Petition for Writ of Certiorari — Weger v. California

Supreme Court brief1968

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baie ac Lge 23 1967-

IN THE s

‘Supreme Court of the Unite State

October Term, 1967

i ¥ ones

CHESTER W. WEGER, Petitioner

' 7 ws.

PEOPLE OF THE STATE OF, CALIFORNIA.

Petition for a Writ of Certiorari to the District

Court of Appeal, Second Appellate District,

State of California. .

potent -Auten-I-NEIMAN,

~~ 849 South Broadway,

~ Suite 412,

Los Angeles, Calif. 90014,

-~ % Winn,

Frep OKRAND and

) LAURENCE SPERBER,

: 257 South Spring Street,

Los Angeles, Calif. 90012,

Attorneys for Petitioner.

~ Parker“& Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

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SUBJECT INDEX.

Jurisdiction «..... :

Question Before the Court

Constitutional and Statutory Provisions maveived, &

Statement of the Case™ sect .

How Federal Questions Are Presented Licdbisaadinees 4

Reasons for Granting the Writ and Argument Am-

- plifying Same ........ — 5

~ Conclusion ...... eseiia oa

Nee Page

Opinions Below 1 cccstit ada ibectauabaeleds Ae

INDEX TO APPENDICES

Appendix: A. Opinion of. the Court of Appeals:

Majority. Opinion bois e &

Dissenting Opinion -.: - ey >

aS Modification Of Opimion ....-.::-.---econpeceonssecnsees -_—

en Appendix B. Memorandum - Opinion ond Sade

ment 2

‘Aeeedi%, Olde Daiaind Fearing After Judg-

ment by the Court of Appeal, 2nd chaste Di-?

vision 2, Crim. No. 3090 56

/ Appendix’ Bm: Constitutional Pravidcas and Stat-

ates ° Involved - : on a,

. Cases : | ie wi

‘Albertson: v. Subversive Activities Control Bosse; ze

* 382 USS. 70. ase: a ieee

Bantam Books, Inc. v. ‘Silvan, 372. U. S, ae |

Camara v. Municipal. Court, : ih Se oe

ea Chapman_ v.-California, 386 SD siwsinne 7 -

_ _: Gity of Seattle v. Drew, 423 P. 2d 522 ; ii

fe v. Louisiana, 379. U.S. 536 iiitmadiadieeis 13, 14°

‘ Cregler, In re; 56 Cal. 2d 308, 363 P. 2d 305 ...:....15

Escobedo y. Illinois, 378 US. 478 , aw

Fields v. Fairfield; 375 U.S. 248 | saline, BO

| Freedman v. Maryland, 380 U.S. 51 . adseie 19

Garner v. Louisiana, 368 US 158 3c - mi

~ Garrity v. State of ‘New Jergey, ae US.) .. 7...

Gideon v. Wainwright; 372 U.S. 335 ...... 12.

- Gilbert v. California, 388-U.S. 263 -..ssssecceccceeeeeeee 12)

Griffin v. California, 380 U.S. 609 2uteccsscclenienee 7

Griswold, v. Connecticut, 381 U.S. 479 ........... 9, 11

Huddleston, In‘re, 229 Cal. App. 2d 618, 40 Cal.

Rptr. 581 i poo “EB

- Lanzetta v. New Jersey, 306 tf. a) pacneoninamesSieg >

Malloy v. Hogan, 378° U.S. a : 6

McFarland v.. American Sugar ‘Refining Coi, mM:

US. 79° : , 16

_ Miranda v. Arizona, 384 US. 436 smeianty. Be 8, So i .:

Morrison v. California, 291 US. ee sens | | oa

People v. Bruno, 211 Cal. App. 2d lech ees ae

ere:

TABLE OF AUTHORITIES CITED

People v..Ridley, 63:Cal. 24 671 weemcvcnecemeennennrn 9

Peters v..New York, No. 74 inisciadcmasbesoniocbeict S

"Russell v. United States, 306 F. 2d 402 icrcandaloeast

Sibron v. New. York, No. 63 eee oe <5 |

Speiser v. Randall, 357 U.S. 513. BS, 16, 19

Spevack v. ‘Klein,' 385 U.S. ‘511 ... mua ST

_ Territory of Hawaii v. Anduha, 48 F. 2d 171 taiicnis 15°

‘Terry v. Ohio, as gaalioealey esi metome v

~ Thompson v. Louisville, 362 U.S.. 199 -

Time, Inc. v. Hill, 385 U.S. 374 iiss HO

Tot v. United States, 319 U.S. 463 22: ~ %

United. States v. Cardiff, 344 U.S. 174 ap

_ UnitedsStates v. Margeson, 259 F. Supp. -.... AS.

_ United States v. Wade, 388.U.S. 218 ... si AZ

Veer v. City of New Orleans, No. 13 .. 5.

- Mi Mg

22 California Assembly Interim Sick No. 1 ‘es

aes p. 15° o wines 14

Rules } }

- ais ;

P «

Rules of United vena Supreme Court, Rule 22(1) . 3

- -» Statutes

California Penal Code, Sec. 647(e) ,

1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 53, 15, 17°

California Statutes of 1961, Chap. 560, p. 1672........ 4

United States Code, Title 28, Sec. 1257(3) ‘....... 3

United States Code, Title 28, Sec. 2101(c) ......... 3

‘United States Constitution, First Amendment .4, 11

“

RD) RENEE OS LEPC WEL Ltt EEE a} seni lrmeeestisst cat o_o

Pop

United $ States Constitution, Third Amendment .. 3

_ United. States. Constitution, F ourth ’ PRI vi 5

United States Constitution, Fifth “Amendment “inte be

wae 6, 7,8, 9 —

vs United States Constitution, Sixth Amendment pate )

"- United States Constitution, Ninth Amendment .... 4 —

United States. Constitution, Fourteenth Amend- :

ment .......-- 7 gases 4, 12

| "Textbooks en :

14 University of California at Los Angeles cau Re-

. _view (1966), pp. 59, 126-9 ... | 9.

x 70 Yale Law Journal (1960), p..1

ILL ELLE LO AEE FE am iroye a ~<

‘IN THE

Sapien Court of the ae Sates

2 “October Term, 1967 ie

: No. ons

|, Peorie OF THE State OF CALIFORNIA.

Pein for a Wit of Croat, the Dine

Cast of Agget, Soent Sener, :

eel

Petitioner Chester Weger prays that a writ of cef-

tiorari issue to review the judgment of the District —

Court of Appeal, Second Appellate District, State of

California, entered on June 5, 1967. Said judgment, one

| justice ‘dissenting, held. California ‘Penal Code Section

647(e) to be constitutional and thereby reversed the

holdings of the Appellate Department of the Superior

Court and the Municipal ‘Court of the Pasadena Judi-

cial District, both of which tourts held said section to !

be unconstitutional. California Penal Code Section

647(e) provides as follows:

“Every person who ‘commits any of the following:

acts shall be guilty of disorderly conduct, a mis-

-deameanor: .. . (e) Who Joiters or wanders. upon

the stréets or from place to place without apparent

: reason or business and who refuses to identify

‘himself and to account. for his presence when re-

quested by any peace officer so to do, if the sur-

rounding circumstances. are such as to indicate to a

such identification.”

PR A TEE AIT: AN ee TPR A

sill

: Opinions Below. ye

The ‘Opiaion of the Court of Appeal [C. T. ay is

: reported in 251 A.C.A. 663. A copy of: ‘said. Opin- :

ion is attached hereto as Appendix “A”.

The Opinion of ‘the Appellate Department of the Su.

-perior Court of the. State of California for the County

of Los Angeles is unreported. A copy of the said Opin-

ion [C. T. 10] is attached hereto as Appendix “B”.

' The Municipal ‘Court of Los. “Angeles County, Pasa-

- dena Judicial District, rendered no. written opinion. A

copy of the Transcript Docket and -the ruling of the

Municipal Court are contained in the Clerk’s sney

[C. T. 4 and 5].

| | * -

“1. The date of the judgment sought’ to be reviewed

‘ and the time of its entry is June 5, 1967 [Appx. a ;

C. T. 1]. .In accordance with the custom of the ap-

pellate courts of California, the judgment of the court

is contained in the last sentence be the Opiaion (Appx.-

A, pp. 25 and 28).

“1The reference “C. T.” is to the teaanesiok of that portion of

the record prepared’ and certified by the Clerk of the Court of

Appeal, below. Said record contains, inter alia, portions of the

record on from the trial court and the record of the Court

of Appeal of the State of California. The reeord was prepared

without pagination and therefore the various documents therein

have been identified by numbers “1” through “Q” for convenience

and are referred to accordingly. That portion of the record pre-

_ pared and certified by the Clerk of the Appellate t t of

_ the Superior Court consists of the Memorandum Opinion and

_ Judgment and Order certifying case to Court of Appeal and are

' respectively identified by numbers C. T. “10” and “11”. That

oe of the record prepared and certified by the Clerk of the

unicipal Court of the Pasadena Judicial District consists of the

Demurrer ‘and Points and Authorities and :Defendant’s Reply

Brief to Opposition Brief of City Prosecutor, and are identified

as. numbers C. T. “12” - “13” respectively.

1b IEA PII EIN AE PE OEE, LT

RR RN AREER PRI AC ALN IE

se Sl -

-. ° — 3 P

2. No rehearing was sought in the court below. A.

timely filed petition for hearing in the California Su-

_preme Court was denied on, July 26, 1967. A copy of ©

the drder of denial [C. t 8] is attached hereto as

| Appendix “C”, No extension of time was sought in this

Court i in which to petition for a writ of certiorari. ‘

3. The statutory provisions believed to confer’ on

- this Court jurisdiction to review the judgment i in ques- —

_ . tion by a writ of certiorari /are 28 U.S.C. 1257 (3) and

—2101(c) and Rule 22(1) of.the Rules of this Court.

- Question Before the Court.

* Does Penal Code: Section 647(e), quoted above at |

page 1, violate, on its face or as applied by the court

below, the: ~ ;

1. Right against scif-iaceimination as ; guaranteed by

the Fifth Amendment and made applicable to the States .

a by the Fourteenth Amendment to the Constitution ;

_ 2. The Due Process Clause. of the Fourteenth

_ Amendment to the Constitution of the United States be-

cause of vagueness and for the further reason that it

places: upon the citizen the bueden of proving his i inno-

cece * )

| 3. The iis of siebiiiia including the. righ to i

lence, as guaranteed by the totality of the First, Third, |

» Fourth, Fifth and Ninth Amendments to the ‘Constitu-

tion of the United States and made applicable to the -

States by the Fourteenth Amendment to the Constitu-

tion of the United States |

4, The right to counsel as } Ae by the Sixth

Amendment and made applicable’to the States - by the ©

Fourteenth Amendment to. the Constitution ‘of the

United States.

‘Constitutional and Statutory biastahiile Involved.

The pertinent provisions of the First, Fourth, Fifth |

_ Sixth, Ninth and Fourteenth Amendments to the Con-

__ stitution of the United States and the pertinent pro-

visions of California Penal Code Section 647(e) (ef- —

fective 1961, Cal. Stats. 1961, c. 560, P. 1672) are set

forth i in ——— “—’, attached hereto.

Statement of the Case.

There are no factual “issues before the Court.’ The

sole question is the constitutionality of California Penal

Code Section 647(e).

How Federal Questions, Are Presented.

The complaint was filed against petitioner in the Mu-

nicipal Court. of Pasadena ‘Judicial District, County of

- Los Angeles, State of California on June 13, 1966

-[C. T. 3]. Thereafter, petitioner -(then defendant)

filed a demurrer to the complaint contending ‘that the

subject section denied to petitioner his right against —

sélf-incrimination, his right to be represented by coun. - "

sel, and due process of law, all as guaranteed by the

' Constitutions of the United States and the State of -Cali-

fornia. [C. T. 12]. In addition, petitioner (then de-

fendant) filed in the Municipal Court proceedings a re-

ply brief in opposition to the brief of the City Prosecu-

tor opposing the demurrer. Therein, in addition to the

constitutional grounds described in the demurrer, peti-

tioner contended that 647(e) violated his basic consti-

tutional right of privacy [C. T. 13]. The demurrer: of

petitioner was sustained by the judge of the Municipal

- Court, but no opinion -was written [C. T. 4 and 5].

a en ey ee a

6 OIE LLL EAA 1 LW ict

por a

The opinion of the Appellate Department of the Su- -

perior Court held 647(e) to be unconstitutional as it

-violated the Fourth and Fifth Amendments to the Con-

stitution of the United States (Appx. B). The opin- .

ion of the court below found the subject section to be

constitutional and reached its decision solely by an ex-

amination of Constitutional issues t C. T..1 and Awe.

‘REASONS FOR GRANTING THE WRIT AND

ARGUMENT AMPLIFYING SAME.

1. This court has already indicated the constitutional

gravity of the issues presented - by California Penal

Code Section 647 (e) by the granting of certiorari in

four cases which are presently pending before this

Court this term, all of which present similar ..issues:

- Peters v. New York, No. 74, Sibron v. New York,

No. 63, Terry v. Ohio, No.. 67 and Wainwright v=

' City of New Orleans, No. 13. Peters, Sibron and

Terry are concerned with the constitutionality of “stop

and frisk” statutes. Wainwright is remarkably similar

to the case at bar. 647(e), however, goes far beyond

the aforementioned four cases in that the citizen must.

affirmatively ‘ ‘account for his presence” after he is de--

tained initially or be convicted of a crime.

Moreover, the subject case is basically a vagraricy

case, While 647(e) does not carry a vagrancy label

(as does the arrest in Wainwright) it is nothing more

than a sophisticated version of that very concept. When

stripped of its niceties, 647(e) permits an arrest and

conviction when the citizen is doing no wrong. See

Douglas, Vagrancy and Arrest on Suspicion, 70 Yale

LJ. 1 (1960).

The same reasons which persuaded this court to ioigaak

certiorari in the aforementioned four cases also justify

this: court’s granting the petition here. Additionally, -

_ this case is even more egregious than any of the afore- ~

‘mentioned four as it makes one a criminal for not af-

firmatively: satisfying the police officer that his: “pres-.

ence” is “accounted for”. For that and that alone, says

647(e), may he go to jail.

2. California Penal Code Section 647(e) violates

the self-incrimination clause of the Fifth Amendment

to the Constitution of the United States. The subject

section compels the citizen to “account for his pres-

ence” and thereby make a substantive statement con-

cerning ‘his - activities of a potentially incriminatory

_ nature, or, in the alternative, be convicted of, a crime. —

- The crime for which he could’ be convicted is that of

refusing to respond or, in effect, silence, ° Such a law »

violates the Fifth Amendment to the Constitution of . _

' the United: States in that it results in eompulsory séHf-

" iticrimination. Malloy v. Hogan, 378 U.S. 1; Mi-

randa v. Arizona, 384 U.S. 436; Escobedo Vv. Illi nots,

378 U.S. 478:

This. “dual bind”. in. which ihe citizen ‘finds, himectt

when faced with 647(e) is not aesituatiori which is

‘new to the Courts.: See Russell. v. United States, 306

F, 2d 402 (9th Cir.) and Albertson v. Subversive

Activities Control Board, 382 U.S. :70. In both cases, ©

the subject law compelled the citizen to perform ah act °

which could result in self-incrimination; failure to com-

ply resulted in conviction of a crime. In both cases,

the balance was struck in favorsof the constitutional

right and the law held to ‘be invalid. 647(e) places the

_ Gndividual in the Albertson-Russell type position of hav-

eee <a

_ to jail. This serves only to penalize the ignorant and

’ reward the worldly. While we cannot believe this to be -:

—~— |

ing a ‘choice between the rock and the whirlpool,” does

- not give him a free choice: to “admit, deny or refuse to

answer” and is therefore unconstitutional Sareey v.

. State of New Jersey, 385 U.S. 493).

This Court has held: in Griffin v. C alifornia, 380

. 609 and Chapman v. California, 386 U.S. 18 that

comment upon a defendant’s silence before-a ‘jury eroded

the prohibition against self-incrimination and was there-

fore unconstitutional. A fortiori, that same silence

cannot itself be made into.a criminal act.

The concurring opinion in the court of appeal eke

’ holds that Fifth Amendment protection is not afforded

~ amendment protects) is not sufficient [Appx. A: p. 28.

and C. T. 1, p. 36]. What this appears to mean is that ae

‘a person who can incant the magic words is not a crim-.

the citizen unless he affirmatively invokes the amend-

ment—that mere silence (which is the very thing the

“inal, but that the citizen who goes to the very sub-

stance of the matter—namely,’ remaining silent—goes

the law, at a minimum, the manner in which the Fifth

Amendment must be claimed by a citizen outside the . . -

courtroom is of sufficient magnitude. that it warratits _

examination and consideration by this Court.

Thé subject section cannot be reconciled with the hold-

ings of Miranda v. Arizona, cited supra. - (See also “

Spevack v. Klein, 385. U.S. 511 and Garrity v. New

Jersey, cited supra.) 647(e) requires the individual to

provide the officer with identification and an explana. .

tion for his presence under certain circumstances. It is

quite clear that the circumstances relate almost ‘exclu-

sively to the apprehension and punishment of criminals.

__See People v. Bruno, 211 Cal. App. 2d Supp. 855. At .

the very moment the statute gives the law enforcement :

officer the right to compel the individual to account for

his presence, the matrix of the ‘situation would appear ot

to include likelihood of. commission of a crime and be-

lief that the person being questioné@ is conriected with

“that crime. The principles of Miranda would therefore -

_ require that the detainee be apprised of his constitutional __

__ rights, including the right to silence and to counsel; It

_” would also appear that the M iranda-type warnings are

_ mandatory as, ‘by. the very language of 647(e), the de-—

, fendant must respond to the officer’s inquiry and he

‘is therefore in a state of “custodial interrogation”.

His freedom of action is significantly restrained in that

hé must answer the officer’s questions at the specific

location and momefit when demand is made upon him.

See Miranda v. Arizona, 384 U.S. at 478 ’ The sub--

stance of the situation is to have the officer explain to

the-citizen his right to silence and counsel ; should the

citizen then assert these rights, he would be ‘arrested

by the very same officer for utilizing the constitu-

tional. guarantees just explained to him. Miranda is

‘ quite clear that “the accused mtust be adequately and” -

effectively apprised of his rights and the exercise of

. those rights must be fully honored.” 384 US. at 467.

647(e) does not “fully honor” these rights. —

The opinion of the court concludes that silence is “not

assertive conduct” in a 647(e)-type situation and is

therefore not protected by the Fifth Amendment [Appx.

A, pp. 19-21 and C. T. 1, pp. 25-27]. However, 647-

(e) requires. the askin to “identify himself and ac-

count for his presence,” which seeks content. The fact

that content itself is sought is evidenced by the very:

. : ,

definition relied upon by the court below [Appx. A, p.

11 and C.T. 1, p. 14], wherein it defines “account for”

to mean: “to: furnish substantial reasons or a con-

vincing explanation; make clear or reveal basic causes.”

If: this be so, it demonstrates that 647(e) is precisely

aimed at the content of speech and is, in fact,’ un-

~ €quivocally testimonial compulsion and is therefore

within the realm ‘of. F ifth Amendment protection.

A second. ground relied upon by the court in con-

cluding that silence is not testimonial compulsion is

that the officers making. inquiry pursuant to 64Z(e) |

would not know what crime, if any, h4@ been committed -

and therefore the questions would not be intended to

elicit incriminating statements, but. only to afford the

defendant an opportunity to explain his presence and ac-

. tions [Appx: A, pp..21-24 and C. T. 1, pp. 27-30]. This.

type of compulsory opportunity or benefit has, “it is

submitted been rejected by this Court. Miranda v. Ari-

zona, 384 U.S. at 482. See also: People v. Ridley, 63

Cal. 2d 671, and What Is “Custodial Interrogation” ?:

_ California’s Anticipatory A pplication of Miranda v. Ari--

gona, Graham, 14 U.C.L.A. L. Rev. 59, 126-9 (1966). |

Such reasoning results: in the citizen being given an

- “gpportunity”’ and then punished criminally if he fails

~ to take advantage of that “opportunity”. .

3. California Penal Code Section 647(e) violates the

basic constitutional right of privacy and protection from

unreasonable intrusion into the activities and thoughts —

of the citizen by the State or its representatives. Gris-

wold 'v. Connecticut, 381 U.S. 479. Section 647(e) de-

nies this right to the individual in that it requires him

to reveal to law-enforcement officers a detailed de-

scription of his activities of the moment. This explana- .

—-10—

tion must be given by the individial though he.be to-.

tally free of criminal involvement. Further, the section

_ applies to all in that the words “loiters” and “wanders”

as used in 647(e) have now, for the first time, been

construed in an unrestricted manner so that they need

no longer relate to criminal activity or involvement

[Appx. A,.p. 8.and C..T.- 1, p. 11]. (This

"is further evidenced by: the language of 647(e) itself,

wherein it provides: “Every person . ...” [emphasis _

added]). Further, as now construed, 647 () would re-

quire the California citizen to carry with him at all

times and to display upon request, identification

papers. The opinion of the court below appears to con-

strye-the word “identify” as requiring that the individ-’

. ual present written documentation of his identity to. the

law enforcement officer -[Appx. A, p. 10 and _

CT. 1, pp. 13 and 14; wherein the word “identify”

- is defined ‘by dictionary definitions to mean, inter alia,

’ to “establish as being a particular person or thing; at-

_ test.or prove to be as purported or asserted.” “Proof

that a person or thing is the person or thing [he or] it

is supposed or represented to be.”] The requirement —

that all citizens upon the street have with them at all .

times identification papers is foreign to this system of

government and exists only'in an aura of totalitarian-

ism. It unconstitutionally invades the right of privacy |

‘of the individual. |

_ This petition affords this Court an opportunity to

decide. an additional’ question upon which it has never

- ruled, but should.’ What is at issue is the effect of a

statute which interferes with the constitutionally pro-

tected right of privacy and to be let alone. The opinion

of the court of appen! below approaches the protien

—i

of constitutionality of 647(e). with “a presumption in

favor of constitutionality .. .” [Appx. A, pp. 2 and 3

‘and C. T. 1, p. 3]. This Court, should determine whether

the right of privacy is of suf ficierit constitutional im- ~

port that the @sual presumption in favor. of constitu-—

tionality should not be applied, but instead, the rules -

applicable" to Fist Amendment rights control, i.¢.,

where a’ First Amendment right is impinged, such a

statute comes to the court “bearing a heavy presump-

tion against its: constitutional validity.” Freedman v.

Maryland, 380 U.S. 51, 57 (emphasis added) and Ban-

tam Books, Inc. v. Sullivan, 372 U.S. 58. See also:

_ Camara v. Municipal Court, 387 U.S. 523 for a recent

expression of this Court’ s concern for the right of

privacy. It is submitted that the right of privacy is.

_ of no less magnitude than freedom of speech or political .

- belief and should not be treated differently (cf. Gris-

wold v. C onnecticut, supra).

The subject section, as construed by the court below,

changes our entire concept of the relationship between —

‘ the state and the individual. Such an intrusion into

the personal life of a citizen to this extent should not —

_ Be permitted in the law at least without first being criti- |

cally examined by this Court:

4. Penal Code Section 647(e) denies to the in-

dividual his right to counsel as guaranteed by the Sixth

Amendment to the Constitution of the United States.

‘The. section requires the interrogated party to identify

‘himself and to account for. his. presence “when re-’

quested by any peace officer” (emphasis added). This

necessity for an. immediate response obviously pre-

cludes. the individual from having counsel present dur-

ing the interrogation or, for that matter, even consult-

. &

‘ing with counsel concerning the wisdom 6f responding

to the officer’s inquiry. A law preventing an in-

dividual from consulting with an attorney, particularly |

when he is suspected of criminal activity, violates the ..

thrust of this Court’s decisions in Gideon v. Wain- -

wright, 372 U.S. 335, Miranda v. ‘Arizona, supra,

United States wv. Wade, 388 U.S. 218, and Gilbert v.

‘Califorma, 388 U.S. 263.

647 (e) presents an even more compelling case for.

the Sixth Amendment guarantee of the right to counsel

than the cases just citied. In Gideon, Gilbert and _

' Wade, evidence obtained without the benefit of counsel

was excluded. In 647(e)-type cases, the. defendant is

guilty°of a crime, per se, should he refuse to answer

‘the officer’s questions, even though his reason for re-’

fusing ‘may be that. he desires to first consult. with

counsel. The section is totally inconsistent with the dic-

tates of the Sixth Amendment.

5.- 647(e) violates the due process de of the

Fourteenth Amendment to the Constitution ‘of the

United States in.that it is unconstitutionally vague.

The phrase “to identify himself” in the context of the

statute at bar fails to meet the constitutional require-

ment of definiteness. What does a citizen have to do

to satisfy this clause? Is it sufficient if he states his

name, or must he also provide his residential address or

perhaps even his place of employment? Is oral identi-.

fication sufficient or must he also produce written docu-

ment or identification papers (and may he be detained

if, like many of us, such papers.are not in. his posses-

sion at the ‘particular moment?) It is not the conten- —

tion of Petitioner that the word “identify” does not ex-—

: ist. or that under certain circumstances it cannot be

a ee

definite for certain purposes. . He’ does say. that in this

criminal statute—when the crime. is failure to. iden-

tify—the standard is not t Sufficiently ‘specific to meet |

be left to the decnaiaalion of the police. - Cozx_v

Louisiana, 379 U.S. 536, 579 (Opinion of Mr. Justice

Black). If the individual ‘must be convicted of the

crime of failing to identify himself, he should at least be

apprised of the specific information which must be

presented. United States v. Cardiff, 344 U.S. 174 and |

: Lanzetta v. New Jersey, 306 US. 451.

The unmodified words ese fee er

provide the citizen with no guidance as to the

or extent of information which must be. provided and

are therefore ‘unconstitutional. United States v. Mar- _-

geson, 259 F. Supp: 256, 268-269 (Ed. Pa. 1966),

(holding “good account” to be unconstitutionally

vague)# If the detainee says, “I’m . taking a walk,” or |

“Pm resting,” has he accounted for his presence?’ If °

not, what more must he-say in order not to be a crim- ;

inal under this part of the statute? How far back in.

point of time must he relate his activities? Who is to.

judge as to whether he has “Commtet” for bis py.

ence? Such a standard is unconstitutionally vague. City

of Seattle v. Drew, .... Wash. 2d .... 423 P. 2d 522

(1967). The questions raised by the construction to

‘be placed upon the words in the section are not mere

academic challenges, but as worded, .647(e) is truly an

invitation to trouble. This is particularly true when.

. it is realized that the type of individual who is most

likely to be confronted by the demand of the law en-

forcement. officer to account for his presence is one ~

who is poor, from a minority group, OF a nen-conform-

—

ist. See 22 California Assembly Interim Report No. 1,

page 15 (1961). ;

This final phrase of the statute at bar “if the sur-

‘rounding circumstances are such as to indicate to a rea-

sonable man that public safety demands such identi-

._ , fication”, provides the citizen with no guidance. as to—

- the fact situation which must exist before he is legally

obligated to advise the officer of his identity and.to ac-

count for his presence. The phrase does not require

the citizen to know what the “surrounding circum;

stances” are so that he may guide himself away from

criminal conduct by responding. The statute, although

couched: in terms of “a reasonable man,” presumably

controls how the officer. must act, but, again, it leaves %,.

it to him to judge whether the citizen must- respond.

The citizen must know if.the “surrounding circum-

stances” are such that the response ig necessary if he

‘is to escape .criminal responsibility. Facts, however,

may be’ known to the law enforcement officer, which

would justify his inquiry, but he is under no duty to im-

part this isforriation to the citizen. The citizen has

only his visible surroundings before him and not the |

subjective information ‘possessed by the officer. Such a er?

law can only lead to the creation and not deterrence "of<*> *

criminals. Our govefnment is one of “clearly de- -

fined laws,” rather than government: by the moment-

to-moment opinions of a policeman on his beat. Cox

v. Lousiana, cited supra. -

‘The construction by the court bene of the words-. — -

“loiter” and “wander” is unconstitutionally vague. Pre-

viously, the California courts have upheld the con-

stitutionality of the word “loiter” in criminal statutes

by construing it narrowly so that it related to criminal

activity or intent. In re,Cregler, 56 Cal. 2d 308; 363

~P. 2d 305 and In re Huddleston, 229 Cal. App. 2d -

618, 40 Cal. Rptr. 581. The opinion 6f the court below

[Appx. A, p. 8 and C. T. 1, p. 11], has for the first

. time, construed the word “loiter” (and “wander”) in

such a manner that it bears no relationship whatsoever

to criminal activity ‘but applies to one who “linger ( s)

aimlessly or as if aimlessly in-or about a place: . .-. to

move in a slow,. idle manner; make purposeless am

in the course of a ‘trip, journey, errand, etc.” [Appx. A,

_p. 7 and C. T. 1, pp. 9. and 10]. As California

now construes “loiter”, it applies to every person in a

. public place. Such an interpretation now makes the °

mere walking upon the street an element of a crime. For

. that. reason alone, the statute should be held invalid.

Territory of Hawaii v. Anduha, 48 F. 2d 171 (C.GA.

9, 1931). To hold otherwise would be to sanction the

prosecution of wholly non-criminal conduct. See

Thompson v. Louisville, 362 U.S. 199, Garner v. Louis-

iana, 368 U.S. 157, and Fields v.. Fairfield, 375 U.S.

~ Penal Code Section 647(e) is also violative of due

process of law under Speiser v. Randall, 357 U.S. 513.

_ By the very terminology of the section, the-circum-

stances are “suspicious”. Whether the interrogation of

the detainee has reached the accusatory-stage or is still

in the investigative phase, it cannot be gainsaid that

both: the statute and the police by interrogating under

it place the burden. upon the citizen of “clearing” him-

self. If he accepts the oppertunity so presented, and

the officers are satisfied, that is the end of the mat-

‘ter. (We leave aside consideration’ of the situation

wherein the citizen’s accounting is not satisfactory to

—16— |

the police and he has incriminated himself as to another

crime. ) If, however, he does not accept the opportunity —

and is silent, for not coming forward to overcome the

suspicious circumstances—for not shouldering the

burden of proving innocent—the statute imposes crim-

inal sanctions. |

This is precisely the evil at which this Court sivteck |

‘in .Spetser. There, a veteran who, or church which, :

would not sign a statement that he or it did not ad- eas

vocate the overthrow of the government by force or vio-

lence or other unlawful means nor advocated the ‘sup-

port of a foreign government in. the event of hostili- = |

ties, was imposed with the. sanction of Joss of tax:

exemption. This Court’ held that this violated due proc-

‘ess because it placed the burden of proof upon‘the citi-

zen. The state had taken the position that the tax

exemption was a privilege and. that to obtain it the

taxpayer had the burden of proving his entitlement.

' In striking down the requirement, this Court recognized

that the statement was concerned with matters which -‘.

could be criminal. It quoted (pp. 523-524) from crim-

p inal cases (¢.g., McFarland v. American Sugar Refin-

ing Co., 241 U.S. 79, 86; Tot v. United States, 319

_» *' U.S. 463, 469; Morrison v. California, 291 °U.S. 82,

. 88) to.the effect that the State. cannot put on the de-

” fendant the burden of proving his innocence, and also ‘

from civil cases (at p. 524) which struck down statutes

which: unfairly shifted the burden of proof. ,

The statute at bar is subject to that precise disabil-

ity. True, Speiser arose in a free speech context, while

the present case arises in a. right of privacy context.

But the constitutional rights involved are not dissim-

“ilar, (Cf. Time, Inc. v. Hull, 385 US. 374): If, by

ORIG PE Te Ma UY See UF tt

. 2 E $ . y

cael

silence, the citizen does not come forward under the

circumstances, set forth’ in 647(e) and clear himself,

he is guilty of a crime. As Speiser demonstrates, the

due process clause will not tolerate such a statute... «

| Conclusion.

For the foregoing reasons, the petition for a writ 5

of certiorari should be granted. eur

' . ALLEN I. NEIMAN,

A. L. Wir1n,

FreD OKRAND and

Attorneys for Petitioner. -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.