United States v. Kilgen

• Decision Date: 09 July 1970
• Docket Number: No. 27424.,27424.
• Citation: 431 F.2d 627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert H. KILGEN, Jr., and Gary Lee Ansley, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.2d 627 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Robert H. KILGEN, Jr., and Gary Lee Ansley, Defendants-Appellants.

No. 27424.

United States Court of Appeals, Fifth Circuit.

July 9, 1970.

Robert L. Parks, Miami, Fla., for defendants-appellants.

William A. Meadows, Jr., U. S. Atty., Lloyd G. Bates, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before BROWN, Chief Judge, TUTTLE and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge:

Robert Kilgen, Jr. and Gary Ansley were arrested approximately 1:15 A.M. on October 27, 1968, in West Palm Beach, Florida, for the crime of vagrancy "by wandering about from place to place with no lawful purpose." The city ordinance outlawing such conduct is contained under Section 33.63 of the Ordinances of the City of West Palm Beach, which in turn is similar to a state statute. This ordinance, which, we think appellant aptly, although somewhat colorfully, characterizes in the following terms, "a college English major might read it as a casting advertisement in an Elizabethan newspaper for the street scene in a drama of that era," having been the basis of the arrest and being attacked as unconstitutional, is here reproduced in full:

"Rogues and vagabonds, idle or dissolute persons who go about begging, common gamblers, persons who use juggling, or unlawful games or plays, common pipers and fiddlers, common drunkards, common night walkers, thieves, pilferers, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons who neglect their calling or employment, or are without reasonable continuous employment or regular income and who have no sufficient property to sustain them, and misspend what they earn without providing for themselves or the support of their families, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, idle and disorderly persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses or tippling shops, persons able to work but habitually living upon the earnings of their wives or minor children and all able bodied male persons over the age of eighteen years who are without means of support and remain in idleness, shall be deemed vagrants."

At the time of their arrest, it is undisputed that these two men were walking in an area of town where there were only two bars open in the early morning hours, and when they were approached by the police and asked to state what they were doing, they gave conflicting information as to their purpose. They, together with a third person, Doremus, had parked a car in which they had been traveling and which was owned by Ansley, in a lot across from the bar on Okeechobee Boulevard. They were approximately a half a block from the car, and had gone behind a vacant filling station, where they used toilet facilities, and then proceeded to walk west on Okeechobee Boulevard at the time they were apprehended by the police officers. Each of the three men was wearing a heavy coat, and at least two, the appellants here, were wearing gloves. The police officer testified that it was a chilly evening and that it was not unusual for someone to wear a jacket.

The police officer testified that he had no reason to believe that these three had committed a crime at the time he stopped them, except the crime of "walking down the street in West Palm Beach at 1:15 A.M." He thought that it was a "good possibility" that they were going to do something. He placed them under arrest for vagrancy and specifically that portion of the ordinance charging them with "wandering and strolling about from place to place with no lawful purpose or object."

Ansley requested that he be returned to his car before being taken to the police station in order that it might be locked. The officer agreed, placed the three in the rear of the police cruiser, and returned to the parking lot where Ansley gave him the keys to lock the car. The police officer Flesh noticed a box of pistol ammunition and a pistol barrel sticking out from underneath the driver's seat. The trial court found that with Ansley's consent, Officer Flesh proceeded to make a cursory search of the car, including opening the trunk because he stated that it was impossible to lock the car and he wished to open the trunk in order to place the property in the trunk.

Upon opening the trunk there was apparent to view a worker's steel helmet containing a great many United States stamps, and several folders which also contained a large number of stamps.

The men were taken to the police station, booked for vagrancy, and taken into a cell until the next morning. At that time Kilgen was interrogated for three to four hours. He was then interrogated by a United States postal inspector, who, first however, advised him of his legal rights — a full Miranda warning. As a result of this interrogation Kilgen made an inculpatory statement as did Ansley. At the time of the making of the statements they were being held only under the charge of vagrancy.

Based on the information obtained by the Postal Inspector as a result of the interrogations, indictments were brought against the two appellants for two counts for violations of 18 U.S.C.A. § 641, and 18 U.S.C.A. § 2115, the first charging concealing money orders and stamps belonging to the United States Post Office Department, and the second with breaking and entering a United States Post Office. Both defendants waived a jury trial and counsel then filed a motion to suppress the physical evidence and the confessions of Ansley and Kilgen. Full testimony was given with respect to the motion to suppress, and upon the conclusion of the testimony, counsel for the accused parties agreed that all of the evidence that would normally be used on a full trial had been introduced, and the case was submitted to the trial court on the same evidence.

The trial court, in making its judgment, included the following: "Patrolman Flesh's arrest of the defendants based on the foregoing for `wandering around from place to place without any lawful purpose or object,' in violation of Section 33.63 of the Code of the City of West Palm Beach, Florida, was a valid and lawful arrest."

The trial judge seems to have been impressed, in making this holding, by the fact that the Florida Supreme Court had expressly upheld the constitutionality of the ordinance. See Johnson v. State of Florida, Fla., 202 So.2d 852.¹

In the meantime, a three-judge federal court, sitting in the Southern District of Florida, considering a direct attack upon the constitutionality of the state statute with the precise wording of the ordinance here in question, unanimously held the statute to be unconstitutional. See Lazarus v. Faircloth, Attorney General, etc., U.S.D.C., S.D.Fla., 301 F.Supp. 266.

The appellants contend that this ordinance was unconstitutional, and that, therefore, their arrests were illegal and that the subsequent events all stemmed from the illegal arrest, which, thus tainted both physical and written evidence which was made the subject of the motion to suppress. Therefore, they argued, the trial court erred in denying the motion and in finding a judgment of guilty based solely on such evidence.

We thus are presented with two questions: Was the ordinance unconstitutional, causing the arrests to be illegal, and, if so, did this so taint the subsequent proceedings as to require a reversal of the judgment of the trial court overruling the motion to suppress and the judgment of conviction and sentence based thereon?

As noted, the Supreme Court was given an opportunity to pass upon the constitutionality of a Florida state statute with precisely the same terminology as this city ordinance. As is the custom of the Supreme Court, it did not reach the question of the constitutionality of the statute, in light of its finding that there was a denial of due process in the trial court under the principle of Thompson v. Louisville, supra, because of the utter want of evidence to support the conviction, thus pretermitting a determination of the constitutional issue. The two dissenting judges felt that there was adequate evidence to support the conviction if the statute was valid, but they felt that the constitutional attack was substantial and that it ought to be put down for argument and consideration by the Court.

We find no way to avoid passing on the constitutionality of the City Ordinance. Being faced with such responsibility, we have no hesitation in saying that it is clearly unconstitutional for vagueness. We find it...