615 F.2d 311 (5th Cir. 1980), 79-2671, Sawyer v. Sandstrom

Docket Nº:79-2671.
Citation:615 F.2d 311
Party Name:Edward SAWYER, Jr., Petitioner-Appellant, v. Jack SANDSTROM, as Director, Department of Corrections and Rehabilitation, Dade County, Florida, Respondent-Appellee.
Case Date:April 10, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 311

615 F.2d 311 (5th Cir. 1980)

Edward SAWYER, Jr., Petitioner-Appellant,


Jack SANDSTROM, as Director, Department of Corrections and

Rehabilitation, Dade County, Florida, Respondent-Appellee.

No. 79-2671.

United States Court of Appeals, Fifth Circuit

April 10, 1980

Page 312

Elliot H. Scherker, Asst. Public Defender, Miami, Fla., for petitioner-appellant.

H. T. Smith, Asst. County Atty., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Page 313

Before GEE, FAY and VANCE, Circuit Judges.

FAY, Circuit Judge:

Appellant Edward Sawyer, Jr. was found guilty of violating Dade County's loitering ordinance which provides:

For the purpose of this section "loitering" means the act of standing or remaining in or about any public street, public sidewalk, public overpass or public bridge, or other place specifically enumerated herein. A person commits the offense of loitering when he knowingly:

(2) Loiters in any place with one or more persons knowing that a narcotic or dangerous drug, as defined in Sections 893.01 and 893.15, Florida Statutes, is being unlawfully used or possessed.

Code of Metropolitan Dade County, § 21-31.1(b)(2) (1974). Appellant, now in state custody, 1 comes before this court to appeal the denial of his petition for a writ of habeas corpus. He asks us to decide whether his mere knowing presence at the scene of a suspected crime can be classified as criminal conduct. In essence, appellant questions whether he can be punished for having the wrong kinds of friends and for being with them on a public street. Appellant attacks the constitutionality of the loitering ordinance under which he was convicted, arguing that the ordinance is overbroad and violates his first and fourteenth amendment rights. We agree with appellant's contentions. Holding the Dade County loitering ordinance unconstitutional, we reverse the district court's dismissal of appellant's petition for writ of habeas corpus.

I. The Facts and Proceedings

During the evening hours of October 9, 1975, officers of the City of Miami Police Department set up a stakeout to observe narcotics activity around a pool hall in downtown Miami. The pool hall under surveillance was known to the police as a place where narcotics were sold, both inside and outside. During the narcotics stakeout, appellant Sawyer was observed standing in front of the pool hall with a man known to the police as "Roach." Appellant was also seen with Howard Wilamenko and Reginald Washington. "Roach," Wilamenko, and Washington were all suspected by the police to be narcotics dealers.

The police observed approximately six drug transactions in front of the pool hall that night. In each drug transaction, an unidentified buyer would walk up to either "Roach," Wilamenko, or Washington and start conversing. The police observed each unidentified buyer pass money to the dealer, in return for which the dealer would pass a tinfoil packet 2 to the buyer. Appellant Sawyer stood next to each drug dealer while the dealer consummated the alleged narcotics sale. During one such sale, a female in an orange Volkswagon took the object that the dealer gave to her, put it up to her nose, sniffed it, closed it, and put the rest in her brassiere.

The police officers at the stakeout did not observe appellant participating in any of the suspected sales of narcotics. They initially arrested him for possession of drug paraphernalia, 3 but he was never prosecuted on this charge. Instead appellant was charged by information with loitering in a place where he "well knew that narcotics or other dangerous drugs" were being "unlawfully possessed, sold, or used" in violation

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of section 21-31.1(b)(2) of the Code of Metropolitan Dade County (the loitering ordinance). Record, Exhibit I.

During his nonjury trial in county court on March 22, 1976, appellant testified that he resided in the vicinity of the pool hall, and that he was aware that this was a "heavy narcotics area." He testified that during the evening of October 9, 1975 he went to the pool hall where he met and played pool with Reginald Washington. Appellant said he was unaware of any narcotics transactions which might have been conducted by Reginald Washington, and he testified that he did not personally observe any such transactions that night. Notwithstanding his plea of innocence, the trial court found that appellant had been "in companionship or direct contact with" the persons who had been involved in the suspected drug transactions. Record, Exhibit VI, at 34. Appellant was found guilty of violating the Dade County loitering ordinance and was sentenced to sixty days incarceration, with thirty days of the sentence suspended.

The Circuit Court of the Eleventh Judicial Circuit of Florida subsequently reversed the trial court's judgment of conviction, finding the loitering ordinance to be "fatally (and facially) overbroad in that it proscribes innocent conduct which may not constitutionally be made the basis of a criminal penalty." Record, Exhibit X. The Third District Court of Appeal of Florida disagreed, however, and on petition of the State of Florida it quashed the circuit court order. In upholding the constitutionality of the ordinance and reinstating appellant's conviction and sentence, the state appellate court narrowed the definition of loitering to "imply some type of comradeship or companionship." State v. Sawyer, 346 So.2d 1071, 1075 (Fla.Dist.Ct.App.1977). The court noted that although the ordinance might be unconstitutionally applied in certain situations, this was not a ground for finding the ordinance itself unconstitutional. "Far from having an impermissibly broad prophylactic ordinance, Dade County punishes only knowing association with persons possessing or using narcotics." Id. at 1075.

Appellant subsequently filed petitions for writs of certiorari in the Supreme Court of Florida and the United States Supreme Court; both petitions were denied. 4 Having exhausted his state remedies, appellant then filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. The district court dismissed the petition, stating in its order of dismissal that...

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