State v. Bitt

798P.2d 43 Idaho, Plaintiff-Appellant, STATE of BITT,

Myron Defendant-Respondent.

No. 17722.

Supreme Court of Idaho.

Sept.

585 Jones, Gen., TEST Atty. Deputy Atty. I. THE VOID FOR VAGUENESS Jim Stahman, Boise, argued, Myrna A.I. Gen. vagueness An ordinance is void for when plaintiff-appellant. for ordinary give person it “fails to intelli contemplated gence notice that his con fair Hall, Wolfley, Jeanette Fort for defen- per by the duct is forbidden statute” dant-respondent. discriminatory enforce arbitrary or mits Harriss, 347 ment. States v. See United BISTLINE, Justice. 612, 617, 74 98 L.Ed. U.S. Alabama, 310 989 Thornhill v. 22, 1987, night April On the a Pocatel- (1940). 736, 84 L.Ed. 1093 U.S. 60 S.Ct. lo officer observed the defendant rule of law is that The basis for this “[all Myron banging against Bitt his fists persons] are entitled to be informed as front door of a closed convenience store. commands or forbids.” what the State pulled patrol When the officer car into Jersey, 306 U.S. Lanzetta v. New lot, parking attempted the store’s Bitt 618, 619, (1939)(foot 59 S.Ct. 83 L.Ed. 888 gas pumps. hide one of the behind store’s omitted). recognize note While courts that so, Bitt identified himself when asked to do English phrases there most words “[i]n produce any but Bitt could not written uncertainties,” Locke, lurk Rose v. 423 U.S. by asked the officer identification. When 48, 50, 243, 244, 46 L.Ed.2d 185 96 S.Ct. gas why pump, he hid behind the Bitt did (1975) States, (quoting Robinson v. United respond attempted to leave. 282, 286, 666, 668, 89 324 U.S. 65 S.Ct. officer arrested Bitt. (1945)),a statute written in terms L.Ed. 944 ambiguous so “of common Myron charged by Bitt was misde intelligence necessarily guess must at its complaint violating meanor Pocatello meaning application” to its and differ as City 9.16.070. Ordinance Bitt moved be unconstitutionally vague. Connally v. against complaint fore trial to dismiss the Co., 385, 391, General Constr. ground him on the that the ordinance is 126, 127, (1926). 70 L.Ed. 322 See magistrate unconstitutional. The Jacksonville, Papachristou City also v. judge complaint, holding dismissed the the ordinance is unconstitutional pronouncement A more recent vagueness. and void for No held. trial was vagueness for the reasons for the void judge holding The district affirmed the Grayned City doctrine is included in magistrate judge. For the reasons Rockford, 408 U.S. opinion, stated in this we affirm the district (1972): L.Ed.2d judge’s magistrate’s1 endorsement of the complaint, principle of due dismissal of the misdemeanor It is a basic vagueness ground is void for Pocatello that an enactment vagueness. prohibitions clearly in if are not defined. void its important terpretation Vague of an ordinance is a laws offend several val- law, First, re we that man we therefore exercise free ues. because assume Mathewson, lawful and un- view. Lewiston v. is free to steer between conduct, 347, 351, 303 P.2d lawful we insist that laws Idaho (“The ordinary intelligence rea- construction of an ordinance is a opportunity pro- to know what is question of law for determination sonable hibited, court”). accordingly. opinion may Part I of this discusses so that he act test, Vague may trap II the innocent vagueness and Part laws void Second, warning. analyzes providing ordinance. fair arbi- Pocatello ap- ney Weatherby, Appeals 116 Idaho 781 P.2d our Court of has stated: "On As (citation omitted). (Ct.App.1989) peal Al- from an order of the district court review- by magistrate, though proper consideration of a criminal a determination made indepen- appeal requires a consideration of criminal case examine the record of the trial court dently of, for, modify regard precedent, or not the district we find no reason to but with due apply appellate civil case rule to this criminal case. intermediate decision." Har- court’s reasons for such a doc trary discriminatory enforcement is While the obvious, steps trine a test for prevented, provide ex- to be laws presented have never been plicit apply standards for those who unambiguous manner clear and vague impermissibly them. A law del- Note, Supreme Court. See United States policy policemen, egates basic matters to Void-for-Vagueness The Doctrine juries on an judges, and for resolution ad Court, 109 67 Supreme U.Pa.L.Rev. basis, subjective with the attend- hoc Moreover, (I960).2 steps announced dangers arbitrary of and discrimina- ant Supreme quickly do not the federal Court tory application. system easily translate into our state 108-09, Grayned, 408 U.S. at 92 S.Ct. at posture of jurisprudence. of Unlike (footnotes omitted). 2298-299 Supreme the United States the cases before approval by Grayned has been cited with 452, Thompson, 415 U.S. v. Court Steffel Nampa, Voyles City this Court. In v. (1974), 1209, 505 94 S.Ct. 39 L.Ed.2d 597, (1976), 1217 97 Idaho 548 P.2d Flipside, Estates v. Village Hoffman explained: 1186,71 L.Ed.2d 362 455 U.S. S.Ct. (1982), pending prosecution no of the fourteenth where The due clause showing enforcement no of bad-faith amendment to the Constitution special circumstances had been or other requires city that a ordi- United States made, us case which was before an earlier in its nance must be definite and certain 5, Newman, P.2d 108 Idaho 696 v. State prohibited conduct to enable statement of (1985),and case before us now both 856 intelligence ordinary who person prosecutions. This Court’s involve active to understand what reads the ordinance the federal attempt at a translation of govern activity proscribed and his ac- is will vagueness test in v. Newman State accordingly. E.g., Grayned City v. tions clarified. 104, 2294, now be Rockford, 408 U.S. (1972); Papachristou 222 v. 33 L.Ed.2d Thomp- v. Newman relies Steffel Jacksonville, 92 405 U.S. son, 39 L.Ed.2d 415 U.S. (1972). L.Ed.2d 110 S.Ct. 31 (1974). presented in question 505 Stef- of Idaho also of the State Constitution pre- declaratory relief is was “whether fel demon- requires city ordinances prosecution has been cluded when a state certainty suffi- strate a definiteness threatened, show- pending, is not and a permit to conform cient to spe- or other enforcement of bad-faith I, Art. Idaho Const. conduct thereto. has not been made.” circumstances cial Mathewson, 13; 78 v. City Lewiston 454, 94 at 1213. Steffel, (1956). P.2d See also Idaho 680 applied to determine The test Steffel Evans, P.2d v. 73 Idaho State extremely is declaratory relief is warranted Musser, 67 Idaho v. State party requesting declarato- difficult (1946). An 176 P.2d 199 satisfy: judgment to ry certainty and requirements of fulfills the Indeed, poten- concern with the State’s constitutionally may be definiteness still in the administration interference tial overbroad, re- prohibition if its is infirm lesser dimension laws is of its criminal con- constitutionally protected stricting upon the consti- is made an attack when duct. omitted.] [Citation applied. as tutionality of a state statute feder- declaratory judgment of a lower A 548 P.2d at 97 Idaho at Voyles, is invalid in a state statute Newman, al court that 108 Idaho also See State val- incapable therefore toto—and P.2d Scott, through Supreme decisions ning Court’s Criminal Law also LaFave and 2. See omitted): probably (footnotes subject, although fair to it is on this level of consisten- that a reasonable litmus-paper conclude simple test for de- no [T]here underlying cy appears bases is void once the termining criminal statute whether a vagueness. void-for-vagueness some to are identified. This has led doctrine consistency run- is a thread of whether there federal application Contrary to our statement id overbroad —or Newman, vague person can test the federal therefore no —and recognized properly has that a be convicted challenge readily acknowledged if given narrowing clarifying is more until it construction, challenged pen- the statute carries criminal [citations omitted]—will Lawson, significant potential likely have a more alties. disruption poli- of state enforcement specifying a declaration a limit- the United States Court case that cies than analogous impermissible applications ed number of struck down a criminal statute of the statute. to the Pocatello Justice White dissent wrote: 415 at 94 at 1223. Steffel, U.S. S.Ct. “suggests one None of our cases Newman, footnote, quot This Court in in a warning received fair who has just portion in ed a of the test announced criminality of his own conduct from the 108 Idaho at 11 n. 696 P.2d at Steffel. in is nonetheless entitled statute approval also cited with to Newman language to it because the attack case, another United States warning not re similar fair Village Flipside, Estates v. of Hoffman spect might conduct to other 489, 102 455 S.Ct. 71 L.Ed.2d 362 U.S. literal within its broad and ambit. One “pre-en which involved another clearly ap a to whose conduct challenge” facial forcement federal court challenge plies may successfully not city of a as the first sentence of vagueness.” Levy, Parker v. 417 opinion in Flipside Court’s 733, 756, 2547, 2561-2562, U.S. states. (1974). The correlative having The reasons for a hard test rule is that a criminal statute is not un challenging party for a a state statute or constitutionally vague on its face unless city through ordinance in federal court vague “impermissibly it is in all of its declaratory judgment proceeding include applications.” Flip Estates Hoffman federalism, comity, considerations of side, Estates, Inc., 455 U.S. Hoffman the abstention doctrine. States should be 489, 497, 1186, 1193, 71 L.Ed.2d interpret place “judicial allowed to (1982). 362 gloss” on a state statute without this inter Kolender, 369-70, 461 U.S. at 103 S.Ct. at pretation process being pre-empted by a J., (White, dissenting). 1865 The Kolender Thus, binding judgment federal court. majority, recognizing after that Kolender “provides authority no Steffel declaratory judgment was a case which granting any injunctive relief nor does it prosecution pending, no provide authority granting 1857,responded at to the 355 prosecutions pend relief at all when are allegation ap dissent’s that the Court had ing.” 415 U.S. at 94 S.Ct. at 1226 plied wrong test: J., (Rehnquist, concurring). In other description holdings [by of our words, provided by relief a federal is inaccurate in several re- minor, dissent] court in these instances will be even spects____ imposes a statute great: [W]here though the barrier to that relief is penalties, criminal of cer- standard declaratory judgment simply A has, tainty higher. This concern at rights, binding statement of not a order times, led us to invalidate criminal stat- supplemented by continuing sanctions. ute on its face it could con- even when guid State authorities choose to be ceivably application. have had some valid judgment ed of a lower federal court, they compelled to fol at 358 n. are not U.S. (citations omitted). contempt low the decision threat penalties. other Keeping in mind the cases we have dis- cussed, steps 94 S.Ct. at 1227 in a test for Steffel, J., First, (Rehnquist, concurring). may now be stated. the court must Reese, regulates 1858, quoting ask whether the ordinance consti- United States tutionally protected If the conduct. an- U.S. L.Ed. affirmative, step words, to

swer this first is in the other if the statute or ordinance is step then the next asks whether the ordi- enough everyone, it has no broad catch precludes significant nance applies amount of the core of circumstances to which it constitutionally protected vague. conduct. If the unconstitutionally and is therefore step answer to this also affirma- tive, quite likely then the ordinance is over- II. POCATELLO applica- broad and must be in its restricted 9.16.070 ORDINANCE § tion or if the rewritten. But ordinance I, For reasons discussed Part regulate protected constitutionally does language confine our review to the conduct, pre- or if the does ordinance provides that: ordinance.3 conduct, significant clude a such amount of Loitering Prowling last step

then next and is to ask wheth- (a) gives er the ordinance notice those any person A. loi- It is unlawful for it, (b) subject are who whether the prowl ter or at a time or in a guidelines imposes ordinance contains law-abiding manner not usual for individ- sufficient discretion on those who en- uals under circumstances that warrant force the ordinance. prop- or alarm vicinity. erty the step

This can last be satisfied and the Among the circumstances which be enactment found constitutional with a rec- court, determining such considered whether ognition reviewing by the or the by is warranted is the fact that the party urges alarm the Court to find the flight upon appearance of a constitutional, actor takes statute ordinance of a officer, himself, peace identify to refuses the core circumstances to which statute manifestly him- endeavors to conceal unquestionably or ordinance could be con- object. any self or stitutionally applied. aWhere constitution- involved, recognition al ordinance is such flight by actor or other cir- Unless simple should be a matter. impractical, peace cumstances makes it prior any for an officer shall to arrest reviewing pre reason a court ac- offense under this section afford the recognition “core” fers dispel opportunity tor to alarm activity by the targeted as criminal by be warranted which would otherwise explained by the reference or ordinance identify him requesting himself which the United States presence explain his and conduct. 1983, approval, to a made with statement shall convicted of an of- they certainly in 1876: No be made “It would Legislature peace offi- dangerous if the could set a fense under section large possible comply preceding cer did not enough net to catch all of sentence, appears or if it at step courts trial fenders and leave to the true, given actor rightfully explanation by the say inside who could be de peace at the large.” if believed officer set at tained and who should be 358, 7,103 time, dispelled would have the alarm. S.Ct. at Kolender'A&l U.S. charged val to be serve to is unconstitution intended We hold that the ordinance statute, not ally it. It is the the accusation vague, no discussion of idate and therefore it, prescribes govern rule to con proscribed conduct is the ordi whether Bitt’s against transgression." approach is and warns not new. duct Lanzet nance is warranted. This ta, 453, (citations Jersey, U.S. at 59 S.Ct. example, New For v. Lanzetta omitted). Lopez, See also State v. 98 Idaho the United 59 S.Ct. 83 L.Ed. 888 (on rehearing vagueness 570 P.2d States Court considered 27, 1977) (“We September do not reach the Jersey’s gangster ... The Court did of New statute. complaint since charge, issue of the effectiveness the criminal studied scrutinize void-for-vagueness challenged that the statute is "If face the hold the statute instead: on its right appellant’s provision clause, repugnant due and violates to the law.") process of due specification of details of offense vague constitutional flaw of this step in the fatal The first void brought ordinance is out when we consider ordi ness test is to whether the provides sufficient whether the ordinance regulates constitutionally protected nance guidelines to those who must enforce urges find conduct. The defendant us to ordinance.4 In regulates impermissibly that the ordinance down as un Supreme Court struck constitutionally protected right to free stop and constitutionally vague a California See, example, dom of Kent movement. statute entrusted to identify statute. The Dulles, 78 S.Ct. U.S. full discretion police officer on the beat L.Ed.2d 1204 Shuttlesworth “credible and to decide what constitutes Birmingham, 382 U.S. given identification. In situa reliable” (1965). However, even if tion, might accept a sim one officer regulate right the ordinance does ple and address as suffi recitation of name movement, free we hold that identification, officer cient while another regulate significant does not amount provided might not. The California statute such conduct. There is therefore no reason guidelines to determine which officer no to discuss Broadrick v. overbreadth. See approach enforce had the correct to the Oklahoma, Similarly, ment of the statute. the Pocatel L.Ed.2d 830 complete discretion in lo ordinance vests complete The test for is not Judge individual officers. As Win- reviewing once the court has determined decision: explained mill his memorandum that the statute or ordinance not over- essence, re the California statute must also ask whether the ordi- broad. We quires identify an individual himself gives subject nance notice to those who are explain presence and his when the officer it, provides to and whether ordinance suspicion criminal has a reasonable guidelines prevent arbitrary sufficient or facts, activity objective while based discriminatory enforcement. requires such the Pocatello ordinance explanation where the identification provide Does the ordinance suffi for ‘the circumstances warrant alarm cient notice to those who wish to avoid persons property in safety of or the vicin violating violating the ordinance? To avoid ity.’ one should from loi refrain tering prowling or “in a at a time or fact, law-abiding paragraphs In last a manner not usual for indi two Sec- 9.16.070 make clear that an individu-

viduals.” Such tion convicted, properly “warrant alarm al cannot be or even detained, identify property.” We are certain that a rea unless he fails to him- could, sonably intelligent explanation pres- his individual self and offer an pressed, dispel be able to form some idea of what ence and conduct which will proscribes, imposing sort of conduct the ordinance officer’s alarm. In this re- may quirement, and that be sufficient. As in a backhanded man- albeit ner, Court has said: “We rec the ordinance suffers from the same ognize infirmity that in a noncommercial context be general mapped out to the havior as rule Court ascribed California statutory in advance on the basis of lan in the Kolender case. The ordinance guage.” virtually complete discretion in the Goguen, Smith v. 415 U.S. vests police to whether hands of the determine (footnote omitted) (flag suspect the identifica- misuse stat has satisfied explanation provisions of the vagueness). ute held tion and void Often, requirement guidelines that a the lack of enforcement element of the doctrine—the example gov- legislature guidelines what tolls the death knell. See for minimal establish Goguen, quoted ‘‘[P]erhaps Smith, Smith v. above: ern law enforcement.” meaningful aspect vagueness doc- most 94 S.Ct. at 1248. notice, principal trine is not actual but the other stop. justifies Terry By far permitted be to leave which ordinance and must exceeding the limited intrusion on indi- probable to ar- in the absence of cause privacy permitted by the Constitu- charges. In- vidual suspect on other rest the suspicious tion where an officer observes such an enactment is the herent within amounting probable conduct not arbitrary discriminatory potential for cause, clearly vi- the Pocatello ordinance requires invalidation enforcement which rights defendant’s under both olates the the void-for- of the ordinance under States Constitu- the Idaho and United vagueness doctrine. tions. Thus, the Pocatello ordinance R. 34-35. keep in mind that the R. 37-38. We should suffers from the same lack of enforcement exists, right to remain silent guidelines as the California statute struck before police. with the Jus- communication provides The ordinance down Kolender. after White, concurring opinion Ter- tice or convict- person that a cannot be arrested Ohio, point perfectly made this clear: ry v. identify unless he fails to himself ed nothing in the Constitution There explanation presence of his offer an policeman from ad- prevents a dispels officer’s conduct which dressing questions anyone on the complete discretion in alarm. This vests circumstances, special streets. Absent officer to determine the hands may not be de- person approached provided a credible person whether the has may coop- refuse to or frisked but tained explanation. The ordinance and reliable However, giv- go way. on his erate and for arbi- potential creates the therefore circumstances, such as proper en the discriminatory arrests con- trary and case, to me the in this it seems those condemned demned in against may briefly detained person our State Constitution. questions are di- pertinent his will while finding this reason for There is another course, him. rected to Of constitutionally infirm. This rea- answer, obliged to an- stopped is not brings guidelines lack of also out the son compelled, and refusal swers not be Terry for the ordinance’s enforcement. for an ar- furnishes no basis to answer Ohio, rest, may alert although it officer (1968), Supreme Court held L.Ed.2d 889 continued observation.5 to the need for may temporarily detain officer that Terry, 392 U.S. at weapons if person for concealed and frisk a (emphasis foot- (White, concurring) and J. suspicion of has reasonable the officer supplied). note though probable activity, even criminal Brennan, concur- in his Kolender Justice lacking. Judge Winmill for arrest is cause tenet of opinion, reiterated this basic requirements ring stop compared Terry law: stated: ordinance and with the Pocatello intrusiveness of held that the although em- We have The Pocatello stops pur- [Terry] even these brief language, utilizes the ploying different ren- is sufficient to poses questioning defining which conduct Terry standard Fourth under the them ‘seizures’ request an der police officer to authorizes a reason, precisely For Amendment. suspect an ex- of the identification person on scope seizures of the suspect If the his behavior. planation of per- Terry probable cause that less than response is inade- respond or his fails to to limit the strictly circumscribed mits is may then suspicious conduct quate, his Terry they cause. arrest, degree of intrusion his deten- predicate for serve as a brief; suspect encounters must be In this tion, punishment. conviction move or asked to not be moved criminalizes Pocatello ordinance way, the distance; physical a short more than nothing more amounts to behavior extent only to the permitted are searches suspicious conduct type of than enough sug- suspicious were Bitt’s activities have been would officer 5. The Pocatello gest surveillance. further rights he concluded had well within us, an which, case tells the Kolender police officers necessary protect Now, and, encounter; depend. during most arrest involved stage, suspect must be free to about arrest importantly, the was concerned citizen from time and to decline to to save the after a short and it is too late leave handcuffs, put arrest, him. questions bail bondsmen answer attempts, Defendant lawyers, when the 352, 364-65, Kolender, 461 U.S. jury, to avail judge is a before there (cita- J., (Brennan, concurring) following clause himself of the omitted). tion ordinance: [Pocatello] Texas, 443 U.S. In Brown v. convicted of person No shall be 61 L.Ed.2d peace section the offense under this convic- Supreme Court reversed the preced- comply with the officer did not violating charged with tion of a sentence, appears at trial or if it it a criminal act to Texas statute that made given by the actor explanation address to a refuse to their name and true, peace if believed was police officer. The Court stated: time, have dis- at the officer appellant statute under which The Texas pelled the alarm. identify him- stopped required weighty R. 14. designed to advance a self is objective large metropolitan cen- social opinion, reasons stated For the as- prevention

ters: of crime. But even mag- judge’s affirmance of the the district suming purpose to some is served com- of the misdemeanor istrate’s dismissal demanding iden- degree by stopping and also affirm the deci- plaint is affirmed. We from an individual without tification Judge Beebe. sion believing he is involved specific basis for activity, guarantees criminal JOHNSON, J., concurs. it. Amendment do not allow Fourth McDEVITT, J., specially concurs. stop objec- When such a is not based on BAKES, Justice, dissenting: Chief criteria, arbitrary the risk of tive police practices exceeds tolerable abusive a facial constitutional This case involves limits. on Pocatello attack 9.16.070, Brown, loitering and ordi- at 2641 U.S. at (citation omitted). after the nance. This ordinance modeled Code, Model Penal MPC 250.6. Judge

Finally, we note that Winmill was recognizing not alone in record does not reflect While the Magistrate Judge Beebe’s the ordinance. motion to dismiss the com- written or oral opinion had earlier identified the lack of magistrate court plaint, nevertheless the guidelines enforcement as well: Septem- decision on issued a memorandum 30,1987, dismissing complaint after the game is not over until the ber The ball considering challenge that the by defendant’s performed duty have the mandated facially unconstitutional. is the ordinance was the and where [ordinance] “that Poca- dispel magistrate the The court concluded opportunity the police offer facially is requesting suspect the to iden- tello Ordinance by alarm § violating Fourth as the presence. for his unconstitutional tify himself and account of the United States Constitu- or not is Amendment he satisfies the officer Whether denial of due of law depends, tion and as a upon which his arrest a status mind, vague overbroad.” The dis- that, equiva- by being and is and the Court’s court, memorandum deci- job of trict in a written entrusting to the the lent to sion, holding the trial court. affirmed the of is judging whether an identification Pocatello loi- stan- The court concluded reliable’ and that is a ‘credible and facially ordinance is tering prowling and moment-to-moment sweep, dardless and fourth, fifth and under the vesting virtually unconstitutional making, the of law and amendments to police, all of fourteenth complete discretion the Constitution, Rather, ruling and is under Art. facts. at issue the facially the of Idaho Constitution. courts below the ordinance is applications. unconstitutional in all its appeal is The sole issue on whether Poca A facial re- unconstitutional determination tello 9.16.070 is quires analysis any of whether there unconstitutional, i.e., whether it is “invalid setting application factual under which the incapable in toto and therefore valid of the statute would be constitutional.6 application.” Thompson, Steffel Thus, purposes of that facial constitu- 452, 474, 1209, 1223, analysis, tional this court should consider Newman, L.Ed.2d State v. any factual variant which the statute 5, 11, n. P.2d n. 7 Idaho might applied might compose a application. possible Two factual variants illustrate the broadness I given must be the consideration which The defendant’s attack on the ordinance a stat- such facial constitutional attack on apparently made a motion to dis- ute. miss; however, the record does not disclose First, I the Court must consider believe such a motion. There is no statement in ordinance would be whether the appeal on factual circum- the record the Bitt, if rath- unconstitutional the defendant charges being stances which resulted the apprehended being er than outside of the However, against filed Bitt. the defendant door, pounding on convenience store magistrate’s opinion opin- and the both inside the store and was found after hours appeal ion the district court on recite hide, attempted to and when discovered repeated in the factual scenario which is concerning his questioned presence when appeal. majority recited briefs has merely the closed convenience store inside though briefly, even the defen- those facts attempted himself identified and then magistrate’s dant’s facial attack and the further or ex- responding leave without court’s decisions are based and district plaining presence in store. the closed finding upon a is uncon- ordinance circumstances, applica- such would Under all factual cir- stitutional under prowling tion cumstances, finding that rather than a defendant’s conduct be unconstitu- applied as ordinance was unconstitutional tional? particular case. to the facts they variant would arise ap- were recited as A second factual

While the facts Bitt, clothing in dark defendant dressed pear in the briefs submitted to us and mask, ski wearing district was discovered magistrate decisions courts, night crouching behind to rule the middle of this Court not asked open window application of the loiter- bushes beneath bedroom ap- If woman. when particular 25-year-old those statute to Lawson, unmistakable core that reasonable n. law, enact- know is forbidden on its unconstitutional ment by Justice responding dissent to a face in dicta White the footnote a facial attack in not be vulnerable to should Franklin, refers to Colautti v. declaratory judgment in- such as is action 394-401, 675, 685-688, 379, 99 S.Ct. 58 439 U.S. volved in this case. (1979) Jersey, v. New L.Ed.2d 596 Lanzetta added) language in (Emphasis contained 451, 618, (1939), 59 83 L.Ed. 888 306 U.S. S.Ct. overrule Estates footnote does not Hoffman correctly White characterizes in which Justice Estates, Inc., 489, Flipside, 455 U.S. Hoffman "upshot": their 1186, or Parker L.Ed.2d 362 regulate purports Whether ... a Levy, 41 L.Ed.2d 417 U.S. 94 S.Ct. conduct, constitutionally protected it should follow Newman If we continue to unconstitutionally vague on its held stat- be facial attacks on a criminal and consider dismiss, possible vague validity all its in face it is of as set forth a motion to unless ute’s strength applications... would know that continue assess then should If fool taking place it category attack as if were particular conduct would of this facial of statute, judgment proceeding. declaratory is an there the reach within of officer, proached by attempted he people suspected committing another himself, questioned hide and when crime, identi- having probable without cause to leave, attempted fied himself but suspected believe that the crime is commit- application loitering prowl- However, claim, ted.” the defendant Bitt’s ing ordinance under those circumstances be magistrate’s analysis and both the and the unconstitutional? concurrence, majority’s misperceive the conduct which constitutes the crime under possible Those two of serveral alterna- paragraph tive factual the ordinance. The first point scenarios are sufficient to provides, out the error in the acceptance Court’s “It is unlawful for § unconstitutionality facial prowl claim raised to loiter or in a at a by the defendant inBitt this case. time or in a manner not usual for law

abiding individuals under circumstances II that warrant alarm safety per- property sons or vicinity.” The ordi- First is the City claim that Pocatello Or- nance does not authorize the “conviction dinance 9.16.0707 facially violates the punishment people suspected fourth amendment to the United States committing another crime ...” as the Constitution, and Art. of the Idaho magistrate Rather, held. the ordinance Constitution, in all circumstances. prowl makes it a crime to “loiter or in a Bitt asserts and majority has con- place at a or in time a manner not usual for firmed that the Pocatello ordinance is un- abiding law individuals under circum- constitutional on its face under the decision stances that warrant alarm for Supreme United States Court Ko- property vicinity.” It Lawson, lender v. 461 U.S. “loitering prowling” which consti- (1983), because it au- crime, tutes the not the officer’s reasonable thorizes an arrest suspicion, based on mere suspicion that another crime has been or is thereby circumventing the fourth amend- about to be committed. Accordingly, as- requirement ment only that arrests are suming that defining an ordinance a crime upon showing lawful probable cause. can be unconstitutional under the asserts, Bitt and the majority concurs with fourth amendment him, because it defines a that the Pocatello ordinance criminal- criminal act which upon is based a mere izes behavior which would otherwise activity,8 suspicion rise of criminal suspicion to a mere the ordi- activity. of criminal magistrate nance agreed court here does not and declared criminalize “mere sus- arrest, prose- picion ordinance “authorizes activity”; rather, of criminal cution punishment and conviction and makes criminal or prowling. copy Constitution, 7. For a of Pocatello acknowledges Loitering Prowling p. § 9.16.070 see 8 of years have not in "[w]e recent found a state majority opinion. directly statute invalid the Fourth Amendment____" Although appellant asserts that Pocatello S.Ct. at n. 1. While he cites to Sibron v. Ordinance § 9.16.070 is unconstitu- York, New 392 U.S. 20 L.Ed.2d tional under the fourth amendment of the Unit- (1968), holding government and its that “the Constitution, appellant ed States cites no deci- police ‘authorize conduct which sion of the United States Court which rights, trenches id., Fourth Amendment has held a statute which defines a crime to recognizes he that claims of fourth amend- violate the fourth amendment. Such a claim was made in Kolender v. Lawson, ment violations are directed toward con- duct, rather than the 75 L.Ed.2d definition of crime as set and the Thus, states, expressly United States out in declined the statute. Justice Brennan special concurring opinion to so hold. In always ‘The thus has been whether argues Justice Brennan that the Cali- particular conduct violated the would, fornia statute involved in Kolender in his Amendment, Fourth and we have not had to opinion, violate the fourth amendment. How- question purporting reach the whether state law ever, authority proposition he cites no for the to authorize such conduct also offended the crime, defining that an can Constitution." Id. violate the fourth amendment of the United proba- is the zure of Because Bitt’s claim that a criminal defendant without every Furthermore, fourth violates the amendment under ble cause. such a facial at- I application, am not here concerned with tack, upon is claim that which based the who whether or the officer arrested is in all and statute unconstitutional particular probable in had Bitt this case application, have to assume the merely cause rather than a reasonable sus- be im- penalty for such a conviction would picion the defendant Bitt had commit- prisonment, merely than- a fine. If rather prowling and in ted crime merely imprisonment, there no were City violation of Pocatello fine, seizure, there would be no and thus no Rather, I am concerned with 9.16.070. § fourth amendment issue would be raised. whether, question of if the defendant 103, Pugh, Gerstein v. Bitt of the crime of loiter- were convicted (1975). violation of § Accordingly, agree this Court should imprisoned merely rather than only directly court to ad other fined, imprison- would that conviction issue, Supreme dress this Wisconsin fourth ment constitute a violation Court, which has held that a statute similar amendment the United States Constitu- City to Pocatello Ordinance 9.16.070was § could tion under factual scenario which unconstitutional under This be considered under the statute. fourth amendment to the United States cited no Unit- Court was decision Constitution. Milwaukee v. Nel Supreme which has so of 439 ed States Court son, 149 Wis.2d N.W.2d 562 why appears to be held. The reason there Wilks, 117 Wis.2d 345 N.W.2d State v. no States decision (1984), grounds, other holding the definition of a crime Court aff'd N.W.2d 273 This Wis.2d can, itself, fourth a statute violate the amend reject Court should Bitt’s fourth recognized by Justice amendment was ment Art. claims.9 concurring opinion in his special Brennan states, question “The in which he Kolender always particular been whether

thus has Ill the Fourth conduct violated Amendment, had reach pri- and we have not Appellant’s argument, and the main purporting law whether state mary magistrate’s basis to authorize such conduct also offended below, holding court’s that Poca- district Constitution.” 9.16.070violates the tello Ordinance § possible It that a n. 1. process fifth and four- due clause which authorized procedural of the United States teenth amendments probable on less than seizure of a Appellant, the courts below Constitution. applied be held as cause could defective opinion have majority and the the fourth amendment. While claim of facial unconstitutional- based their vaguely defines which statute or ordinance upon Supreme Court’s ity the United States unconstitution- a crime has been held Lawson, supra. decision Kolender amendment due al under the fifth constitutionally infirm statute10 clause, nei- case in as was the provided: Court, nor States ther the United any of the Every person who commits knowledge, has to our any federal court disorderly con- following guilty acts a statute or ordinance ever held that (e) duct, loiters a misdemeanor: ... Who facially violates vaguely described a crime the streets or wanders to the United the fourth amendment from apparent reason place without sei- because authorizes Constitution Peterson, Constitu- as those of the United States the same 81 Idaho In State v. tion.” constitu- we wrote: "Our P.2d relating sei- provisions to searches tional (West 1970) Ann. Penal Code 10. California substantially process of law are zures and due 647(e). (1) taking flight appearance identify or and who clude the business to refuses to presence officer, account for his (2) manifestly peace or endeav- a himself by any peace so requested when officer object. The oring to conceal oneself or do, surrounding to if the circumstances ordinance, officer, peace under must the to are such as indicate to a reasonable to provide opportunity the actor with an public safety man that the demands alarm, conviction. dispel or there can be no such identification. However, provide the to actor’s failure added.) (Emphasis The California courts and reli- identification was “credible their loitering had held that con statute able,” offense, is not an element of the elements, (1) loitering tained or wan two placed no burden is on the defendant to dering upon place the streets or from to provide “credible and reliable” identi- such place, refusal to oneself. identify Merely opportu- proffering fication. of an Soloman, People Cal.App.3d nity dispel alarm in itself vio- to does not Cal.Rptr. The courts California right process, late to due nor does it one’s had the the require construed ordinance to right against the abrogate self-incrimina- suspect provide to a “credible and reliable” Rather, merely permits the officer tion. The United identification. inquiry to make a threshold to evaluate the Court in concluded stat and to situation determine whether the by ute as construed the Court of California “circumstances warrant alarm for the safe- Appeal unconstitutionally “is vague within ty persons vicinity.” or property in the meaning the Due Process Clause This dispels feature fatal by failing the Fourteenth Amendment to clarify sug- constitutional flaw of contemplated what this ordinance re quirement suspect provide gested a majority by a ‘credi providing the ble and reliable’ identification.” 461 U.S. guidelines necessary to determine whether at 75 L.Ed.2d at 903. approach an had made officer the correct The court in Kolender enunciated the void- to the enforcement of the The statute. for-vagueness test as follows: procedure loitering identification stated, generally void-for-vague- As prowling ordinance is no than in a different requires ness doctrine penal that a stat- suspected burglary. example, if For ute define the criminal offense suf- defendant Bitt had been found inside the people ficient definiteness that ordinary store, closed convenience than out- rather can prohibit- understand what conduct is door, pounding side on the the officer ed and in a manner that does not encour- would have been entitled ask him to to age arbitrary and discriminatory enforce- so identify himself that the officer could Flipside, ment. Estates v. Hoffman owner, determine whether he was or a Estates, Inc. Hoffman burglar. suspect aIf under those circum- U.S. at S.Ct. at 1858. identify stances could himself and establish However, the Pocatello differs there, legitimate a reason being a bur- from the California statute in re- several would, course, prevent- glary arrest be Foremost, spects. unlike the California suspect If identify ed. could not him- statute, the Pocatello ordinance does reasonably presence, self explain or identify make the defendant’s refusal likely burglary. he arrested for himself an element of the For a offense. requires fact that mere the ordinance prose- conviction suspected person officer cutor prove that the defendant was opportunity dispel alarm before or “in a a time can be convicted under the ordinance does law-abiding not usual manner requirement put suspect on the individuals under circumstances that war- “provide ‘credible or reliable’ identifica- rant alarm for tion,” as was the case in nor property vicinity.” “circum- does it make defendant’s refusal an stances that warrant alarm” include identify, they may refusal to also in- element of the crime as situation was the in is cordingly, with the California statute involved Ko- the ordinance not unconstitu- every application lender. tional in under either the fourth amendment of the United States jurisdictions Since several or the due clauses of Constitution interpreted have their similar MPC-based the fifth and fourteenth amendments of the prowling statutes in this man- Constitution, or under Art. United States upheld constitutionality ner and have their 17, of the Idaho Constitution. vagueness/due pro- on a void for a facial analysis. e.g., City cess See Milwaukee judgments I would reverse the Nelson, v. 149 Wis.2d 439 N.W.2d 562 magistrate di- and district courts with State, (Fla. Watts v. 463 So.2d 205 complaint. to reinstate the rections 1985), State, (Ga. Bell v. 313 S.E.2d 678 1984), contra, Omaha, City Fields v. Justice, BOYLE, dissenting: (8th Cir.1987). I join 810 F.2d would opinion respectfully I dissent from the Wisconsin, Courts of Florida agree the Court and cannot that Pocatello Georgia upholding in constitution- is Ordinance 9.16.070 uncon- The ality of this MPC-based ordinance. incapable appli- stitutional and valid ordinance defines the crime “with suffi- Although may argu- cation. the ordinance ordinary people can cient definiteness inapplicable ably present under the facts prohibited understand what conduct is join majori- I and circumstances cannot encourage not arbi- a manner does every opinion it in ty which invalidates trary discriminatory enforcement.” adopt inter- application. I the same at 1858. Supreme Court pretation as the Wisconsin The ordinance found unconstitutional Nelson, v. Milwaukee distinguished can be on another Kolender (Wis.1989), and hold that the N.W.2d 562 loi- basis. The Kolender statute outlawed not unconstitutional tering wandering “upon or the streets or Likewise, purposes. all the ordinance place____” place from The Kolender facial is not unconstitutional on void for “implicate[d] court found that the statute is dis- vagueness/due process analysis and right consideration the constitutional tinguishable from the California statute at of movement.” 461 U.S. freedom Lawson, S.Ct. at 1859. Pocatello 1855, 75 L.Ed.2d 903 Accord- however, wandering directed respectfully ingly, I dissent. place place,” from “upon the streets or sketchy facts in this case was but from the private proper-

directed toward capable of a

ty. The Pocatello ordinance

constitutionally application where valid charged “prowl[ing] in a person is 798 P.2d 55 or usual for place at a time in manner not under circum- law-abiding HAGLER, individuals Claimant-Appellant, Elsie M. safety warrant alarm for the stances that vicinity.” property in the persons TECHNOLOGY, INC., Employ- MICRON darkly-clothed and example of the er, Company, and Mission Insurance crouching in the bushes out- masked man Surety, Defendants-Respondents. single of a wom- side the bedroom window night the middle of the apartment an’s No. 17610. ap- surely would constitute a of Idaho. prohibition plication the ordinance’s prowl[ing] in a against “loiterpng] or Sept. in manner usual for time or circum- law-abiding individuals alarm for the that warrant

stances vicinity.” Ac- property

Case Details

Case Name: State v. Bitt

Court Name: Idaho Supreme Court

Date Published: Sep 13, 1990

Citation: 798 P.2d 43

Docket Number: 17722

Court Abbreviation: Idaho