254 N.W.2d 654 (Mich.App. 1977), 27187, People v. Smith

Docket Nº:Docket No. 27187.
Citation:254 N.W.2d 654, 75 Mich.App. 64
Opinion Judge:Before KAUFMAN, P J, and BRENNAN and O'HARA, JJ
Party Name:PEOPLE of the City of Dearborn, Plaintiff-Appellee, v. Prentice Craig SMITH, Defendant-Appellant.
Judge Panel:Before KAUFMAN, P.J., and BRENNAN and O'HARA, [*] JJ.
Case Date:April 18, 1977
Court:Court of Appeals of Michigan
 
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Page 654

254 N.W.2d 654 (Mich.App. 1977)

75 Mich.App. 64

PEOPLE of the City of Dearborn, Plaintiff-Appellee,

v.

Prentice Craig SMITH, Defendant-Appellant.

Docket No. 27187.

Court of Appeals of Michigan.

April 18, 1977

        Released for Publication June 22, 1977.

Page 655

       [75 Mich.App. 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 Mich.App. 66]

"STIPULATION AS TO FACTS, RECORD AND ISSUE ONAPPEAL

"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

Page 656

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 that while freedom of association is [75 Mich.App. 67] 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...

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