State v. Bitt

798 P.2d 43, 118 Idaho 584, 1990 Ida. LEXIS 155

• Court: Idaho Supreme Court
• Decided: September 13, 1990
• Docket: 17722
• Status: Published

Opinions

BISTLINE, Justice.

On the night of April 22, 1987, a Pocatello police officer observed the defendant Myron Bitt banging his fists against the front door of a closed convenience store. When the officer pulled his patrol car into the store’s parking lot, Bitt attempted to hide behind one of the store’s gas pumps. Bitt identified himself when asked to do so, but Bitt could not produce any written identification. When asked by the officer why he hid behind the gas pump, Bitt did not respond and attempted to leave. The officer arrested Bitt.

Myron Bitt was charged by misdemeanor complaint with violating Pocatello City Ordinance § 9.16.070. Bitt moved before trial to dismiss the complaint against him on the ground that the ordinance is facially unconstitutional. The magistrate judge dismissed the complaint, holding that the ordinance is facially unconstitutional and void for vagueness. No trial was held. The district judge affirmed the holding of the magistrate judge. For the reasons stated in this opinion, we affirm the district judge’s endorsement of the magistrate’s¹ dismissal of the misdemeanor complaint, on the ground that Pocatello City Ordinance § 9.16.070 is void for vagueness. The interpretation of an ordinance is a question of law, and we therefore exercise free review. City of Lewiston v. Mathewson, 78 Idaho 347, 351, 303 P.2d 680, 682 (1956) (“The construction of an ordinance is a question of law for determination by the court”). Part I of this opinion discusses the void for vagueness test, and Part II analyzes the Pocatello ordinance.

I. THE VOID FOR VAGUENESS TEST

An ordinance is void for vagueness when it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” and permits arbitrary or discriminatory enforcement. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The basis for this rule of law is that “[all persons] are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939) (footnote omitted). While courts recognize that “[i]n most English words and phrases there lurk uncertainties,” Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975) (quoting Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945)), a statute written in terms so ambiguous that persons “of common intelligence must necessarily guess at its meaning and differ as to its application” is unconstitutionally vague. Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). A more recent pronouncement of the reasons for the void for vagueness doctrine is included in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-299 (footnotes omitted).

Grayned has been cited with approval by this Court. In Voyles v. City of Nampa, 97 Idaho 597, 548 P.2d 1217 (1976), we explained:

The due process clause of the fourteenth amendment to the Constitution of the United States requires that a city ordinance must be definite and certain in its statement of prohibited conduct to enable a person of ordinary intelligence who reads the ordinance to understand what activity is proscribed and govern his actions accordingly. E.g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The Constitution of the State of Idaho also requires that city ordinances demonstrate a definiteness and certainty sufficient to permit a person to conform his conduct thereto. Idaho Const. Art. I, § 13; City of Lewiston v. Mathewson, 78 Idaho 347, 303 P.2d 680 (1956). See also State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952); State v. Musser, 67 Idaho 214, 176 P.2d 199 (1946). An ordinance which fulfills the requirements of certainty and definiteness still may be constitutionally infirm if its prohibition is overbroad, restricting constitutionally protected conduct. [Citation omitted.]

Voyles, 97 Idaho at 599, 548 P.2d at 1219. See also State v. Newman, 108 Idaho 5, 12, 696 P.2d 856, 863 (1985).

While the reasons for such a doctrine may be obvious, the steps in a test for vagueness have never been presented in a clear and unambiguous manner by the United States Supreme Court. See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (I960).² Moreover, the steps announced by the federal Supreme Court do not quickly and easily translate into our state system of jurisprudence. Unlike the posture of the cases before the United States Supreme Court in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), and Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), where no prosecution was pending and no showing of bad-faith enforcement or other special circumstances had been made, an earlier case which was before us in State v. Newman, 108 Idaho 5, 696 P.2d 856 (1985), and the case before us now both involve active prosecutions. This Court’s attempt at a translation of the federal vagueness test in State v. Newman will now be clarified.

Newman relies upon Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The question presented in Steffel was “whether declaratory relief is precluded when a state prosecution has been threatened, but is not pending, and a showing of bad-faith enforcement or other special circumstances has not been made.” Steffel, 415 U.S. at 454, 94 S.Ct. at 1213. The test Steffel applied to determine if declaratory relief is warranted is extremely difficult for the party requesting declaratory judgment to satisfy:

Indeed, the State’s concern with potential interference in the administration of its criminal laws is of lesser dimension when an attack is made upon the constitutionality of a state statute as applied. A declaratory judgment of a lower federal court that a state statute is invalid in toto — and therefore incapable of any valid application — or is overbroad or vague — and therefore no person can properly be convicted under the statute until it is given a narrowing or clarifying construction, [citations omitted] — will likely have a more significant potential for disruption of state enforcement policies than a declaration specifying a limited number of impermissible applications of the statute.

Steffel, 415 U.S. at 474, 94 S.Ct. at 1223. This Court in Newman, in a footnote, quoted just a portion of the test announced in Steffel. 108 Idaho at 11 n. 7, 696 P.2d at 861. Newman also cited with approval to another United States Supreme Court case, Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), which involved another “pre-enforcement facial challenge” in federal court of a city ordinance, as the first sentence of the Supreme Court’s opinion in Flipside states.

The reasons for having a hard test for a party challenging a state statute or city ordinance in federal court through a declaratory judgment proceeding include considerations of federalism, comity, and the abstention doctrine. States should be allowed to interpret and place “judicial gloss” on a state statute without this interpretation process being pre-empted by a binding judgment in federal court. Thus, Steffel “provides no authority for the granting of any injunctive relief nor does it provide authority for the granting of any relief at all when prosecutions are pending.” 415 U.S. at 479, 94 S.Ct. at 1226 (Rehnquist, J., concurring). In other words, the relief provided by a federal court in these instances will be minor, even though the barrier to that relief is great:

A declaratory judgment is simply a statement of rights, not a binding order supplemented by continuing sanctions. State authorities may choose to be guided by the judgment of a lower federal court, but they are not compelled to follow the decision by threat of contempt or other penalties.

Steffel, 415 U.S. at 482, 94 S.Ct. at 1227 (Rehnquist, J., concurring).

Contrary to our statement of the federal test in Newman, the federal Supreme Court has recognized that a vagueness challenge is more readily acknowledged if the statute challenged carries criminal penalties. In Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the United States Supreme Court case that struck down a criminal statute analogous to the Pocatello ordinance, Justice White in dissent wrote:

None of our cases “suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561-2562, 41 L.Ed.2d 439 (1974). The correlative rule is that a criminal statute is not unconstitutionally vague on its face unless it is “impermissibly vague in all of its applications.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982).

Kolender, 461 U.S. at 369-70, 103 S.Ct. at 1865 (White, J., dissenting). The Kolender majority, after recognizing that Kolender was a declaratory judgment case in which no prosecution was pending, 461 U.S. at 355 n. 3, 103 S.Ct. at 1857, responded to the dissent’s allegation that the Court had applied the wrong test:

The description of our holdings [by the dissent] is inaccurate in several respects____ [W]here a statute imposes criminal penalties, the standard of certainty is higher. This concern has, at times, led us to invalidate a criminal statute on its face even when it could conceivably have had some valid application.

Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 (citations omitted).

Keeping in mind the cases we have discussed, the steps in a test for vagueness may now be stated. First, the court must ask whether the ordinance regulates constitutionally protected conduct. If the answer to this first step is in the affirmative, then the next step asks whether the ordinance precludes a significant amount of the constitutionally protected conduct. If the answer to this step is also in the affirmative, then the ordinance is quite likely over-broad and must be restricted in its application or rewritten. But if the ordinance does not regulate constitutionally protected conduct, or if the ordinance does not preclude a significant amount of such conduct, then the next and last step is to ask whether (a) the ordinance gives notice to those who are subject to it, and (b) whether the ordinance contains guidelines and imposes sufficient discretion on those who must enforce the ordinance.

This last step can be satisfied and the enactment found constitutional with a recognition by the reviewing court, or by the party that urges the Court to find the statute or ordinance constitutional, of a core of circumstances to which the statute or ordinance could be unquestionably constitutionally applied. Where a constitutional ordinance is involved, such recognition should be a simple matter.

The reason a reviewing court prefers a recognition of the “core” of the activity targeted as criminal by the statute or ordinance is explained by the reference which the United States Supreme Court made in 1983, with approval, to a statement they made in 1876: “It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large.” Kolender'A&l U.S. at 358, n. 7,103 S.Ct. at 1858, quoting United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563, 566 (1876). In other words, if the statute or ordinance is broad enough to catch everyone, it has no core of circumstances to which it applies and is therefore unconstitutionally vague.

II. POCATELLO ORDINANCE § 9.16.070

For the reasons discussed in Part I, we confine our review to the language of the ordinance.³ The ordinance provides that:

9.16.070 Loitering and Prowling

A. It is unlawful for any person to loiter or prowl in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity.

Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object.

Unless flight by the actor or other circumstances makes it impractical, a peace officer shall prior to any arrest for an offense under this section afford the actor an opportunity to dispel any alarm which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct.

No person shall be convicted of an offense under this section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true, and if believed by the peace officer at the time, would have dispelled the alarm.

The first step in the void for vagueness test is to question whether the ordinance regulates constitutionally protected conduct. The defendant urges us to find that the ordinance impermissibly regulates the constitutionally protected right to freedom of movement. See, for example, Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). However, even if the ordinance does regulate the right to free movement, we hold that the ordinance does not regulate a significant amount of such conduct. There is therefore no reason to discuss overbreadth. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

The test for vagueness is not complete once the reviewing court has determined that the statute or ordinance is not over-broad. We must also ask whether the ordinance gives notice to those who are subject to it, and whether the ordinance provides sufficient guidelines to prevent arbitrary or discriminatory enforcement.

Does the ordinance provide sufficient notice to those who wish to avoid violating the ordinance? To avoid violating the ordinance, one should refrain from loitering or prowling “in a place at a time or in a manner not usual for law-abiding individuals.” Such loitering or prowling must “warrant alarm for the safety of persons or property.” We are certain that a reasonably intelligent individual could, if pressed, be able to form some idea of what sort of conduct the ordinance proscribes, and that may be sufficient. As the United States Supreme Court has said: “We recognize that in a noncommercial context behavior as a general rule is not mapped out in advance on the basis of statutory language.” Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974) (footnote omitted) (flag misuse statute held void for vagueness).

The fatal constitutional flaw of this ordinance is brought out when we consider whether the ordinance provides sufficient guidelines to those who must enforce the ordinance.⁴ In Kolender, the United States Supreme Court struck down as unconstitutionally vague a California stop and identify statute. The statute entrusted to the police officer on the beat full discretion to decide what constitutes “credible and reliable” identification. In any given situation, one police officer might accept a simple recitation of name and address as sufficient identification, while another officer might not. The California statute provided no guidelines to determine which officer had the correct approach to the enforcement of the statute. Similarly, the Pocatello ordinance vests complete discretion in individual police officers. As Judge Win-mill explained in his memorandum decision:

In essence, the California statute requires that an individual identify himself and explain his presence when the officer has a reasonable suspicion of criminal activity based on objective facts, while the Pocatello ordinance requires such identification and explanation where the circumstances warrant alarm for ‘the safety of persons or property in the vicinity.’

In fact, the last two paragraphs of Section 9.16.070 make clear that an individual cannot be convicted, or even properly detained, unless he fails to identify himself and offer an explanation of his presence and conduct which will dispel the officer’s alarm. In imposing this requirement, albeit in a backhanded manner, the ordinance suffers from the same constitutional infirmity that the Supreme Court ascribed to the California statute in the Kolender case. The ordinance vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the identification and explanation provisions of the ordinance and must be permitted to leave in the absence of probable cause to arrest the suspect on other charges. Inherent within such an enactment is the potential for arbitrary and discriminatory enforcement which requires invalidation of the ordinance under the void-for-vagueness doctrine.

R. 34-35. Thus, the Pocatello ordinance suffers from the same lack of enforcement guidelines as the California statute struck down in Kolender. The ordinance provides that a person cannot be arrested or convicted unless he fails to identify himself and offer an explanation of his presence and conduct which dispels the police officer’s alarm. This vests complete discretion in the hands of the police officer to determine whether the person has provided a credible and reliable explanation. The ordinance therefore creates the potential for arbitrary and discriminatory arrests condemned in Kolender, and condemned by our State Constitution.

There is another reason for finding this ordinance constitutionally infirm. This reason also brings out the lack of guidelines for the ordinance’s enforcement. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer may temporarily detain and frisk a person for concealed weapons if the officer has reasonable suspicion of criminal activity, even though probable cause for arrest is lacking. Judge Winmill compared the Terry stop requirements with the Pocatello ordinance and stated:

The Pocatello ordinance, although employing different language, utilizes the Terry standard in defining conduct which authorizes a police officer to request an identification of the suspect and an explanation of his behavior. If the suspect fails to respond or his response is inadequate, his suspicious conduct may then serve as a predicate for his arrest, detention, conviction and punishment. In this way, the Pocatello ordinance criminalizes behavior which amounts to nothing more than the type of suspicious conduct which justifies a Terry stop. By far exceeding the limited intrusion on individual privacy permitted by the Constitution where an officer observes suspicious conduct not amounting to probable cause, the Pocatello ordinance clearly violates the defendant’s rights under both the Idaho and United States Constitutions.

R. 37-38. We should keep in mind that the right to remain silent exists, before and after communication with the police. Justice White, in his concurring opinion in Terry v. Ohio, made this point perfectly clear:

There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.5

Terry, 392 U.S. at 34, 88 S.Ct. at 1886 (White, J. concurring) (emphasis and footnote supplied).

Justice Brennan, in his Kolender concurring opinion, reiterated this basic tenet of constitutional law:

We have held that the intrusiveness of even these brief [Terry] stops for purposes of questioning is sufficient to render them ‘seizures’ under the Fourth Amendment. For precisely that reason, the scope of seizures of the person on less than probable cause that Terry permits is strictly circumscribed to limit the degree of intrusion they cause. Terry encounters must be brief; the suspect must not be moved or asked to move more than a short distance; physical searches are permitted only to the extent necessary to protect the police officers involved during the encounter; and, most importantly, the suspect must be free to leave after a short time and to decline to answer the questions put to him.

Kolender, 461 U.S. 352, 364-65, 103 S.Ct. 1855, 1862 (Brennan, J., concurring) (citation omitted).

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the United States Supreme Court reversed the conviction of a person charged with violating a Texas statute that made it a criminal act to refuse to give their name and address to a police officer. The Court stated:

The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.

Brown, 443 U.S. at 52, 99 S.Ct. at 2641 (citation omitted).

Finally, we note that Judge Winmill was not alone in recognizing the vagueness of the ordinance. Magistrate Judge Beebe’s opinion had earlier identified the lack of enforcement guidelines as well:

The ball game is not over until the police have performed the duty mandated by the [ordinance] and that is where the police offer the opportunity to dispel the alarm by requesting the suspect to identify himself and account for his presence. Whether he satisfies the officer or not is a status upon which his arrest depends, and that, in the Court’s mind, is equivalent to entrusting to the police the job of judging whether an identification is ‘credible and reliable’ and that is a standardless sweep, and moment-to-moment law making, and the vesting of virtually complete discretion in the police, all of which, the Kolender case tells us, an arrest may not depend. Now, Kolender was concerned about the arrest stage, and it is too late to save the citizen from arrest, handcuffs, bail bondsmen and lawyers, when the Defendant attempts, before there is a judge or jury, to avail himself of the following clause of the [Pocatello] ordinance:

No person shall be convicted of an offense under this section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true, and if believed by the peace officer at the time, would have dispelled the alarm.

R. 14.

For the reasons stated in this opinion, the district judge’s affirmance of the magistrate’s dismissal of the misdemeanor complaint is affirmed. We also affirm the decision of Judge Beebe.

JOHNSON, J., concurs. McDEVITT, J., specially concurs.

1 . As our Court of Appeals has stated: "On appeal from an order of the district court reviewing a determination made by a magistrate, we examine the record of the trial court independently of, but with due regard for, the district court’s intermediate appellate decision." Harney v. Weatherby, 116 Idaho 904, 906, 781 P.2d 241, 243 (Ct.App.1989) (citation omitted). Although the proper consideration of a criminal appeal requires a consideration of criminal case precedent, we find no reason to modify or not to apply this civil case rule to this criminal case.

2 . See also LaFave and Scott, Criminal Law 92 (1986) (footnotes omitted):

[T]here is no simple litmus-paper test for determining whether a criminal statute is void for vagueness. This has led some to question whether there is a thread of consistency running through the Supreme Court’s decisions on this subject, although it is probably fair to conclude that a reasonable level of consistency appears once the underlying bases of the void-for-vagueness doctrine are identified.

3 . We hold that the ordinance is unconstitutionally vague, and therefore no discussion of whether Bitt’s conduct is proscribed by the ordinance is warranted. This approach is not new. For example, in Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), the United States Supreme Court considered the vagueness of New Jersey’s gangster statute. The Court did not scrutinize the criminal charge, but studied the statute instead: "If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it. It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression." Lanzetta, 306 U.S. at 453, 59 S.Ct. at 619 (citations omitted). See also State v. Lopez, 98 Idaho 581, 588, 570 P.2d 259, 266 (1976) (on rehearing September 27, 1977) (“We do not ... reach the issue of the effectiveness of the complaint since we hold that the statute is void-for-vagueness and violates appellant’s constitutional right to due process of law.")

4 . Often, the lack of enforcement guidelines is what tolls the death knell. See for example Smith v. Goguen, quoted above: ‘‘[P]erhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574, 94 S.Ct. at 1248.

5 . The Pocatello police officer would have been well within his rights had he concluded that Bitt’s activities were suspicious enough to suggest further surveillance.