People v. Hunter

• Decision Date: 01 May 1979
• Docket Number: Docket No. 78-224
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Duane HUNTER, Defendant-Appellee. 90 Mich.App. 1, 282 N.W.2d 218
• Court: Court of Appeal of Michigan — District of US

Page 218

282 N.W.2d 218

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Duane HUNTER, Defendant-Appellee.

Docket No. 78-224.

90 Mich.App. 1, 282 N.W.2d 218

Court of Appeals of Michigan.

May 1, 1979.

Leave to Appeal Denied July 19, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 2] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellant.

Don W. Atkins, Asst. Pros. Atty., O. Lee Molette, Detroit, for defendant-appellee.

Before RILEY, P. J., and J. H. GILLIS and MacKENZIE, JJ.

MacKENZIE, Judge.

The facts of this case are fully set forth in the dissenting opinion.

This case involves the fundamental right of freedom of association, and governmental restriction upon that right cannot be tolerated absent [90 MICHAPP 3] justification by a "compelling state interest". Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1972). Further, despite the existence of such a concern, the regulation fails to pass constitutional muster if that interest can be achieved by a "less drastic alternative". Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

There is no doubt that the State's interest in curbing the illegal use and trafficking of drugs is a compelling one. However, that interest was not achieved through the most narrow means in the case at bar. We reject the assumption that mere knowledge of the presence of narcotics paraphernalia is always detrimental to the public good. Under such "knowledge" standard, persons with acceptable or laudable reasons for being knowingly present where paraphernalia and/or drugs are allegedly located could be prosecuted under the ordinance. Counselors, religious advisors, or other persons seeking to work with drug users on their own ground would be covered. Family members, aware that a person was using drugs in the home, but not wishing to sever ties, could likewise be convicted.

As there exists a less drastic way of seeking to curb drug abuse, I. e., the requirement of an Intent to participate in the unlawful activity, see People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484, 253 N.E.2d 202 (1969), we find the ordinance at issue unconstitutional, and affirm the lower court's decision to quash the information.

J. H. GILLIS, Judge (dissenting).

Defendant was charged with possession of heroin with intent to deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). Pursuant to a defense motion, the trial court [90 MICHAPP 4] quashed the information. From this action, plaintiff appeals.

Defendant was found in the living room of a house the police had entered pursuant to a search warrant. Syringes and other narcotic paraphernalia were in plain view. Defendant was arrested for knowingly loitering in a place where such paraphernalia is kept or sold. Detroit Municipal Code, § 28-8-8. A search of defendant revealed a quantity of powder alleged to contain heroin.

After being bound over on the instant charge defendant made a motion to quash the information. The trial court found the ordinance under which defendant was initially arrested to be unconstitutional on the basis of People v. Smith, 75 Mich.App. 64, 254 N.W.2d 654 (1977).

In Smith, this Court found the following Dearborn ordinance unconstitutional:

" '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.' " Id. at 66, 254 N.W.2d at 655.

The Court stated that the ordinance infringed upon First Amendment freedom of association. Applying the "compelling state interest" test the Court concluded that there were less drastic ways to achieve the state interest in curbing illegal drug activity than to make "mere presence" a crime. In addition, while the trial court had implied a "knowledge" requirement, this Court refused to read such a requirement into the ordinance. Consequently, the ordinance was found unconstitutional on its face due to vagueness and overbreadth. Id. at 69-70, 254 N.W.2d 654.

[90 MICHAPP 5] Section 28-8-8 of the Detroit Municipal Code, the ordinance at issue here, provides:

"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." Ch. 187, § 9, City (Detroit) Ordinances (1954). (Emphasis supplied.)

The essential difference between this ordinance and the ordinance struck down in Smith is that the Detroit ordinance does include a "knowledge" requirement. While the Dearborn ordinance made completely innocent conduct a crime, the Detroit ordinance applies only to conduct harmful to the public good. It must be shown that the person loitered in a place knowing illegal narcotic paraphernalia was kept or sold there. Detroit v. Hodges, 13 Mich.App. 531, 164 N.W.2d 781 (1968). The Court in Hodges...