People v. Solomon

• Decision Date: 13 July 1973
• Docket Number: Cr. N
• Citation: 33 Cal.App.3d 429,108 Cal.Rptr. 867
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Arnold J. SOLOMON, Defendant and Respondent. o. 23269.

Page 867

108 Cal.Rptr. 867

33 Cal.App.3d 429

The PEOPLE of the State of California, Plaintiff and Appellant, v. Arnold J. SOLOMON, Defendant and Respondent.

Cr. No. 23269.

Court of Appeal, Second District, Division 2, California.

July 13, 1973.

Hearing Denied Oct. 11, 1973.

Roger Arnebergh, City Atty., David Martin Schacter, Deputy City Atty., and Neil Rifenbark, Legal Assistant, Los Angeles, for appellant.

Robert N. Harris, Jr., Forrest S. Mosten, Los Angeles, and Legal Clinic of Jacoby & Meyers, Van Nuys, for respondent.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Russell Iungerich, Deputy Atty. Gen., for amicus curiae in support of appellant.

A. L. Wirin, Fred Okrand, and John D. O'Loughlin, Los Angeles, for amicus curiae in support of respondent.

Richard S. Buckley, Public Defender, Harold E. Shabo and Ronald B. Davey, Deputy Public Defenders, for amicus curiae in support of respondent.

rec'res'nullsciate Justice.

Arnold Solomon was charged in municipal court with a violation of Penal Code section 647, subdivision (e). That statute makes a person guilty of disorderly conduct:

'Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.'

The trial court sustained Solomon's demurrer to the complaint and entered judgment dismissing the cause. The appellate department of the superior court reversed the judgment of dismissal and certified the cause to this court. We ordered the cause transferred here to reconsider the constitutionality of section 647, subdivision (e) in the light of United States Supreme Court decisions rendered subsequent to our decision in 1967 upholding the constitutionality of the statute. (People v. Weger, 251 Cal.App.2d 584, 59 Cal.Rptr. 661.)

I

Under specified circumstances section 647, subdivision (e) imposes a duty on a street loiterer to respond to a peace officer's inquiry, and in default of response the loiterer may be found guilty of the misdemeanor of disorderly conduct. ¹ The essentials of section 647, subdivision (e) are three: (1) loitering on the streets, (2) refusal to identify and account on request, (3) in circumstances involving the public safety.

In Weger, likewise a ruling on demurrer, we held that the juxtaposition of these three elements provided a sufficient basis to support the duty to respond created by the statute. Since that decision a series of United States Supreme Court opinions has delineated the scope of police power in the streets and clarified its relationship to the law of search and seizure and the law of incrimination. We briefly review these developments.

1. Temporary Detention. In Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the court upheld the validity of temporary detention as a form of street control and ruled that peace officers are authorized to stop and frisk persons on suspicion even though probable cause for arrest is lacking. Under appropriate circumstances, said the court, the governmental interest in effective crime prevention and detection justifies official intrusion into the constitutionally protected interests of private citizens. The test for determining the reasonableness of a particular intrusion involves a balancing of the governmant's need for intrusion against the invasion of private rights that the intrusion entails. 'And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' (392 U.S. at p. 21, 88 S.Ct. at p. 1880.) The decision in Terry, has made it clear that when the surrounding circumstances reasonably indicate to a peace officer that the public safety demands that he stop and frisk a person on the streets, the officer is constitutionally entitled to do so.

2. Self-incrimination. In Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 and Grosso v. United States (1968) 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the Supreme Court overturned as a violation of the privilege against self-incrimination the requirement that gamblers register for and pay a federal occupational tax. The court noted the illegality of gambling in most states and concluded that a requirement that gamblers register and pay a tax would compel them to incriminate themselves. The same reasoning was followed in Haynes v. United States (1968) 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, where the court invalidated a law requiring registration of proscribed firearms, such as machine guns and sawed-off shotguns, and it was again followed in Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, where the court overturned Leary's conviction for failure to comply with provisions of a marijuana transfer tax because compliance and registration under the law would subject him to a high risk of incrimination.

In recent years the privilege against self-incrimination, historically a testimonial privilege that became operative when claimed, ² has been extended to cover a variety of possible incriminating inquiries, testimonial and nontestimonial, and the requirement that the privilege must be claimed in order to come into effect has been watered down. Today, in some incriminating situations the mere posing of the inquiry may violate the privilege against self-incrimination and obviate the necessity for either reply or for claim of privilege.

3. Duty to Furnish Information. In California v. Byers (1971) 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9, the Supreme Court upheld a California requirement that a driver involved in a vehicle accident give the owner of damaged property the name and address of the driver and that of the owner of the vehicle involved. Possible danger of self-incrimination as a consequence of furnishing identification, said the court, must yield to a civic duty to disclose required information, at least where the information is not essentially incriminatory. '(T)he mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here . . . In order to invoke the privilege it is necessary to show that the compelled disclosures will themselves confront the claimant with 'substantial hazards of self-incrimination." (pp. 428, 429, 91 S.Ct. p. 1538.) Disclosure of the driver's identity is not evidence of a testimonial or communicative nature within the meaning of the constitution, said the court, for a name does not implicate anyone in criminal conduct. The court cited with approval United States v. Sullivan (1927) 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037, where the failure of a bootlegger to file an income tax return was held not excused by the privilege against self-incrimination, an excuse whose acceptance Justice Holmes thought would amount to 'an extreme if not an extravagant application of the Fifth Amendment.' (pp. 263--264, 47 S.Ct. p. 607.)

4. Invalidity of Traditional Vagrancy Statutes. In Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, the Supreme Court found impermissibly vague a vagrancy ordinance whose language followed the historic pattern. ³ The law was void for vagueness, said the court, because it withheld fair notice of the particular conduct that was forbidden and because it encouraged arbitrary and erratic arrests and convictions.

In Palmer v. City of Euclid (1971) 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98, the Supreme Court reversed a conviction under the City of Euclid's 'suspicious person ordinance,' which made it a crime for a 'person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business . . . not (to) give satisfactory account of himself.' The facts of the case were that 'Palmer, in his car, was seen late at night in a parking lot. A female left his car and entered by the front door an adjoining apartment house. Palmer then pulled onto the street, parked with his lights on, and used a two-way radio. He was not armed. He said he had just let off a friend. He was then arrested. At the station he gave three different addresses for himself and said he did not know his friend's name or where she was going when she left his car.' (402 U.S. 545, 91 S.Ct. 1564.) The court found the ordinance, as applied to Palmer's conduct, unconstitutionally vague, in that it did not give him reasonable notice that what he did was unlawful.

II

Section 647, subdivision (e) is attacked as vague, as incriminatory, and as arbitrary. We re-examine its validity in the light of the foregoing Supreme Court opinions.

1. Vagueness. The statute is asserted to be unconstitutionally vague. Yet under Terry v. Ohio, Supra, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, a peace officer is entitled to detain, frisk, and interrogate a person whose conduct raises a reasonable suspicion of criminal activity. The standard set out in Terry for the exercise of this authority is comparable to the one that brings section 647, subdivision (e) in play. Under Terry a peace officer is entitled to act when the information available to him warrants the belief by a man of reasonable caution that official intrusion is appropriate (pp. 20--21, 88 S.Ct. 1868). Under section 647, subdivision (e) a peace officer is entitled to act when the surrounding circumstances indicate to a reasonable man that the public safety demands identification. We see no essential difference between these two formulations. Each amounts to what Justice Harlan has termed 'articulable suspicion less...