People v. Smith

• Decision Date: 18 April 1977
• Docket Number: Docket No. 27187
• Citation: 254 N.W.2d 654,75 Mich.App. 64
• Parties: PEOPLE of the City of Dearborn, Plaintiff-Appellee, v. Prentice Craig SMITH, Defendant-Appellant. 75 Mich.App. 64, 254 N.W.2d 654
• Court: Court of Appeal of Michigan — District of US

Page 654

254 N.W.2d 654

PEOPLE of the City of Dearborn, Plaintiff-Appellee, v. Prentice Craig SMITH, Defendant-Appellant.

Docket No. 27187.

75 Mich.App. 64, 254 N.W.2d 654

Court of Appeals of Michigan.

April 18, 1977.

Released for Publication June 22, 1977.

[75 MICHAPP 65] Wayne County Neighborhood Legal Services by Craig P. Colby, River Rouge, for defendant-appellant.

William C. Mulcahy, City Atty., Dearborn, for plaintiff-appellee.

Before KAUFMAN, P. J., and BRENNAN and O'HARA, ^* JJ.

V. J. BRENNAN, Judge.

Plaintiff and defendant, Prentice Craig Smith, have stipulated to the facts and record on appeal. Pursuant to GCR 1963, 705.20(i), the trial judge certified the stipulation, which we recognize as the settled record in the case. The stipulation appears as follows:

[75 MICHAPP 66]

"STIPULATION AS TO FACTS, RECORD AND ISSUE ON

APPEAL

"On May 24, 1974, Defendant was driving an automobile within the Dearborn city limits. The owner was in the back seat; another passenger was in the front. Two Dearborn police officers stopped the car when they observed the owner drinking from a beer can.

"When the officers reached the car they saw a plastic bag of marijuana on the floor of the rear seat, and they smelled marijuana when the car door was opened. A search turned up a partially-smoked marijuana cigarette under the right floormat and another in the ashtray.

"Defendant was convicted in a non-jury trial of violating Dearborn Ordinance No. 72-1756, Section 2(3), which reads:

" 'No person shall loiter in any place within the City of Dearborn where marijuana or paraphernalia used or adapted for use with marijuana are used, sold, dispensed, furnished, given away, or stored, or otherwise illegally kept.'

Defendant was sentenced to pay a fine of $50 or serve 10 days in the House of Correction. He paid the fine and now appeals.

"The parties agree that the ordinance was construed by the trial court to apply only to persons who loiter where they know marijuana or paraphernalia is used, etc."

On appeal, we perceive the question involved to be whether the ordinance, which prohibits loitering in any place within the city of Dearborn where marijuana or paraphernalia used or adapted for use with marijuana are used, sold, dispensed, furnished, given away, or stored, or otherwise illegally kept is so vague as to violate the First Amendment right of association.

In Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), the Supreme Court discerned [75 MICHAPP 67] that while freedom of association is not explicitly enumerated in the First Amendment, the right has long been held implicitly part of First Amendment guarantees. Consequently, freedom of association must be classed as a "fundamental right" within the "penumbra" of the First Amendment. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

Once found to be "fundamental", a right cannot be infringed by regulation unless justified by a "compelling state interest". Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1972). Further, even assuming such compelling state interest, the regulation cannot stand if any "less drastic way" of satisfying its intended purpose appears. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

The "compelling state interest" of the ordinance in the instant case is "to make unlawful the trafficking in, possession or use of marijuana and certain paraphernalia used with the marijuana". The initial issue then becomes whether the ordinance is "narrowly drawn" and formidable enough to withstand constitutional attack or whether "less drastic" means exist by which the interest of the government can be properly served.

" Loitering" is generally defined as being dilatory, standing idly, lingering or delaying. People v. Morris, 66 Mich.App. 514, 239 N.W.2d 649 (1976). In Detroit v. Hodges, 13 Mich.App. 531, 534, 164 N.W.2d 781, 782 (1968), the Court notes:

"The word 'loiter' has no sinister meaning and, by itself, implies no wrongdoing or misconduct or engagement in prohibited practices."

Thus, loitering is not a crime in itself and cannot[75 MICHAPP 68] be punished constitutionally. More is required, as we recently stated in Morris:

"Rather, some conduct deleterious to the public good must be connected to the loitering. In this case, that conduct is the knowing acquiescence of narcotics paraphernalia in an individual's presence." People v. Morris, supra, 66 Mich.App. at 519, 239 N.W.2d at 652.

The Dearborn ordinance makes loitering "in any place within the City of Dearborn where marijuana or paraphernalia used or adopted for use (illegally)" a crime. (Emphasis added.) The ordinance states "any place" and makes mere presence in that place a crime. We question whether this ordinance is so narrowly drawn as to be a minimal infringement upon the First Amendment right of free association. We must decide whether less drastic ways may exist to curb trafficking in marijuana.

One approach could be to prohibit loitering with intent to acquire or use a forbidden substance. One jurisdiction has adopted this approach and its constitutionality has been upheld. People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (1969). See also Anno: Validity, Construction, and Application of Statutes Prohibiting Loitering for the Purpose of Using or Possessing Dangerous Drugs, 48 A.L.R.3d 1271.

The Supreme Court has stated courts "will not presume that the statute curtails constitutionally protected activity as little as possible". NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). Therefore, no presumption can be drawn that the ordinance in question is the least drastic infringement of protected rights. On the contrary, other states have been able to draft laws more narrowly and demonstrate that less drastic [75 MICHAPP 69] measures are available to serve the governmental purpose of curtailing drug traffic. People...