Opinion
Case No. 20050153-CA.
Filed February 24, 2006. (Not For Official Publication).
Appeal from the First District, Logan Department, 041100017, The Honorable Thomas Willmore.
David M. Perry, Logan, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Thorne.
MEMORANDUM DECISION
Joshua O. Herschi appeals his convictions for several crimes including possession of a controlled substance. Herschi entered a conditional guilty plea pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App. 1988). Herschi argues that the district court erred in denying his motion to suppress. Specifically, Herschi claims that the police officers who entered his house pursuant to a warrant failed to adhere to the "knock and announce" rule. We affirm.
We review the district court's factual findings underlying its denial of a defendant's motion to suppress under a clearly erroneous standard. See State v. Callahan, 2004 UT App 164, ¶ 5, 93 P.3d 103. "In contrast, we review `the trial court's conclusions of law based on such facts under a correctness standard, according no deference to the trial court's legal conclusions.'" State v. Duran, 2005 UT App 409, ¶ 10, 535 Utah Adv. Rep. 42 (citations omitted).
"When executing a search warrant, an officer must ordinarily give notice of his authority and purpose before entering the premises to be searched." State v. Buck, 756 P.2d 700, 701 (Utah 1988); see also Utah Code Ann. § 77-23-210 (2003) (codifying knock and announce rule). This rule mandates that "once having given the required notice, the officer `must wait a reasonable period of time before he may break and enter into the premise to be searched.'" 2 Wayne R. LaFave, Search and Seizure § 4.8(c), at 672 (2004) (citation omitted). Further, "[t]he interval of time an officer must wait between announcement and entry depends on the circumstances of each case." State v. Thurman, 846 P.2d 1256, 1261 (Utah 1993) (citations and quotations omitted).
In deciding Herschi's motion to suppress, the district court found that an officer knocked on the door of Herschi's home. A male voice responded by asking "Who is it?" The officer answered "Dennis." The male voice asked again, "Who?" Again the officer responded "Dennis." The door then opened 10 to 15 inches. After the door opened, the officer stated "Police. We have a warrant." The officer was also wearing a jacket with a police badge. After this announcement, the male on the other side of the door attempted to close the door. As a result, the officer pushed his way in the door to gain entrance and execute the search warrant. Herschi does not dispute these findings. Instead, Herschi argues that the officer did not adhere to the knock and announce rule because the officer failed to wait a reasonable period of time prior to entering the premises. We disagree.
After the police officer announced his authority to enter the home, someone in the home immediately began to close the door. A reasonable person would interpret this action as a refusal to allow the legal search and an attempt to flee into the home. This could allow the person to destroy evidence or, worse, arm himself with a weapon. See State v. Floor, 2005 UT App 320, ¶ 14, 119 P.3d 305 (concluding that officers did not violate knock and announce rule when officers entered home after announcing themselves as police officers and occupant fled into the home);United States v. Kemp, 12 F.3d 1140, 1142 (D.C. Cir. 1998) ("Inasmuch as the occupant then had no right to refuse the officer admission [once the door was open and authority and purpose announced], no interest served by the knock and announce statute would be furthered by requiring the officers to stand at the open doorway for [a period of time] in order to determine whether the occupant means to admit [them]."). Thus, under the facts found by the district court, the police officer acted reasonably in entering Herschi's home after the male attempted to close the door upon learning the officer's identity.
Accordingly, the officers did not violate the knock and announce rule in executing the search warrant.
Affirmed.
Judith M. Billings, Judge, James Z. Davis, Judge, and William A. Thorne Jr., Judge.