D., Matter of

• Citation: 27 Or.App. 861,557 P.2d 687
• Parties: In the Matter of D., a minor child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. D., a minor child, Appellant.
• Decision Date: 27 December 1976
• Court: Oregon Court of Appeals

Page 687

557 P.2d 687

27 Or.App. 861

In the Matter of D., a minor child.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. D., a minor child, Appellant.

Court of Appeals of Oregon.

Argued and Submitted July 22, 1976.

Reargued and Submitted Sept. 24, 1976.

Decided Dec. 27, 1976.

Alan Baily, Juvenile Law Center, Portland, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

John W. Osburn, City Atty., Portland, filed a brief amicus curiae for the City of Portland. With him on the brief was Richard A. Braman, Sr., Senior Deputy City Atty., Portland.

Before THORNTON, P.J., and TANZER and RICHARDSON, JJ.

THORNTON, Presiding Judge.

This is an appeal from an order of the juvenile court finding that it had jurisdiction pursuant to ORS 419.476(1)(a) ¹ over D., a 16-year-old child. The juvenile court found that the child had violated Section 14.24.050 of the Code of the City of Portland, which provides:

'Loitering to solicit prostitution. As used in this section, 'prostitution' means an act of sexual intercourse or sodomy between two persons, not married to each other, in return for the payment of money or other valuable consideration by one of them.

'* * *

'(b) It is unlawful for any person to loiter in or near any 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. Among the circumstances which may be considered in determining whether such purpose is manifested are that the person repeatedly beckons to, stops or attempts to stop, or engages male passersby in conversation, or who repeatedly stops or attempts to stop motor vehicle operators by hailing them or gesturing to them. No arrests shall be made for a violation of this subsection unless the arresting officer first affords the suspected person an opportunity to explain his or her conduct, and no one shall be convicted of violating this section if it appears at the trial that the explanation given was true and disclosed a lawful purpose.'

The child makes three primary contentions on appeal: (1) that Section 14.24.050 is unconstitutional in that it is vague and overbroad; (2) that the court below erred in admitting statements made by her to the arresting officers prior to the time the officers advised her of her constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694, 10 A.L.R.3d 974 (1966); and (3) that it was not proven beyond a reasonable doubt that she had violated Section 14.24.050.

The facts are not disputed. On January 2, 1976, two police officers of the city of Portland observed D. walking up and down the sidewalk in a 'high vice area' within five blocks of her house. During the 10 to 15 minutes she was under observation, the officers noted that the minor walked up and down a single city block about a dozen times and would, when cars slowed, lean over and look into cars driven by older males. On one occasion she made a gesture toward a male passenger and the two engaged in a brief conversation.

Following this period of observation, the officers drove up to the child and questioned her. During the course of the conversation she admitted that she was a prostitute, that she had been in the area for seven and one-half months, and that during that period she had made between four and five thousand dollars. When asked, 'Who are you working for?', she replied 'I don't have a pimp. It's all for myself.'

Turning now to the authorities, the principal purposes of the void-for-vagueness doctrine, other than as a practical instrument mediating between the organs of public coercion of a state and the protection of the individual's private interests envisaged by the Bill of Rights, ² are twofold: to give a person of ordinary intelligence fair notice that the contemplated conduct is forbidden and to discourage arbitrary arrests and convictions. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The void-for-vagueness doctrine has traditionally rested on the Due Process Clause of the Fourteenth Amendment. In City of Portland v. James, 251 Or. 8, 444 P.2d 554 (1968), the Oregon Supreme Court indicated that the vagueness doctrine could also rest on the probable cause requirement of the Fourth Amendment because a vague statute does not provide sufficiently ascertainable standards from which a reasonably prudent man could form a belief in the guilt of the accused.

In James the Supreme Court construed the following ordinance and held it void for vagueness:

"Between the hours of 1 and 5 o'clock A.M. it shall be unlawful for any person to roam or be upon any street, alley or public place, without having and disclosing a lawful purpose." 251 Or. at 9, 444 P.2d at 554.

The court held that the phrase 'without * * * disclosing a lawful purpose,' allowed 'arrests on suspicion' and that

'* * * Since the conduct manifesting an 'unlawful purpose' need not manifest a purpose to commit a specific crime, the officer is authorized to arrest if the conduct suggests to him that the suspect has in mind the commission of some type of crime, even though the officer does not know what crime the suspect has in mind. * * *' 251 Or. at 13, 444 P.2d at 556.

The court held the ordinance vague because it invites arbitrary and discriminatory enforcement and because

'* * * To sustain the ordinance in question would be to allow a crime to be defined so as to render the requirement of probable cause to effect a valid arrest an illusory protection. * * *' 251 Or. at 14, 444 P.2d at 557.

In City of Portland v. White, 9 Or.App. 239, 495 P.2d 778, Sup.Ct. Review denied (1972), this court construed an ordinance which prohibited loitering and prowling in a manner that warrants alarm. The court held that '* * * The terms 'loiter' and 'prowl' standing alone are so elastic that men of common intelligence must necessarily guess their meaning. * * *.' 9 Or.App. at 242, 495 P.2d at 779, and that the narrowing language 'in a manner not usual for law abiding persons under circumstances that warrant alarm' was subject to the same infirmities as the 'without * * * disclosing a lawful purpose' ordinance language in James.

In State v. Debnam, 23 Or.App. 433, 434, 542 P.2d 939 (1975), this court held a statute prohibiting loitering.

'* * * in or near a school building * * *, not having any reason or relationship involving custody of or responsibility for a student, or, upon inquiry by a peace officer or school official, not having a specific, legitimate reason for being there * * *,'

unconstitutionally vague because the

'* * * mere presence of a person in or near a school grounds for a purpose not related to the custody or responsibility of a student does not necessarily manifest a purpose to commit a specific crime. * * *' 23...