¶1(dissenting).
¶2I would affirm the lower court’s ruling to suppress the evidence and therefore dissent.
¶3The decision of the lower court was succinct, sound, not clearly erroneous and follows below:
¶4FINDINGS OF FACT
¶5I.
On September 17, 1979, a group of law enforcement officers led by Hughes County Deputy Sheriff Charles Vollmer armed with a search warrant, made their way up to a residence at 328 North Grand in Pierre, South Dakota.
Deputy Vollmer led the way by opening a screen door on an enclosed porch of the dwelling without knocking and upon proceeding into the porch observed that the inner door to the living room was open and proceeded on into the living room without knocking or announcing his authority until he was within the living room of the dwelling. (Emphasis supplied.)
¶7Upon the foregoing Findings of Fact, the court makes and enters the following:
¶8CONCLUSIONS OF LAW
¶9I.
SDCL 23A-35-8 clearly places the burden on an officer executing a search warrant to announce his authority and purpose before entering a structure or portion of a structure.
¶10II.
The requirements of SDCL 23A-35-8 were not adhered to in the case at bar, and that therefore, defendant’s motion to suppress evidence is granted.
¶11The actions of the police officers at the time of the execution of the search warrant did not comply with the requirements of SDCL 23A-35-8, which provides:
The officer executing a search warrant may break open any building, structure, or container or anything therein to execute the warrant if, after giving notice of his authority and purpose, he is refused admittance. An officer executing a search warrant may break open any building, structure, or container or anything therein for the purpose of liberating a person who, having entered to aid him in the execution of a warrant, is detained therein, or when necessary for his own liberation.
¶12In addition to the exceptions contained within SDCL 23A-35-8, that particular statute’s requirements can be avoided by following the procedure set out in SDCL 23A-35-9, which provides:
If a committing magistrate who has been asked to issue a search warrant is satisfied that there is probable cause to believe that if notice was given prior to its execution, the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, he may include in the warrant a direction that the officer executing it is not required to give the notice required by § 25A-35-8. In such case, the officer who executes the warrant may, without notice of his authority and purpose, enter any structure, portion of a structure or a vehicle, or anything therein, by whatever means, including breaking therein.
¶13These statutes are commonly denominated in the law as the “knock and announce” rule. We must apply the facts of this case to the “knock and announce” rule to determine in our appellate review whether the trial court was clearly erroneous.
¶14In reviewing the testimony of the police officers at the preliminary hearing together with the affidavits of the defendants, I am firmly convinced that the record conclusively shows that SDCL 23A-35-8 was not complied with when the officers executed the warrant. Further, there appears to be no evidence in the record which, would justify or excuse their noncompliance.. In reviewing the application for the search warrant, as well as the search warrant, there is no “knock and announce” request and authorization. The warrant simply did not authorize a “no-knock” entry. Thus, no stretch of legal fantasy can bring the officers within the purview of SDCL 23A-35-9.
¶15Please bear in mind that the trial court found,, as a fact, that the officers did not knock or announce at either the porch door or the inner door leading directly into the living room. Add this: counsel for the state, in his argument before this court, conceded that the officers did not knock nor announce at either door before entering. I therefore take exception to the facts recited in the majority opinion and would hold that this was an unlawful invasion into the privacy of a home.
¶16The State’s argument can be summed up as follows: the defendants forfeited their *548expectation of privacy by leaving the inner door open and the defendants should have known that officers, or anyone else for that matter, would enter into an enclosed porch in order to gain access to the inner door. Indeed, counsel for the State argued in oral argument that the officers did not have to knock at either door. Counsel based his argument upon the premise that the officers could see criminal activity inside the home and this justified the officer’s conduct in neither announcing or knocking. The facts do not bear this out. Under the State’s construction, the statutes are meaningless. The State’s position would completely negate legislative directives contained in the statutes. “Generally statutes authorizing and regulating searches and seizures and the issuance of search warrants are strictly construed against the state and liberally in favor of the individual.” State v. Cochrane, 84 S.D. 527, 531, 173 N.W.2d 495, 497 (1970).
¶17The State would have this court believe that this porch is a “storm porch” and that, therefore, it is not really a part of a structure, namely the defendants’ home. From a review of the record, briefs, and findings of fact of the lower court, there can be no doubt that the porch is enclosed on all sides and is permanently attached to the house. The house is made of brick and defense counsel contends in his brief the porch is likewise made of brick. The State’s brief does not refute this but the record is not clear. Brick or wood, the porch is an integral part of the house and represents an extension of the home. I refuse to accept that an enclosed porch is not a part of a home. The fact that the inner door was left open by the defendants suggests that they considered the porch a part of the home. The facts establish, through the testimony of Officer Vollmer, that observation into the house was obstructed by the porch. The defendants’ castle began with the porch, not at the inner door, and the door at that porch was the primary barrier protecting the defendants’ privacy to the outside world.
¶18A number of state courts have held that an entry effected in violation of the “knock and announce” rule renders any following search and seizure unreasonable within the meaning of the Fourth Amendment to the United States Constitution. People v. Rogers, 59 Ill.App.3d 396, 16 Ill.Dec. 902, 375 N.E.2d 1009 (1978); State v. Mendoza, 104 Ariz. 395, 454 P.2d 140 (1969); State v. Vuin, 89 Ohio L.Abs. 193, 185 N.E.2d 506 (Ohio Com.Pl.1962); Greven v. Superior Court of Santa Clara County, 71 Cal.2d 287, 78 Cal.Rptr. 504, 455 P.2d 432 (1969). Any finding that the Fourth Amendment to the United States Constitution has been violated mandates application of the Exclusionary Rule. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
¶19A recent case in the Supreme Court of Rhode Island, State v. Slezak, 115 R.I. 599, 350 A.2d 605 (1976) supports my dissenting view. In the Rhode Island case, the police officer had entered the back porch of the defendant's house and observed a screen door. Upon opening the screen door, the officer discovered that the inner door opened into the kitchen. As he crossed the threshold into the kitchen, the officer identified himself and gave the defendant a copy of the search warrant. As in this South Dakota case, the state contended that it would have been senseless to knock after the officer found the inner door open and was in plain view of the defendant. The Supreme Court of Rhode Island would not countenance such reasoning and held that there was no justification of the officer failing to comply with the “knock and announce” rule and the right of privacy had been unconstitutionally invaded. The facts in the Rhode Island case are strikingly similar to the case at bar. Marijuana was found in the Rhode Island home, just as it was found in the Pierre, South Dakota, home.
¶20In People v. Rogers, supra, the house was surrounded; in this case, officers surrounded the house and startled an innocent mother of one of the defendants as they entered the back door, also without knocking; in Rogers, a search warrant was handed to the defendant and the police officers announced their purpose only after entering the living room (the same as in this case). The Su*549preme Court of Illinois reversed the conviction.
¶21I can clearly distinguish the Harvey case in the State of Michigan, cited by the majority, from the case at bar. In Harvey, the officers knocked several times on the outer screen door of the porch before entering. Harvey involved a “semi-closed” porch. In this case, the findings of fact entered by the trial court established that the porch was enclosed.
¶22By opening the screen door, without knocking and announcing, there can be no doubt under the case law of this state and nation, that the police officers accomplished a “breaking.” In State v. Vierck, 23 S.D. 166, 120 N.W. 1098 (1909), this Court held that there was a “breaking” within the meaning of the burglary statute. We held that a “breaking” can consist of opening a door which is shut but is neither locked nor latched. It is undisputed that the screen door in the case at bar was shut.
¶23The majority opinion cites State v. Kietzke, 85 S.D. 502,186 N.W.2d 551 (1971). Kietzkeis precedent for the principle that strict compliance with the “announce first” statute is not required when exigent circumstances are present. There were no exigent circumstances here: no danger; no weapons; no threats; no menace; no hurried activity to run, escape, hide, or secrete. Admittance was never refused. Also, at the time of the Kietzkedecision, SDCL 23A-35-9, which allows a magistrate to issue a “no-knock” warrant under certain circumstances, had not been enacted at the time of the commission of the offense.
¶24It appears to me that the enactment of SDCL 23A-35-9 indicates that the Legislature desired law enforcement officers to have even less discretion to execute search warrants. The enactment of this statute attaches greater importance to the “announce first” rule than it did at the time of the Kietzkedecision.
¶25In Kietzke, this Court recognized that our statute was similar to 18 U.S.C.A. § 3109, both being “no-knock” statutes. In Sabbath v. United States, 391 U.S. 585, 590, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828, 834 (1968), the United States Supreme Court stated:
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. The protection afforded by, and the values inherent in, § 3109 must be “governed by something more than the fortuitous circumstance of an unlocked door.” (Citations omitted.)
¶26A Deputy Sheriff Barnes aided in this invasion of a Pierre home. Barnes testified that the first thing he could recall was a command to an occupant in the living room to sit down. Barnes testified that a juvenile and defendant Myers were immediately handcuffed together and that the occupants of the house were extremely confused about why the police officers were in the home.
¶27I deplore this type of law enforcement and all that it stands for. There is no right so sacred to the American people as the right to be secure in their homes. Without that right, religiously guarded, we as a people are as subject to being the prey of state domestic intervention and terror as those fellow human beings who live in the Soviet bloc. As Patrick Henry once said: Forbid it, Almighty God!