People v. Boone

• Decision Date: 10 December 1969
• Docket Number: Cr. 15752
• Citation: 82 Cal.Rptr. 566,2 Cal.App.3d 503
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel BOONE, Defendant and Appellant.

Page 566

82 Cal.Rptr. 566

2 Cal.App.3d 503

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel BOONE, Defendant and Appellant.

Cr. 15752.

Court of Appeal, Second District, Division 2, California.

Dec. 10, 1969.

Hearing Denied Feb. 5, 1970.

Richard H. Levin, ^* Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lola M. McAlpin, Deputy Atty. Gen., for respondent.

FLEMING, Associate Justice.

In view of the fact that the arresting officers were dressed in plainclothes and using an unmarked vehicle when they forced entry into defendant's residence at night, can we hold that the requirements of section 844 of the Penal Code had been met?

We have heretofore identified the essential requirements of section 844 as (1) identification of themselves by the police; (2) explanation of their purpose; and (3) demand for entry. (People v. Superior Court, John Edward Ludeman, et al., Real Parties in Interest, 274 A.C.A. 634, 79 Cal.Rptr. 55.) These requirements may be satisfied by literal compliance, or by substantial compliance, or their performance in a given instance may be excused.

Literal compliance is not a factor here, and hence requires no comment.

Substantial compliance expresses a rule of interpretation which derives from general maxims of equity--that substance governs over form, that no one is required to perform an idle act. (Civ.Code, §§ 3528, 3532.) Hence if the essence of a requirement has been met, or if its performance would be superfluous, then the law holds that the requirement has been susbtantially complied with. The application of the rule may be seen in People v. Cockrell, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116, which upheld the police identification and request for entry in that case, and in People v. Marshall, 69 Cal.2d 51, 69 Cal.Rptr. 585, 442 P.2d 665, which held that persistent knocking by the police, announcement of their identity, and demand for entry complied with the section. The limits of the rule of substantial compliance appear in People v. Rosales, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489, which held that police identification without a demand for entry or explanation of purpose did not amount to substantial compliance with the statute. Said the court: 'Such identification alone could constitute substantial compliance with section 844 only if the surrounding circumstances made the officers' purpose clear to the occupants or showed that a demand for admittance would be futile.' The further limits of the rule appear in Greven v. Superior Court, 71 A.C. 303, 308, 78 Cal.Rptr. 504, 507, 455 P.2d 432, 435, where the court said: 'It is clear that the cases here under consideration stand for the proposition that an entry is not Necessarily unlawful because the officers fail to make an express announcement of purpose. It is equally clear that they go no further than that. Neither they nor any other decision of this court has ever held that 'substantial compliance' with section 844 can be achieved in the absence of an announcement by the officers identifying themselves as such.'

Our original opinion assumed that those inside the residence knew that their visitors were police officers and therefore identification by the police would have been a useless act. It is undisputed that (1) entry was forced into an occupied residence; (2) during the nighttime; (3) by police officers not in uniform; (4) who had driven up to the residence in an unmarked vehicle. Under these circumstances, can it be assumed with reasonable certainty that those inside the house knew their visitors were peace officers engaged in the performance of their duties and hence official identification by the visitors would have been an idle gesture? The only direct testimony on this subject was to the contrary, for Mrs. Boone testified that she thought the men running toward her house were intruders or burglars. We are not required to accept her testimony, and we would not do so if it were contradicted by circumstances which clearly indicated its implausibility. For example, if uniformed officers had arrived on the scene in a marked police vehicle, with sirens wailing, and red lights flashing, then we would give little credence to statements of those inside that they did not know their visitors were police. If such a trumpeting of status had occurred we could assume with confidence that those inside the house knew their visitors were police officers engaged in law enforcement activities and hence further identification by the police would have been a useless act.

But at bench no external symbols or trappings identified the men who forced entry into the premises as peace officers engaged in the performance of their official duties, and from the circumstances we cannot be reasonably certain that those inside knew that those outside who sought to enter were police. Hence the requirement for identification still carried meaning. The practical dangers attached to forcible intrusion by peace officers unidentified as such have been summarized by Mr. Justice Brennan, dissenting, in Ker v. California, 374 U.S. 23, at 57--58, 83 S.Ct. 1623, at 1641, 10 L.Ed.2d 726: 'Beyond these constitutional considerations, practical hazards of law enforcement militate strongly against any relaxation of the requirement of awareness. First, cases of mistaken identity are surely not novel in the investigation of crime. The possibility is very real that the police may be misinformed as to the name or address of a suspect, or as to other material information. That possibility is itself a good reason for holding a tight rein against judicial approval of unannounced police entries into private homes. Innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion. Second, the requirement of awareness also serves to minimize the hazards of the officers' dangerous calling. We expressly recognized in Miller v. United States, Supra, 357 U.S., at 313, n. 12, 78 S.Ct., at 1198, 2 L.Ed.2d 1332, that compliance with the federal...