Opinion
No. 92 CRB 014396.
Decided September 20, 1992.
Russell Brown, Assistant City Prosecutor, for plaintiff.
Thomas M. Shaughnessy, for defendant.
The defendant, David Landon, is charged with a violation of Section 607.10 of the Codified Ordinances of the City of Cleveland. That section prohibits and sanctions "Loitering for the Purpose of Engaging in Drug-related Activity." The defendant has filed with the court a "Motion to Declare Ordinance Section 607 Unconstitutional."
The facts upon which this prosecution is grounded are as follows: On the nineteenth of June, 1992, the Cleveland Police Department responded to complaints of street drug sales at the corner of E. 55th Street and Woodland Avenue. Four officers from the department's Street Crimes Unit responded. Upon their arrival on the scene, they observed two males outside a car engaged in conversation with the two occupants of the vehicle. One of the males outside the vehicle appeared to be showing the defendant, who was one of the males inside the vehicle, something in a plastic bag. The defendant, in turn, was observed extending a twenty-dollar bill toward one of the males outside the vehicle.
At this point, the officers converged upon the vehicle and detained all of the males. The plastic bag which the officers had seen in the possession of the male outside the car was found to contain twelve "rocks" of "crack" cocaine. The defendant was found to have a "crunched" twenty-dollar bill in one hand, and $676 in cash on his person.
No drugs were found on the person of the defendant. Likewise, no drugs were found on the person of the other occupant of the car, nor were any drugs found anywhere in the vehicle. All of the males were arrested, including the defendant, who was charged with the present offense.
The defendant maintains that Section 607.10 of the Codified Ordinances of the City of Cleveland "* * * is unconstitutionally vague as generally used, and was specifically used as a pretext to stop and search the accused." The tenor of the defendant's brief also makes the argument that the language of M.C. 607.10 is impermissibly overbroad, and sweeps constitutionally protected conduct within the parameters of its prohibitions.
The defendant's primary objection to the language employed concerns those sections of the ordinance which delineate some of the circumstances law enforcement officials may rely on in determining whether there is probable cause to believe that a particular individual is loitering for the prohibited purpose of engaging in drug-related activities.
The defense suggests that most of the circumstances cited in those sections could just as easily be engaged in by an average citizen in the conduct of his or her normal daily routine, to wit: beckoning to other people, engaging passersby in conversation, attempting to hail motor vehicles and exchanging small parcels on the street, all of which were specifically cited by the defendant in his brief as examples of the types of innocent conduct which he claims are, or could be, improperly criminalized by the terms of this ordinance. It is the defendant's position, further, that the ordinance invests unchecked discretion in governmental authorities in the enforcement and the interpretation of its provisions. See defendant's brief at page 10.
The prosecution takes the position that the ordinance is "constitutional and not void for vagueness for the reason that it sets forth clear and definite criteria for the citizen and law enforcement officers, and requires an unlawful intent along with an overt act or circumstances."
The United States Supreme Court has held that loitering, loafing and associating on street corners are constitutionally protected activities. Papachristou v. Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. As this court pointed out in Cleveland v. Howard (1987), 40 Ohio Misc.2d 7, 11, 532 N.E.2d 1325, 1329, which dealt with a very similar ordinance prohibiting loitering for the purpose of prostitution, "[i]f the ordinance provides the city authorization to punish for engaging in any of these acts, without more, it cannot withstand a constitutional attack."
The ordinance under scrutiny is typical of other modern-day loitering prohibitions, which were enacted after the Supreme Court struck down their more restrictive predecessors. Most of these laws have been patterned after guidelines found in the American Law Institute's Model Penal Code, Proposed Draft, Sections 250.6 and 251.2. They require that the overt, and otherwise constitutionally protected, activity of loitering be coupled with a manifested illegal purpose before an arrest and conviction can be justified.
In Howard, supra, this court found the ordinance in question to be constitutional. Many of the considerations faced by the court in the Howard case are the same considerations facing the court in the case at bar.
To begin with, now, as then, legislative enactments benefit from a strong presumption of constitutionality. Ohio Pub. Interest Action Group v. Pub. Util. Comm. (1975), 43 Ohio St.2d 175, 72 O.O.2d 98, 331 N.E.2d 730; State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 10 O.O.3d 408, 383 N.E.2d 892. The courts are still bound, when construing legislative enactments, to avoid an unconstitutional construction, if it is reasonably possible to do so. United Air Lines v. Potterfield (1971), 28 Ohio St.2d 97, 57 O.O.2d 288, 276 N.E.2d 629, appeal dismissed (1972), 407 U.S. 917, 92 S.Ct. 2461, 32 L.Ed.2d 803. It is likewise still true that one who challenges the constitutionality of a legislative enactment bears the burden of proving its invalidity beyond a reasonable doubt. State v. Renalist, Inc., supra.
This court was unable to find any reported decisions on the questions which have been posed with regard to the specific ordinance before it. However, an ordinance employing identical language was the subject of a well-reasoned opinion by Judge Schneiderman of the Akron Municipal Court. In Akron v. Holley (1989), 53 Ohio Misc.2d 4, 6-9, 557 N.E.2d 861, 863-866, Judge Schneiderman analyzed, in some detail, the arguments which had been brought forward by the defendant in support of his contention that Akron's Loitering for the Purpose of Drug-related Activity Ordinance was unconstitutionally vague and overbroad. A cursory review of that court's opinion on those issues reveals that the rationale it employed has perfect applicability to the ordinance under review here. We, therefore, adopt that rationale and apply it, in its entirety, to the identical issues which we have been called upon to decide concerning M.C. 607.10.
In doing so, we are necessarily brought to conclude, as did the Holley court, that:
"In summary, by this court's interpretation, [the Loitering for the Purpose of Engaging in Drug-Related Activity Ordinance] sets forth clear and definite criteria for citizens as well as police, and they can determine whether the particular loitering is unlawful. Because the ordinance requires an overt act * * * as well as the unlawful intent, it protects individuals from arbitrary and unreasonable police action. The wording of the ordinance also prevents criminal action against harmless conduct or conduct that is not fairly communicated." Akron v. Holley, supra, 53 Ohio Misc.2d at 10, 557 N.E.2d at 867.
We turn now to the defendant's contention that the ordinance was used as a pretext to stop and search him. Based upon the court's foregoing analysis, we find that the defendant's contention is without merit.
Defendant's Motion to Declare Ordinance Section 607 Unconstitutional is not well taken and is, therefore, denied.
So ordered.