City of Seattle v. Slack

784 P.2d 494, 113 Wash. 2d 850, 1989 Wash. LEXIS 145

• Court: Washington Supreme Court
• Decided: December 28, 1989
• Docket: 56372-1
• Status: Published

Opinions

Dolliver, J.

On June 26, 1986, at approximately 5 a.m., defendant Leonard Slack was arrested and charged with prostitution loitering under Seattle Municipal Code (SMC) 12A.10.010(B). According to the police report, two officers were called to the corner of Pike and Boren Streets in Seattle, an area well known for prostitution activity, by another officer who suspected several known prostitutes were working the area. When the officers arrived, they observed what they thought were two black females standing on the corner. Shortly thereafter, one officer recognized Slack's face from a photo he had seen on the bulletin board at the precinct which had referred to Slack as a known male prostitute. At the time of his arrest, Slack was dressed in a turquoise blouse, jean shorts, and women's shoes. Slack's companion was recognized as Judy O'Neil, also a known prostitute.

The officers observed the following for approximately 15 minutes before arresting both Slack and O'Neil. At 4:45 a.m., Slack and O'Neil walked to the edge of the curb where a car occupied by a lone male was stopped at a red light. Slack "bent over from the waist up leaning slightly to his right and looked at the driver." O'Neil "made a swinging motion with her hips and looked at the driver." Shortly thereafter, the car drove away. Approximately 2 minutes later, two cars approached and stopped at the red light. One of the cars, a pickup truck, had only one occupant. Slack and O'Neil walked to the edge of the curb and Slack "leaned over the hood of the pickup and looked through the windshield at the driver". O'Neil "swung her hips once and slowly walked alongside the pickup and compact car." When the light changed, the two cars drove off. Approximately 3 minutes later, another car stopped at the light. This time Slack and O'Neil crossed the street and stood in front of the car. Slack "bent over looking at the driver through the windshield." O'Neil "held out her hands in a pleading motion". After O'Neil had a short conversation with the driver, the car drove off. Three minutes later, Slack and O'Neil began watching an approaching vehicle from approximately one block away. As the vehicle drove by, Slack "stood at the edge of the curb[, . . .] bent over and looked at the driver". O'Neil made a "waving motion" at the driver.

Approximately 7 minutes later, O'Neil began walking away from Slack. She was observed having a conversation with a motorist who stopped on the side of the road where she was standing. At this point, the police officers approached Slack and arrested him. They arrested O'Neil shortly thereafter. Slack told the officers he was waiting to be picked up by some friends. On the way to the station, Slack changed his story and told the officers he had driven to the intersection to pick up some friends. Slack also inquired as to how many "contacts" the officers had on him. No argument is presented here that Slack did not make these statements voluntarily.

Slack submitted on the police record alone and was found guilty in the Seattle Municipal Court of prostitution loitering. He appealed his conviction to the King County Superior Court, alleging the ordinance was unconstitutionally overbroad and that it violated the state and federal equal protection clauses. The Superior Court affirmed Slack's conviction. Slack sought review before the Court of Appeals. In accordance with RCW 2.06.030, it certified the following question to this court:

Is the Seattle prostitution loitering ordinance, SMC 12 A. 10-.010, unconstitutional under the Washington and federal constitutions?

We answer this question in the negative and affirm Slack's conviction.

The challenged portion of Seattle Municipal Code 12A.10.010 reads as follows:

B. A person is guilty of prostitution loitering if he or she remains in a public place and intentionally solicits, induces, entices, or procures another to commit prostitution.

C. Among the circumstances which may be considered in determining whether the actor intends such prohibited conduct are that he or she:

1. Repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation; or

2. Repeatedly stops or attempts to stop motor vehicle operators by hailing, waiving of arms or any other bodily gesture; or

3. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to stop pedestrians; or

4. Is a known prostitute or procurer . . ..

Slack first challenges SMC 12A. 10.010 as unconstitutionally overbroad under Const, art. 1, § 5 and U.S. Const, amend. 1. He claims the ordinance has a substantial chilling effect on free speech and association rights, particularly those rights relative to persons who are "known prostitutes".

A law is overbroad if it sweeps within its prohibitions constitutionally protected free speech activities. Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989); Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Criminal statutes require particular scrutiny and may be facially invalid if they '"make unlawful a substantial amount of constitutionally protected conduct. . . even if they also have legitimate application."' Huff, at 925 (quoting Houston v. Hill, 482 U.S. 451, 459, 96 L. Ed. 2d 398, 107 S. Ct. 2502, 2508 (1987)).

There is no question but that loitering in a public place is constitutionally protected activity. Papachristou v. Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). It is also unquestionable that status alone, such as being a "known prostitute", cannot by itself be criminal. Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962). However, SMC 12A.10.010 does not purport to make criminal a person's status, nor does it prohibit constitutionally protected conduct or speech. Instead, the ordinance prohibits an individual, including a "known prostitute", from loitering in a public place while possessing the criminal intent to solicit, induce, entice, or procure another to commit prostitution. SMC 12A.10.010(B). An element of specific criminal intent must exist before an individual can be arrested under the ordinance. This element of specific criminal intent saves SMC 12A.10.010 from being unconstitutionally overbroad.

This is not to say a police officer might not arrest an individual for prostitution loitering when in fact the individual does not possess the required mens rea. However, this would be an improper application of the law. The fact that a law may be improperly applied or even abused does not render it constitutionally invalid. Milwaukee v. Wilson, 96 Wis. 2d 11, 21, 291 N.W.2d 452, 458 (1980) (holding a prostitution loitering ordinance similar to Seattle's was not unconstitutionally overbroad).

Other jurisdictions are not in agreement as to whether ordinances similar to Seattle's are unconstitutional. One court has, however, stated that prostitution ordinances which include an element of criminal intent have been overwhelmingly upheld by a majority of the states. State v. Evans, 73 N.C. App. 214, 218, 326 S.E.2d 303, 307 (1985); see also People v. Superior Court, 46 Cal. 3d 381, 758 P.2d 1046, 1055, 250 Cal. Rptr. 515 (1988) (citing cases which have found prostitution loitering ordinances similar to Seattle's constitutional as well as cases which have held similar ordinances unconstitutional).

Slack compares SMC 12A. 10.010 to vagrancy laws which have historically been struck down as overbroad because they cast too large a net in which a substantial amount of protected speech and conduct is caught. We agree laws prohibiting loitering in general suffer constitutional defects because they have an unwarranted chilling effect on a person's freedom of movement and speech. See Papachristou v. Jacksonville, supra at 164-65. However, it is analytically incorrect to compare general vagrancy laws with prostitution loitering ordinances such as the Seattle ordinance which includes an element of specific intent, thereby shielding it from being overbroad.

We find Seattle's prostitution loitering ordinance, which requires some showing of specific intent to solicit, induce, entice, or procure another to commit an act of prostitution, is not unconstitutionally overbroad.

Nor do we find SMC 12A.10.010 overbroad under Washington's constitution even though Const, art. 1, § 5 has already been interpreted as providing greater protection for speech than its federal counterpart. Bering v. Share, 106 Wn.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987). SMC 12A.10.010 prohibits only conduct which is not constitutionally protected, namely, loitering with the intent to solicit for prostitution. Speech directed toward procuring another to commit an act of prostitution does not enjoy constitutional protection. State v. Carter, 89 Wn.2d 236, 241, 570 P.2d 1218 (1977).

Defendant Slack also challenges SMC 12A.10.010 as unconstitutionally vague. We have previously upheld Seattle's former prostitution loitering ordinance against a vagueness attack. Seattle v. Jones, 79 Wn.2d 626, 488 P.2d 750 (1971). The defendant in Jones was arrested twice for prostitution loitering. Jones, at 627. On both occasions the arresting officer was aware the defendant had been convicted of prostitution-related crimes. Jones, at 627. The defendant challenged the constitutionality of the ordinance, alleging, among other things, the ordinance was void for vagueness. Jones, at 628. In rejecting the vagueness challenge, we stated:

The wording of [the section] is clear and unambiguous. The ordinance forbids loitering "in a manner and under circumstances manifesting" an unlawful purpose, the unlawful purpose being to induce another to commit an act of prostitution. According to Ballentine's Law Dictionary 1028 (3d ed. 1969), "purpose" is defined as "An intention." Therefore, intent is required under [the ordinance].

Jones, at 629.

Further in Jones, we addressed the "circumstances" clause of the ordinance (which is similar, but not identical, to the "circumstances" clause in SMC 12A.10.010):

The examples . . . are not exclusive, but merely demonstrate some of the types of conduct which may be considered in determining whether an unlawful purpose or intent is manifested. The ordinance is sufficiently clear so that men of reasonable understanding are not required to guess at the meaning of the enactment.

Jones, at 630.

Seattle's ordinance has been amended since our decision in Jones. However, the amendment was largely grammatical and did not affect Jones' application to the case at hand. We therefore affirm our reasoning in Jones and hold SMC 12A.10.010 is not unconstitutionally vague. See also State v. VJW, 37 Wn. App. 428, 680 P.2d 1068 (1984) (also upholding SMC 12A.10.010 against overbreadth and vagueness challenges).

We next consider whether SMC 12A.10.010 violates state and federal guaranties of equal protection. Defendant Slack argues the ordinance divides persons into groups without regard to intent to commit prostitution, and then applies the law differently to each group. This, in turn, defendant argues chills certain groups, particularly "known prostitutes", from exercising their First Amendment rights.

Equal protection of the laws under the state and federal constitutions requires that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. Harmon v. McNutt, 91 Wn.2d 126, , 587 P.2d 537 (1978) (citing Herriott v. Seattle, 81 Wn.2d 48, 500 P.2d 101 (1972)). We reject Slack's equal protection challenge because SMC 12A.10.010 does not establish distinct classes of persons to whom the ordinance applies differently. The ordinance applies equally to all persons who possess the requisite criminal intent to solicit for prostitution. Seattle v. Jones, supra at 631 (citing State v. Goebel, 40 Wn.2d 18, 240 P.2d 251 (1952)). Being a "known prostitute" by itself is not a crime under the ordinance. It is only one circumstance which may be considered by a police officer in inferring intent or purpose. Furthermore, under ER 404(b), a prior conviction for prostitution loitering may be admissible in order to prove purpose or intent. This is true regardless of whether being a "known prostitute" is one of the circumstances listed under section C of the ordinance, and regardless of whether the arresting officer had knowledge of the prior conviction. Seattle v. Jones, 3 Wn. App. 431, 440, 475 P.2d 790 (1970), aff'd, 79 Wn.2d 626, 488 P.2d 750 (1971). SMC 12A.10.010 does not violate either the state or federal equal protection clauses.

Slack's final constitutional challenge against SMC 12A.10.010 alleges the circumstances listed under section C create unconstitutional presumptions because they are basic facts from which a jury is to conclude an individual possesses the requisite intent to solicit others to commit prostitution. In State v. VJW, supra, the Court of Appeals addressed this issue and held SMC 12A.10.010 did not create an unconstitutional presumption. VJW, at 433. In VJW, the defendant was arrested for prostitution loitering. She challenged the ordinance as improperly shifting the burden of proof to her, requiring her to prove she was not soliciting. VJW, at 433. She also argued the ordinance created an unconstitutional presumption that one who performs the acts described under the circumstances clause of the ordinance is in fact soliciting. VJW, at 432. In holding there was no unconstitutional presumption created, the court explained there was nothing in the ordinance requiring the defendant to explain her conduct or to justify her presence in public. VJW, at 433. We concur with the Court of Appeals holding in VJW and find SMC 12A.10.010 does not create an unconstitutional presumption.

Finally, we consider whether there was sufficient evidence upon which to convict Slack of prostitution loitering. Slack submitted on the police report in Seattle Municipal Court. He now contends the report alone does not contain sufficient evidence to convict him on each element of prostitution loitering beyond a reasonable doubt. Slack has not raised this issue at any other stage of the proceedings. However, this will not bar him from raising the issue for the first time on appeal. Due process requires the State to prove its case beyond a reasonable doubt; thus, sufficiency of the evidence is a question of constitutional magnitude and can be raised initially on appeal. State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983) (citing RAP 2.5(a)(3)).

Inquiring into the sufficiency of evidence to support a conviction does not require the reviewing court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Green, at 221.

The prosecutor in this case was required to prove Slack remained in a public place with the intent to solicit, entice, induce, or procure another to commit an act of prostitution. SMC 12A.10.010(B). In determining Slack intended to solicit for prostitution, the arresting officers relied on several circumstantial factors. These included (1) their observations of Slack and O'Neil and their activities (previously described in this opinion) for roughly 15 minutes before the arrest was made; (2) the fact Slack was dressed in women's clothing and was observed in an area known for prostitution activity; and (3) one officer recollecting Slack's name and photo on the bulletin board in the precinct which referred to him as a "known male prostitute". Other evidence included in the police report was the fact Slack initially told the arresting officers he was waiting for a friend to pick him up at the corner, but later changed his story and said he had driven to the corner to pick up some friends, as well as Slack's own inquiry into how many "contacts" the officers had on him prior to his arrest. Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of prostitution loitering beyond a reasonable doubt. We hold there was sufficient evidence to convict Slack of prostitution loitering.

We hold SMC 12A.10.010 is constitutional and affirm Slack's conviction under the ordinance.

Brachtenbach, Dore, Andersen, and Durham, JJ., concur.