State ex rel. Purcell v. Superior Court In and For Maricopa County

• Decision Date: 29 May 1975
• Docket Number: No. 12070,12070
• Citation: 535 P.2d 1299,111 Ariz. 582
• Parties: The STATE of Arizona ex rel. Joe R. PURCELL, Phoenix City Attorney, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and the Honorable Yale McFate, Judge thereof; and Albert Lynn NAYLOR, Defendant and Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 1299

535 P.2d 1299

111 Ariz. 582

The STATE of Arizona ex rel. Joe R. PURCELL, Phoenix City Attorney, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and the Honorable Yale McFate, Judge thereof; and Albert Lynn NAYLOR, Defendant and Real Party in Interest, Respondents.

No. 12070.

Supreme Court of Arizona, In Banc.

May 29, 1975.

Rehearing Denied June 24, 1975.

Joe R. Purcell, City Atty. by Donald P. Williams, Asst. City Atty., Phoenix, for petitioner.

Wykoff, Charles & Coffinger by Richard D. Coffinger, Glendale, for defendant and real party in interest Naylor.

HOLOHAN, Justice.

The Respondent Real Party in Interest, Albert Lynn Naylor, was charged with violation of A.R.S. § 13--712(9), as amended in 1970, commonly referred to as 'trespass by loitering.' He was found guilty in the Municipal Court of the City of Phoenix, from which judgment and sentence he appealed to the superior court for a trial de novo.

Prior to trial in the superior court, the Respondent Naylor filed a motion to dismiss the prosecution on the grounds that the statute under which he was charged was unconstitutional. The superior court granted the motion and dismissed the prosecution.

The State brought this Petition for Special Action and we accepted jurisdiction.

The sole question presented is whether A.R.S. § 13--712(9) is constitutional.

The statute in question reads, in part:

'A person is guilty of a misdemeanor, punishable by a fine of not more than three hundred dollars, by imprisonment in the county jail for not more than six months, or both, who wilfully commits any trespass by either:

'9. Loitering or prowling upon the private property of another, without the consent of or lawful business with the owner or occupant thereof.' A.R.S. § 13--712(9).

The subsection in question is one of a list of eleven enumerating the methods of trespass upon property which are punishable by law. A.R.S. § 13--712. The word 'loitering' is used to describe a type of conduct which is proscribed when engaged in upon the private property of another, without the consent of or lawful business with the owner or occupant thereof.

We have defined 'loiter' generally as 'to be slow in moving; delay; linger; saunter; lag behind.' State v. Starr, 57 Ariz. 270, 272, 113 P.2d 356, 357 (1941). In that case, we held that the word 'loiter' does not signify anything bad or criminal except when given that significance in a criminal ordinance or statute. State v. Starr, Supra. In A.R.S. § 13--712(9) loitering is deemed criminal only in a specific place and under specific circumstances.

Nevertheless, the mere use of the word 'loiter' calls up the specter of the various statutes which have been called into question in many jurisdictions. Many of these statutes have been held to be unconstitutional.

The standards to be applied in testing the constitutionality of so-called loitering statutes were enunciated in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). In voiding an ordinance which made criminal 'persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers . . . persons able to work but habitually living upon the earnings of their wives or minor children,' Papachristou v. City of Jacksonville, 405 U.S. at 157 n. 1, 92 S.Ct. at 840 n. 1, the Court found it objectionable on two grounds:

'This ordinance is void for vagueness, both in the sense that it 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.' 405 U.S. at 162, 92 S.Ct. at 843.

Applying the standard announced in Papachristou v. City of Jacksonville, Supra, the Arizona statute is not void for vagueness. The definition of 'loitering' propounded by this Court in Starr was taken from the dictionary. The use of the term in the context of the conduct prohibited by the statute gives fair notice of what is prohibited.

The second prong of the Papachristou test is the encouragement of arbitrary and erratic arrests and convictions. To obtain a conviction under A.R.S. § 13--712(9), the State must prove the defendant was willfully: 1) loitering or prowling, 2) upon the private property of another and 3) without the consent of or lawful business with the owner or occupant. The requirement to establish each and all of these three...