People v. Dombe, Docket No. 69288
| Decision Date | 04 May 1984 |
| Docket Number | Docket No. 69288 |
| Citation | 348 N.W.2d 58,133 Mich.App. 179 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gwen Loree DOMBE, Janet Elaine Barry and Thomas Mark Karbon, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.
Joselyn, Rowe, Jamieson, Grinnan, Callahan & Hayes, P.C. by James A. Callahan, Detroit, for defendants-appellants.
Before DANHOF, C.J., and ALLEN and DODGE *, JJ.
Defendants were arrested on May 10, 1982, and charged in district court under subsection (j) of the disorderly persons statute, M.C.L. Sec. 750.167(1)(j); M.S.A. Sec. 28.364(1)(j), which provides:
Defendants were allegedly present in the home of Mr. Boutillier at the time Boutillier sold a controlled substance to an undercover police officer. Defendants' motion to quash the information on the ground that subsection (j) is unconstitutional was denied by the trial court. Defendants were convicted by a jury and each was sentenced to 12 months probation. On appeal to the circuit court, the circuit court affirmed the convictions. Defendants appeal by leave granted, challenging the constitutionality of subsection (j) of the disorderly persons statute.
Defendants rely on People v. Smith, 75 Mich.App. 64, 254 N.W.2d 654 (1977), and People v. Hunter, 90 Mich.App. 1, 282 N.W.2d 218 (1979), remanded 406 Mich. 1006 (1979), rev'd on remand, 94 Mich.App. 50, 287 N.W.2d 366 (1979).
In Smith the defendant was convicted of violating a Dearborn ordinance which provided that:
" ' "No person shall loiter in any place within the City of Dearborn where marijuana or paraphernalia used or adapted for use with marijuana are used, sold, dispensed, furnished, given away, or stored, or otherwise illegally kept." ' " 75 Mich App 66.
A panel of this Court held that the ordinance violated the First Amendment right of association and was unconstitutionally vague and overbroad. However, Smith should be distinguished from the instant case because the ordinance there did not include a knowledge or intent requirement. The Smith Court was concerned that the ordinance prohibited constitutionally protected activity by including within its scope persons who were merely present without knowledge of the marijuana or paraphernalia. That concern is not present here because subsection (j) is limited to persons who loiter with knowledge that the illegal business or occupation is being conducted.
In People v. Hunter the defendant was arrested for violation of a Detroit Municipal Code provision which stated:
" 'No person shall knowingly loiter about, frequent or live in any building, apartment, store, automobile, boat, boathouse, aeroplane or other place of any description whatsoever where narcotic drugs, hypodermic syringes, needles or other instruments or implements or empty gelatin capsules are sold, dispensed, furnished, given away, stored or kept illegally.' " 90 Mich.App. 5, 282 N.W.2d 218.
A search of the defendant at the time of arrest revealed a quantity of powder alleged to contain heroin, and defendant was charged with possession of heroin with intent to deliver. On the defendant's motion the trial court quashed the information finding the ordinance under which defendant was initially arrested to be unconstitutional. A majority of the Court of Appeals panel affirmed, finding that the interest sought to be achieved by the ordinance was not accomplished through the most narrow means possible. The majority held that there existed a less drastic means of seeking to curb drug abuse, i.e., the requirement of an intent to participate in the unlawful activity. The Supreme Court subsequently remanded the case to the Court of Appeals for reconsideration in light of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). On remand, the Court of Appeals reversed its earlier decision and held that the arrest and search incident thereto, made in reliance on an ordinance which at the time had not been declared unconstitutional, were valid regardless of the subsequent judicial determination of unconstitutionality.
The issue in Hunter was the validity of the arrest and search which led to the...
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