# Appellants Brief — Palmer v. City of Euclid > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1489%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1971 - **Citation:** 402 U.S. 544 ## Text SUPREME COURT, U. S. IN THE ‘Supreme Court of the United States OCT OBER TERM, 1970 Me ie ’ JAMES PALMER, ~ : Appellant, US. 87 oo Epes | 4 rs ey 2) ane . 10, 16 Spevack v. Klein, 385 US. $09 (1967)... décecceceeeee. » 9.25 State v. Terry, 5 Ohjo App. 2d 122, 214 N.B, 2d 114 domes MON orien 65 ss cSass cnc VePiRiceyaads as 9, 32 Tebidn v. Shott, 382 U.S. 406 (1966)... ... eee 26 Terry v, Ohio, 392 US. 1 (1968).............. beens passim United States v. L.-Cohen Grocery Co,, 255 US. 81 ‘r | Pe Oe ey ee ee Ae oe United States v. Margeson, 259 F. Supp. 256 (E.D. A, ans Se ae are Dey 15 Winship, In re, - US. 908. Ct.1068 (1970....... " 0” Winters v. NewYork, 333 US. 50741948). ..... er ee ae United States Constitution: o- Fourth Amendment ."..:.0.0.0.00 00000 lees eee. 8, 29, 32 Fi Page Fifth Amendment’... .. ; is sii eek le bo . . 23, 26, 28 - Fourteenth Amendment ,.......---++00-. 8, 19, 21, 28, 29 " United States Statutes: | ras 4 RS. § 1977; 42 USC. § 1981 (1958 ed.).........---6. 19 82 Stat..73, 42 USC. § 3601-3619 (1970 ed.) .. Boch: 20 State Statutes: New York Code of Crim. Proc. § 1800... yr or ree 32 ' Ohio Rev. Code § 4112.0%H)..2.7...5. dina vp Gas 2 Ordinances of City of Euclid yo! errr eRe ge (+i Miscellaneous. | Adams, “Field Interrogation”, Police, March-April, ; v0). ) eer ee ree eee ee 22 American Law: Institute, Model Code of Pre-Arraignment : Procedure, Tent. Drft. No. 2, % 2.01(2), 2.002(5)..... 25, 26, 32 American Law Institute, Model Penal Code,§2506.....:.. 26 American Law Institute, 1961 Proceedings............... 26 _ American Law Institute, 1966 Proceedings....:....... ee a Amersterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, . ~ and the Like, 3 CRIM. L. BULL? 205 (1967)... . . 10, 21, 25, 27, Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. (1960)...... we +) ae Black’s Law Dictionary (4th ed. 1957) ..............044. Tl Chafee, Three Human Rights in the Constitution of 1787 (1956) ..2..2-64- we ehadben ae bdct dpe nhed eo wus 29 ob Douglas, Vagrancy and Arrest on n Suspicion, 70 YALE ° SS re eA Pree riers fer ere “30 _ F.B.L., Uniform Crime Reports - 1968, Table 30 ......... » - oP Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. REV. 603 (1956) ....... ao ails Serre 27, 30, 33 Gilston and Podell, The Practical Patrolman (1959) ....... ~ @ Mi) | ' eS ; ” Kah, The “Rest of Us” in the “Policing the Police” Controversy, 57 J. CRIM. L. C. &P. S. 244 NS eg ee oe oo a La Fave, Penal Code Revision: Considering the Problems and Practices of the Police, 45 TEXAS L. REY. ‘434 (1967) ..... wre’ Serre ae TRENT ae eee 30 La Fave, “Street Encounters” and the Constitution: Terry, Sibron, Peters and“Beyond, 67 MICH. L: REV. ee a Mey oo -o 25, 32 Myrdal, An Amesican Dilemma, (Ist ed. 1944) ........... 17 Niederhioffer, Behind the Shield—The Police in Urban A, “pS Bee ea ES ee 22 Pilcher, The Law and Practice of Field beatae, 58, CO Xe RR TT . 25 President's Commission on Law Enforcement, Task, Force Report: The Courts 103 (1967)............... 30, 33 President’s Commission on Law Enforcement, Task Force Report: The Police (1967) Reich, Police Questioning of Law Abiding Citizens, 75 YALE L. J. 1161 (1966) ... .17, 27 Schwartz, Stop and Frisk (A Case Study in Judicial Control of the Police), 58 J. CRIM. L. C.& P. S. BB QIOTS oi tecrveccccgevccccccscvccsnces’ - 25 Skolnik, Justice Without Trial, (1965) ....... HE gs Se Oe ae Soutis, Stop and Frisk or Arrest and Search—The Use se of Euphemisms, 57 J. CRIM. L.C. & P.S RTS ora. ot Wie ca asa seus dagen 18 Stat/16 Charles 1.C.'10 (1941) ..:.......4-5. Yee 26 any, ee and Rotenberg, Detection of Cringe EPR OE ray Oe OP TP OOr Pon 18, 20 US. Bureau of Census, Census of Pop. 1960, Vol. 1. DRE A EPI Renee SIE ae Aloe sin bn epee Aap 21 US. Bureau of Census, Census of Pop. 1960, Final Report P.H.C. (1)-28, Census Tract Cleveland, Ohio, Table RES Suvctks cus aahameneenenes haus ee Ye OO ET ORT SA ee er (vii) , Page Webster's Unabridged Dictionary {2d ed. 1962) ........... | 8 Wigmoyse, Evidence (McNaughton-rev. 1961)... . . se eeeee 24, 27 Note, Constitutional Attacks on Vagrancy Laws, 20 STAN L. REV. ee yee ety Tree Tee 25 eo % e* -t IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1970 No. 143 © JAMES PALMER, : | Appellant,. ve cITY OF EUCLID, OHIO, Appellee. APPEAL FROM THE SUPREME COURT OF OHIO BRIEF FOR APPELLANT OPINIONS BELOW No opinions were delivered by any of the courts below. ee . 5 JURISDICTION is The judgment of the Supreme Court of Ohio was en- tered on December 18, 1968 (A. .30).- A petition for re- ° hearing was denied,on January 22, 1969 (A. 30). The ap- os es peal wasfiled in this Court on April 22, 1969, and probable jurisdiction was noted on May 4, 1970. The jurisdiction of this Court rests on 28 U.S:C. § 1257(2). CONSTITUTIONAL PROVISIONS AND ORDINANCE INVOLVED . United States Constitution ‘Amendment 4V: The right of the people J be secure in their per- * sons, houses, papers, and effects, against unreasona- _ ble: searches and seizures, shall not be violated, and. “no Warrants shall issue, but upon probable cause, supported by Oath; or affirmation, and particularly describing the place to be searched, and the person : ‘or things to be seized. ; Amendment Vv: * * * nor shall ‘any person * * * be’ compelled in any criminal case to be a witness against himself 5 aa ae , Amendment XIV; Section 1, Clause 2: ‘ * * * nor shall any’ State deprive any person of life, liberty,-or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Ordinance of the City of Euclid, Ohio Section 583.01 It shall be unlawful for any suspicious person to be within the Municipality. The following shall be deemed suspicious persons: ' x** 4 is 3 (e) ~Any 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 and who does not ive satisfac- : ‘tory account of himself; QUESTIONS PRESENTED © ' Whether an ordinance providing for imprisonment of sus- picious persons, defined as “Any 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 and who does not give satis- factory account of himself;’ is so vague and lacking in as- certainable standards of guilt as to fail to give fair notice of what is prohibited, invite arbitrary and discriminatory en- ‘forcement, and sweep within its ambit constitutionally pro- . tected conduct, so as to-be void as in ‘conflict with the Fourteenth Amendment's guarantee of ‘due process of law? | Whether, consistent: with the Fifth Amendment’s privi- lege against self-incrimination, an ordinance -may compel a suspect to “give a satisfactory account of himself’ under pain of fine and/or imprisonment for failure or refusal to do so? ‘ a ee ko “Whether the Euclid suspicious persons ordinance ‘uncon- stitutionally infringes freedom of movement by allowing ar- ‘rest, detention, and conviction on sispicion in violation of - : the Fourth and Fourteenth Amendments? . there at night (A. 12). 4 STATEMENT On August 21, 1967, James Palmer was convicted after a jury trial of being a suspicious person in violation of Sec- tion 583.01(e) of the. ee of the City of eamatti Ohio (A. 26). _,- The evidentiary basis for the ‘conviction was primarily the testimony of one Joseph Zupanic, a member of the: City of Euclid Police Department (A. 4). Zupanic testified ‘that in the early morning hours of April 19, 1967, while he was working his off-duty job patrolling the Indian Hills Colony Apartmént complex (A. 5), his, suspicion was aroused by Palmer’s automobile travelling at a very. slow rate of, speed without headlights in the driveway of the parking lot (A. 5).- Upon observation he became even more suspicious, because he saw a “colored femalt”’ alight from the passenger side of the car and entér the building (A. 5), and he claimed to know that no “colored females” lived at the apartments (A. 7, 21).* - raise Palmer then turned his headlights on, pulled his car onto the. street. and parked (A. 5-6).. As the patrolman ap- ,— proached to investigate, he noticed that Palmer had a mi- crophone in his hand and was talking on a. two-way radio - (A. 6).. Zupanic testified that he asked Palmer for identi- fication and asked him to get out of the vehicle, and that Palmer got out and showed him his driver’s license (A. 6). Zupanic put Palmer up against the car and searched him for weapons (A: 7). . In. response to a question about the id@ntity of the fe- male, Palmer indicated that she was just a friend and that» he didn’t know where she had gone (A. 6). Whereupon ~ - Zupanic marched Palmer into the building at gunpoint ( (A. = *The. Indian Hills Colony Apartitients were of such * magnitude that Patrolman Zupanic estimated that-maybe 2,000 cars would be parked al f-a% 5 8) and called the police department for assistance (A. 6). _A thorough search of the premises failed to find the fe- male (A. 6). Palmer subsequently agreed to take the police officer to - ‘the apartment where he thought the female had gone, but when the party within denied that any colored female had come into the apartment,-Palmer was taken to the police station and his car was towed theré for investigation (A. 6). Zupanic testified that during the course of interrogation at the station, appellant gave him three different home ad- dresses, said he didn’t know the female’s name (A. 7), and gave no satisfactory explanation of his presence at. the apartments (A: 20) or that of stopping. his friend off (A. 7). A lengthy and meandering cross-examination of Zupanic by Palmer* disclosed that all of his observation (A. 9-11), _ his search of Palmer (A. 7), his search of the apartment building ¢A. 13), his check of the stolen car sheet (A. 12), ° and his interrogation of Palmer at the police station (Tr. 53-58) produced not not a scintilla of evidence of any substan- tive offense-corfimitted by either Palmer or the “colored fe- male’ (A, 21). Further, there was no report of any crime having been committed (A. 18). : James Palmer did not testify in his own defense; the ‘court charged the jury in the language of the ordinance without further explanation or limitation (A. 24-25); and « the jury found Palmer guilty of being a suspicious person. (A. 26). The court sentenced him to serve 30 days in the Cuyahoga County Jail and to a fine of $50.00 and costs ih. 2a" | 2 Palmer’ s motion for a new trial based on the cosistitu- tional invalidity of the ordinance under which he had been *James Palmer, although not a lawyer, conducted his own a (A. 12). v | convicted was denied (A. 27), On ‘neal to the Court- of Appeals of Cuyahoga County; Palmer’s conviction was af- ; _ firmed without opinion (A. 28)>~ .Palmer’s appeal to the Ohio Supreme Court was dismissed on the ground that no substantial constitutional question’ ‘existed (A. 30). After rehearing was denied (A. 30), Palmer appedled to this Court, which noted probable. jurisdiction on May 4, 1970 (A. 31). a. ; ; "S, Sinte ws ~ # SUMMARY OF ARGUMENT | \ tte | I. A. Ordinance fails to give fair notice by reason of its. vagueness. No ascertainable.standard of conduct \is pro-. vided by any of its elements. ‘Wanders’ has been inter- “| preted by diverse judges to include only innocent condtct, - — . only criminal conduct, and both innocent and’ culpable conduct. ‘Found abroad at late or unusual hours of the © * _ night” is simply a nocturnal version. of wandering and is ‘faction is required. The _— in this phrase has led - subject to the same vagaries of interpretation. The phrase “without visible or lawful business” ‘simply begs the ques-. . tion of, when wandering itself is lawful business. “Does not give satisfactory account of himself” raises a host of questions as to what kind of satisfaction and whose satis-. ° F) nine lower federal. and state Courts to strike down statutes . ie containing it.. Nor does the phrase “‘suspicious eet: lend. any finite content torthis otherwise vague ordinance. B. Ordinance invites arbitrary and discriminatory. “en- Mead 5; forcement by reason of its vagueness. The requirement™ ° that suspects give a “‘satisfactory account” conditions their freedom of movement on/the suffrance of any police offi- cer. Thus, the ordinancg cannot stand cohsistent with. toe Shuttlesworth v. City of:Birmingham, 382 U. S. 399 (1966). The vagueness of its other elements facilitates the em- ployment of constitutionally illegitimate bases for the selec- tion of subjects from -nm s ‘satisfactory accounts” are de- manded, A satisfactory account was. demanded of James - - Palmer in: part -because “a colored fermale””’ alighted from his car, when the police officer knew that.no colored fe- 2 males lived in the-area (A. 5, 7, 20-21). National statistics and empirical studies of police behavior demonstrate that ’ Negroes . are. disproportionately burdened ‘by suspicious per- son arrests. But even if race be viewed as a neutral and | _ rational basis for determining who ‘is “out of.place” it may — not be so employed, because it is. the product of, and. con- tributes to, a long and -tragic ‘national history of housing discrimination and segregation. A virtually all-white City, “of Euelid would not. otherwise exist in a county having a “nonwhite population in EXCESS of fifteen per cent. The ordinaiice’ S capacity. for arbitrary enforcement also. _ includes the potentiai for suppressing non-criminal but un- - ° " conventional persons and behavior, a substantial risk in light of recent empirical evidence that a commitment. to conventionalism is a ‘significant characteristic of the police” personality. © re) The ordinance’s vagueness - further licenses judges ‘and juries to convict for unconventional behavior in violation of Giaccio v. Pennsylvania, 382 US. 399 (1966). td Ordinance’ s vagueness as permitting application to. . constitutionally protected conduct. The ordinance threat- ; ens the privilege against self-incrimination, freedom of: ~movement, freedom from: arrest except upon: ‘probable cause”, and freedom from conviction except upon -proof beyond a reasonable doubt, as is developed in the remain- der of the brief. , y The privilege against self-incrimination prohibits govern- ment from using compulsion to elicit incriminating admis- sions, Albertson v. Subversive Activities Control Board, 382 © US. 70 (1965), from penalizing the invocation of the privi- _ lege, Spevack v. Klein, 385 U.S. 511 (1967), and from z “ ag oe ® -using‘in any crimfhal prosecution statements made ender .tminor penalties compared ‘to the costs of appeal, mootness - “ord, : threat of sanction for refus4l to answer. Garrity v. New Jersey, 385 U.S. 493 (1967). These principles establish be- yond. peradventure ¢hat the police have no right td compel ‘answers to: their incriminating questions. Davis v. Mississ® ppi, 394 U.S. 721, 727.n. 6 (1969). Yet, the City of Eu- . clid has enacted an ordnance that purports to give them that right. oo * e y ‘ . *. The ordigance must be ae unconstitutional on ‘its é ace because it violates the central méahing of the privil- ege against self-incrimination’ and the privilege. cannot ade- ‘quately be protected frdm‘it on-a case by case basis be- ‘cause of the paudity of appellate-review due to the ignoble socio-economic status of most defendants, the relatively by service. of sentence, and the absence of a writfén rec- | \ tion which‘ cannot stand because it is predicated in part upon statements elicited from Palmer under compulsion to “give a satisfactory account” inyeiasd v. New M, ErSEY. "385 US. 493 (1967). = eas § . $ th ; . » . *“Freedom of movement is- basic .in our scheme of values”, Kent v. Dulles, 357 U.S. 116, 126 (1958), but it ,. is not absolute. The de..cate balance. between liberty of movement and the requirements’ of order is drawn by the Constitution and reflected in an escalating scale of burdens of. proof, emanating arom the Fourth and Fourteenth. Amendments, required of governqent before it may deprive persons of. that freedom. A brief, on-the-street detention requires “articutable suspicion”; an arrest demands “proba- | ble cause”; and imprisonment pursuant to conviction re- quires “proof” beyond a reasonable doubt”. The Euclid suspicious-persons ordinance makes hash-out of this deli- cate constitutional_balance by authorizing all levels of de- privation on merg. ¢ Suspicion ° ** ae . As applied in this case the ordinance produced a convic- - yee) re. . h . - " The Euclid suspicious persons ordinance is ot ‘necessary to ‘law euforcement because of this Court’ s décision in .' Terry v. Ohio, 392 U.S. 1 41968) and the availability of — feasible alternative means of dealing with. suspicious. cir- cumstances and persons;-such as the Uniform Arrest ‘Act, the ‘New York “Stop.and Fr&k”’ Act, the Model Code of Pre-Arraignment Procedure; and the common law powers _ recognized in State ¥. Terry, 5 Ohio fAepp. 2d 122, 214-N.E. 2d 114 (1966), all of which are less stifling of fundamental personal liberties. The alternatives do-not permit arrests or: convictions on mere suspicion; do not make it a crime to. _ exercise the privilege agamfst self-incrimination, and do not. shift the burden of proof to the defendant. This Court Zan. ; make a significant contribution to constitutional liberty at fio cost to law enforcement by~ striking “down the Fuclid o suspicious persons ordinance. “ARGUMENT 4 L : eo THE EUCLID SUSPICIOUS -PERSONS ORDINANCE: p . IS SO VAGUE AND LACKING IN ASCERTAJNABLE STANDARDS OF GUILT THAT IT FAILS-TO GIVE -. FAIR NOTICE OF ,WHAT IS PROHIBITED, INVITES _ « ARBITRARY AND ‘DISCRIMINATORY ENFORCE- MENT AND SWEEPS WITHIN ITS AMBIT CONSTITU- TIONALLY PROTECTED CONDUCT, SO AS TO VIO- LATE THE GUARANTEE OF DUE PROCESS OF LAW. This Court has long held that ‘the first essential of due - process of law” is violated by “a statute which either for- bids or requires the doing of an act in terms so vague that men_of common intelligence must necessarily guess af its meaning and differ as to its application.” Connally v. Gen- - eral Constr. Co., 269 U.S. 385, 391 (1926). The requirement. that criminal statutg@{ be drawn with | ey, and precision so as to provide. an ascertainable stand- 4 °) 2 ' ; ye ; ard of. guilt is founded upon rv separate, but related policies: to provide fair notice of what ‘conduct: is. pro- hibited, so that tlfose who wish to. conform ‘their condtct to law may do so, Lanzetta vy. New ‘Jersey, 306 U.S. 454. (1939); to prevent arbitrary and discriminatoty enforcement of the law by reducing’ the scope of. discretion Of tliose ad- ministering it, Gecio y. Pennsylvama, 382 U.S. 399 (1966); Shuttlesworth v. City of Birmingham, 382 US. 87 (1965 ); and to limit the breadth of statutes affecting constitution- 10 ally protected freedoms in order to prevent their infringe- ‘megpt by “sweeping ‘and, improper” statutory application! | : NAM.CP. v. Button, 37) US. 415, 433 (1963). Aptheker . y, Secretary of State, 378 US.., ,500, 516-517 (1964). The suspicious persons ordinance under which. James . Palmer was convicted and sentenced to thirty days i imprison- ment is patently’ vague and blatantly at odds with each of the constitutional policies which underlie the void-for- vaguencageoctrine. A. The ieee’ Is So Vague Thartt Fails To Give Fair Notice Of What Is Prohibited. f f Many. statutes have been invalidated by this Court for a, failing to provide fair notice on the basis of the. vagueness of a single word or phrase.* - The: Euclid suspicious persons . - * ' This tripartite analysis of the void- for-vagueness doctrine was* fully developed by Professor Amsterdam in Note, The Void-for- Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67 (1960), and applied to vagrancy and suspicious person type laws in Amsterdam, Federal Constitutional Restrictions om the Punishment of Crimes of Status, ‘Crimes of General Obuoxiousness, Crimes of Dis- pleasing Police Officers, and the Like, 3 CRIM.*L. BULL. 205 (1967). 2See, e.g., Cline v. Frink Dairy Co., 274 U:S. 445 (1927) (“a rea- sonable profit”); Connally v. General Constr. Co., 269 US.* 385 (1926) (“current rate of .. . wages in the locality”); United States v. o -L. Cohen Grocery Co., 255 us: ‘St (1921) (“unjust or unreasonable rate’ 5 aes ° e P Sprig ke SO At ea See Sune ; a "tive, word ° oiter”, "Similarly the Uriited States Court of Appeals for the District of Columbia held - that neither . | cya” #2 “wander” nor “I¢iter” was sufficitntl ly precise to Withstand | ne a constitutional scrutiny, citing conflicting judicial* and po- lice interpretations® “ranging from the ostensibly innocent * to the potentially criminal”. Ricks v. District of Columbia, _ 414 F.2d 1097, 1103, 14307 (D.C. Cir. 1968). A host of other lower federal. and state courts have re- cently struck down’ vagrancy’ or suspicious ‘persons laws pro- scribing ‘“‘wandering” ,and/or ‘ ‘loitering’. .as too vague to © faifly. apprise persons . what conduct is prohibited.° ae eh rest dl Pa a °. ee) * (2)- “Found abroad « at late « or unusual hours in the: night ° Without —~ visible or lawful business.” ? oa a . Rid . ; 4Contrasting Kelley y. United States, 111 U ‘S.. App. De: - 396, 397, 298 F.2d 310, 311 (1961) With Harris v. District of Columbia, "132 A.2d 192, 154 (D.C. Mun. App. 1957), rev'd on other grounds © : 102 U.S. App. D.C. 202, 251 F.2d 913 (1958)., _5The*court summarized the police testimony in Ricks as follows: “One police officer considered loitering to consist in ‘walking back and ‘forth from the corner and standing idle in a door- ° ek _way’. Another felf that it was ‘standing around in one spot, ae mot going anywhere: -Just standing. there flapging automo- ~§ = § XL Uo Si Seine bi iles’. Still another said it was ‘[s]éaiiding idle inca door-- © -" =~ way’. The Chief of the Law Enforcement Division of the - wCorporation Counsel’s office defined ‘loitering ‘as’ ‘a man “hanging around a street corner he has been hanging around ‘ - for-an ‘hour, we will say. there is“no apparent purpose or ; motive for his being theré.. But, now loitering in and of it- ' self doesn’t make me a vagrant. * * * You have got to-have- ~* * some atts on‘his part to indicate that he hasan ulterior mo-- = tive’.”” Ricks v. District of Columbia, :414 F.2d 1097, 1103, n. 41 (D.C. Cir. 1968). See, e. g., Scott. v. District Attorney, Jefferson Parish, State of :. Louisiana, 309 F. Supp. 833 (E.D. La. 1970); Landry v. Daley, 280 © F. Supp. 968 (N-D. IH. 1968); Arnold vy. City and County of Denver, . Colo. -_ , 464 P.2d 515 (1970), overruling Dominguez v. City and County of of Denver, 147 Colo. 233, 363.P.2d 661 (1961); Head- ley v. Selkowitz, 171 So. 2d 368 (Fla. _ .. a \ (Po - ie 3 _ ‘ . 2 i \ an phrase is. simply 4. nocturnal’ version of ‘ ‘wandering” “loitering” and is subject to: the same vagaries of inéer- © pretation that render those verbs insufficient as standards of. - conduct. Being * ‘abroad . . without any visible’ or lawful business” could mean “to ramble Hiere and there, without any certain course or object in view” (as.in the: dictionary ' ‘definition ‘of ‘ ‘wander”),’ in: which case the proscription | would embrace the law professor who walks the streets mid- re yo ergs night:, ‘8 On thé other had the phrase could be construed to prohibit only being abroad for an 1 unlawful or “caine purpose.” aes i A ? sheet ae o The problem is that. the statutory language provides no me \ . ’ basis for selection among, these alternatives. eke one. dis- of} fensé,; or as an opportunity for potential defendants ‘to ex-* - culpate themselves, it is so incredibly vague And subjective — 7 Sy trict. court put it: as, s° ; SP “nor does the phrase ‘without lawful busingse> do... _more than beg the question of whert loitering or” i ‘loafifig [or wandering] can themselves amount\to. .. -- °° ‘lawful business’.”’ Scott v. District Attorney, Jef-, -*. a : '-ferson Parish, State of Louisiana, 309 F. Supp. p Bhp as 837. (E.D. La. Pdvas per . 3 f arg {3) “Dots not ive satisfactory account of himself”, YR: AO _ Whether this clause be regarded as an element of ‘the of- “y f ; - di —- .? ° . : oak ° ONS “ e “” / - o - P . - ad's I : Yi Z * +s ~ 4 4 a 2 o- A s > "See. heotnoen 3, supra. eee antes .. . OH Equally ‘unanswered is how much ot an explanation is . needed.to’ add up to an “account” . who is entitled to de- - mand. an account, whether an account which is incredible but -truthful is “satisfactory” 5 and, conversely ; whether a .- credible but false account “‘satisfies’” the requirement. -Con- - siderations such as these have led at least nine lower fede- 7 e qh tee Nevertheless, such a construction cannot operate to save, the*ordi- ©. . ‘ nance from a vagueness attack as even exculpatory’ clauses are held to the standard of clarity. ‘Cline v. Frink. Dairy Co., 274 US. 445. (1927). ~ : g & ° - @ gr j 2. Bee 15. Ss 2a > ; “ai and state. courts in the last five years to strike down’ 3 vagrancy. ¢ or suspicious persons laws. denarii a “satisfac- ; _ tory account” or conmpanaoee : requirement.' ie eo / : i>] | - 4 . ~ wt . aS , ae - ice ere, . : > : | (4) “Suspicious person” Re ah eas et ce a | we ee Nor is thiis otherwise vague ordinance ® given any finite * content by its characterization of offendets as “suspicious. persons”. ~ This phrase is little-more’ than an epithet afd fur- f are nishes no- guidance to potential offenders as to what they ° must do or not: do to avoid: criminal. liability under its ap- pellation, _ ii ‘ : . In.sum, while each of the aforementioned ingredients of ‘the Euclid suspicious persons: ordinance is- sufficiently. vague to. render. it of dubious constitutionality, the hash that re- - sults from their combination is so. incomprehensible that its sinvalidity shouJd be beyond question. The ordinance fits. . ao 3 Mr. Justice Frankfurter’s “description , of the statute invali- ' dated in Lanzetta vs New Jersey, 306 U.S. 451 (1939) as ° _’. “of the type that seek to control ‘vagrancy’. These _ statutes are in a class by themselves in view .of the . familiar abuses to which they are put . “. Definite- - ness is designedly avoided so as to alloW the net to. be cast at latge, to enable men, to..be caught who -. are vaguely undesirable ini "thé eyes of’ the police ‘ and prosecution, aithongh not chargeable with arly o ‘ ae q ag Re esr ar tl See. Ricks v. District of Columbia, 414. F.2d 1097 (D.C.. Cir. 1968) (“good account”’); Scott v. District Attorney, Jefferson Parish; * State of Louisiana, 309 F. Supp. 833 (1970) (“account for lawful presence’): Landry v. Daley, 280 F. Supf. 968 (N.D. Ill. 1968) (“rea- sonable excuse”); Baker v. Bindner, 274 F. Supp: 658 (3. judge coi ~ W.D. Ky. 1967): United States v. Margrson, 259 F. Supp. 256 (E:D. . " and County o} of Denver, 147 Colo. 233,363 P:2d 661 (1961); Head- Drew, ins Wash; 2d 405, 423 P. 2d 522 hace Pa. 1966) (“good account”); Arnold:v..City and County of Denver, _. Colo. -_, 464 P.2d 515 (970), overruling Dominguez v. City’ ‘ley v. Selkowitz, 171 So. 2d 368 (Fla. -1965); Alegata v. Common- wealth, 353 Mass. 287, 231 N\E:~2d 20111967); City of Seattle v. ’ 549 B. The ‘Namah Of The Ordinanoffivites A Arbitrary a 2 16 : * ep / P So 4 ; : q ° - . - . ‘ . . . | : oe at Ffally, even if applied in. an ostensibly neutral and even- handed manner, the racial-tést for selecting subjects of de- + tention and investigation necessarily produces a differential “impact on the freedom of movement of the minority race, as there are necessarily more areas,in which its members _ «will be “out of place’.24 haaeloechne ae | The ‘capacity of the Euclid suspicious persons ordinance for arbitrary enforcement is not limited to ‘racial discrimi- Nation, but also includes the potential for suppressing non- criminal but unconventional persons and behavior. Rele- vant to this concern is the observation of recent students of police behavior that an essential characteristic of the patrol- US. Bureau of Census, Census of Pop. 1960, Vol. 1, p. 37-266, Table 72. pe . ee ok - That this paucity of nonwhite residents is not a representative dis- tribution of the area’s population is demonstrated by the fact that the same census reported 258,597 nonwhite residents in the county (Cuyahoga) out of a total population of 1,647,895. US. Bureau of 7 Census, Census of Pop. 1960, Final Report P.H.C. (1)-28, Census Tract Cleveland, Ohio, Table p. 1, p. 14. ¢ Housing discrimination is not a phenomenon unknown to the’ State of Ohio. See Hunter v. Erickson, 393 US. 385 (1969): and the Ohio Fair Housing Act, Section 4112.02(4), Ohio Rev. Code. 23Cf. Gaston County, North Carolina v. United States, 395 US. 285 (1969). E 4 Professor Amsterdam points, out that “[t}he right to travel—freedom of. movement—has excellent Fourteenth Amendment credentials in light of the concern? of the Reconstruction Congresses with the “pass system’ en- forced by the Southern States chs = Freedmen after the Ciwil War”. Amsterdam; footnote 1, supra, 3 CRIM. L. BULL. 205, at 213, n. 2. , ‘ 7: 22 \. oe . od . man’s personality is ® commitment to conventionalism.?5 : Equally relevant are police instructional manuals equating . advice for investigatory- purposes, and may even provide a é legitimate basis for a “stop and frisk”, Terry v: Ohio, 392 % * US. 1 (1968), it is constitutionally outrageous as a basis. for conviction and imprisonment.?” Yet.the vagueness of the . ; . hs af; - a Congress’ concern that post-Civil War Southern Vagrancy laws, al- . though facially ‘color blind, were being discriminatorily ¢nforced - against the Freedmen. ; , he : 5Whether this be ascribed to an “authoritarian personality” as in “Niederhoffer, Behind the Shield—The:- Police in Urban Society, 108 (1967), or to the element of danger producing a perceptual shorthand that equates the unusual with the violent as in Skolnik, Justice With- out Trial, 44-48 (1965), the result is the same. See, ¢.g., Gilston and Podell, The Practical Patrolman, 43 (1959): - pt 2 = —_———$————— — *What-makes 4 ‘Suspicious’ person, action or circumstance? ' In.part it’s a matter of not ‘belonging’; of being unusual. A person in dirty, ragged clothes may be unusual in one neigh- borhood, but in-another he sticks out Jike a sore thumb”; -_* ° + And Adams, “Field Interrogation’, Police, March-April, 28 (1963): “A. Be suspicious. This is a healthy pOlice attitude, but it should be controlled and not too obvious. B. © Look for the unusual. 1. Persons who do not “belong’ where-they—are-ob- served. ‘2. Automobiles which do not ‘look right’. ea. 3. Businesses open at odd hours, or not according to a ° routine Gr custom.” 7For a.cogent distinction between the use Of “suspicious person” -type criteria as bases for authorizing thteshold inquiry and their use as grounds for conviction (as in the instant case) compare Common- wealth v. Lehan, 347 Mass. 197, 196 N.W. 2d 840 (1964) with Ale- . gata v. Commonwealth, 353 Mass 287, 231 N.E. 2d 201 (1967). See also City of Cleveland v. Forrest, 10 Ohio Misc. 98, 100, 223 NEL 2d 661, 663 (Mun. Ct. 1967): : ‘ ° . _ “suspicious” with “unusual”.?° While this may be sound _ See Id., at 230-231, n. 22 for authorities demonstrating the 39th / | te | ) ’.. Euclid suspicious persons ordinance licenses. judge or jury to _ punish defendants for behavior that is unconventional”*. or, as in Giuccio v. Pennsylvania, 382 U.S." 399 ( 1966), “‘repre- hensible”,. a er Pins ‘ ~ C. The Vagueness Of The Ordinancé Permits Its- Application So. As To Punish And Deter Con- : stitutionally Protected Conduct. _ The Euclid suspicious persons ordinance either flagrantly violates or implicitly threatens. the privilege against self- incrimination, the right to travel, freedom from arrest ex- cept-upon “probable cause”’, freedom from conviction ex- cept upon pfoof “beyond a reasonable doubt’, and the _ Tight not to be punished for the’status of being “‘a suspici- , OUs person”. The sources of these constitutional liberties - ‘and the manner in which the Euclid ordinance threatens — will be developed inthe succeeding sections of this rie ——sS : 7 —_— THE PROVISION COMPELLING A SUSPECT TO “GIVE A SATISFACTORY. ACCOUNT. OF HIMSELF” UNDER _ PAIN OF FINE AND/OR IMPRISONMENT VIOLATES THE. PRIVILEGE AGAINST SELF-INCRIMINATION AND INVALIDATES THE «EUCLID SUSPICIOUS PER- SONS ORDINANCE ON ITS FACE AND AS APPLIED. Mueh of the recent controversy over’ the scope of the Fifth Amendment privilege against self-incrimination has in- ‘volved the issue of when and where the privilege is applica-- @ ° i © ; *Note the claim by the City of Euclid in its Brief Opposing Ju- . _ Misdiction of the right to regulate “irregular behavior” Id., at 4. re : co | ; ‘ ble. While there is disagreement over whether particular contexts involve sufficient risk of compulsion to trigger the application of the privilege, Miranda v. Arizona, 384 US. 436 (1966), there .is consefisus that government may not - use compulsion to’ elicit incriminating admissions, in or out of the’courtroom. Albertson v. Subversive Activities Con- . trol Board, .382 U.S.:70 (1965). Thus; the contention that ‘the privilege ‘‘does not apply fo police interrogations” has ° not been predicated upon forinalistic ‘distinctions between . _ courtroom and police station, but upon a recognition that 2 i Se have no legal right to compel answers, d — there is.no legal obligation to which a privilege in - the technical sense can apply. That is, it makes no _sense to say that one is privileged not to disclose— that one is excused from the legal consequences of contumacy—when there are no legal consequences of -- contumacy.” 8 Wigmore, Evidence § 2252, at 329 -n. 27 (McNaughton rev. 1961). gins - f ‘Any contention that language in the Miranda opinion — permits vesting police with authority to. compel answers during “general on-the-scene questioning” is foreclosed by this Court’s subsequent explanation of that language i in Davis v. Mississippi, 394 US. 721, at 727 n. 6 (1969): “The State reliés on various statements.in our cases which approve general questioning of citizens in the course of investigating a crime. See Miranda v. Ari- : zona, 384 U.S. 436, 477-478 (1966); Culombe v. Connecticut; 367 U.S. 568, 635 (concurring opin- ion) (1961). But these statements merely reiterated ‘the settled principle that while the police have the right to request citizens to answer voluntarily ques- tions concerning unsolved crimes they have no right to compel them to answer.” (emphasis added).?? See also’the separate opinion of MK. JUSTICE WHITE in Terry v. Ohio, 392 US. Ii at 34 (1968): “Of course, the person stopped is not obliged to answer, ans- “wers may not be ——— and refusaf-to answer. furnishes one The privilege against self-incrimination means that govern- ment may not “resort to imprisonment” to compel an in- dividual to answer eertied that might incriminate him, _ Malloy v. Hogan, 378 U.S. 1, 8 (1964), may not requite “him to supply information wh may tend to incriminate him, Marchetti v. United States, 390 U.S. 39 (1968); Al- bertson vy. Subvérsive ‘Activities Control Board, 382 U.S. 70 (1965); may not penalize the invocation of the’ privijege, " Spevackv. Klein, 385 U.S. 511 (1967); Griffin vy. Califor- - “nia, 380 U.S. 609 (1965), and may not. use in any: crimi- nal prosecution statements made under threat of sanction | for refusal to answer. Garrity v..New Jersey, 385:US. 493 (1967)... gg I Bhat these principles and authorities: prohibit a munici- . a pality from making it a crime to. refuse to answer a police- man’s incriminating questions is recognizéd in the law re-. Re eee tae 4 no basis for an arrest, although it may alert the officer to the need for contirtued observation.” Kuh, The.’ ‘Rest of Us”’ in the “Policing the Polite’’ Controversy, 7 a7 8, GRIM: L.C. & P. S. 244, 248 (1966): La’ Fave, “Street En- counters’ and the Constitution: Terry, Sibron, Peters and* Beyond, 67 MICH. L. REV. 39, 106-107 (1968); Pilcher; The Law and. Prac- tice of Field cle ate 58 J. CRIM. L. c: & P. S. 465,’ *474 (1967). See also Warner, The Uniform Arrest Act, 28 VA.'L. REV. 315, 320 (1942). + Amsterdam, fgotnote 1, supra, 3 CRIM.. L. ‘BULL. 205; 228 (1967); Schwartz, Stop and Frisk (A Case Study-in Judicial Control of the Police, 58 J. CRIM. L. C: & P. S.°433, 459 (1967); Note, Con- stitutional Attacks on howd Laws, 20 STAN. L. REV. 782, an 790 (1968). A similaw conclusion has been nie by. the American Law In- stitute. A.L.I.. Model Code of Pre-Arraignment Procedure, Tent. Drft.. No. 2, §.§ 2. O1@), 2.02(5). 2 _ view literature by friend and foe*! alike.of expanding po-_ - lice investigatory powers. we * Yet this is rata what the y e ® ee ee City of Euclid has done in enacting’ a suspicious persons or- dinance campelling suspects to “give a satisfactory account”’ of themselves under pain of fine inact imprisonment for. failure’ to do so. ° The ° ‘satisfactory account” cocuaibeaeas necessarily puts ~ suspects of whom it is. demanded to a choice, between the “rock” of prosectition. for being a suspicious person’ and the “whirlpool” ‘of potential self-incrimination. Such a require- “ment is’ no ere technical or peripheral violation of the. Fifth Amendment,.but strikes at the heart of. “the whole complex. of values that the privilege against self-inerimination itself represents, values de- / “scribed in the Malloy case as reflecting ‘recognition «. that the American system of criminal prosecution is -accusatorial, not inquisitorial, and. that the Fifth Amendment privilege is its esséitial mainstay. * * * Governments, state and federal, are thus constitu- tionally compelled to establish guilt by evidence in- dependently and freely secured, and may not by coercion prove’ a charge against an accused out of his own mouth.” Tehan v. ant, 382 US. 406, \414 (1966).: « The privilege against self-incrimination was illest in the ~-cauldron of the Star C hamber where suspects were com- pelled to respond to inicriminating inquiries and: to bear the “burden of proving. their innocente, - The abolition of the - Star Chamber*? in the wake of ris pan Trial* is. ‘generally. ° ’ This represents ‘an interesting change of position by the Institute since 1961 when it approved the Suspicious Loitering section of the Model Penal Code (8 250.6) requiring suspects to explain their pres- ence and conduct, despité the fact that the Code’s Reporter stated, “We are creating a criminal liability by a-man refusing to speak. This: - \is an incursion on the privilege of self incrimination.” + ALI, 1961 eedings 249. = : explanation is given in the notes or commentary to the Model Code bf Pre Arraignment Procedure for this apparent contradiction. oe aan regarded as the foundation sed the privilege and the Core: -of - its interpretation.» ws ' The central meaning of the. privilege against self- ;incrimination requires that Section 583.01(e). of the Ordi- --nancts of the City of Euclid be declared unconstitutional — “on its: face for the following reasons: (1) In creating a. scheme which gives police the power to summon citizens — _upon mere suspicion’ and ‘‘demand that -they cough up something to dispel [that] suspicision”,*®. the essence of: - the ordinance*is a reincarnation of the evil the privilege _ was designed to eliminate. ((2) By definition the law com- ie pels a “satisfactory account” only from those “inherently suspect of criminal. activities”’.>7 (3) A declaration of facial “unconstitutionality is the only way that. the privilege can be vouchsafed from the-threat posed by such laws, in light of the fact that the ignoble Socio-ecgnemic status of most of their victims and their: —: minor’ penalties effec- _ tively foreclose appellatg scrutiny*® of their. operation on a ’ case by case basis.*° | 3g Wimacie. Evidence § 2250 (McNaughton rev. ’. 1961). * Amsterdam, footnote ‘ supra, 3 RM. L. BULL. 205, 228 (1967). * ¥ 37 Albertson vy. _ Subversive Activities Control Board, 382 U. IS, 70, - 79 (1965). President's Commission on Link Enforcement, Task Foree Re- | port: The Courts 103. (1967). Other factors that tend to make: appeals of such convictions a rarity are the frequent absence of a written record and mootness by service of sentence. a, ‘For a description of the kinid. of “due ea that is adminis- ; ~ tered under circumstances where appellate review is not a realistic re- . course, see Foote, Vagrancy-Type Law.and Its Administration, 104 U. PA. L. REV. 603, passim (1956). To summarize Proféssor Focte’s field’ study in his own words: “Procedural due ‘process does not penetrate to the world inhabited Y the ‘bums’ of eras ay es Id., at 604. ° ‘PAs to the possibility of othe remedies, such as~affirmatiye. suits for damages, 40 vindicate’ the privilege, note Euclid Police Lieutenant Zach’s testimony apout “waiver cards”: .@ eee ee SNK a, RN ei ra a here : Bak ~ As applied ‘in the instant case, the drdinance: produced a ccqnviction which cannot stand, Yor much fF he case against Palmer consisted of statements-elicited from ‘him under the compulsion of the requirement that he give “a satisfactory * account”.*° (A. 6-7,.22-23). The admission into evidence ‘ of statements so obtaingd is prohibited by. the-Fifth and Fourteenth Amendments. @urrity v. New Jersey, 385 U.S. 493. (1967).0 °°" Oe - oe Se ot a ie é '. After-testifying that’ if he had found Palmer’s companion in an apartment on lawful business, he wouldn’t have permitted the citation, he ‘said (in response to Palmer’s questioning), . “A. We would have brought you into the-station and had _,you sign a waiver card‘that we detained you? What is this waiver card?, If | would refuse. to sign ' the waiverrcard, then what would have happened to Rarer ga + me? A os ? : A. Well, then, we weuld have detained you, probably ° ee issued -the citation, because: you refused to sign the card. : : hci Q. You would have issued a citation for my arrest even _ though you found this dady lawfully at. the building; - _ is that wHat you're saying? Sea — . AY. That.is right. If you ‘refused to sign the card. (A. * ‘4 >. eae ‘ The existence of the “satisfactory account” requirement in the ‘ ordinanse obviates the necessity: of deciding the otherwise: important, but in this context irrelevant, question of whether the requirement of * "+ Miranda warnings applies to street detentions, i.e. whether the offi- ~cer’s removal of Palmer from his. car and search of him (A. 7), marching of Palmer into the apartment house at gun-point (Ay 8, 12- ; 13), or holder for investigation at the station (A. 6-7) constituted de- - privations of “his freedom of action in any Significant- way.” Miranda . v.. Arizona, 384 U.S. 436,444 (1966). not area ae __, With the ordinance on.the books, the officer could not have ad-_ - vised Palmer that he hdd a sight to’ remain silent. ‘He would have had -.to say, “If you [do] say anything, it will be used against you; if you -do not say anything, that will be used against you.” - McCarthy. v. United States, 25 F.2d 298, 299 (6th Cir. 1928)... > | ote ge AIL cee | _} ._ THE EUCLID SUSPJCIOUS PERSONS ORDINANCE UN- ~. - |.“ CONSTITUTIONALLY INFRINGES - FREEDOM OF - - | ‘MOVEMENT B® ALLOWING ARREST, DETENTION, _ AND CONVICTION ON SUSPICION IN VIOLATION OF - __ © THE FOURTH AND FOURTEENTH AMENDMENTS. - a . ‘ o.: 7 . -" 4 i : P . ™ 3 | . a a, ; : ‘ : ot. ; : : ° E é Py . ae j 29 , r pa a Pa eee are See eitals SAT re ‘ rr) : A tye 5, is . : : : : Ne ‘g ey . : Freedom’ of movement is basic in our scheme of values” “and may not be deprived without due process of law. Kent - " . * ® Dulles, 357 U.S. 116, 126 (1958).*" As the Cpart‘noted: an a “Our nation has thrived on the principle that,.out- ‘side areas of plainly harmful conduct,‘ every »Ameti- can is left to’ shape. his ownelife -as he thinks best, -da what ‘he pleases, go where he ‘pleases.’ ” Td, quoting Chafee, Three Human Rights in the Consti-_ » tution of°1787, 197 (1956). , ; Of course this freedom is not absolute-and must-be re- conciled-with the interest of maintaining order. The task . . of accommodating the often opposing interests in liberty = +, - ' .and order was undertakén by the framers of the Constitu- -* tion and Bill of Rights. The resultant-delicate balance is re- « _ flectéd in qn escalating scale of constitutional burdens of proof (emanating from the Fourth and Fourteenth ‘Amend- ments) required of government before it may deprive per- sons of their liberty in the interest of order. — | ; The quantum of evidenc®required by’ each of these con- stitutional- burdens of proof is directly #elated to the mag- nitude of the deprivation of liberty. to be justified. Thus a brief, temporary intrusions«on the liberty ofa’ citizen: by'a “police officer in the course of a “yireet encounter’’ re- } quires that the officer fie cen Mielke 3! ' “be able ‘to point to specific and articulable facts which,. taken together with rational inferences from those facts: reasonably ’ warrant that intrusion.” ~>,- Terry v. Ohio, 392.U.S. 1, 21 (1968). , aes ba Regarding the concern of the framers’ of the- Fourteenth Amend- “ment for the right of the freedifian “to go where he pleases” see Bell _v. Maryland: 378 U.S. 226, 293 (1964); and footnote 24, supra. ¢ i a . An interesting illustration of .this phenomenon was People v. Craig, 152 Cal. 42, 91 P. 997 (1907) where a police officer who- ‘. Jacked statutory grounds to arrest for an assault said; “Well the only thing we can do—we didn’t see it—we will go and vag them... , 31 Thus, on facts which should justify at most a “stop ond frisk”’ of ‘ames Palmer,*? the City of Euclid now seeks to . uphold a conviction and sentence of imprisonment. While . the advocates of allowing police “stop and frisk”” upon x less than “probable cause” have relied on the argument that a lesser intrusion requires a lesser quantum of, evidence,“ if this ordinance is upheld then “stop 4nd frisk” facts will henceforth be the basis for arrest and conviction. The op- erative standards of justification will be reduced to “‘afti- culable suspjcion’ to suspect” ’ for a stop and frisk, ** ‘pro- bable cause’ to suspect” for an arrest, and “proof of suspicion "beyoutis reasonable doubt’” to convict. The salt in these grievous-constitutional wounds will be. 3 that, by operation of the “satisfactory account” require- © ment, the effective-burder-of proof will be on the defend- ant...” IV. THERE IS NO NECESSITY FOR THE EUCLID SUSPI- CIOUS PERSONS ORDINANCE, AND TO THE EXTENT THAT IT SERVES LEGITIMATE PURPOSES, OTHER ° MEANS LESS DESTRUCTIVE OF PERSONAL LIB ERTY, ARE AVAILABLE. ; One well-established principle by which this Court tests the constitutionality of statutes affecting — areas of liberty is that “(Elven though the governmental purpose be legiti- * mate and substantial, that purpose cannot be pur- sued ‘by means that broadly stifle fundamental per- Because the question in this case is whether or not Palmer's con- viction for * ‘being | a suspicious” person may stand, it is unnecessary . ‘to decide whether “being a suspicious person” justified the lesser in- * trusion of the “stop and frisk” (A. 7) under Terry, or the “arrest” - (A. 7-8) under Beek v. Ohio, supra, and Peters vy. New York, 392 US. 40 (1968). “Terry v. Ohio, 392 US: 1, 10-11 (1968), . BA ae Bs 3) s sonal liberties when ther end can. be more narrowly achieved. The breadth of legislative abridgement , must be viewed in the light of less drastic means for © achieving the same basic purpose.” Aptheker v. Secretary of = mt 378 US. 500, 508 (1964), quot- ing from Shelton v. Tucker, 364 US. 479, 488 (1960). ‘ - If there ever was a necessity for suspicious persons ordi- nances (i.e. that the Fourth Amendment talismans of “ar- ‘rest’. “search” and, “seizure” did not allow for the “set of flexible responses” required of police*in the context of street encounters) that necessity has been dissipated by this Court's decision in. Terry v. Ohio, 392°US. 1 (1968). With- _out prescribing the details, 45 the Court has held that 7 ' Fourth’ Amendment is not oblivious: to the “reasonable” in- vestigatory and protective needs of police. In the wake of Terry. there are a number of feasible al- - ternativés to the Euclid suspicious persons ordinance for ef- fectuating police authority to prevent crime and investigate suspicious circumstances and persons. Without, in any way, approving Of them as passing constitutional muster, appel- lant submits these alternatives for the Court’s considera- tion, because they are, at least, less destructive of important - .. federal constitutional rights than the Euclid ordinance: These alternatives are:. ' The Uniform Arrest Act, see Warner. 28 VA, L. * REV. 315°(1942) The New York “Stop and Frisk" Law, N..Y. Code Crim. Proc. 8 180-a J ‘The Model C ode of Pre-A rraignment itil. Ar- ; ticle. 2 (T.D. No. 2), American Law Institute. Common law authority recognized by the Cuyahoga ~ County Court of Appeals in State v. Terry, 5 Ohio App. 2d 122. 214 N.E. 2d 114 (1966). a For a thorough exposition of the issues raised by Terry see La Fave, “Street Encounters” and the Constitution: Terry, Sibron, Peters and Beyond, 67 MICH. L. REV. 39 (1968). ar , Additionally, the Model Penal Code’s Article 5 seated to * inchoate offenses furnishes a vehicle for crime prevention. by drawing the line between attempt and non-criminal_prep- aration further away from the final act. : ' The common features of all of these alternatives are that - they do not permit arrests Or convictions On mere suspi- cion, they do not make it a crime to exercise the. privilege against self-incrimination, and they do not shift the burden of proof to the defendant, while still affording nenpee po- lice authority. * All sides of the crime control versus individual liberty de- . bate, from Professor Foote in 19564 to the President's Commission on Law Enforcement and Administration of Justice in 1967* to Proféssog La-Fave in 1968%* have ur- ged that the subterfuges of vague suspicious person and— vagrancy laws be abandoned in favor of a direct resolution of the question of police power to deal with persons en- countered in suspicious circumstances. - The existence of equally feasible less drastic alternatives means that this Court can make a ‘significant contribution to constitutional liberty at no cost to law enforcement by striking down the Euclid suspicious nas ordinance, Cc ONC LUSION The ultimate issue in this case is not the scope of police investigative power, but rather, whether after the police have stopped, frisked, starched, arrested and interrogated _ James Palmer and discovered no evidence of any substantive crime having been committed, the City of Euclid can then - convict and imprison him for having aroused suspicion. * Vagrancy- -Type Law and its Administration, 104 U. PA. L. REV. 603, 649: * Task Foree Report: _ The Courts 103 (1967). ‘ “Footnote 45. supra, at 134. ! 34 The cry of Star Chamber, like the cry of * ‘wolf, has probably been uttered ‘too often and too lightly in ¢liv past to have the inipact that it should. However, this case and the City of Euclid’s suspicious persons ordinance contain, albeit in microcosm, every threat to--human liberty posed -by that bitter experience. On mere’ suspicion James Palmer and all other victims of such ordinances are deprived’ of _ ‘their liberty, compelled to answer incriminating questions to the. satisfaction. of officialdom meng pain of imprison- — ment, and requiréd to bear the burden of proving their own innocence of vague suspicion. ‘FG Fourth and Fifth * Amendments were calculited to prevent just such occur- -rence and they “run almost into each other" to protect. — “the right most valued by civilized’ men”. “the right to be Jet alone’ Pag | 6 terse ati. These ineosts to fundamental liberty in the ordinance are made more pernicipus by reason of the vagueness which facilitates its discriminatory application in aid of racial sepa- ratism. The Fourteenth Amendment was calculated to pre-. vent that. The Euclid suspicious persons ordinance contains the seeds of destruction of hallowed liberties that respresent the . product of 194 years of struggle for human dignity. a must be nullified. WHEREFORE, it is respectfully mr that the judgment below be reversed. NIKi Z. SCHWARTZ JOSHUA J. KANCELBAUM Counse! for Appellant August 5, 1970 * Boyd v, United States, 116 U:S. 616, 630 (1886). “Olmstead v. United States, 277 U.S. 438, 478 (1928) (Dissent- ing opinion of MR. JUSTICE BRANDEIS). \ October TERM 1979 “No. 1443 ; Jurisdictional Statement ‘thavetlahtes” ? . ’ . * - . . oo e ° : = - - - ’ . - . « ~4 . - - . « F - * . - - Pd , * . . oe oe: ’ . . ’ . - . o ia © --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1489%3A2. Public record. Not legal advice.