Alegata v. Com.

• Decision Date: 17 November 1967
• Citation: 353 Mass. 287,231 N.E.2d 201
• Parties: Joseph ALEGATA v. COMMONWEALTH (and four companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 201

231 N.E.2d 201

353 Mass. 287

Joseph ALEGATA v. COMMONWEALTH (and four companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 1967.

Decided Nov. 17, 1967.

Reuben Goodman, Boston (Ronald J. Chisholm, Boston, with him), for petitioner.

Warren K. Kaplan, Sp. Asst. Atty. Gen., for the Commonwealth.

Willie J. Davis, Asst. Atty. Gen., for intervener Attorney General.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

SPALDING, Justice.

These are five petitions for writs of error brought by five persons who were separately convicted of various offences in District Courts. The cases were heard together in the County Court on the pleadings and returns; no evidence was introduced. The single justice, without decision, reserved and reported all of the cases to the full court.

THE MITCHELL CASE.

Ralph K. Mitchell was convicted and sentenced to pay a fine under a complaint charging that 'being abroad in the night time and being suspected of unlawful design, (he) did not give a satisfactory account of himself.' The complaint was based on G.L. c. 41, § 98, the relevant portion of which reads: 'During the night time * * * (police officers) may examine all persons abroad whom they have reason to suspect of unlawful design, and may demand of them their business abroad and whither they are going * * *. Persons so suspected who do not give a satisfactory account of themselves * * * may be arrested by the police, * * * and taken before a district court to be examined and prosecuted.' ¹

Mitchell challenges the conviction, contending that the quoted provisions of § 98 are unconstitutional on their face because (a) they '(do) not state a crime for which punishment may be imposed and (b) the words which purport to define the prohibited conduct are vague and indefinite.' While several provisions of the Constitutions of both this Commonwealth and of the United States are invoked principal reliance is placed on art. 12 of our Declaration of Rights and the due process clause of the Fourteenth Amendment.

At the outset we must decide whether the challenged provisions of § 98 create a substantive offence. The Special Assistant Attorney General who represented the Commonwealth both in the County Court and in this court takes the position that § 98 defines a substantive offence. The Attorney General, who was permitted to intervene, argues that § 98 does no more than clothe the police with certain powers to stop, detain and arrest persons in the nighttime in certain circumstances. That section, he contends, does not define a crime. In support of this contention he argues that a contrary construction would create doubts as to the constitutionality of the statute and do violence to its history and wording. ²

We have examined the statutory history which has been set forth in the brief of the Attorney General, and are of opinion that § 98 purports to create a substantive offence. Section 98 empowers the police during the nighttime to 'examine all persons abroad whom they have reason to suspect of unlawful design, and may demand of them their business abroad and whither they are going.' The section further provides that 'Persons so suspected who do not give a satisfactory account of themselves * * * may be arrested by the police, * * * and taken before a district court to be examined and prosecuted' (emphasis supplied).

We think that in granting to the police authority to arrest and prosecute 'persons so suspected' the language of the statute compels the conclusion that a substantive offence was intended to be created. It would be strange if the power to arrest and to prosecute were granted with respect to conduct which was not criminal. We are mindful of the canon of construction that a "statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' * * * ' Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 701, 166 N.E.2d 551, 555. We are likewise mindful that all rational presumptions are made in favor of the validity of every legislative enactment. Commonwealth v. Finnigan, 326 Mass. 378, 96 N.E.2d 715. Yet we see no escape from the conclusion that § 98 purports to create a substantive offence. ³ Section 98, to be sure, provides no sanction. But elsewhere a sanction is furnished. Under G.L. c. 279, § 5, 'If no punishment for a crime is provided by statute, the court shall impose such sentence according to the nature of the crime, as conforms to the common usage and practice in the commonwealth.'

Having determined that § 98 purports to create an offence, we now turn to the petitioner's objections that it proscribes conduct which cannot constitutionally be made criminal and that it is too vague and indefinite.

Except to the limited extent discussed in Commonwealth v. Lehan, 347 Mass. 197, 196 N.E.2d 840, the constitutionality of § 98 has never been passed upon. In the Lehan case it was held only that § 98 'constitutionally permits a brief threshold inquiry where suspicious conduct gives the officer 'reason to suspect' the questioned person of 'unlawful design,' that is, that the person has committed, is committing, or is about to commit a crime.' P. 204, 196 N.E.2d p. 845. The invalidity of the statute on the broader grounds now urged was left undecided in Commonwealth v. Lawton, 348 Mass. 129, 132, 202 N.E.2d 824.

Mitchell argues, in part, that § 98 is unconstitutional under the Constitutions of this Commonwealth and of the United States inasmuch as it authorizes arrest upon mere suspicion of unlawful design rather than upon probable cause to believe a crime has been committed. It is a well settled constitutional command that arrests may be made only upon probable cause and not on mere suspicion. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441. Commonwealth v. Lehan, 347 Mass. 197, 202--205, 196 N.E.2d 840. Henry v. United States, 361 U.S. 98, 100--101, 80 S.Ct. 168, 4 L.Ed.2d 134. Here it cannot be said that Mitchell was arrested upon suspicion alone. Acting in a suspicious manner is but one element of the offence charged. Thus we need not consider whether § 98 amounts to a circumvention of probable cause requirements, ⁴ because other provisions of § 98, in so far as they authorize an arrest and prosecution rather than a brief threshold inquiry, render the statute unconstitutional on its face. We refer to those portions of the statute which empower the police, after having examined suspicious persons abroad in the nighttime and demanded of them their business abroad and 'whither they are going,' to arrest and prosecute '(p)ersons so suspected who do not give a satisfactory account of themselves.'

The enumerated elements of the offence, considered singly, could not constitute a crime. Being abroad in the nighttime no more imports sinister conduct than does the act of sauntering and loitering proscribed by the ordinance held to be invalid in Commonwealth v. Carpenter, 325 Mass. 519, 91 N.E.2d 666. Yet the statute literally applies to all persons, however innocent their conduct may be, who are abroad at night, arouse the suspicion of a police officer, and, subsequently, fail to give a satisfactory account. It is hard to see how suspicion of unlawful design or failure to give a satisfactory account, without more, can transform otherwise innocent behavior into a crime. Suspicion, which is an inadequate ground for arrest, is no more satisfactory as a basis for punishment. In holding invalid a statute authorizing arrest and prosecution of a 'suspicious person' the Court of Appeals for the District of Columbia in a well considered opinion said, 'Mere suspicion is no evidence of crime of any particular kind, and it forms no element in the constitution of crime. Suspicion may exist without even the knowledge of the party who is the object of the suspicion, as to the matter of which he is suspected. The suspicion may be generated in the mind of one or more persons without even colorable foundation of truth for the suspicion.' Stoutenburgh v. Frazier, 16 App.D.C. 229, 234--235, 48 L.R.A. 220.

The problem with suspicion is that it is a subjective term incapable of providing any intelligible standard to guide either suspect or court. The absence of limiting standards leaves the citizen at the 'mercy of the officers' whim or caprice.' Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879. See Commonwealth v. Carpenter, 325 Mass. 519, 91 N.E.2d 666.

Nor can the failure to give a 'satisfactory account' cure the defects. This final prerequisite to arrest merely enhances the uncertainties of the statute in view of the imprecision inherent in the word 'satisfactory.' No statutory guidance is supplied or even hinted at as to what constitutes a satisfactory account. This leaves too much discretion in the hands of the police and the courts. See United States v. Margeson, 259 F.Supp. 256, 258 (E.D.Pa.). A "statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666, 667 and cases cited.

We hold that the portions of the statute under consideration, in so far as they purport to define a substantive offence, because of vagueness, are void on their faces as repugnant to the due process clause of § 1 of the Fourteenth Amendment to the Constitution of the United States and to art. 12 of the Declaration of Rights of the Constitution of this Commonwealth. We are not to be understood as impairing in any way our holding in Commonwealth v. Lehan which upheld the statute in so far as it permits a brief threshold inquiry in certain circumstances.

It follows that the judgment of the...