and thus vacate the Intermediate Court

of Appeals’ (“ICA”) opinion to the contrary.

                           I.   BACKGROUND

         On September 4, 2015, HPD officers executed a search

warrant at the home of Naeole, seizing “approximately 952.483

grams of a substance resembling methamphetamine, a medicine

bottle containing 55 Loraz[e]pam tablets, a medicine bottle

containing 79 Tramad[]ol tablets, 17.34 grams of marijuana,

various purported paraphernalia and United States currency.”       On

December 27, 2016, Naeole was charged by indictment in the

Circuit Court of the First Circuit (“circuit court”) with one

count of promoting a dangerous drug in the first degree, in

violation of Hawaiʻi Revised Statutes

(“HRS”) § 712-1241(1)(a)(i) (Supp. 2016), two counts of

promoting a harmful drug in the second degree, in violation of


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HRS § 712-1245(1)(a) (2014), one count of promoting a

detrimental drug in the third degree, in violation of HRS § 712-

1249 (2014), and one count of possessing drug paraphernalia, in

violation of HRS § 329-43.5(a) (Supp. 2016).              Prior to trial,

Naeole filed a motion to suppress all evidence obtained as a

result of the execution of the search warrant.              Her motion

claimed that HPD’s execution of the warrant violated HRS § 803-

371 and article I, section 7 of the Constitution of the State of

Hawai‘i.2   Hearings were held on Naeole’s motion to suppress on

January 16 and March 6, 2018.3

            During the hearings, HPD Officer Stephen Roe (“Officer

Roe”) testified that sixteen police officers accompanied by a

supervisor executed the search warrant at Naeole’s home.             The


      1
            HRS § 803-37 (Supp. 2017) provides in part:

            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.
      2
            Article I, section 7 of the Constitution of the State of Hawaiʻi
provides:

            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 describing the place to be searched and the
            persons or things to be seized or the communications sought to be
            intercepted.
      3
            The Honorable Rom A. Trader presided.




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officers were attired in “green [battle dress uniforms], top and

bottom, a load-bearing plate carrier, exterior body armor, a

ballistic helmet” and carrying “either [an] M4 [rifle] and a

sidearm, Glock 21, or just a Glock 21, depending on [their]

role.”   They arrived at approximately 6:00 a.m.4          The “perimeter

team” secured the exterior of the home, while the “entry team”

“stack[ed] up or form[ed] a stick in front of the residence

along the wall[.]”     Officer Roe, who was in the entry team, was

instructed by his supervisor to initiate the “knock-and-announce

procedure[.]”    He conducted the procedure, which consists of

three knocks and an announcement, four times.           During the

hearings, Officer Roe demonstrated the four knock-and-announce

procedures for the court:       “And it’s basically like this:

(Knocks.)    Police.   We have a search warrant.        Open the door

now.   (Knocks.)    Police.    We have a search warrant.       Open the

door now.    (Knocks.)    Police.    We have a search warrant.       Open

the door now.    (Knocks.)     Police.    We have a search warrant.

Open the door now.”

            Officer Roe testified that there was no response from

within Naeole’s home after the first two knock-and-announce

procedures, but that after the third, he heard a female voice


      4
            The search warrant provided that it could be served between 6:00
a.m. and 10:00 p.m. on or before September 4, 2015. The circuit court found
that the warrant was executed at about 6:15 a.m.




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coming from inside.    The voice seemed like it was directed at

the officers, but he could not make out the words.      He conducted

a fourth knock-and-announce procedure, but there was no

response.    After the fourth knock-and-announce procedure, the

officers on the entry team were instructed by their supervisor

to breach the front door.

            Naeole testified during the hearings that she had just

woken up and was right by the hallway, heading toward the

bathroom, when she heard banging and then saw police officers

enter her home.    She testified that she didn’t hear any repeated

knocking, any announcement that there were police officers at

the door, or any request or demand to open the door.      She

testified that, after they were already in her house, the

officers told her they had a search warrant, but that they

refused to show her the warrant.      She testified that her home is

about 900 square feet in size.

            Naeole’s neighbor, Zachariah Wentling, also testified

during the hearings.    He testified that he came out his front

door when he heard his dogs barking, saw police officers

“wrestling with” or “messing with” Naeole’s front gate, ran back

into his house to grab his phone, and, when he came back out,

saw the officers break down Naeole’s front door.      He testified

that when he came back outside, he saw the officers bang on the

door, say, “This is the police[,]” and then, without waiting for


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a response, brake down the door.       A video he recorded on his

phone which showed the officers breaking down the front door of

Naeole’s home was entered into evidence at the hearings.

            The circuit court granted Naeole’s motion to suppress

and ordered that all evidence seized as a result of the

execution of the search warrant would be inadmissible at trial.

The court found that Officer Roe’s testimony was “credible and

compelling[,]” and that, based on his in-court demonstration,

the four knock-and-announce procedures took place “in a span of

about twenty-five seconds” with “no discernable pause” between

each one.   The court also found that the officers “heard voices”

after the third knock-and-announce procedure, but that “there

was no evidence that the occupants were aware of the police

presence and were taking steps to destroy any evidence, that

would justified [sic] breaching the door based on exigent

circumstances.”    It concluded that, although HPD had complied

with the requirements of HRS § 803-37, its execution of the

search warrant violated Naeole’s right against unreasonable

searches and seizures under article I, section 7 of the Hawaiʻi

Constitution.

            The State appealed the circuit court’s order to the

ICA.   The ICA vacated the circuit court’s order, holding that,

“[u]nder the circumstances of this case, . . . Naeole was

afforded a reasonable amount of time to respond to HPD’s demand


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for entry to serve the search warrant.”          State v. Naeole, No.

CAAP-XX-XXXXXXX, 2019 WL 2067113, at *4 (App. May 10, 2019)

(mem.).    Naeole filed an application for writ of certiorari with

this court, which was granted.

                       II.    STANDARD OF REVIEW

           “The appellate court reviews a circuit court’s ruling

on a motion to suppress de novo to determine whether the ruling

was right or wrong.”    State v. Williams, 114 Hawaiʻi 406, 409,

163 P.3d 1143, 1146 (2007) (internal quotation marks omitted)

(quoting State v. Kauhi, 86 Hawaiʻi 195, 197, 948 P.2d 1036, 1038

(1997)).

                             III.   DISCUSSION

           The “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.       See Miller, 357 U.S. at

313 (“The requirement of prior notice of authority and purpose

before forcing entry into a home is deeply rooted in our

heritage and should not be given grudging application.”);

Garcia, 77 Hawaiʻi at 465, 887 P.2d at 675 (tracing the modern

knock-and-announce statute back to the 1869 Penal Code of the

Hawaiian Kingdom and The King v. Ah Lou You, 3 Haw. 393 (1872)).

“The search warrant serves to protect individuals’

constitutional right to be ‘secure in their persons, houses,


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papers, and effects, against unreasonable searches and seizures.

. . .’”     State v. Diaz, 100 Hawaiʻi 210, 218, 58 P.3d 1257, 1265

(2002) (quoting Hawaiʻi Const. art. I, § 7).     The purpose of the

search and seizure provision of the Hawaiʻi constitution, and the

fourth amendment to the United States Constitution, is to

“safeguard individuals from the arbitrary, oppressive, and

harassing conduct of government officials.”      Id. at 217-18, 220,

58 P.3d at 1264-65, 1267.     The knock-and-announce rule is one

mechanism that protects this right.     Id.   Its purpose is to give

the “person time to respond, avoid violence and protect privacy

as much as possible.”     State v. Quesnel, 79 Hawaiʻi 185, 191, 900

P.2d 182, 188 (App. 1995)(citing Garcia, 77 Hawaiʻi at 468, 887

P.2d at 678).

             HRS § 803-37 defines the knock-and-announce rule and

outlines the powers of a police officer charged with the

execution of a search warrant.     The statute is intended 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.”     State v. Dixon, 83 Hawaiʻi 13, 14, 924 P.2d 181, 182

(1996).     Compliance with the statute decreases the potential for

violence and unnecessary property damage.      State v. Harada, 98

Hawaiʻi 18, 28, 41 P.3d 174, 184 (2002).      If the officer charged




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with execution of a search warrant finds that the doors of the

place to be searched are shut, the statute requires “three steps

. . . before the officer may physically break into the place to

be searched—that the officer state his or her office, that he or

she state his or her business, and that he or she demand

entrance.”     Garcia, 77 Hawaiʻi at 465, 887 P.2d at 675.    The

third step requires the officer to “expressly demand

entrance[.]”     Monay, 85 Hawaiʻi at 284, 943 P.3d at 910.

“[O]rally communicat[ing]” a demand for entry “in the same way

the police announce their office and purpose” constitutes such

an express demand.     Garcia, 77 Hawaiʻi at 466, 887 P.2d at 676.

In the present case, no party challenges the circuit court’s

conclusion that HPD complied with the statutory requirements of

HRS § 803-37.

          What is at issue in this case is whether HPD gave

Naeole or any other occupants of her home a reasonable amount of

time to respond to their demand for entry.     HRS § 803-37

provides that an officer executing a search warrant may break

“the doors, gates, or other bars to the entrance” if they “are

not immediately opened[.]”     (Emphasis added).   However, we have

held that a literal construction of the term “immediately” would

contravene the constitutional right to be free of unreasonable

searches, seizures, and invasions of privacy.      Monay, 85 Hawaiʻi

at 284, 943 P.2d at 910; see Garcia, 77 Hawaiʻi at 467, 887 P.2d


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at 677 (“The protection against unreasonable searches would mean

very little if the police, armed with a search warrant, were

authorized to break down the door of someone’s premises unless

there was an ‘instant’ response.”); Haw. Const. art. I, § 7.

Thus, we have held that, “absent the existence of exigent

circumstances, police must afford occupants of a place to be

searched a ‘reasonable time’ to respond to an announcement

before forcing entry.”   Monay, 85 Hawaiʻi at 284, 943 P.2d at 910

(quoting Garcia, 77 Hawaiʻi at 468, 887 P.2d at 678).      Allowing a

reasonable time to respond gives an occupant “sufficient

opportunity to respond to authority” and “to surrender his or

her privacy voluntarily” “before a forcible entry is made.”

Garcia, 77 Hawaiʻi at 467, 887 P.2d at 677 (citations and

brackets omitted).   Without it, the request for entry is

meaningless.   Quesnel, 79 Hawaiʻi at 190, 900 P.2d at 187.

          “[W]hat would constitute a reasonable period of time

to respond to a knock and announcement must be determined by the

circumstances of each case.”    Monay, 85 Hawaiʻi at 284, 943 P.2d

at 910 (quoting Garcia, 77 Hawaiʻi at 468, 887 P.2d at 678).

Pursuant to our constitution, we have not adopted a general or

“bright-line” rule for what constitutes a reasonable amount of

time in all cases, or even in a subset of cases, as is urged by

the parties in this case.   Rather, our appellate courts have

appropriately determined what constitutes a reasonable period of


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time by considering the totality of the circumstances in each

individual case.      Cf. United States v. Banks, 540 U.S. 31, 36

(2003) (“[W]e have treated reasonableness as a function of the

facts of cases so various that no template is likely to produce

sounder results than examining the totality of the circumstances

in a given case; it is too hard to invent categories without

giving short shrift to details that turn out to be important in

a given instance, and without inflating marginal ones.”).

            In Garcia, police officers executed a search warrant

at a small apartment unit at 7:07 p.m.       77 Hawaiʻi at 464, 464

n.1, 887 P.3d at 674, 674 n.1.     A police officer knocked on the

door of the apartment and announced, “Police, search warrant.”

Id. at 464, 887 P.2d at 674.      The officer could hear voices

inside, which he believed to be either people talking or voices

from a television, but no one responded to his knock-and-

announce.   Id.     The officer then pulled open the locked exterior

screen door of the apartment and ordered another officer to kick

open the interior wooden door.      Id.   “Approximately ten (10)

seconds elapsed from the time [the officer] knocked and

announced to the time forcible entry was made into the . . .

apartment.”   Id.     The ICA reversed the circuit court’s denial of

the defendant’s motion to suppress, holding that allowing the




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occupants of the apartment less than ten seconds to respond was

“constitutionally unreasonable.”5         Id. at 469, 887 P.2d at 679.

               Six months after deciding Garcia, the ICA issued a

similar opinion in State v. Quesnel, 79 Hawaiʻi 185, 900 P.2d

182.       In Quesnel, police officers executed a search warrant at

the defendants’ home at approximately 6:45 p.m.           Id. at 188, 900

P.2d at 185.       An officer pounded on the door and yelled,

“Police.       Search warrant[,]” and then kicked in the door when no

one answered.       Id.   The circuit court found that the entire

process, from the knock to the entry, lasted approximately ten

seconds, and that the police “counted ‘one, two, three’” between

making the announcement and kicking open the door, although

there was conflicting evidence suggesting that as many as five

seconds may have elapsed between the announcement and the forced

entry.       Id. at 189-90, 900 P.2d at 186-87.     The ICA reversed the

circuit court’s denial of the defendants’ motion to suppress,

holding that, whether it was three or five seconds, the amount

of time to respond was not reasonable.6         Id. at 190, 900 P.2d at

187.


       5
            The ICA also held, in the alternative, that the evidence had to
be suppressed because the officer did not make an express demand for entry,
in violation of HRS § 803-37 (1985). Garcia, 77 Hawaiʻi at 466, 887 P.2d at
676.
      6
            As in Garcia, the ICA also held that the evidence had to be
suppressed because the officer did not make an express demand for entry, in
violation of HRS § 803-37 (1985). Quesnel, 79 Hawaiʻi at 189-90, 900 P.2d at
186-87.




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            In Monay, police officers executed a search warrant at

an apartment at 11:05 a.m.       85 Hawaiʻi at 283, 943 P.2d at 909.

Officers approached the closed front door of the apartment and

an officer “knocked on the door and announced, ‘police, search

warrant,’ but did not expressly demand entrance.           The officers

heard no suspicious sound or movement inside the apartment.

Within two seconds of the announcement, [the officer] opened the

unlocked door, and the officers entered the apartment.”            Id.

This court, embracing the reasoning of Garcia, reversed the

circuit court’s denial of the defendants’ motion to suppress,

holding that “the forced entry by police two seconds after the

knock and announcement was constitutionally insufficient to give

the occupants a reasonable opportunity to respond.”7           Id. at 285,

943 P.2d at 911.

            In State v. Diaz, police officers executed a search

warrant at a video store at approximately 6:45 p.m., during the

store’s regular business hours.        100 Hawaiʻi at 213, 58 P.3d at

1260.    Upon entering the store, a detective asked a customer if

a door on the makai side of the store was an office door.             Id.

After the detective received an affirmative response, an officer

knocked three times on the office door and stated, “[P]olice


     7
            We also held, in the alternative, that the evidence had to be
suppressed because the officer did not make an express demand for entry, in
violation of HRS § 803-37 (1993). Monay, 85 Hawaiʻi at 284, 943 P.2d at 910.




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department, search warrant[,]” but there was no response.       Id.

After waiting approximately fifteen seconds, the officer was

instructed to break the door, which he did by kicking it in.

Id.   Although this court held that HRS § 803-37 (1993) is

inapplicable to a search of the interior office of a commercial

establishment that is open for business, we nevertheless held

that a reasonable expectation of privacy did exist and that the

police were required to give the defendant a reasonable amount

of time to respond.   Id. at 219-21, 58 P.3d at 1266-68.

However, we upheld that circuit court’s denial of the

defendant’s motion to suppress, holding that, “[u]nder the

circumstances of this case, expecting the occupant of the

interior office to be alert and responsive during business hours

is reasonable[,]” and that forced entry after fifteen seconds

was thus constitutional.    Id. at 221, 58 P.3d at 1268.

          Considering the totality of the circumstances in the

present case, we conclude that the amount of time HPD gave the

occupants of Naeole’s home to respond to their requests for

entry was not reasonable.    The circuit court found that Officer

Roe conducted the knock-and-announce procedure four times within

the span of about twenty-five seconds without any discernable

pause between each one.     This is not a reasonable amount of time

to expect the occupant of a modestly-sized home to respond to an

early morning demand for entry.    At the time HPD executed the


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search warrant, most people would be expected to be asleep, just

waking up, or otherwise indisposed by the customary activities

of the early morning, such as showering, getting dressed, or

eating breakfast.8     In other words, it was not reasonable to

expect the occupants of Naeole’s home to be “alert and

responsive” during the early morning hours.          Id.     Furthermore,

Officer Roe did not “discernabl[y] pause” between each knock-

and-announce procedure, even after hearing a voice that may have

been directed at the HPD officers.        Not pausing between

announcements and not allowing additional time to respond after

hearing a voice from inside the home would have made it

difficult for an occupant of the home to indicate compliance and

voluntarily submit to the officers’ authority.             We note that

there was no evidence that the search of Naeole’s home presented

a risk to officer safety.       We hold that giving an occupant only




      8
            Our analysis need not take into account Naeole’s testimony that
she was actually awake at the time HPD breached her front door. “[U]nder
article 1, section 7 of our constitution, the focus is on whether the
officer’s actions are constitutionally reasonable.” Diaz, 100 Hawaiʻi at 230,
58 P.3d at 1277 (emphasis added); see Garcia, 77 Hawaiʻi at 467, 887 P.2d at
671 (“[T]he constitution mandates that police conduct in executing a search
warrant must be reasonable.” (emphasis added)). Thus, “the facts known to
the police are what count in judging reasonable waiting time[.]” Banks, 540
U.S. at 39. There is no evidence in the record that the police knew that any
occupant of Naeole’s home was awake and active when the first demand for
entry was made.




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twenty-five seconds to respond at such an early morning hour is

unreasonable.9

            In fact, there were no exigent circumstances that

would have justified breaching the door earlier than would have

otherwise been reasonable.       Exigent circumstances are those

under which “the demands of the occasion reasonably call for an

immediate police response.”       State v. Lloyd, 61 Haw. 505, 512,

606 P.2d 913, 918 (1980).       Such circumstances exist where there

is an imminent threat of harm to a person, where there is a

danger of serious property damage, where a suspect is likely to

escape, or where evidence is likely to be removed or destroyed.

Id.   “Since drugs are by their nature easily destroyed or

secreted,” exigent circumstances in cases involving searches for

drugs “exist when the facts show that the occupants of the

suspected locale are aware of the police presence and are taking

steps which the police realistically fear may lead to

destruction of the contraband.”        State v. Davenport, 55 Haw. 90,

99, 516 P.2d 65, 71-72 (1973); see Lloyd, 61 Haw. at 512-13, 606

P.2d at 918-19 (sounds of “scurrying” and “crashing” within the

house that might have indicated that a suspect was fleeing or

      9
            Our opinion should not be construed to express any position as to
whether a time period greater or less than 25 seconds at a later time of the
day or based on different circumstances would be a reasonable amount of time
to respond to a knock-and-announce procedure, as what constitutes a
reasonable period of time must be determined by the circumstances of each
case.




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that evidence was being removed or destroyed constituted exigent

circumstances); cf. Quesnel, 79 Hawaiʻi at 191, 900 P.2d at 188

(“The State did not submit any evidence that the police, after

knocking and announcing, heard frantic movement or flushing

toilets or other signals that the occupants were attempting to

destroy or hide evidence.”).    However, the mere fact that drugs

are involved in a case, and that drugs are generally easy to

remove, hide, or destroy, does not introduce exigent

circumstances into all drug-related cases.     State v. Dorson, 62

Haw. 377, 385, 615 P.2d 740, 746 (1980).     In this case, although

the search was for evidence of drug offenses, there were no

exigent circumstances, and thus, the occupants of Naeole’s home

were entitled to a reasonable opportunity to respond.

                          IV.   CONCLUSION

          For the foregoing reasons, the ICA’s memorandum

opinion and judgment on appeal are vacated, the circuit court’s

order granting Naeole’s motion to suppress is affirmed, and the

case is remanded to the circuit court for further proceedings

consistent with this opinion.

Phyllis J. Hironaka             /s/ Mark E. Recktenwald
for Petitioner
                                /s/ Paula A. Nakayama
Brian R. Vincent
for Respondent                  /s/ Sabrina S. McKenna

                                /s/ Richard W. Pollack

                                /s/ Michael D. Wilson


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