507 F.2d 93 (9th Cir. 1974), 72-1543, Powell v. Stone

Docket Nº:72-1543.
Citation:507 F.2d 93
Party Name:Lloyd Charles POWELL, Plaintiff-Appellant, v. W. T. STONE, Warden, Defendant-Appellee.
Case Date:December 04, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 93

507 F.2d 93 (9th Cir. 1974)

Lloyd Charles POWELL, Plaintiff-Appellant,


W. T. STONE, Warden, Defendant-Appellee.

No. 72-1543.

United States Court of Appeals, Ninth Circuit

December 4, 1974

Page 94

Robert W. Peterson (argued), Santa Clara, Cal., for plaintiff-appellant.

Thomas A. Brady, Deputy Atty. Gen. (argued), San Francisco, Cal., for defendant-appellee.


Before MERRILL and BROWNING, Circuit Judges, and TAYLOR, [*] District Judge.

BROWNING, Circuit Judge:

Late one night appellant and three companions became involved in an altercation in the Bonanza Liquor Store in San Bernardino, California. Mary Parsons, wife of the manager, Gerald Parsons, was shot and killed. Ten hours later, appellant was arrested in Henderson, Nevada, for violation of a local vagrancy ordinance. Testimony regarding this arrest and the discovery of the murder weapon in appellant's jacket pocket in a search incident to the arrest, was introduced in appellant's subsequent trial for murder in the Superior Court of San Bernardino County. The California trial court rejected appellant's objection that the evidence should have been excluded because the Henderson vagrancy ordinance was unconstitutional and the arrest and search incident thereto were therefore illegal. Appellant was convicted of second-degree murder.

The conviction was affirmed by the California Court of Appeal. That court did not pass upon the constitutionality of the Henderson ordinance or the legality of the arrest and search; it affirmed on the ground that admission of the evidence, if error, was harmless under the test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court of California denied appellant's petition for habeas corpus.

Appellant then filed the present petition for habeas corpus in the federal district court. The district court denied the petition. The court did not reach the constitutionality of the Henderson vagrancy ordinance. It agreed with the California Court of Appeal that the admission of the evidence was harmless beyond a reasonable doubt. It also held that even if the Henderson ordinance were determined to be unconstitutional, the exclusionary rule should not be applied to bar admission of the fruits of the search incident to the otherwise valid arrest.

For reasons that will be set out later, we are unable to agree that admission of the evidence was harmless. We must therefore consider whether its admission was error. We conclude that it was.

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We turn first to the constitutionality of the Henderson vagrancy ordinance. The ordinance reads:

Every person is a vagrant who:

Loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when asked by a police officer to do so if surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.

This ordinance, like the vagrancy ordinance held unconstitutional in Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), 'is void for vagueness, both in the sense that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617 (74 S.Ct. 808, 98 L.Ed. 989) and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 (60 S.Ct. 736, 84 L.Ed. 1093); Herndon v. Lowry, 301 U.S. 242 (57 S.Ct. 732, 81 L.Ed. 1066).'

The offense under the Henderson ordinance has three elements: (1) 'loiter(ing) or wander(ing) upon the streets . . . without apparent reason or business,' (2) 'refus(ing) to identify himself and to account for his presence,' and (3) 'surrounding circumstances . . . such as to indicate to a reasonable man that the public safety demands such identification.'

The language of the first element is the same in substance as the language of the Jacksonville ordinance held invalid in Papachristou: 'Persons wandering or strolling around from place to place without any lawful purpose or object . . . shall be deemed vagrants.' 405 U.S. at 156-157 n. 1, 92 S.Ct. 839 at 840. 1

This language, the Supreme Court held, fails to give fair notice of the prohibited conduct to a possible offender, encompasses innocent activity that is part of the amenities of life in a free society, provides no guidelines by which enforcement authorities might distinguish between innocent and unlawful conduct, allows arrest and conviction on suspicion, places almost unfettered discretion in the hands of the police, and invites arbitrary and erratic application. If there is any material difference between the Jacksonville ordinance and the first element of the Henderson ordinance, the latter is more subject to these criticisms than the former.

The remaining two elements of the Henderson ordinance do not add significant specificity.

Assuming the phrase 'to identify himself' is clear enough, one who properly identifies himself when asked would still violate the ordinance if he refused upon request 'to account for his presence'-- a phrase that reflects all of the deficiencies and is subject to all of the abuses that underlie the ruling in Papachristou. See Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097, 1104-1105 (1968); Baker v. Bindner, 274 F.Supp. 658, 664 (W.D.Ky.1967); United States v. Margeson, 259 F.Supp. 256, 268-269 (E.D.Pa.1966). The statutes involved in these three cases predicated criminality upon the offender's failure to give a 'good' or 'satisfactory' account of his presence. This condition is not explicitly stated in the Henderson ordinance, but it is clearly implied. Appellant offered an explanation of his conduct; he was arrested because the officer did not believe it. 2

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The third element of the offense under the Henderson ordinance-- that 'surrounding circumstances . . . indicate to a reasonable man that the public safety demands such identification'-- cannot save the ordinance. Whether 'public safety demands . . . identification' is far too amorphous a standard to provide either reasonable notice to the possible offender (who, indeed, may not be aware of the circumstances that implicate the public safety), or a sufficiently specific standard to guide the police. A similar, but less vague, limitation ('circumstances which justify suspicion that (a peron) may be engaged or about to engage in crime') was found constitutionally inadequate in United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1173 (2d Cir. 1974).

From this analysis, it is clear that the Henderson vagrancy ordinance is incompatible with Fifth Amendment due process notice requirements incorporated in the Fourteenth Amendment. It should be emphasized that the ordinance is also incompatible with incorporated Fourth Amendment principles. A vagrancy ordinance of this kind 'conflict(s) with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause.' United States ex rel. Newsome v. Malcolm, supra, 492 F.2d at 1172. See also Papachristou, supra, 405 U.S. at 169-170, 92 S.Ct. 839; Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831 (1972) (enbanc), noted in 47 N.Y.U.L.Rev. 595 (1972) and 18 Vill.L.Rev. 117 (1972).

As these authorities reflect, such a vagrancy ordinance subverts the 'probable cause' requirement in two ways. It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. Wade v. United States, 457 F.2d 335, 336 (9th Cir. 1972). But more is required to justify arrest. Henry v. United States, 361 U.S. 98, 101, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). 3

The 'probable cause' requirement is negated by such vagrancy ordinances in a second way. Their language is so general and vague, the elements of the offense so obscure, that they afford no reasonable criteria by which an officer may determine whether the ordinance has or has not been violated. Because a man of reasonable caution cannot form a reasonable belief as to whether such an ordinance has been violated, an officer

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cannot 'gauge justification for (vagrancy) arrests consistly with Fourth Amendment principles.' Hall v. United States, supra, 459 F.2d at 837.


The question remains whether the evidence obtained in the search incident to appellant's arrest under the unconstitutional Henderson ordinance should have been excluded at his murder trial.

Appellee argues that the purpose of the exclusionary rule is to discourage objectionable police conduct, and this purpose would not be advanced by excluding the fruits of a search that appeared to be lawful when made. The crux of the contention is that the public interest is not served by deterring officers from enforcing a...

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