People v. Garrison
| Decision Date | 29 September 1980 |
| Docket Number | No. 52750,52750 |
| Citation | 82 Ill.2d 444,45 Ill.Dec. 132,412 N.E.2d 483 |
| Parties | , 45 Ill.Dec. 132 The PEOPLE of the State of Illinois, Appellant, v. Gary "Mike" GARRISON, Appellee. |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Chicago and Frank B. Schweitzer, Sp. Prosecutor, Taylorville , for the People.
James B. Wham of Wham & Wham, Centralia, for appellee.
The circuit court of Marion County declared unconstitutional sections 11-9(a) (3) and 11-9(b) of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, pars. 11-9(a)(3), 11-9(b)). The State has appealed directly here pursuant to our Rule 302(a)(1) (73 Ill.2d R. 302(a)(1)). We reverse.
The defendant, Gary "Mike" Garrison, was charged by information with "knowingly, at a public place, while standing behind a storm door, expose(ing) his sex organ in a lewd manner" to the prosecutrix "with the intent to arouse his sexual desires" in violation of section 11-9(a)(3) of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, par. 11-9(a)(3)). Section 11-9 provides:
"Public Indecency. (a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
(1) An act of sexual intercourse; or
(2) An act of deviate sexual conduct; or
(3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person; or
(4) A lewd fondling or caress of the body of another person of either sex.
(b) 'Public place' for purposes of this Section means any place where the conduct may reasonably be excepted to be viewed by others.
(c) Sentence.
Public indecency is a Class A misdemeanor."
Defendant moved to dismiss the information on the ground that sections 11-9(a) (3) and 11-9(b) violated the first, third, fourth, fifth, sixth, ninth and fourteenth amendments to the United States Constitution, and he reiterates those arguments here. The remarks of the trial judge at the hearing suggest that he relied on only one of the arguments, but he signed an order drafted by the defendant which incorporated by reference all the contentions raised in the motion to dismiss.
For purposes of analysis, the defendant's contentions fall into four main categories. He argues: (1) that the statute applied in this case violates his privacy rights; (2) that the statute is overbroad and therefore unconstitutional on its face; (3) that it is so vague that it violates constitutional guarantees of due process; and (4) that a comparison of sections 11-9 and 11-20 of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, pars. 11-9, 11-20) reveals a legislative classification not reasonably related to a legitimate governmental purpose, thus denying him equal protection of the laws.
Defendant's argument that this prosecution violates his privacy rights rests upon the decision of the United States Supreme Court in Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. In Stanley, the defendant had been convicted of possessing obscene material in violation of Georgia law. The material was discovered when State agents searched Stanley's home pursuant to a search warrant authorizing them to search for equipment, records, and other material used in or derived from an illegal wagering business. The Supreme Court reversed the conviction, holding that "the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime." (Stanley v. Georgia (1969), 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542, 551.) The opinion of the court emphasized the right of the individual to read or view whatever books or films he pleases in the privacy of his own home. In a subsequent case, United States v. Reidel (1971), 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813, however, the Supreme Court limited Stanley to factual situations which do not involve actions outside the home. The decision in Reidel upheld the validity of a Federal statute which made criminal the mailing of obscene material even though the recipients were adults who had requested the mailing and who, under Stanley, were entitled to view the materials privately in their own homes.
Applying the principles of Stanley and Reidel to the facts of this case, we conclude that this prosecution does not unconstitutionally invade the defendant's right to privacy. The information charged the defendant with exposing himself by standing at a storm door at 404 Melrose in Centralia. The oral argument in the trial court and the briefs in this court indicate that the Melrose address is the defendant's residence. Although the action with which defendant is charged thus took place within the confines of his home, its essential characteristic for the purpose of our consideration is that the defendant "knowingly" made it visible to the prosecutrix outside his house. Under the circumstances alleged in the information, Stanley does not preclude the prosecution of the defendant.
The argument that the statute is overbroad rests on the premise that the statute may allow criminal prosecution in some situations in which the activities of a hypothetical defendant fall within areas protected by the right of privacy and the first amendment right of expression. In regard to the privacy argument, we need not decide whether that premise is accurate; the overbreadth doctrine does not apply to privacy rights. Lovisi v. Slayton (E.D.Va.1973), 363 F.Supp. 620, 627-29, aff'd (4th Cir. 1976) (en banc ), 539 F.2d 349, cert. denied (1976), 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585; Harris v. United States (D.C.App.1974) (en banc ), 315 A.2d 569, 575; Pedersen v. City of Richmond (1979), 219 Va. 1061, 1066, 254 S.E.2d 95, 99.
As a general rule a defendant may not avoid his prosecution because a similar prosecution of other individuals under the same statute might violate their constitutional rights. (Burch v. Louisiana (1979), 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96; Bates v. State Bar (1977), 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810; Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830; McGowan v. Maryland (1961), 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; People v. Bombacino (1972), 51 Ill.2d 17, 280 N.E.2d 697; City of Chicago v. Lawrence (1969), 42 Ill.2d 461, 248 N.E.2d 71, cert. denied (1969), 396 U.S. 39, 90 S.Ct. 263, 24 L.Ed.2d 208; People v. Reiner (1955), 6 Ill.2d 337, 127 N.E.2d 159.) The overbreadth doctrine is an exception to this rule. It allows a defendant to challenge the validity of a statute on its face when the mere existence of the statute may inhibit the exercise of expressive or associational rights protected by the first amendment, even though those rights do not protect the activities of the defendant. (Bates v. State Bar (1977), 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810, 833; Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-17, 93 S.Ct. 2908, 2915-18, 37 L.Ed.2d 830, 839-43.) The issue now before us, however, is whether the defendant may avoid this prosecution if the statute may be applied to violate the privacy rights of others. Apart from a reference of questionable validity in Attwood v. Purcell (D.Ariz.1975), 402 F.Supp. 231, 236, the defendant has not cited any case extending the overbreadth doctrine to privacy rights; nor have we found any. The overbreadth doctrine may be necessary to protect certain easily inhibited first amendment expressive and associational rights, but it should be applied very sparingly, even when dealing with those rights. (Broadrick v. Oklahoma (1973), 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830, 840-41; cf. Bates v. State Bar (1977), 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810, 833-34; Talsky v. Department of Registration & Education (1977), 68 Ill.2d 579, 590, 12 Ill.Dec. 550, 370 N.E.2d 173.) Unlike the actions with which the defendant is charged here, and unlike expressive and associational activities which generally occur in public, the activities which are protected by the right of privacy are by their nature generally unknown to prosecutors and therefore are not easily inhibited by official action. We do not believe that privacy rights require the protection of an overbreadth doctrine to secure their free exercise, and we consequently decline to allow one whose personal right of privacy has not been violated to assert the hypothetical rights of others. See Lovisi v. Slayton (E.D.Va.1973), 363 F.Supp. 620, 627-29, aff'd (4th Cir. 1976) (en banc ), 539 F.2d 349, cert. denied (1976), 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585; Harris v. United States (D.C.App.1974) (en banc ), 315 A.2d 569, 575; Pedersen v. City of Richmond (1979), 219 Va. 1061, 1066, 254 S.E.2d 95, 99.
Defendant also alludes to Eisenstadt v. Baird (1972), 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349, as support for his contention that he should be able to assert the privacy rights of others not involved in this litigation. Eisenstadt, however, is not apposite to this case. The gist of Eisenstadt is that a defendant may be heard to assert the rights of nonparties when their rights are affected by the prosecution and the statute is so worded or applied that they will not be prosecuted under it. The defendant does not assert the existence of any such individuals and we do not perceive any. The defendant therefore is limited to asserting violations of his privacy rights and, as indicated above, we do not find any.
Although the overbreadth doctrine does apply when first amendment expressive rights are implicated, we reject the premise of defendant's first amendment overbreadth argument in regard to this statute: that the statute on its face infringes protected expressive rights. The defendant's argument has a certain surface appeal. The statute itself does not disclaim application to operas, ballets,...
To continue reading
Request your trial
-
People v. Bailey
...falls within the proscription of the statute. Jihan, 127 Ill.2d at 386, 130 Ill.Dec. 422, 537 N.E.2d 751; People v. Garrison (1980), 82 Ill.2d 444, 454, 45 Ill.Dec. 132, 412 N.E.2d 483. C. Picketing In Bailey's case, cause No. 76151, the trial judge also found that the stalking statute was ......
-
People v. Burns
...45 (1987) (same); People v. Ryan, 117 Ill.2d 28, 33, 109 Ill.Dec. 162, 509 N.E.2d 1001 (1987) (same); People v. Garrison, 82 Ill.2d 444, 449–50, 45 Ill.Dec. 132, 412 N.E.2d 483 (1980) (same).¶ 49 There is no reason to now expand the use of this doctrine and apply it in the context of a seco......
-
Hubble v. Bi-State Dev. Illinois-Missouri
...the intent of the legislature, we may alter, supply, or modify words and correct obvious mistakes. People v. Garrison, 82 Ill.2d 444, 455, 45 Ill.Dec. 132, 412 N.E.2d 483, 489 (1980). It is clear that the legislature intended for section 8-101(a) to apply to actions against a "local public ......
-
People v. Warren
...determination is made in the factual context of each case in light of the particular facts at hand. People v. Garrison, 82 Ill.2d 444, 454, 45 Ill.Dec. 132, 412 N.E.2d 483 (1980). Nothing in the record suggests that the scenarios proposed by defendant are present in the case now before us. ......