State ex rel. Juvenile Department of Multnomah County v. D.

557 P.2d 687, 27 Or. App. 861, 1976 Ore. App. LEXIS 1578
CourtCourt of Appeals of Oregon
DecidedDecember 27, 1976
DocketNo. 55197, CA 6143
StatusPublished
Cited by26 cases

This text of 557 P.2d 687 (State ex rel. Juvenile Department of Multnomah County v. D.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Juvenile Department of Multnomah County v. D., 557 P.2d 687, 27 Or. App. 861, 1976 Ore. App. LEXIS 1578 (Or. Ct. App. 1976).

Opinion

THORNTON, P. J.

This is an appeal from an order of the juvenile court finding that it had jurisdiction pursuant to ORS 419.476(l)(a)1 over D., a 16-year-old child. The juvenile court found that the child had violated Section 14.24.050 of the Code of the City of Portland, which provides:

"Loitering to solicit prostitution. As used in this section, 'prostitution’ means an act of sexual intercourse or sodomy between two persons, not married to each other, in return for the payment of money or other valuable consideration by one of them.
"(b) It is unlawful for any person to loiter in or near any street or public place in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Among the circumstances which may be considered in determining whether such purpose is manifested are that the person repeatedly beckons to, stops or attempts to stop, or engages male passersby in conversation, or who repeatedly stops or attempts to stop motor vehicle operators by hailing them or gesturing to them. No arrests shall be made for a violation of this subsection unless the arresting officer first affords the suspected person an opportunity to explain his or her conduct, and no one shall be convicted of violating this section if it appears at the trial that the explanation given was true and disclosed a lawful purpose.”

The child makes three primary contentions on appeal: (1) that Section 14.24.050 is unconstitutional in that it is vague and overbroad; (2) that the court below erred in admitting statements made by her to the arresting officers prior to the time the officers advised her of her constitutional rights as required by Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L [864]*864Ed 2d 694, 10 ALR3d 974 (1966); and (3) that it was not proven beyond a reasonable doubt that she had violated Section 14.24.050.

The facts are not disputed. On January 2,1976, two police officers of the city of Portland observed D. walking up and down the sidewalk in a "high vice area” within five blocks of her house. During the 10 to 15 minutes she was under observation, the officers noted that the minor walked up and down a single city block about a dozen times and would, when cars slowed, lean over and look into cars driven by older males. On one occasion she made a gesture toward a male passenger and the two engaged in a brief conversation.

Following this period of observation, the officers drove up to the child and questioned her. During the course of the conversation she admitted that she was a prostitute, that she had been in the area for seven and one-half months, and that during that period she had made between four and five thousand dollars. When asked, "Who are you working for?”, she replied "I don’t have a pimp. It’s all for myself.”

Turning now to the authorities, the principal purposes of the void-for-vagueness doctrine, other than as a practical instrument mediating between the organs of public coercion of a state and the protection of the individual’s private interests envisaged by the Bill of Rights,2 are twofold: to give a person of ordinary intelligence fair notice that the contemplated conduct is forbidden and to discourage arbitrary arrests and convictions. Papachristou v. City of Jacksonville, 405 US 156, 92 S Ct 839, 31 L Ed 2d 110 (1972). The void-for-vagueness doctrine has traditionally rested on the Due Process Clause of the Fourteenth Amendment. In City of Portland v. James, 251 Or 8, 444 P2d 554 (1968), the Oregon Supreme Court indicated that the vagueness doctrine could also rest on the probable [865]*865cause requirement of the Fourth Amendment because a vague statute does not provide sufficiently ascertainable standards from which a reasonably prudent man could form a belief in the guilt of the accused.

In James the Supreme Court construed the following ordinance and held it void for vagueness:

" 'Between the hours of 1 and 5 o’clock A.M. it shall be unlawful for any person to roam or be upon any street, alley or public place, without having and disclosing a lawful purpose.’ ” 251 Or at 9.

The court held that the phrase "without * * * disclosing a lawful purpose,” allowed "arrests on suspicion” and that

"* * * gince the conduct manifesting an 'unlawful purpose’ need not manifest a purpose to commit a specific crime, the officer is authorized to arrest if the conduct suggests to him that the suspect has in mind the commission of some type of crime, even though the officer does not know what crime the suspect has in mind. * * *” 251 Or at 13.

The court held the ordinance vague because it invites arbitrary and discriminatory enforcement and because

"* * * To sustain the ordinance in question would be to allow a crime to be defined so as to render the requirement of probable cause to effect a valid arrest an illusory protection. * * *” 251 Or at 14.

In City of Portland v. White, 9 Or App 239, 495 P2d 778, Sup Ct review denied (1972), this court construed an ordinance which prohibited loitering and prowling in a manner that warrants alarm. The court held that «* * * The terms 'loiter’ and 'prowl’ standing alone are so elastic that men of common intelligence must necessarily guess at their meaning. * * 9 Or App at 242, and that the narrowing language "in a manner not usual for law abiding persons under circumstances that warrant alarm” was subject to the same infirmities as the "without * * * disclosing a lawful purpose” ordinance language in James.

In State v. Debnam, 23 Or App 433, 434, 542 P2d [866]*866939 (1975), this court held a statute prohibiting loitering

<<* * * in or near a school building * * *, not having any reason or relationship involving custody of or responsibility for a student, or, upon inquiry by a peace officer or school official, not having a specific, legitimate reason for being there * *

unconstitutionally vague because the

"* * * mere presence of a person in or near a school grounds for a purpose not related to the custody or responsibility of a student does not necessarily manifest a purpose to commit a specific crime. * * *” 23 Or App at 436-37.

These Oregon cases have developed the requirement that a criminal enactment, when it purports to proscribe vaguely described activity like loitering, must modify or circumscribe the vaguely described activity by reference to specific or nonvague conduct. The requirement that the vaguely described activity be circumscribed by reference to specific conduct is fulfilled when the reference is to an already existing nonvague criminal enactment or when the enactment itself delineates in its modifying language a specific nonvague offense.

We conclude that Section 14.24.050 of the Code of the City of Portland meets the Oregon requirement. The ordinance prohibits loitering "in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring” an act of prostitution.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Mello
684 S.E.2d 477 (Court of Appeals of North Carolina, 2009)
State v. Krueger
144 P.3d 1007 (Court of Appeals of Oregon, 2006)
People v. Pulliam
62 Cal. App. 4th 1430 (California Court of Appeal, 1998)
State v. Savio
924 P.2d 491 (Court of Appeals of Arizona, 1996)
City of Baton Rouge v. Ross
654 So. 2d 1311 (Supreme Court of Louisiana, 1995)
Wyche v. State
619 So. 2d 231 (Supreme Court of Florida, 1993)
City of Portland v. Levi
779 P.2d 192 (Court of Appeals of Oregon, 1989)
Coleman v. City of Richmond
368 S.E.2d 298 (Court of Appeals of Virginia, 1988)
City of Cleveland v. Howard
532 N.E.2d 1325 (City of Cleveland Municipal Court, 1987)
Dickerson v. City of Richmond
346 S.E.2d 333 (Court of Appeals of Virginia, 1986)
Christian v. City of Kansas City
710 S.W.2d 11 (Missouri Court of Appeals, 1986)
Ford v. United States
498 A.2d 1135 (District of Columbia Court of Appeals, 1985)
State v. Evans
326 S.E.2d 303 (Court of Appeals of North Carolina, 1985)
Johnson v. Carson
569 F. Supp. 974 (M.D. Florida, 1983)
City of Portland v. Miller
659 P.2d 980 (Court of Appeals of Oregon, 1983)
City of South Bend v. Bowman
434 N.E.2d 104 (Indiana Court of Appeals, 1982)
City of Portland v. Storholt
622 P.2d 764 (Court of Appeals of Oregon, 1981)
Short v. City of Birmingham
393 So. 2d 518 (Court of Criminal Appeals of Alabama, 1981)
City of Akron v. Massey
381 N.E.2d 1362 (Akron Municipal Court, 1978)
State v. Sanderson
575 P.2d 1025 (Court of Appeals of Oregon, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
557 P.2d 687, 27 Or. App. 861, 1976 Ore. App. LEXIS 1578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-juvenile-department-of-multnomah-county-v-d-orctapp-1976.