City of Portland v. Storholt
| Decision Date | 31 March 1981 |
| Docket Number | No. DA180396,No. DA183655,DA180396,DA183655 |
| Citation | 622 P.2d 764,50 Or.App. 231 |
| Parties | CITY OF PORTLAND, Appellant, v. Linda Jean STORHOLT, Respondent. CITY OF PORTLAND, Appellant, v. Grace Marie MARSHALL, Respondent. ; CA 17961,; CA 17960. |
| Court | Oregon Court of Appeals |
James E. Mountain, Jr., Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and Lawrence R. Young, Asst. Atty. Gen., Salem.
Emily Simon, Portland, argued the cause and filed the brief for respondents.
Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.
In these consolidated criminal cases, we are asked to decide the constitutionality of a Portland city ordinance defining the offense of Loitering to Solicit Prostitution. The defendants were charged with violating the ordinance. They demurred to the complaints on the ground that the ordinance was unconstitutional in that it violated the Fifth and Fourteenth Amendments. The trial court agreed and dismissed the complaints. The state appeals. We reverse and remand for trial.
The ordinance in question provides:
Defendants advance several theories to support the trial judge's conclusion that the ordinance is unconstitutional. Because it will simplify our treatment of the defendants' claims, we begin our analysis by describing what, in our view, the ordinance says. This is best accomplished by dissecting the challenged portion phrase by phrase. In reading each phrase, separately and together, we do so in light of the rule that, "(w)here a statute (or ordinance) is of questionable constitutional validity, this court's obligation is to construe it, if at all possible, to save its constitutionality." State v. Page, 45 Or.App. 417, 602 P.2d 1139 (1979).
This phrase is a limitation upon a police officer's authority. It assumes that the officer to whom it is addressed has already observed someone " * * * loiter(ing) in or near (a) street or public place in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution * * *."
In other words, this phrase begins a description of a qualification on an officer's otherwise existing authority to arrest on probable cause.
This phrase directs the officer, should he wish to make an arrest, to grant to the individual whom he is prepared to arrest an "opportunity to explain." If the officer does not do so, he cannot arrest.
The purpose of this limitation on the authority to arrest is not entirely clear; neither is the on-the-street mechanism by which it is to be effectuated. The purpose appears to be the avoidance of an unnecessary or precipitous arrest by requiring a measure of circumspection on the part of the arresting officer. It may also be intended, in whole or in part, to forestall false arrest actions. If this latter purpose was intended, the measure may prove to be singularly ill-advised, because affording the opportunity to explain does not mean that the offender will not be arrested in any event.
Turning to the question of mechanics, how is the officer to carry out the ordinance's directive, once he has determined that he has probable cause? Does he approach the suspect and say, "I'm going to arrest you unless you have some explanation for what you've been doing?" Does he simply ask for an explanation without explaining why? Does he give Miranda 1 warnings? Does he describe the statutory scheme in detail? Would a failure to describe the scheme have legal significance? The case before us carries no concrete factual situation which would aid us in answering these questions, but they all would surely arise should the ordinance be utilized and a trial on the merits ensue.
The use of the word "and" at the beginning of this phrase indicates that it is to be read in conjunction with the phrase which preceded it. Thus, we think that the ordinance contemplates that the "opportunity" shall always be offered, and the giving of an explanation has some significance. Just what this significance might be in the criminal context, however, escapes us. If read as doing anything other than requiring the officer to see if he's making a mistake, the clause is a constitutional nightmare. We note, to begin with, that acquittal is supposed to follow where the suspect's explanation was true and revealed "a lawful purpose." We assume that this freedom from liability would attach even if the explanation encompassed some illegal activity other than loitering to solicit prostitution. If this were not so, the ordinance would have substantial vagueness problems. 2
We next focus on the words, " * * * if it appears at the trial * * *." Do these words make giving or failing to give an explanation an element of the crime ? They cannot, if we are to avoid constitutional difficulties. The ordinance must be read as establishing proof of this particular fact as a special defense, complete unto itself. The prosecution thus has no right to mention defendant's silence (or defendant's explanation) in its case in chief by virtue of the language of the ordinance; 3 this matter becomes a part of the case, if at all, at the defendant's behest and during presentation of the defendant's case. 4
We conclude that the direction to the officer to afford a suspect an opportunity to explain his or her purpose is a cautionary instruction from the city council and one which might more commonly have been expected from the chief of police to be circumspect in using the ordinance. Its essentially gratuitous reference to the effect which is to be given to the truth of an explanation given to a police officer is not an authorization to the prosecution to make any reference to that matter in its case in chief.
Having described the way in which we must read the language of the ordinance, we turn now to defendants' contentions. They first contend that the portion of the ordinance under discussion shifts the burden of proof as to an element of the crime, viz., an explanation or lack thereof, to the defendant and, by so doing, violates the Due Process clause of the Fourteenth Amendment. Additionally, they maintain that it compels an accused to give testimony in violation of her Fifth Amendment right against self-incrimination.
If the effect of the challenged language in the ordinance before us were to...
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State v. Mills
...to save its constitutionality, if at all possible. State v. Crane, 46 Or.App. 547, 612 P.2d 735, rev. den. (1980); City of Portland v. Storholt, 50 Or.App. 231, 622 P.2d 764, rev. den. (1980). To achieve this end it is proper to look to legislative history to determine if the general words ......