Brief Bank # B-782 (Re: FORECITE F 18.61 n1 [Constitutional Challenge To HS 11532: Loitering With Intent To Commit Drug Offense])
CAVEAT: The file below was not prepared by FORECITE. FORECITE has not made any attempt to review or edit this material and is not responsible for its content or format. FORECITE cannot guarantee the information is complete, accurate or up-to-date. You are advised to conduct your own independent, comprehensive research on all issues addressed in the material below.
NOTE: The text of the footnotes appears at the end of the document.
IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant
APPELLANT’S OPENING BRIEF
II. Health and Safety Code Section 11532 Violates the United States and California Constitutions.
Even if there was probable cause to believe that appellant violated section 11532, the arrest was illegal, for section 11532 offends numerous provisions of the United States and California Constitutions.
A. Section 11532 substitutes a standard of less than probable cause for the arrest and search of a person and therefore violates the Fourth and Fourteenth Amendments to the United States Constitution and Article I, section 13 of the California Constitution.
Section 11532 readily and inevitably lends itself to the use it was given in this case: as a less rigorous substitute for probable cause to seize and search a suspicious person. Appellant was not charged with a violation of section 11532; that section merely furnished the ostensible violation for which he was arrested. That arrest enabled the police to search appellant’s backpack under the Chimel exception to the warrant requirement (search incident to an arrest) and then to charge appellant with the crime of possession of the contraband found in his backpack. Thus section 11532 supplied the authorization for the search, in substitution for a warrant or probable cause to believe that appellant had actually committed a drug offense.
This use of section 11532 is not a curious deviation from its true function, as an examination of the text reveals. The statute makes it illegal to harbor the intent to commit a drug offense while lingering in any place open to the public, and declares certain circumstances, including perfectly innocent circumstances, to be suggestive of that intent. Consider subdivision (b) paragraph (7), “possesses narcotic or drug paraphernalia” which expressly includes cigarette papers. By virtue of this provision, the police may arrest and search anyone who lingers (for whatever period of time amounts to “lingering”) on a street, in a park, or in the front yard or doorway of his home, with cigarette papers in hand or visible in a pocket or bag. If, in searching the suspect, the police discover marijuana, they may charge him with possession of marijuana, and justify the search as incidental to an arrest for violation of 11532, for which the cigarette papers in plain view furnished probable cause. But if instead of marijuana, only tobacco is discovered, it is inconceivable that the police will go to the trouble of booking the suspect for the 11532 charge, that the District Attorney will prosecute, or that a jury will convict. Instead, once the officers have conducted a thorough search and convinced themselves that the suspect’s person and belongings do not harbor any prohibited substance, they will send the suspect on his way.
Consider subdivision (b) paragraph (3): “Tries to conceal himself or herself or any object that reasonably could be involved in an unlawful drug-related activity.” This provision declares that a person who slips something into his pocket may reasonably be suspected of committing a violation of section 11532. Consequently he may be arrested, and searched as an incident to that arrest. If the object turns out to be a package of bubble gum, again it is inconceivable that the police will book the suspect for a violation of 11532. If it turns out to be a rock of cocaine, however, the suspect can be charged with that possession, without fear that the cocaine will be suppressed as the fruit of an illegal search, for the search was incident to an arrest authorized by section 11532. Consider subdivision (b), paragraph (2), which declares the transfer of “small objects or packages for currency in a furtive fashion,” as indicative of the intent which the statute criminalizes. If the search authorized by section 11532 reveals that the objects or packages are illegal drugs, the suspect will be charged with furnishing or selling or possessing illegal drugs. If the objects or packages are not illegal drugs, it is highly unlikely that any jury would infer that the transferor or transferee possessed the intent to commit a drug offense. Certainly the transfer of the innocent objects or packages does not evince such an intent. Rather than transport the suspect to police headquarters to be held in a forlorn cause, the police will undoubtedly release him once the search has uncovered nothing criminal.
The behaviors which the statute declares suggestive of the prohibited intent are either wholly innocent (e.g., greeting acquaintances as they pass by) or themselves criminal (e.g., offering drugs to passersby.) The citizen engaging in such conduct either is committing no crime or is at that very time committing a drug offense prohibited by other provisions of law. The person concealing a rock of cocaine is not lingering with the intent to commit a drug crime as opportunity presents; he is committing a drug crime. The person transferring packets of heroin for currency is not lingering in the hope of a criminal opportunity; he is already exploiting such opportunity. The statute’s professed purpose – to criminalize lingering with the intent to commit a drug crime as opportunity presents – is belied by the circumstances identified as indicative of such intent, for those circumstances are consonant with entirely innocent activity and with present illegal activity, but not with a mere hope or expectancy of criminal opportunity. Rather than indicating a criminal expectation or intent, the listed behaviors are consistent with, but do not persuasively denote, current criminal conduct. The effect of those provisions is to authorize the police to arrest anyone whose behavior falls within the statute’s list of suspicious behaviors, or is otherwise suggestive of an intent to commit a drug crime, even though the behavior does not afford probable cause to believe a drug offense has been or is being committed. Probable cause to believe that a person is behaving suspiciously is a less exacting standard than probable cause to believe that a person has committed a crime, and thus the statute conflicts with the Fourth Amendment to the United States Constitution and Article I, section 13 of the California Constitution. And it is not only suspicious conduct that is declared to be indicative of the illegal intent. Suspicious persons are also swept into this dragnet by subdivision (b) paragraph 8, which declares that having been convicted of a drug offense within the past five years is indicative of the illegal intent. Thus if the police observe someone who was convicted of a drug offense within the last five years, chatting on a street corner, resting on a bench, or relaxing in a park, they have probable cause to believe him guilty of a violation of section 11532, and so may arrest him and then search him under the Chimel exception, despite the lack of a warrant or probable cause to believe he has committed any offense other than that of lingering in a public place while being (as he cannot help but be) a former drug offender. If the search reveals nothing, it is all but certain that the police will not proceed with the arrest for the suspected violation of section 11532. Only if illegal drugs are discovered will the police transport the suspect to headquarters and book him.
Whenever anyone is arrested pursuant to section 11532, if the search incident to that arrest uncovers illegal drugs, the police will surely charge possession, or possession for sale, or furnishing, as the case may be. They may book the suspect on the 11532 charge as well, but that charge is inconsequential once it has furnished the basis for the search. If the defendant is acquitted of the possession or sale or other offense, it cannot be imagined that he will be convicted of loitering with the intent to commit that crime. If, on the other hand, he is convicted of such other crime or crimes, any punishment for the 11532 violation would have to be stayed under Penal Code section 654.
Moreover, to the extent that section 11532 may reach unconsummated criminal intent, it is a superfluous addition to the criminal law. If the criminal intent is manifested by a direct but ineffectual act towards the commission of the target crime, it is already punishable under Penal Code section 664 [Footnote 1], which establishes penalties for the crime of attempt. Attempt requires the intent to commit the target crime and an act towards its commission. (Pen. Code § 21(a); In re Smith (1970) 3 Cal.3d 192 , 200.) The act, however, must be one that unequivocally reveals the intent to commit the crime. (People v. Miller (1935) 2 Cal.2d 527, 531-532.) “If it is not clear from a suspect’s acts what he intends to do, an observer cannot reasonably conclude that a crime will be committed ….” (People v. Dillon (1983) 34 Cal.3d 441, 455.) Insofar as section 11532 punishes an act which unequivocally reveals the intent to commit a crime, it is a superfluous echo of Penal Code section 664. Insofar as section 11532 purports to authorize convictions on less evidence than would support a conviction of attempt, it is futile: a conviction based on mere conjecture about a person’s intent cannot stand. (People v. Miller, supra, 2 Cal.2d at 531-532. See also People v. Marshall (1997) 15 Cal.4th 1, 35.) “A reasonable inference … “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.” (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 45, quoting Brautigam v. Brooks (1964) 227 Cal.App.2d 547, 556-557.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) If a suspect’s acts are unambiguous enough to reveal the intent to commit a crime, he is guilty of attempt under Penal Code section 664. If his acts are too ambiguous to reveal the intent to commit a crime, no conviction that requires a finding of intent can be sustained. Thus, as a substantive penal provision, section 11532 is necessarily either redundant or futile.
Consequently, as a substantive prohibition against hanging about with nefarious intent, section 11532 adds nothing of significance to the maintenance of public order. Its true contribution to order – and its detraction from liberty – lies in its dilution of probable cause to seize and search. Section 11532’s practical effect is the apparent authorization of investigatory seizures and searches. This the Fourth Amendment forbids. (Dunaway v. New York, supra, 442 U.S. at 214; Brown v. Illinois (1975) 422 U.S. 590, 45 L.Ed.2d 416, 95 S.Ct. 2254.) “This state law … falls within the category of statute purporting to authorize searches without probable cause, which the Court has not hesitated to hold invalid as authority for unconstitutional searches. See, e. g., Torres v. Puerto Rico  442 U.S. 465, [61 L.Ed.2d 1, 99 S.Ct. 2425]; Almeida-Sanchez v. United States  413 U.S. 266, [37 L.Ed.2d 596, 93 S.Ct. 2535]; Sibron v. New York, 392 U.S. 40; Berger v. New York  388 U.S. 41, [18 L.Ed.2d 1040, 87 S.Ct. 873].” (Ybarra v. Illinois, supra, 444 U.S. at 95 n. 11.) Section 11532 strikes a balance between order and liberty which differs from the balance established “in centuries of precedent and  embodied in the principle that seizures are `reasonable’ only if supported by probable cause.” (Dunaway v. New York, supra, 442 U.S. at 214). Those centuries of precedent reflect the understanding that “investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention.” (Dunaway, supra, 441 U.S. at 214, quoting Davis v. Mississippi (1969) 394 U.S. 721, 726-727, 22 L.Ed.2d 676, 89 S.Ct. 1394. Indeed, “[h]ostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report, suspicion, or even `strong reason to suspect’ was not adequate to support a warrant for arrest.’” (Henry v. United States (1959) 361 U.S. 98, 100, 4 L.Ed.2d 134, 30 S.Ct. 168, quoted in Dunaway, supra, 441 U.S. at 213.)
Of course, section 11532 does not expressly acknowledge that it authorizes investigatory seizures and searches. Whether such silence reflects coyness or the failure to anticipate that use, it cannot save the statute. The United States Supreme Court has “long recognized that the government may not ‘authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.’ Sibron v. New York, 392 U.S. 40, 61 (1968).” (Kolender v. Lawson (1983) 461 U.S. 352, 362, n. 1, 75 L.Ed.2d 903, 103 S.Ct. 1855 (Justice Brennan, concurring).) Section 11532’s force and function are found in its authorization of searches and seizures on less than probable cause. That is the use to which it primarily and inevitably lends itself, and the use to which it was put in this case. Section 11532’s propensity for such unconstitutional use is woven so tightly into the fabric of the statute that no saving construction can ravel it out. This court should rule that section 11532 violates the search and seizure clauses of the federal and state constitutions.
B. Section 11532 offends due process because it gives insufficient notice of the prohibited conduct, invites discriminatory enforcement, and inhibits the exercise of basic freedoms.
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109; 33 L.Ed.2d 222; 92 S.Ct. 2294; see also In re Timothy R. (1988) 202 Cal.App.3d 593, 597.) Vague laws do not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” (Grayned, supra, at 108-109.) They also “impermissibly delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Id.; see also Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 164, 31 L.Ed.2d 110, 92 S.Ct. 839.) And they discourage the exercise of basic First Amendment freedoms by leading citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.” (Grayned, supra, at 108-109.)
A person of ordinary intelligence cannot know what is prohibited by section 11532. The statute makes it “unlawful for any person to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit an offense specified in Chapter 6 (commencing with Section 11350) and Chapter 6.5 (commencing with Section 11400).” “Loiter” is defined as “delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.” (Health and Saf. Code §11530, subdv. (a).) “Public place” is given a definition of majestic sweep: it encompasses any
area open to the public or exposed to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles, whether moving or not, and buildings open to the general public, including those which serve food or drink, or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them. (Health and Saf. Code §11530, subdv. (b).)
The state may argue that the statute’s command is this: do not linger in an area open to the public or exposed to public view with the intention of committing a drug offense under circumstances manifesting that purpose; and so the law-abiding citizen can avoid arrest simply by avoiding the prohibited intent. Intent cannot be discerned directly, however, but only inferred from external indications; thus to avoid arrest, what the citizen must do is avoid giving the impression of possessing the prohibited intent or, as the statute alternatively phrases it, avoid “circumstances manifesting the purpose” of committing a drug offense. A person of ordinary intelligence cannot know what circumstances manifest the purpose of committing a drug offense, or how his manner – his physical appearance, attitude, gestures, and the like – might suggest the intent to commit a drug offense, and so cannot follow the statute’s command to avoid lingering under such circumstances or with such appearance of criminal intent.
The inclusion of an illustrative list of circumstances that may be considered in determining the presence of the requisite intent does not cure the ambiguity. The list is non-exclusive (see § 11532 (c)), and the circumstances themselves are so varied and so consistent with innocent activity as to offer no guidance as to what other behaviors might manifest the prohibited purpose or intent. Among the circumstances listed are trying to conceal oneself or some object (3); engaging in conversations with passersby (5); possessing cigarette papers (7); having been convicted of a drug offense within the past five years (8); and having engaged, within the prior six months, in any of the described behaviors (except paragraph 8) or in any other behavior “indicative of illegal drug-related activity.” If playing hide-and-seek or greeting a passerby is a circumstance manifesting the prohibited purpose or intent, how does one know what behavior does not manifest such a purpose or intent? The citizen who attempts to avoid illegal conduct simply cannot know what behavior will bring him within the purview of this statute. And if he is a recent drug offender, however reformed he may be, the attempt is futile anyway: he cannot avoid manifesting the proscribed intent when he is out in public, for his mere status as an ex-offender constitutes such manifestation. [Footnote 2]
Appellant does not deny that sometimes “a scienter requirement may mitigate a law’s vagueness.” (Hoffman Estates v. Flipside Hoffman Estates Inc. (1982) 455 U.S. 489, 499, 71 L.Ed.2d 362, 102 S.Ct. 1186.) “[W]here the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law,” even if the definition of the act lacks certainty. (Screws v. United States (1945) 325 U.S. 91, 102, 89 L.Ed. 1495, 65 S.Ct. 1031.) But that is not the function of the scienter element in section 11532. Section 11532 does not outlaw a wrongful act so long as that act is done intentionally; rather it outlaws a wrongful intent which need not be joined with any act at all (other than the unavoidable act of being in a public place for some unspecified period of time), let alone a wrongful act.
It is true that the requirement of scienter helped to save the statute examined in People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, but differences between that case and this prevent a similar rescue here. Caswell concerned Penal Code section 647, subdivision (d), which prohibited loitering in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act. The normal use of a toilet does not take much time; consequently, it not difficult for the law-abiding citizen to avoid giving the impression of lingering with the proscribed intent. The normal use of a park is another matter. Lingering is precisely what parks are for. Lingering in a park with the intent to commit a crime if the opportunity presents itself may well be indistinguishable from lingering in a park without such intent. Thus, unlike the user of a public toilet who can avoid any suspicion of the outlawed intent by simply accomplishing his lawful purpose and leaving, the law-abiding citizen lingering in a park cannot know what he must do (or studiously refrain from doing) to avoid the imputation of the prohibited intent. Also, Caswell concerned “defined geographical locations in which loitering for the proscribed purposes has historically been a problem.” (Id. at 394.) Section 11532 covers all places open to the public or within view of the public, a definition so broad [Footnote 3] that the citizen seeking to avoid any imputation of the proscribed intent had best stay at home, and indeed, indoors, for section 11532 casts its shadow even over front yards and doorways of dwellings. [Footnote 4]
Vague statutes offend due process for the additional reason that they invite discriminatory enforcement. Without adequate guidelines, “a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’” (Kolender v. Lawson, supra, 461 U.S. at 358, quoting Smith v. Goguen (1974) 415 U.S. 566, 575, 39 L.Ed.2d 605, 94 S.Ct. 1242.) The illustrative circumstances set forth in the statute include innocent circumstances that occur with great frequency. People, including ex-drug offenders, walk the streets every day; or call out to each other on the street or in a park, or stop to chat, or duck into an alley to avoid having to stop and chat; “yet only some individuals – those chosen by the police in their unguided discretion – are arrested.” (Houston v. Hill (1987) 482 U.S. 451, 466-467, 96 L.Ed. 2d 398, 107 S.Ct. 2502.) Section 11532 thus poses the danger of discriminatory enforcement offensive to due process.
The third offense to due process caused by vagueness is the inhibition of basic liberties. The “concern here is based upon the “potential for arbitrarily suppressing First Amendment liberties . . . .” (Kolender, supra, 461 U.S. at 358, quoting Shuttlesworth v. City of Birmingham (1965) 382 U.S. 87, 91, 15 L.Ed.2d 176, 8l6 S.Ct. 211.) By virtue of section 11532, citizens must be wary of engaging in conversations with passersby on any public street or park, for the statute designates such behavior as indicative of lingering with the intent to commit a drug offense. “So vague and indeterminate are the boundaries thus set to the freedom of speech and assembly that the law necessarily violates the guarantees of liberty embodied in the Fourteenth Amendment.” (Herndon v. Lowry (1937) 301 U.S. 242, 264, 81 L.Ed. 1066; 57 S.Ct. 732.)
Besides the freedoms of speech and assembly, a statute may, because of its vagueness, “implicate consideration of the constitutional right to freedom of movement.” (Kolender, supra, 461 U.S. at 358, citing Kent v. Dulles (1958) 357 U.S. 116, 126, 2 L.Ed.2d 1204, 78 S.Ct. 1113, and Aptheker v. Secretary of State (1964) 378 U.S. 500, 505-506, 12 L.Ed.2d 992, 84 S.Ct. 1659.) As noted above, the citizen intent on avoiding imputation of the prohibited intent had best stay at home, indoors, or, if he ventures out, had best attempt to keep his wanderings at a minimum.
Section 11532 implicates freedom of speech, freedom of assembly, and freedom of movement. The citizen who tries to stay within the boundaries of the law and avoid troubles with law enforcement personnel cannot know how much contact with passersby is suggestive of illegal intent; or how to place a gum wrapper in his pocket without appearing to do so furtively; or how to wave to an acquaintance without appearing to be summoning a drug purchaser; or how to admire the view in the park without appearing to serve as a look-out for a drug transaction. Because the statute does not indicate how one may engage in speech, assembly, or movement in a public place without giving the impression of the prohibited intent, it discourages all such activity.
The statute does not tell the person of ordinary intelligence how to avoid coming within its purview. It does not tell the law enforcement officer whom to arrest among the huge numbers of people who every day greet one another, offer each other cigarettes or gum, place objects in their pockets, look around admiring the view or searching for acquaintances or a lost dog. It casts a chilling shadow over anyone whose speech, association, or movement might arouse suspicion. It is too vague to afford due process.
C. Section 11532 offends due process because it is overly broad and infringes upon other constitutional rights.
Even statutes that are models of linguistic precision may offend due process by encompassing constitutionally protected conduct within their sweeping prohibitions. (See Grayned v. City of Rockford, supra, 408 U.S. at 114.) By declaring that communicative acts in public places, including conversing with passersby, may reveal the intent it criminalizes, section 11532 proscribes speech protected by the First Amendment.
“In a traditional public forum … First Amendment protections are subject to heightened scrutiny ….” Los Angeles Board of Airport Comm’rs v. Jews For Jesus, Inc. (1987) 482 U.S. 569, 573, 96 L.Ed.2d 500, 107 S.Ct. 2568.) Public parks and public streets are traditional public fora. “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (Hague v. CIO (1939) 307 U.S. 496, 515, 83 L.Ed. 1423, 59 S.Ct. 954, quoted in Kunz v. New York (1951) 340 U.S. 290, 293, 95 L.Ed. 280, 71 S.Ct. 312, and in Grayned, supra, 408 U.S. at 115.) A statute that infringes on expression in public places thus must be scrutinized with care. “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” (Grayned, supra, 408 U.S. at 117.) Conversing with passersby or acquaintances in a park is not incompatible with the use of a park; to the contrary, it is precisely what parks are for. (See Hague v. CIO, supra, 307 U.S. at 515.)
Here, appellant was arrested because he was conversing with a man who subsequently engaged in a drug transaction and because appellant followed and remained within the vicinity of that person, possibly to resume the conversation after the transaction. If appellant, after serving his six years’ prison sentence, should be tempted to converse with an acquaintance or passerby in a public place, he will surely bear in mind that an unfortunate choice of interlocutor or some other unforeseeable circumstance could subject him to arrest again. He would be prudent to hold his tongue, shun all company, or, better yet, stay home. A statute that identifies conversing with passersby in a park, street, restaurant or doorway as evidence of criminal intent must inevitably chill rights of expression, association, and travel. “The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.” (Thornhill v. Alabama (1940) 310 U.S. 88, 97-98, 84 L.Ed. 1093, 60 S.Ct. 736.) It is not any “less pernicious than the restraint on freedom of discussion imposed by the threat of censorship.” (Ibid.)
D. Section 11532 Violates the Separation of Powers.
Article III, section 3, of the California Constitution provides that “[t]he powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
Section 11532 blurs the lines between the legislative, executive, and judicial powers. It substitutes the judgment of first, the police officer and later, the judge, for that of the legislature in determining what behavior should be considered criminal. Yet “the power to define crimes and fix penalties is vested exclusively in the legislative branch,” subject only to constitutional limitations on that power. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.)
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government.” (United States v. Reese (1875) 92 U.S. 214, 221, 23 L.Ed. 563.) Section 11532 substitutes the judgment of the executive and judicial branches for that of the legislative, and so offends the separation of powers clause of the California Constitution. (See Keeler, supra, Reese, supra.)
E. The Constitutionality of Section 11532 is Cognizable on Appeal Although Not Explicitly Raised Below.
Defense counsel at trial did not explicitly argue that section 11532 is unconstitutional. She did, however, complain that the People interpreted that statute as outlawing the status of drug addiction and that such interpretation led to discriminatory enforcement against blacks, including appellant. (RT 4/29/98, pp. 41-42.) The court and the prosecutor may be expected to have understood that counsel’s argument attacked the constitutionality of section 11532. Even if counsel’s argument was not explicit enough to give notice of a constitutional objection, the issue remains cognizable on appeal. The facts pertaining to appellant’s arrest are undisputed and the constitutional issue is purely one of law. The court on appeal may consider an argument that was not made below if “[t]he argument is purely one of law and does not turn upon any factual determination below.” (People v. Truer (1985) 168 Cal.App.3d 437, 441.) “[A] litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts.” (Hale v. Morgan (1978) 22 Cal.3d 388, 394. Accord People v. Brown (1996) 42 Cal.App.4th 461, 471.)
Guiding the appellate court’s discretion are factors enunciated in Hale and Brown:
[A]lthough California authorities on the point are not uniform, our courts have several times examined constitutional issues raised for the first time on appeal, especially when the enforcement of a penal statute is involved …, the asserted error fundamentally affects the validity of the judgment …, or important issues of public policy are at issue ….”
(Hale, supra, 22 Cal.3d at 394 (citations omitted), quoted in Brown, supra, at 471.) The instant case presents each of these factors. Enforcement of penal laws is involved. The asserted error fundamentally affects the validity of the judgment. An important issue of public policy is presented – the constitutional validity of a statute that chills freedoms of speech, association, and movement, and authorizes severe intrusions on personal security and privacy on less than probable cause.
Moreover, if the failure to assert explicitly the unconstitutionality of section 11532 below would result in a forfeiture of the argument that section 11532 is unconstitutional and thus cannot furnish a permissible basis for appellant’s arrest, the court must address the question of whether appellant was denied the effective assistance of counsel. Defendants have a right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To make a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance “fell below an objective standard of reasonableness … under prevailing professional norms” and there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at 694.)
If counsel failed to assert the unconstitutionality of section 11532, that failure was not reasonable. Section 11532 criminalizes being in a place open to the public, for an unspecified period of time, in circumstances that some officer might consider suggestive of an intent to engage in a drug crime if the opportunity should arise. Its affront to Fourth Amendment rights, its vagueness, its overbreadth, its blurring of the legislative, executive, and judicial functions, and its other constitutional infirmities [Footnote 5] must be apparent to any competent counsel. Of course, in determining whether counsel’s performance was less than reasonable,
the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation’ (People v. Pope  23 Cal.3d  at pp. 425-426), the case is affirmed (ibid.). In such cases, the ineffective-assistance claim is more appropriately made in a petition for habeas corpus. (Ibid.; see People v. Ledesma  43 Cal.3d  at p. 218.) (People v. Babbitt (1988) 45 Cal.3d 660, 707.)
Here, the record is silent as to any reasons trial counsel may have had for failing to contest explicitly the constitutionality of section 11532. But defense counsel’s attempt to refute the People’s argument that there was probable cause to arrest appellant for a violation of section 11532 could only have been aided by the explicit argument that section 11532 is unconstitutional. No reasonable tactical basis for failing to make that argument can be imagined. Consequently, if by trial counsel’s neglect, appellant has forfeited the opportunity to argue on appeal that the statute under which he was ostensibly arrested was unconstitutional, this Court should conclude that trial counsel’s conduct “fell below an objective standard of reasonableness … under prevailing professional norms.” (Strickland v. Washington, supra, 466 U.S. at p. 687.)
As to the issue of prejudice, if appellant forfeits the argument that section 11532 is unconstitutional because defense counsel failed to raise the issue explicitly below, and if this Court concludes that there was probable cause to arrest appellant for a violation of that statute, appellant will plainly have suffered prejudice. There would be at least a reasonable probability that but for counsel’s failings, the result would have been more favorable to appellant.
Thus this Court should conclude either that trial counsel did adequately raise the issue of section 11532’s constitutionality, or that the issue is not waived because it is an important issue of law which does not require the determination of any factual issue, or that the issue is cognizable because otherwise appellant will suffer prejudice from the ineffective assistance he received from trial counsel.
III. No Exception to the Exclusionary Rule Applies
The operation of the exclusionary rule cannot be avoided by invocation of the exception identified in Illinois v. Krull (1987) 480 U.S. 340, 94 L.Ed.2d 364, 107 S.Ct. 1160, for evidence obtained by an officer acting in objectively reasonable reliance on a statute that had not been declared unconstitutional prior to the officer’s action. There is no evidence that Officer Ramm acted in reliance on Health and Safety Code section 11532 at all. She never testified that she did. She never testified that she had ever even heard of section 11532. She never identified any basis for appellant’s arrest.
Upon observing appellant and Mr. Dixon, Officer Ramm radioed a description of them to her police colleagues. At this time neither Mr. Dixon nor appellant had done anything at all suspicious. (RT 4/29/98, pp. 20-21.) After purchasing the heroin from Mr. Dixon, Officer Ramm radioed a “bust signal,” a previously-agreed-upon word or phrase that prompts the fellow officers to arrest the persons previously described. (Id., p. 28.) As the “bust signal” was agreed upon before Officer Ramm made contact with appellant and Mr. Dixon, it could not have informed the arresting officers of what offense appellant had committed. There was no testimony that Officer Ramm otherwise informed the arresting officers of the nature of the charge against appellant. The parties stipulated that appellant was booked only for violating Health and Safety Code section 11350 and Business and Professions Code section 4149. (Id., p. 35.)
The People argued that section 11532 supplies probable cause for the arrest regardless of whether the police relied on that statute in making the arrest. (Id., pp. 29-30, 36.) But the exception to the exclusionary rule for evidence an officer obtains in objectively reasonable reliance on a statute that had not been declared unconstitutional cannot apply where there is no reliance, objectively reasonable or otherwise.
A grave and obvious threat to the right to be free of unreasonable searches and seizures is posed by the proposition that the police may arrest a citizen without determining any basis for the arrest, then search him as an incident to that arrest, and then either release him if nothing incriminatory is found or charge him with an offense based on whatever incriminatory article is discovered, trusting that prosecutors poring over the statute books will come up with a statute that may plausibly be cited as affording after-the-fact probable cause for that arrest, and if the only statute that serves the purpose is unconstitutional, trust that the conviction will nonetheless be upheld upon the argument that the police were entitled to rely on that statute (even though in fact they did not) and could not be expected to perceive its unconstitutionality.
The exception to the exclusionary rule for objectively reasonable reliance on a statute that had not been declared unconstitutional does not apply here not only because there is no evidence that Officer Ramm relied on section 11532 but also because any such reliance would not have been reasonable. The unconstitutionality of a statute that criminalizes being in a place open to the public, for an unspecified period of time, in circumstances that some police officer might consider suggestive of an intent to engage in a drug crime if the opportunity should come along, must be obvious to any decently-trained officer. Any officer who has been taught the basics of fourth amendment law; indeed, any officer who has read the words of the fourth amendment, cannot help but see that section 11532’s license to arrest and search suspicious persons conflicts with the amendment. “Arresting a person on suspicion, like arresting a person for investigation, is foreign to our system ….” (Papachristou v. City Of Jacksonville, supra, 405 U.S. at 168.) No adequately-trained officer could reasonably rely on a statute that attempts to dispense with fourth amendment safeguards by making suspiciousness itself a crime.
As explained above, appellant was seized and searched without probable cause to believe that he had committed a crime. The statute offered as affording probable cause for appellant’s arrest unconstitutionally makes suspiciousness a crime and authorizes arrests on probable cause to believe a person has acted suspiciously, which is a lesser standard than the constitutionally-mandated standard of probable cause to believe a person has committed a crime. The statute also is so vague that the law-abiding citizen cannot know how to avoid coming within its purview, and the police are left to their own unfettered discretion in determining whether a person has lingered long enough and in circumstances sufficiently suspicious to constitute a violation. By declaring that lawful acts of speech, association, and movement may be considered as indicative of the intent which it criminalizes, section 11532 also infringes upon basic freedoms of speech, association, and movement. By delegating to the police and the judges the task of determining what conduct is criminal, the statute violates the separation of powers. The exception to the exclusionary rule for evidence obtained in objectively reasonable reliance upon a statute not previously declared unconstitutional does not apply here, because there was no evidence that the police relied on the statute in arresting appellant and in any case it cannot be considered reasonable to rely on a statute that dispenses with fourth amendment rights by criminalizing suspiciousness. Consequently, the case should be remanded with an order to grant the motion to suppress the evidence obtained by the unlawful arrest and search of appellant.
Date: October 28, 1998
By his attorney,
Maureen L. Fox
Footnote 1: Penal Code section 664 provides: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts .…”
Footnote 2: By punishing the unalterable status of former drug offender, section 11532 may offend equal protection. (U.S. Const., Amd. 14. See Robinson v. California (1962) 370 U.S. 660, 8 L.Ed.2d 758, 82 S.Ct. 1417.) By subjecting the former drug offender to dual punishment, it may constitute double jeopardy. (U.S. Const. Amd. 5.) And, in its application to persons whose drug crimes were committed before the enactment of section 11532, it may be an ex post facto law. (U.S. Const. Art.I, § 10.)
Footnote 3: See the text of Health and Saf. Code § 11530, subdv. (b) at page 22, above.
Footnote 4: Caswell is distinguishable also because there the statute was challenged only as unconstitutional on its face. Here, the statute has actually been applied to appellant to his detriment and he complains of the actual injury to himself as well as the potential for injury to himself and others.
Footnote 5: See note 4, supra.