459 F.2d 831 (D.C. Cir. 1971), 20711, Hall v. United States

Docket Nº:20711.
Citation:459 F.2d 831
Party Name:Lloyd A. HALL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 17, 1971
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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459 F.2d 831 (D.C. Cir. 1971)

Lloyd A. HALL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 20711.

United States Court of Appeals, District of Columbia Circuit.

December 17, 1971

Argued June 19, 1969.

As Amended Jan. 7, 1972.

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Mr. Russell B. Pace, Jr., Washington, D. C. (appointed by this Court), for appellant.

Mr. Carl S. Rauh, Asst. U. S. Atty., for appellee. Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Victor W. Caputy, Asst. U. S. Atty., and Lee A. Freeman, Jr., Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee. Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., also entered appearances for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON and ROBB, Circuit Judges, sitting en banc.

ON REHEARING EN BANC

SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

The question before us is whether evidence of appellant's possession of narcotics, discovered on a search accompanying his arrest under the District of Columbia Narcotic Vagrancy Act, 1 was admissible in a prosecution leading to his conviction under federal narcotic laws. 2 The arrest and search antedated our holdings in Ricks v. District of Columbia (Ricks I) 3 that three subsections of the District's general vagrancy statute, and in Ricks v. United States (Ricks II) 4 that two subsections of the Narcotic Vagrancy Act, including the one our appellant ostensibly violated prior to his arrest, could not constitutionally support criminal convictions. We now hold that appellant's timely motion to suppress the challenged evidence should have been honored and, in consequence, that his conviction must be reversed. 5

I

At about 2:00 o'clock on the morning of Saturday, May 28, 1965, two plainclothes officers on narcotic vagrancy detail watched appellant and another man as they walked up and down a block in Southeast Washington. Both were known to one of the officers as drug users but, as the other officer put it at trial, "[t]hey weren't really doing anything." About ten minutes later, the officers approached appellant and his companion. In answer to questions, appellant produced identification and said that he was unemployed, had injected two capsules of heroin two days before, and had come to the Southeast area to be with friends. The officers informed appellant that a narcotic vagrancy observation had been noted. 6

The next night, at about the same time on a different street, the two officers saw appellant in the company of three men whom the officers recognized as

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drug users. A similar conversation followed, and appellant was advised that a second narcotic vagrancy observation had been made. Appellant was also told that upon a third observation he would become subject to arrest. 7

The same officers spotted appellant at about 2:00 o'clock on the morning of Saturday, June 5, 1965, this time standing in front of a restaurant. A few minutes later, appellant was joined by a man the officers knew as a drug user, and a woman without any known involvement with narcotics. Appellant and the woman walked off arm-in-arm, accompanied by the man, and a little more than a block further the officers stopped them. In response to questioning, appellant stated that he had injected one capsule of heroin the day before, was unemployed, and was in the area to see friends. The officers arrested appellant under the Narcotic Vagrancy Act, searched him, and found the drugs that underlie the conviction under review. 8

Following indictment, appellant moved for suppression of any evidence of the seizure of the narcotics. The motion, grounded on the claim that his arrest did not comport with the Fourth Amendment, was twice denied. 9 At trial, by the court, both officers testified to the discovery of the drugs during the search. As stated, appellant was found guilty as charged.

II

Immediately before the confrontation that led to his arrest, appellant was exercising one of the most ordinary yet most fundamental elements of personal liberty. 10 He and two others were walking down a public sidewalk. They had gone little more than a block when they were stopped and interrogated. Police officers asked appellant to give "a good account of himself, " 11 and he answered that he had come to the area to be with his friends. This explanation was rejected, and appellant was arrested pursuant to Subsection (C) of the Narcotic

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Vagrancy Act 12 and was immediately searched. The record makes it evident that the arrest came solely in consequence of what the officers viewed as a violation of Subsection (C). 13

*****

* * *

That subsection is one of the two provisions 14 Ricks II 15 held to be too imprecise in its proscriptions to authorize a conviction consistently with due process of law. 16 In neither of those subsections could we find "a degree of specificity that would enable citizens of ordinary intellect to distinguish wrong from right, or administrators or jurists to confidently make applications." 17 On the contrary, their provisions, we said, "fall short of the constitutional dictate that criminal conduct be defined with reasonable certainty, " 18 and "open the door wide to convictions on suspicion in lieu of proof of criminality." 19

Indubitably, then, appellant could not have been imprisoned for activity within the sweep of Subsection (C). 20 But the fact that we are not faced with a conviction of narcotic vagrancy does not mean that the uncertainty in Subsection (C) can simply be ignored. Statutory vagueness, it is apparent, may produce an unconstitutional interference with personal freedom even when incarceration is not involved. 21 Many years ago the Supreme

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Court declared that "it is not the penalty itself that is invalid, but the exaction of obedience to a rule or standard that is so vague and indefinite as to be really no rule or standard at all." 22 The Court has also pointed out that "[t]he vices inherent in an unconstitutionally vague statute" include not only "the risk of unfair prosecution" but also "the potential deterrence of constitutionally protected conduct." 23

We are obligated, then, to scrutinize any governmental restriction on the citizen's liberty of movement imposed under color of a statute obscure in meaning, 24 and in the litigation before us there is more than the usual reason to do so. The case is in the posture of an arrest and concomitant search, on the one hand attacked as violative of Fourth Amendment guaranties. The search, on the other hand, is sought to be justified as one incidental to an arrest under a statute then presumptively valid. So, with the opposing contentions focusing on appellant's arrest pursuant to Subsection (C) and the search that followed, the Fourth Amendment is directly implicated. We turn, then, to examine Subsection (C) and its impact on appellant in light of the Reasonable Search and Seizure Clause 25 of that Amendment. 26

II

Neither Congress in fashioning a statute, 27 nor a law enforcement officer in executing a statute, 28 is free to compromise or ignore the Fourth Amendment. 29 The validity of an arrest

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and incidental search is not necessarily established by the fact that the arresting officer's action was endowed, expressly or impliedly, with power statutorily conferred. 30 A legislature may not "authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct." 31 On the contrary, police conduct effecting the arrest of a citizen however it comports with a statute, must in the end pass constitutional muster. 32

An inexorable command of the Fourth Amendment is that no arrest, and no search not incidental to a valid arrest, may stand save upon probable cause. 33 That mandate, we are convinced, was disregarded in this case. For although Subsection (C) purports to define a substantive offense, it does so in language so ambiguous as to intercept suspected as well as actual criminality-and even innocent conduct-and thus it precipitates arrests on conjecture alone. 34 And the administrative policies shaping enforcement of the statute, as will appear, 35 have in practice led to arrests on suspicion of other activity prohibited by the legislature without reasonable ground which would justify an arrest therefor.

We first examine the legislation. Vagrancy laws have as a class long been thought to facilitate arrests on sheer speculation. 36 Their use to gain custody of reputed perpetrators of more serious offenses for which probable cause to arrest is lacking has ofttimes been the topic of critical comment. 37 So also has been their use to place in custody persons who, because they fall within some hazy definition of the status of vagrancy, are assumed likely to be or to become persons who have committed or are likely to commit acts prohibited by the legislature. 38

Subsection (C) is plainly open to these attacks. The Narcotic Vagrancy Act makes "being a vagrant" a misdemeanor, 39 and Subsection (C) defines as a vagrant any narcotic drug user or convicted narcotic offender who "wanders about in public places at late or unusual hours of the night . . . and fails to give a good account of himself." 40 As in Ricks II we held, this effort to create a substantive status crime-an aspect of the status crime of vagrancy 41 -was void for vagueness. 42 In the case at bar, Subsection (C) is unveiled as more than just an abortive

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legislative attempt to erect a new substantive offense. The dimness in meaning which leaves its boundaries beyond the citizen's ability to identify does the same for policemen called upon to...

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