# Appendix — Weger v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1048%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1968 - **Citation:** 389 U.S. 1047 ## Text APPENDIX A. Opinion of the Court of Appeal. _ In the Court of Appeal of the State of California, Pees Second Appellate District, Division Two: People of-the State of California, Plaintiff and Ap- ~~ pellant, v. Chester W. Weger, Defendant and Respond- ent. 2d Cr. No. 13090. . ; Filed: June’5, 1967. APPEAL from orders of Municipal Court; Pasadena Judicial District, sustaining demurrer to complaint and dismissing: action. Louis T. Fletcher, Judge. Reversed. ‘ Byron B. Gentry, City Prosecutor (City of Pasa- dena). and David Press, Assistant City Prosecutor, for Plaintiff and Appellant. ) Thomas C. Lynch, Attorney | General, William E. James, Assistant Attorney General; Evelle J. Younger, a. District Attorney: (Los’ Angeles), Harry ‘Wood, Chief, ' . Appellate Division, Harry B. Sondheim,, Deputy Dis- ~ trict Attorney; Roger Arnebergh, City Attorney, Philip E. Grey, Assistant City Attorney and,Melvin L. Jensen, Deputy City Attorney, as Amici Curiae -on behalf: of Appellant. : Allen I. Neiman, A. L. Wirin, Fred Okrand st Laurence R. Sperber, for Respondent. In June 1966,the People filed a complaint in the Municipal Court for the Pasadéna Judicial District, charging defendant with a violation of subdivision (e) | ' of section 647 of the Penal Code. The trial -court sus-. . tained” defendant’s demurrer and ordered thé case dis- missed. (Penal Code, § 1008.) On appeal by the Péople the Appellate Department of the Superior Court for « | one Los Angeles County affirmed the judgment of dismissal _ and certified the case. to this court.’ We ordered the *" case transferred i in order to settle an important question of law. Owen ED te 6, opankd Tog The only POT before ys is the constitutionality -of section 647, subdivision (e), of the Penal Code. That séction provides in relevant part: “Every person who | commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: .. . (e) Who loiters out apparent reason or business and. who refuses, to or wanders upon the streets or from place to place ‘o n identify himself and to account for his presence wi requested by any peace officer so to do, if the: sur- rounding circumstances are such as to indicate to a rea- sonable man that the public safety demands such identi- fication.”* We are not concerned with the guilt, or, in- nocence of defendant. We hold that’ the law is ‘con- stitutional and that the judgment saraetes ai the action must be reversed. | We note at the outset that theré is “a presumption in favor of constitutionality, and the invalidity of a legis- _ lative act must be clear before it can be declared un-. constitutional.” (Patton v. La Bree, 60.Cal. 2d 606, 608-609.) “As pointed out in People v. Superior Court - (1937), 10 Cal.2d 288, 298 [4] [73 P.2d 1221], ‘Ju- dicial decisions abound with declarations to the effect that all presumptions and intendments favor the validity of statutes; that mere doubt by the judicial branch of. ~ ASection 647. was adopted in 1961. (Stats. 1961, ch. 560.) . Subdivision: (e) of this section was considered in People v. Bruno, 211 Cal.App.2d Supp. 855, and in People v. Wilson, 238 Cal.App.2d 447, and was noted. in People v. Kraps, 238 _Cal.App.2d 675. However, neither of these cases. deal with the constitiitionality of the section. . the government as to the validity of a statute will not afford a sufficient reason for a judicial declaration of — its invalidity. . . .’ [Citations.]” (Jn re Cregler, 56 Cal.2d 308, 311.) “Statutes are to be so construed, if _ their language permits, as to render them valid and constitutional rather than invalid and unconstitutional. (County of Los Angeles v. Legg, 5 Cal.2d 349, 353 [55 P.2d 206] ; 45 Cal.Jur.2d, Statutes, § 115, p. 624.)” (Erlich v. Municipal Court, 55 Cal. 553, 558.) “Statutes must be. upheld unless their unconstitutionality clearly, positively and unmistakably appears.” (In re Huddleson, 229 Cal. App. 2d 618, 621.) Section 647, subdivision ( e) is not Constitutionally Vague and Uncertain Defendant contends that section 647, subdivision (e), of the Penal Code, is vague and uncertain and fails to establish clearly defined standards of guilt and _ thus deprives him and all others of due process of law. In our opinion this contention is ‘not tenable. The Supreme Court of the United States “has con- sistently held that lack of precision is not itself of- fensive to the re" uirements of due process. ‘.. . [T]he Constitution does not require impossible standards’ ; ‘all’ that is required is that the language ‘conveys. suf- ficiently definite warning as to the proscribed conduct when measured by common understanding and prac- tices... .? United States v Petrillo, 332 US 1, 7, 8, 91 L ed 1877, 1883, 67 S. Ct 1538.” (Roth-v. United States, 354 U.S. 476, 491, 1 L. Ed-2d 1498, 1510. 1511.) “A criminal statute must be sufficiently definite to give notice of the required conduct to one who would : avoid its penalties, and to guide the judge in’ its ap- 4 _ plication and ‘the lawyer in defending one charged with its violation. But few words possess the precision of . mathematical symbols, most statutes must deal with un- _ told and unforeseen variations in factual situations, and ‘the practical necessities of discharging the business of government inevitably limit the specificity with: which legislators, can spell out prohibitijns.’ Consequently, no | more than a reasonable degree of certainty can be de- manded.” (Boyce Motor Lines o United States () ; , 342 US. 337, 96 L. Ed. 367, 371.) - Similarly it has been held in this state that “The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well es- tablished elgment of the guarantee of due process of law. -‘No one may be required at peril of. life, liberty or property to speculate as to thé meaning of: penal stat- utes. All are entitled to -be informed as to what the State commands or forbids . . . “a statute which éither ferbids or requites the Sided of an act in terms so vague that men of common. intelligence must neces- | sarily guess at its meaning and differ as to its applica- tion, violates the first essential of due process of law.” ’. (Lanzetta v. New. Jersey, 306 U.S. 451, 453 [59 S.Ct. 618, 83 L. Ed. 888]; see also Connally u. General - Const. Co., 262. U.S. 385, 391 [48 S.Ct. 126, 70 L. Ed. 322].) Such.also-is the law of the State of California. (People v. MéCaughan, 49 ‘Cal.2d 409, 414 [317 P.2d 974). )” (In re Newbern, 53 Cal.2d 786, 792.) In In re De La O, 59° Cal.2d. 128, 153, it is wnid: “Words used in a’ statute are ordinarily to be construed — according to the context and ‘the approved use of the- languagé (Civ. Code; § 13), and ‘a statute is suf- . ficiently certain if it employs words of long usage or ati with a common law meaning, “notwithstanding an ele- — ment of degree im the definition as to which estimates - _ might differ?’ (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 60 [8] [216 P.2d 859].)” In People v. Victor,.62 Cal.2d 280, 298, the court adhered to these rules, adding at page 299 that admittedly a word as used _in_a particular statute may be “a relevant one; but ‘the law is full: of ‘instances where a than’s fate depends on _ his estimating rightly, that is, as the jury subsequently _ estimates it, some matter of dégree.’: (Nash v. United . States (1913) 229 U.S. 373, 377 [33 > Ct. 7m 37 , L. Ed. 1232].)” In short, the presence of an element of degree i in the definition of the words used .“does not of itself : render the statutory language insufficiently certain to comply with due process. ‘ “Reasonable certainty is all that is required. A statute will not be held void for uncer- tainty if any reasonable and practical coristruction can — be given its language.” [Citation.] It will be upheld if its terms may be made reasonably certain by refer- ° ence to other definable sources.’ (American Civil Liber- . ties Union v. Board of Education (1963), 59 Cal.2d 203, 218 [9] [28 Cal.Rptr. 700, 379 P.2d 4].)” (People v. Victor, 62 Cal.2d 280, 300.) “The complexities of _ the social problems dealt with by-the Legislature ‘require that a practical construction be given to the language employed by the draftsmen of legislation lest their pur- poses be too easily nullified by overrefined inquiries into the meaning of words.” Ags. v. Vaughn, 196 Cal. _App.2d 622, 632. ) : ‘ We turn how toa consideration of the words used in ‘the statute. In doing so we are required “to read the statute in the ‘light of the objective sought to be ~ achieved by j it as well as the evil sought’ ‘to be iit (Wotton v. Bush (1953) 41 Cal.2d-460, 467 [261 P.2d / 256].)” (In re Huddleson, 229 Cal. App. 2d .618, 624.) . “Where the words have a: broad and also a. restricted theaning, if the apparent object of the statute will ‘be subserved by construing them in their restricted sense, whereas a principal object would be defeated ‘by con- struing them in their broad sense, the restricted .inter- pretation will be preferred and the. broad- meaning re- . jected, though the latter may be the more usual mean- | ing. But a narrow or restricted meaning should not be given a word: if it would result in evasion of the evident '- purpose ofthe act, or if a broader meaning would pre- ' vent evasion and ‘carry out the purpose. ” (45 Cal.Jur. 2d, Statutes, § 140, p. 648.) In 1961 the Legislature, after a lengthy sendy of the problems involved (see 22 Assembly Interim Commit- tee Reports, No. 1. (1961)) repealed former section 647° of the Penal Code and adopted section 647 in its present form. (Stats. 1961, ch. 560.) Former section 647 soaenee: the crime of “vagrancy” as a misde- meanor.” In’ repealing former ,section 647 and enacting the _ Present section, the Legislature recognized, as urged by *Former § 647 declared that, among others, “3, Every per- son who roams about from place to place without any lawful business; or 4. Every person known to be a_pick- pocket, thief, burglar or confidence operator, either by his own confession, or by his having been convicted ‘of any such of-. fenses, and having no visible or lawful means of when found loitéring around any steamboat landing, railroad depot, banking institution, broker’s office, place of amusement, , auction room, store, shop or crowded thoroughfare, car, or omnibus, or any public gathering or assembly; or, . . . 6. Every _s: person « cwho wanders about the streets at late or unusual hours - of the nigh, without, any visible or st ac aaa a Fey, vagrant, . 7 Sey —7— , the principal draftsman of the new section, that the time had come to abandon the vagrancy concept of the form- er section “for statutes which will harmonize with no- tions of a decent, fair and just administration of crim- inal justice and which will at the same time make it possible for police departments to discharge their respon- sibilities in a straightforward manner . .'.” In Pro- fessor Sherry’s words, this was done “by drafting -. legislation which will describe the acts to be proscribed with precision and which will be free of the hazy pneum- bra of medieval ideas of social control characteristic of existing law.” (Sherry, Vagrants, Rogues and Vaga- bonds-—Old Concepts in ‘Neéd of. Revision, 48 Cal. L. Rev. 557, 567 (Oct. 1960); and see 22 Assembly In- terim Committee Reports’ No. 1 (1961) pp. 7-19; Peo- ple v. Bruno, 211 CalApp.2d Supp. 855, 859-860:) “The word ‘loiter’ has been defined to mean ‘to be slow in moving; delay; linger; saunter; lag behind’ (Webster’s New International Dictionary (2nd ed.); . seé State v. Starr (1941) 57 Ariz. 270 [113 P.2d 356, | 357]) or ‘to linger idly by the way, to idle’ (Phillips v. Municipal Court (1938) 24 Cal.App.2d 453, 455 [75 P.2d 548]).” (In re Huddleson, 229 Cal.App.2d 618,. 621-622.) In The Random House Dictionary of the ‘ English Language (unabr. ed. 1966) “loiter is defined as “1. to linger aimlessly or as if aimlessly in or about _a place: . ...2. to move in a slow, idle manner; make purposeless stops in the course of a trip, journey, er- ‘rand, etc.” “While taken by itself and i in its broad mean- . ing the term may carry no criminal] implications, never- theless as employed in a penal statute arid considered in such statutory context, it may have a. sinister, wrong- _ ful or criminal import. [ Citations. |’ (in ve Huddieson, supra, Pp. 622.) 4 ‘ —— ‘Over the years the courts have waited and upheld’ the . constitutionality of various statutes proscribing “loitering” in one ‘context or another. (te, e. 2.5. Philips v. Municipal Court (1938)°24 Cal.App.2d 453; Wright v. Munro (1956) 144 Cal.App.2d 843; Garcia v. _ Munro (1958) 161 Cal.App.2d 425; see also Flores v. : “Los Angeles Turf ClubgX1961) 55 Cal.2d 736:) In _ 1961 the court in In re Cregler, 56 Cal.2d 308, upheld . the constitutionality of subdivision’ 4 of former section’ _ 647 of the Penal Code. It was there held that the word — _ “Toiter”\as used in the: ‘subject statute and in many other police powef- regulations “has a sinister or wrongful as © well as a reasonable definite implication. As proscribed “by the statute the word ‘loiter’ obviously connptes lin- . gering in the designated places for the purpose of com- mitting a crime as opportunity may be discovered.” (Pp. . 311-312.) ‘In In re Huddleson,'229 Cal.App.2d 618, the .court followed Cregler in sustaining the constitu- - tionality of section 647a, subdivision 2, which pro- vides that “Every person who loiters about any school ‘or public place at or near. which childfen attend or - mornaally congregate is a vagrant. we x ‘We are satisfied that with the passing « of the ‘ alloyed, uncomplicated criminal character the. nee. 7 - rogue, the idle vagabond, the true vagrant,” (tenBroek, — Family Law, Part ITI, 17 Stanf. L. Rev. 614, tats ’ we are ‘no longer required ‘to give the word. “loiter” restricted meaning i in order’ to sustain the. sialiteiitaat _ , ity of the statute. .As tenBroek points out, when sec- _ -. tion 647:-was repealed, recast and reenacted in: 1961, othe name of the semagere was: changed from, vagrancy ys disorderly conduct. ; . Mere ,roaming about from ‘¢ -_ to Place, by persons without ma means of sup- ; \ \ a a) ay = e port is no longer forbidden; one must also refuse to identify ‘himself and to account for his presence when requested by a peace officer to do so, ‘if the surround- ing circumstances are such as to indicate to a reasonable ~ ~ ~ man that ‘the public safety demands. such identifica- n.’” (P. 673.) . What we have ‘just said about the we “loiter” ap-_ plies. equally to the word “wander,”, In its broad sense “wander” means ::“1..to ramble without a definite pur- pose or objective; roam, rove, or stray; ... 2. to go ~ _ aimlessly, indirectly, or casually.” (The Random House Dictionary of the English Language, unabr. ed. 1966.) As now written, section’647, subdivision (e), does not _ Inake- loitering and waridering upon the streets or from place to Place without apparent reason or business with- out more a punishable offense. As there used the words do: not sconnote . unlawful activity. (City of Seattle v. Drew, .:...-.- Wash.2d ........ , 423. P.2d 522,.524.) Fhey ‘ do no more than describe the person who may be asked ‘by a peace officer to identify -himself and. to account — for his presence in the prescribed circumstances. As so | used the words. “loiter” and ‘ ‘wander” are not so vague ~ that mén of common intelligence must necessarily guess | at their meaning and differ as to their. application. (Lanzetta v. New Jersey, 306 U.S. 451, 453; United.’ States v. Harriss, 347 U.S. 612, 617.)* Defendant also contends that the statute is uncon- . stitutionally. vague’ in that it gives’ the loiterer or wan- derer no ) guidance as to what he must do “to ‘identify e do not-agree, with the court in People v. Bruno, 211 L Cal. App.2d Supp. 855, 860-861, that “wandering” as used in — Mia te 647, subdivision (e). “consists of ‘movement for evil _ purposes,” even in the. absence of any constitutional question. © a ee es himself or to account for his presence.” We do not agree. ~°: ‘Here, again, we may look to the commonly accepted _ meaning of the words. According to the American College Dictionary, “identify” means to “establish as being a particular person or thing; attest or prove to be as purported or asserted. ” “Tdentification,” to College Law Dictionary means “Proof that a person or thing is the person or thing [he or] it is: ‘enaees _or represented to be.” | eo State v. Evjue, 253 Wis. 146, 33 NW 2d 305, in- | volved a statute which prohibited the publication of “the identity“of a female who may have been raped or subjected to any ‘similar criminal assault. . .” ( R. 308.) In holding that the ‘word “identity” as dhidie used'was not unconstitutionally- vague or. indefinite the - court said (p. 309): “The word ‘identity’ is not a word - of art in the law. ‘Identity’ is a noun and from it the - adjective ‘identical’ is derived. Things are said to be »identical when they are the same, -equivalent, equal. To identify i is to establish the identity of; to prove the same with something described, claimed, or asserted. Identity is defined as sameness..of essential or generic character in different examples or instances; the limit ~ approached by i increasing similarity ‘Sameness in all that Z constitutes the objective reality. of a thing. (Webster) With respect to persons the most common means. of identifying them is by name, but that is by no means | the only method which is employed. Any knowledge or ‘information which enables the recipient to distinguish } ? . t EI ITAL WTR OO RO ple Gh oe according | Be eh AER RL ACE SARTO tt NR LOT IE ET AN ING ERLE O RE LE RN ALAR TNE LEAL TN kK ‘the person referred to affords’a means of identifica | tion.” ee ie _ To “account for” is‘defined in Webster’s Third New . International Dictionary as meaning: “.-. ..to furnish substantial reasons or a convincing explanation; make clear or reveal basic causes.” In the context of section 647, subdivision (e), as we read it, to account for one’s presence is, in substance, an’ integral part of the | identification there required.® ‘While there appear to be no, cases directly in point, 3 we are satisfied that for the reasons discussed above, . the phrase “to account for his presence” as used in section 647, subdivision (e), is to be given its lay meaning, and that so construed it is not constitutionally — "vague and indefinite. (See Dominguez v. City and _ County of Denver, ........ Colo. ......... 363 P.2d 661, and Notes, Validity of “Satisfactory Account” Clauses ‘In Vagrancy Ordinances (Kalhr), 4 Ariz. L.Rev. 284.) ~ We do not think that United. States v. Margeson, 259 F.Supp. 256, is persuasive authority to the contrary. More fundamentally, defendant contends “that . the statute is unconstitutionally vague because the’ crime o- | ' 4In People v. Diaz, 174 Cal.App.2d 799, 803, it was held _that, in the circumstances of a case in which the disclosure of the identity of an informer was necessary toa fair trial, mere disclosure of his’ mame without further identifying information ‘was not enough. . 5It seems clear to us that, as used in section 647, subdivision (e), the concluding phrase, “such identification” as the public _° safety demands refers back to the obligation imposed on the per- 0 son of whom the request is made “to identify himself and to account for his presence.” | ? dee —12— for which he may be prosecuted i is dependent. on the subject discretion of the. peace officer who seeks to in- terrogate him. In support of this contention he relies primarily on the concurring opinion of Justice Black in Cox v. Louisiana, 379 U.S. 559, 575, 13 L.Ed. 487, 498, where he said that a statute is unconstitutional _which “does not provide for government by clearly de-_ fined laws, but rather for government by the moment- to-moment opinions of a policeman on his beat.” (379 U.S. at 579, 13 L.Ed.2d at 501; see also Shuttlesworth v. Birmingham, 282 U.S. 87, 90, 15 L.Ed.2d 176, 179.) We do not believe that section 647, subdivision (e), can be so construed. In Cox v. Lousiana, 379 U.S. 536, 13 L.Ed.2d 471, the court held that, the statute ‘under which defendant had been convicted, prohibiting obstruction of public streets and passages, was uncon- stitutional because it vested “unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings.”* The court said, however : “It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordi- nances, concerning the time, place, duration; or. manner of use of the streets for public assemblies may be vested in administrative officials, provided that such — limited discretion is ‘exercised with “uniformity of _ method of treatment upon the facts of*each application, free from improper or inappropriate considerations and from unfair discrimination” . . . [and with] a “sys- ‘ tematic, consistent and just’ order of treatment, with "reference to the convenience of public use of the high- ways... .”’ Cox v. New -Hampshire, supra, 312 US at 576, 85 L. ed at .105, 133 ALR 1396.” (379 U.S. at 558, 13 L.Ed.2d at 486.). & Section 647, subdivision. (e), permits a peace officer to stop one who loiters or wanders upon the streets “without apparent reason or business,” and require him o “identify himself and to account for his presence” _ only “if the surrounding circumstances are such as to - indicate to a reasonable man that the public safety de- mands such identification.” In determining the con-- stitutionality of this enactment we are required-to. read 2 ' it in its entirety. So read, we are satisfied that ‘it con- stitutionally vests appropriate, limited discretion in - : the peace officers of this state. - Admittedly, the provision in the original draft of the section requiring the loiterer to identify himself and account for his presence was conceived by the principal draftsman to be consistent with the authority which peace officers have long possessed in California. As Professor ‘Sherry says in footnote 72 to his, article in 48 California Law Review at page 571: “A dictum in the earliest case in which the private person’s responsi- bility to respond to reasonable police inquiry is discussed is in point with respect to the suspicious loiterer: ‘A police officer has a-right to make inquiry in'a proper manner of anyone upon the public streets at a-late hour as to his identity.and: the occasion of his presence, if the surroundings are such as to indicate to a reasonable man that the public safety demands such identification.’ Gisske v., Sanders, 9 Cal.App. 13, 16, 98 Pac. 43, 45 (1908). Years later, the California Supreme Court adopted this conclusion in People v. Simon, 45 Cal.2d 645, 290 P.2d 531 (1955).” Although it was held in People v. Simon (p. 650) that the‘search there in- volved was not reasonable in the circumstances of that _ case, the court. was careful to point out that “There is, _ “of course, nothing unreasonable in an officer’s ques- —14— _ tioning persons outdoors at night [citations], and it is possible that in sorne circumstances even a refusal to an- swer would, in the light of other evidence, justify an arrest. (See Gisske v. Sanders, supra, 9 Cal.App.2d 13, 17.)” The phrase, “. . . if the surrounding circum- ‘stances are such as to indicate to a reasonable man - that the public safety demands such identification,” ' was included-in section 647, subdivision (e), as enacted in 1961 in order to make the section “fit more nearly. the dictum from Gisske v. Sanders, upon which it is based.” (22 Assembly Interim Committee Reports, No. ‘1, p. 18 (1961).) — wy In our opinion section 647, subdivision (e), confers on the peace officers of the state an appropriate limited discretion which does no violence to any constitutional provision. This discretion is analogous to the dis- cretion vested in such officers to’ make an arrest in _ circumstances short of probable cause. ‘People v. Mickelson, 59 Cal.2d 448, was . decided in 1963. In that case the court said (at pp. 450-451): “W]e have consistently held that circumstances short of probable cause to make an arrest may still justify an officer’s stopping pedestrians or motorists on the streets for questioning. If the circufhstances warrant it, he may in self-protection request a suspect to alight from _ an automobile or to submit.to a superficial search for “concealed weapons. Should the’ investigation then re- veal probable cause to make an arrest, the officer may arrest the. suspect and conduct a reasonable incidental search.” At page 452, the court said: “We do-not be- lieve that our rule permitting temporary detention for . questioning conflicts with the Fourth Amendment. It strikes a balance’ between a person’s interest in im- &. —15— ; munity from police interference and the comninity’s in- terest in law-enforcement. It wards off pressure to equate reasonable cause to investigate ‘with reasonable cause to arrest, thus protecting the innocent from the s . risk of. arrest when no more than reasonable investiga- _ tion is justified.” This rule was reiterated in People v. _ One 1960 Cadillac Coupe, 62 Cal.2d 92, 95-96. In People v. Cowman, 223 Cal.App.2d 109, we held that it is constitutionally permissible for a peace officer to stop an automobile for the purpose of interrogating © the occupants even when the officer had no preconceived intent either to arrest the occupants or to conduct a search of the vehicle. We there said (p. 117) that the rationale of the decisions is “that an officer of the law, employed to maintain the peace and to prevent crime, as well as’ to apprehend criminals after the fact, has both the right and the duty to make redson- able investigation of all suspicious activities even theugh the nature thereof may fall short of grounds sufficient to justify an arrest-or a search of the persons or .the . effects of the suspects. . Experienced police officers naturally develop an ability to, perceive the. unusual and suspicious which is of enormous value in the difficult - task of. protecting the security and safety of law-abiding citizens.” The same conclusion was reached in People v. Perez, 243 Cal.App.2d 528, where the court said at page 531: ' “An officer may stop a pedestrian or. motorist for questioning under circumstances short of probable cause for arrest. (People v. Mickelson; 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658].) There must, how-. ever, be some suspicious circumstance to justify even such a limited interference with an individual’s free- pe —16— dom of movement. People v. One 1960 Cadillac Coupe, 62 Cal.2d 92 [41 Cal.Rptr. 290, 396 P.2d 706]; Hood v. Superior Court, 220 Cal.App.2d 242 [33 Cal.Rptr. 782].) There is no precise formula by which it can be determined whether an officer acted lawfully in stop- ping a pedestrian or a motorist for questioning ; the test is ‘. . when the circumstances are such as would in- - dicate to a reasonable man‘in a like position that such a course is necessary in the proper discharge of his duties.’ (People v. One 1960 Cadillac Coupe, supra, pp. 95-96; People v. Davis, 222 Cal.App.2d 75, 78 [34 Cal.Rptr. 796]; People v. Porter, 196 Cal App.2d 684, 686 [16 Cal.Rptr. 886].) The reasonableness of an _ officer’s action depends upon the facts and circum- stances of the particular case. (People v. Alcala, 204 Cal.App.2d 15, 20 [22 Cal.Rptr. 31]; cf. People v. Ingle, 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d . 577; People.v. Schader, 62 Cal.2d 716; 726 [44 Cal. Rptr. 193, 401 P.2d 665}.) A. mere hunch, without more, that a person may be involved i in criminal activity — “is, of course, insufficient. (People v. One _ Cadillac Coupe, supra.)” We are concerned here only-with the constitutionality Of. the statute. We are not concerned with the reason- ableness of the officer’s action in arresting the defend- ant. Whether his action was reasonable necessarily de- pends upon the facts and circumstarices of the case as developed at the time of trial: (People v. Perez, 243 ne age 528; in Be v. bled 248 Cal.App.2d. ...., The conclusion we have reached i is in accord with the Commentary of the Reporters on section. 2.02, subdi- -_—eoOo SAdvence Report Citation : 248 A. CA. 358, 361. f Tenge © > ee) eel eg a 2 tomer =e . | =, a visions - (2) and (3), of A Model - Code of. Pre-Ar- raignment Procedure, Tentative Draft No. 1, submitted to The American Law Institute in 1966.” Section 2.02, subdivision (1) of that tenative draft provides for the _ ' stopping of persons who may have knowledge which © may. be of material aid to the investigation of some crime.. Subdivisions (2) and (3) read: “€2) Stopping of Persons in Suspicious Circumstances. A iaw en- forcement officer: lawfully present in any place may, if a person is observed in circumstances which suggest that he has committed or is about to commit a felony or misdemeanor, and such action is reasonably neces- sary to enable the officer to determine the lawfulness of that person’s conduct, order that person to remain in- or near such place in the officer’s presence for a period of not more than twenty minutes. (3) Action to Be | Taken During Period of Stop. A law enforcement of- ficer may require a period to remain in‘ his presence . pursuant to. subsection (1) or “(2) of this section’ only insofar as such action is reasonably necessary to (a) obtain the identification of such person; (b) verify © _ by readily available information an identification of such person; (c) request cooperation pursuant to and subject to the limitations of Section 2.01; or (d) verify | by readily available information any account of his presence or conduct or other information given by such person.” ? In their Commentary on section 2.02 of the ten- tative draft the Reporters say in part (p. 93): “Some tA fter eee discussion at the Annual Meeti section 2.02 .of the tentative draft was recommitted to the Reporters for reconsideration with instructions that included of _ the principle of “stop and frisk.” ei US. Law eek 2641- 2644, May 24, 1966.) authority to interfere with liberty on less than reason- able cause has been explicitly recognized even in the absence of statute by the courts in a number of jurisdic- tions, including one Federal Court on Appeals.”* As to the constitutionality of the proposal the Reporters say (p. 94): “Theré appear to be no compelling con- stitutional objections to an authority to stop persons _ briefly for purpose of criminal investigation. In the single case that squarely raised hefore the Supreme Court the issue of the constitutionality of such an ex- ercise of power, Rios v. United States, 364 U.S.-253 ° (1960), the court declined to decide the question. Where - such a power has been explicitly ,granted. by statute, it has. been consistently upheld.® And even ‘in the ®The Reporters’ footnote to this statement reads: “5. © United States v. Vita, 294 F.2d 524, 529-30 (2d Cir: 1961), cert.. denied, 369 U.S. 823 .(1962) (‘The rule [of Federal R. Crim. Proc. 5(a)] does not apply to a case in, which federal officers detain a suspect for a short and reasonable period in order to question him.’) ; United States v. Bonanno, 180 F.Supp. . 71 (S.D,N.Y.), rev'd .on other gounds sub nom..United States . v. Bufalino, 285 F.2d 408 (2d Cir. 1960); Goss v. State, - 390 P.2d 220, 224: (Alaska), cert. denied, 379 U.S. 859 (1964) (‘when the -officer stopped the car he was doing nothing more than conducting an investigation in response to circumstances that aroused his suspicion’); People v. Mickelson, 59 Cal,2d 448, 30 Cal. Rptr. 18, 380 P.2d 658 (1963); People v. Fagin- krantz, 21 Iil.2d 75, 171 N.E.2d 5 (1960); People v. Henne- man, 367 Ill. 151, 10 N.E.2d 649 At State v. Freeland, 255 Towa 1334, 125 N.W.2d 825 (1964); People v. Rivera, 14 N.¥.2d 441, 201 N.E.2d 32 (1964), cert. denied, 379 US. 978 (1965); State v.. Zupan, 155 Wash. 80, 283 Pac. 671 ' . (1920); State v. Hatfield, 112’ W.Va. 424, 164 SE. 518 (1932).” --®The Reporters’ footnote here’ reads: “9. See Common- wealth v. Lehan, 196 N.E.2d 840 (Mass. 1964), and authorities cited in note 1 supra.” The authorities there cited are Cannon v. State, 53 Del. 284, 168 A.2d .108 (1961); De Salvatore v. State, 52 Del. 550, 163 A.2d 244 (1960); Kavanagh v. . Sten- house, 93 R.I. (1962 174 — soraliy Wetuer’ The: Caters 368 U.S. 516 (1962). | genera arher, Uniform. Arrest Act, 28 Va. L. Rev. 315, 320-321 (1942). , ~ pees ~ absence sof statute most courts which have confronted the issue have recognized the constitutional pas of such a power.” Claim of Privilege Against ‘Self-Incrimination Defendant’s final contention is. that section 647, sub- _ division (€), is unconstitutional because it/yiolates the right of an individual not to be compelled to be a wit- ness against himself, because it invades the right of. privacy, and violates due process of law. We are of the opinion that these contentions cannot be sustained. - “The privilege against self-incrimination applies to ‘ evidence of ‘communications or testimony’. of the ac- cused, but not to ‘real or physical evidence’ derived from him” (People v. Ellis” 65 Cal.2d ........, , and authorities there cited.) In Ellis it was held that “The results of voice identification tests fall within the cate- gory of real or physical evidence.” In People v. Sud- ~— duth,? 65 Cal.2d -......, ......, the court. held that a _ suspect has -no constitutional right to refuse a test for intoxication “designed to produce’ physical evidence in the form of.a breath sample.” In Schmerber. v. Cali- fornia, 384 U.S. 757, 16 L. Ed.2d 908, cited in sup- port of the rule as stated in Ellis and Sudduth, the court held that (p. 914) “the privilege protects an ac- cused only from being compelled to testify against him- self, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the with- drawal of blood and use of the analysis in question in this case did not ‘involve compulsion to these ends.” “The Reporters here refer to the : “authorities cited in note supra,” quoted in our footnote 8, supra. Ese 11Advance Report Citation: 65 A.C. 571, 575. : 12Advance Report Citation: 65 A.C. 585, 588. is oe . 2 ae a —0— / ‘The’court. there noted (p. 916) that: “both federal ‘and , photographing, or 0 measurements, to write or speak for identification, to- appear i in court,, to stand, to assume a "distinction: which: has, emerged, often expressed in dif- 7 ad ferent ways, is’ that the privilege is a bar against. com- ” f pelling ‘communications’: or ‘testimony,’ but. that com- . ae Pulsion which makes a suspect or accused: the source of | real or physical evidence’ does not violate it,”:- Section 647, | subdivision (e), provides that a person e: who, in the circumstances ‘there stated, refuses. to iden-_ - ape f and to account. for ‘his preserice,. is guilty : _ Of disorderly conduct. Defendant argues that. the es- mJ sential’ element of the crime ‘heré defined is his’ Silence ., when requested by the peace of ficer to speak, and .that that the obligation to. speak imposed. on him, by the Se€c- ms tién results in compulsory self-incrimination, in that. he ; “ig thereby compelled “to provide the State with evidence . | OfSa! testimonial or! comptitinicativé nature” (Sch- . a merber. 9. California, 384 U:S: 957, ‘16 Ly. Ed.2d 908, 914), which may be used against him at his tridl for - oe _ disorderly coniduct.”* This . ais argument is not tenable. Ah. no Respondent s. Rity to “Supplemental Briefs of yew _ jer Mf the defendant is charged with the commission of another e-. : Crin his refusal to answer may be used against’ him, or ‘an . incrim ‘ment he made eithér with or without a Rea Be Miranda-E scobeao warning is » .admissible—in-— evidence. The - +«.Serime’ under 647(e)> is his not paving answered. If he had answered there woul. presumably ‘be e under thie. sec- tion, According even assuming arguesde a the Miranda- : Sen . Escobedo y need | not be given “and aomming ‘that ‘silence. . e ae * 9 . * ? ° *. BF og? ‘ ‘ . ee | : ae P rey ogee etal Me? r . eis. Qs . ;-~ we _.state*courts have usually held that it offers no protec- - : f ‘| tion against , compulsion to’ submit | to’ fingerprinting, , ey ‘Stance, ‘to walk, or-to make. a particular gesture. The % S his: tight to remain ‘silent is protected by the Fifth - ‘Ainiendment. To: put it otherwise, his’ contention is ~ uriae counséb, say : “The. question under 647(e) isnot wheth- . —_—-——- -s clita , Pa we read. the authorities, section 647, subdivision ' (e), cannot: be construed as requiring the person in- terrogated by the-peace officer to be a witness against” himself. While it is true that he may be found guilty of disorderly conduct if. he remains-silent, “The silence at . here is mere nonassertive conduct ; it is not a declaration — but a failure to offer an explanation, under circum- % stances which call for one.” (People Vv. Wilson; 238 | Cal.App.2d 447, 456, pet. for hearing in Supreme. Court denied. ) It was held in Wilson that evidence of defend- _ant’s silence \ was admissible. in he later prosecution for . burglary. ee. In affirming the conviction in Wilson the ¢ court, at - . . page 458, took note of the rule, as stated in People v. \» Simon, 45. Cal.2d 645, 650, that “There is, of course, “nothing unreasonable in an officer’s questioning . per- sons outdoors at ‘night [citations], and it is possible that . in some circumstances even a refusal to answer ~ would, in the light of other evidence, justify ‘an ar- rest. [Citations.]” Then, after quoting section 647, subdivision (e), as enacted in 1961, the court said: “If there is such a right to interrogate, the results of such ‘interrogation: should. be available where they re- flect conduct on the part of the defendant which tends .to establish his guilt unless there is a supervening policy of the law which prevents the use of the. conduct or - statements of the accused.” The court found that there was no such supervening policy.. In reaching this conclusion the court said in part (p. 459): “Circum- ”. or a statement iol be used- against the defendant were he prosecuted for a different crime—the one, presumably for which the stopping and questioning was done—that still is no — basis for it bei a crime not to have answered. If a state- ment-is voluntarily made, that is one thing. But hee a state- ' ___. mefit is not made, that is quite another.” — nearer cence ene mcaeeaemmmaeaeaesamamaamaeaaeamaaamammmaaaaetmeasnma aime aaaaammaaaaemeamaaemaeaaaranemmaenemmmmenaeneet stances may be imagined where answering the type of question “here involved ,would violate “the . provision against self-incrimination which has’ been, extended to nontestimonial compulsion. (See People v. Dorado, supra, 62 Cal.2d at p. 352; applying Escobedo. v. Illinois (1964) 378 U.S. 478. [84 S.Ct. 1758, 12 L.Ed. 2d 977]; and People v. Stewart, supra, 236 Cal.App.2d 27, 30.) Dorado, however, recognizes: ‘Nothing that ; we have said, of course, should be interpreted to re-- __ strict law enforcement officers during the investigatory ‘ stage from securing information from one who is later accused of the crime or from obtaining answers to “their questions.’ (62 Cal.2d at p: 354.) So here appears | \ a second distinction between ‘the factS Of this case and those of Dorado, Stewart and De. Leon [236 Cal.App. 2d 530]. The circumstances ‘here reflect that. at the time the preliminary questions were asked the officers did not know what crime, if any, had been committed. | The questions were not designed to elicit incriminat- ing statements, but to afford the defendant an,op- — porturtity to explain his presence and actions.” -, . Ie constitutional right to remain anonymous. * With respect to that provision of. the Fifth ‘Amend- ment which states that no person shall be compelled . in any criminal case to be a witness against himself, its definition of a criminal case has never been extended _ to include general investigation. (People v. Perez,> 65 Cal.2d ....:..., .....:) The position of a person under general investigation is comparable to that of a witness before any judicial, legislative, or administrative of- ficer. If the witness feels that answers te questions put to him will tend to incriminate him he may claim | the privilege against self-incrimination. If the privi- lege has been well claimed, he is entitled to remain silent. (United States v. Burr, 25. Fed.Cas.No. » 14692(e), (Marshall, C.J.).) But until the privilege has been validly claimed, his civic duty to identify and account continues in force. (Sullivan v. United States, 274 U.S. 259, 263-264 (Holmes, J.) ; Communist Party _v. Control Board, 367 U.S. 1, 105-110 (Frankfurter, J.):) 3 - I conclude that Penal Code, section 647, subdivision (e), draws on civic duty without unduly infringing individual right, and is therefore constitutional. FLEMING, 4. s” ®Advance Report. Citation:.65 A.C. 761, 768-769. . = 3 . IDISSENT: © | sig Despite my very strong desire to ‘support and sanction _ any and all constitutional provisions of law reasonably , designed to strengthen ‘and i increase the effectiveness of oe enforcement officers in the performance of” their exceedingly difficult work of detecting and pre- venting crime in, this age-of increasing lawlessness, I feel obliged to dissent and’ this. for two major reasons. First, I am persuaded that the judges of the trial court and of the appellate department were correct in their holdings that the law here in question is’ uncon- stitutional. In the circumstances of this ‘case~I deem | it unnecessary to repeat or set forth herein the reason- . ing of the decision of the appellate department. Suffice _ it here to.say that: in the light of established principles oa of. constitutional law, I ‘believe that this statute will be held incompatible with the dictates of: the Fourth -and Fifth Amendments to the federal Constitution. ee, I apprehend that even if this law were not vulnefable to attack on constitutional grounds, its opera- tion in the context of the entire complex of constitu- tional principles which have been enunciated by the - Supreme Court, of the United States in recent times would entail results more harmful than beneficial to the aims of effective law enforcement. For example, it would appear that statements given by an apparent “loiterer” in Tesponse even to “normal | | investigatory questioning”? might be deemed to have aie ICE. People v. Perez, 65 A.C. 761, 768. —30— been given under penal compulsion and therefore inad- missible in a subsequent prosecution of the “loiterer” for the murder or the robbery which the officers were . seeking to solve when they anaifomes their proper in- vestigatory questions.” I am unable to agree with the view of my colleagues ‘that section 647, subdivision (e), “Gs no more than a codification of [the] rule” sanctioning the propriety of police action in temporarily detaining citizens and ques- tioning them in circumstantial situations in which such police action appears reasonable. (CE. People v. Mickel- _ son, 59 Cal.2d 448, 450; Hood v. Superior Court, 220 |. Cal. App.2d 242; People v. Cowman, 223 Cal.App.2d': 109; People’v. Bird,’ 248 Cal:App.2d ........ ) As au- thor of the opinions in Hood, Cowman and Bird, I am obviously in complete accord with the law therein enun- | ciated. If section 647, subdivision (e), were no more , . than a codification of presently accepted decisional law, there would be no compelling need for the enactment _ of this statute. As I have indicated, I fear that the effect of section 647, subdivision (e), would not be to augment or strengthen but rathér to jeopardize the ef-- eae fectiveness of the present rule which sanctions investi- gatory questioning.’ : HERNDON, Acting ¥ de 2Cf. ‘Garrity v. New Jersey, ........ U.S. ....... 17 L. Ed. 2d 562; and Spevack v. Klein, ........ USS. ........ 17 L. Ed.2d 574, %Advance Report Citation: 248 A.C.A. 358. . | 31 AN Modification of Opinion. | In ‘the Court of Appeal of the State of California, | Second Appellate District, Division Two. People of the. State of California, Plaintiff and Ap- pellant, v. Chester W. Weger, Defendant and Respond- ent. 2d Cr. No. 13090. Filed: June 23, 1967. THE COURT: -. Good cause appearing y therefor the opinion filed June 5, 1967, in the above entitled cause is modified by the Court on its own motion as follows: ‘The sentence’ beginning at the bottom of page 18 of the opinion as filed, reading: “This discretion is analogous: to the discretion vested in such officers to make’ an arrest in circumstances short . of probable. - cause,” is’ deleted, and the following sentence is sub-: stituted therefor: “This discretion is ‘andlogous to the discretion vested in such officers to Stop pedestrians or ~ motorists on the streets for questioning under circum-— stances short of. probable cause to make an arrest. “eae 9 a) ; APPENDIX B. Mernorandum Opinion and J iinet: ‘Appellate Department of the Superior Court, of the State of California for the County of Los Angeles. People of the State of California, Plaintif f and Ap- | pellant, vs. Chester W. Weger, Defendant and Respond- - ent. Superior ‘Court No. CR. A 7128. Trial Court No. M 79160. | ‘Appeal by People from ‘hcaak of “Sienaéeal at the _ Municipal Court of the Pasadena Judicial District, a Louis T. Fletcher, Judge. nt ee ? Af firmed. | | : For Appellant—Byiron B. aaiow City silane =! *. 2) ee ‘Respondent—Neiman and Sieroty and Wirin, -Okrand and Sperber by Allen I. Neiman, Esq. The People appeal ‘from a judgment of dletniegal en- tered after respondent’ s general demurrer to the com-. . plaint was sustained with leave to amend. and the People . declined to amend. The trial court dismissed the com- plaint on the ground that Penal Code Section 647, sub- © ‘section (e); upon which the complaint was mages, ig un- constitutional. ' The respondent was ; not in jeopardy, and the right of the ti to appeal is: unchallenged. | | - Introduction Penal Code Section 647 (e) is unconstitutional. To construe the statute and to understand “why, ° upon any construction proposed, the statute is uncon- - stitutional requires a review of the background of. the - statute, including the. law of -yagrancy which was its : oes . . se : | : } >» . initial source, the evolution. of stop-and-inquire laws, — "and tthe legislative history which precedes its adoption. The ‘threads from which the Statute was woven are - long and in -some respects. tangled. We begin with the history of vagrancy and add each strand as it ap- peared historically ‘to reach our ultimate decision on constitutionality.. _ i eee ree , Penal Code Section: 647 (e), as enacted in 1961, _ provides that every person is guilty of disorderly con- | _ duct, a misdemeanor :. eee ae eet : _“[W]ho [1] loiters or wanders upon the streets or | pease , from place to place without apparent reason or busi- ness and [2] who refuses to identify himself and to account for his presence when requested by any peace officer’so to do, [3] if the surrounding cir- cumstances are such as to indicate’to a’ reason- able man that the public safety demands ‘such’iden- tification.” [Bracketed ntimerals added.] . - Each of the three icles clauses of Section 647 (e) was drawn from a separate source, and each has .a lengthy history. The first clause is a restatement of the ancient crime of vagrancy; the’ second clause was drafted by Professor Arthur Sherry ; the third clause was added by a subcommittee of the Assembly Interim Committee on Judiciary. Ks The History of the Vagrancy C lause: “Who. Loiters or Wanders Upon the Streets or From Place to Place Without Apparent Reason or Business? . The second clause makes silence, or articulated re-_ fusal to answer questions, an element of the crime.* ‘The statute does not penalize a. suspect who answers the questions. If he responds with an exculpatory an- _swer, he is obviously. not chargeable with violation’ of _ this or. any other penal statute. If he responds with _ an incriminatory answer, he may therby implicate him- self in another crime and Possibly supply probable cause . - to arrest for that other crime, but he is not charge- able with the offerise created by this statute. A re- - Sponse, which is. somehow neither inculpatory nor ex- culpatory, but merely. unsatisfactory to the police of- ficer, cannot be deemed a refusal to respond within the _ ‘meaning of the statute, because the legislative history _ makes clear that the Legislature did not intend to |e- _ galize arrests on suspicion. The third claise. was in-. serted to prevent an officer’s arresting a person solely °Cf. In re Cregler ED 56 Cal.2d 308, 311, 312; In re Huddleson (1964) 229 1.App.2d' 618; 625. prt : : € situation must’ be distinguished from those cases in which the refusal is not a refusal to testify but is a refusal to Cooperate in a.non-testimonial procedure or test, ¢.9., Schmerber v. California (1966) 384 .U‘S. 757 (blood test) ; People v. Sudduth (Dec. 23, 1966) ........ Cal.2d -- (refusal to submit to breathalyzer test) ; People v. Elis (Dec. 23, 1966) ........ Cal.2d bent (voice identification test). “ e ‘ 9 . oll Aatitedimenet mane) | because the arresting officer was not subjectively. satis-_ fied with the suspect’s answer. Unfortunately, the Com- mittee did. not “explain how it. expected its qualifying wh : addendum to prevent arrests on _ Suspicion or to sur--- . : vive tonstitutional attacks grounded on the Fourth and Fifth Amendments. 3 There appear to be only three oossible. constructions — of Clause [3]:-first, the officer must have reasonable ~ ‘cause to arrest for the very offense ‘created by Sec- oe -tion 647 (e) before ‘the officer has the right to in- — terrogate the. suspect and penalize him for failure to Be : respond ; second, the officer must’ have reasonable. cause to arrest for an offense other than an offense created” by Section 647 (e) before the right to interrogate and the duty to respond arises; or third, the, officer must - have reasonable cause to-detain and question for pur- : poses of investigation, but less than enough cause to arrest for any offense, before the failure to ‘respond cotistitutes a crime. . The first construction alah insurmountable dif- . ficulties in application. and constitutionality. The ele- ments of the offénse would: thereby be circular : the officer could not require response to questions until the « questions had been asked without response. This is true because the third clause is itself an element of the - corpus of the offense. Loiteringor wandering, standing alone, is not the crime, nor does loitering or wander- ing, standing ‘alone, constitute ‘reasonable causé to -be- ‘lieve that the crime stated by Section*647 (e) is being committed’ ih the officer’s ‘presence. The statute re- quirés the elements of each clause’ to coincide to effec- tuate the legislative intent. Moreover, the statute as thus ‘construed would violate the Fifth. ‘Amendment. If “a , oo 4 ok the ‘officer has probable cause to believe that the sus- ..\". pect. is violating Section 647 (e) at the time he com- - completes the crime stated by Section 647 (e). His ‘silence is unmistakably incriminatory. The Suspect can- not be penalized for exercising his constitutional right | - to silence. (Miranda v. Arizona (1966) 384 U.S. 436, | Albertson: v. Subversive Activities Control Board _ (1965), 382 U.S. 70; Russell. v. US. (9th. Cir. 1962) 306 F.2d 402.) It is, of course, totally pointless for the officer to inform the suspect, that he has a -~ constitutional right to. remain silent when his. silence. is .- the final element in this crime.“ OH Otit. aera _ The. second. possibility—reasonable cause to believe ” that an offense other than violation of 647 (e) has _ been committed—fares no better than. the first. By able ‘cause to believe’ that the suspect’ has committed or is committing a crirhe before the duty to respond arises. The generalized inveS8tigation is over? and ‘the suspect — has a constitutional right to silence, which cannot be defeated by penalizing his silence criminally. ° - . The third possibility ‘is that Clause [3] means that ~ the officer must have reasonable cause to detain and question for purposes of investigation, but: instifficient cati$e to arrest.for any-offense. This construction most : “Cf. People v. Simmons (1946) 28 Cal:2d 699, 716: Of what avail is it to warn a defendant that he need not reply to. police questioning unless he wishes to, and that anything he may" _ Say my be used against him, if, in the event he is"unres sive under.this admonition, hi¥ silence or equivocal reply, is later _ turned against “him as indicative of a consciousness of guilt ?” ae : " 4) ae cate , ; 4 — _ Mences interrogation, the. accusatory stage is ‘néces- *. | sarily reached, since the Suspect’s -failuré’ to respond - eee 468; Griffin v. California’ (1965) 380 U.S. 609; cf: a definition, the interrogating. officer-must have reason- — . snes — 2, closely accords with the intent of the draftsman of the statute, but it founders on both. the Fourth and - Fifth Amendments. The Fourth Amendment problem sidieres 3 in 1 the stat- ute because the statute as thus interpreted legaJizes an arrest upon grounds other than reasonable or prob- able cause. The Committee failed to perceive the im- portant distinction between (1) reasonable cause jus- tifying detention short of arrest for the puprose of in- vestigation only, and (2) reasonable cause to’ justify an arrest. The Gisske and Simon dicta refer to rea-_ sonable.cause to justify detention, not arrest. When “reasonable cause justifying ‘detention is itself made an. element of a crime, the effect is to convert grounds for _ detention into grounds for arrest, a result which the Supreme Court in Simon and later in Mickelson and — One 1960 C. adillac ¢ ‘oupe ‘was at considerable pains to avoid.” ~ Our. Supreme Court has preserved . the distinction - because the standard of reasonable cause to detain and “inquire is a lesser standard than probable or reason- able cause ‘to arrest. If Feasonable cause to detain and reasonable cause to arrest were based ‘upon identical standards, the addition of stop-and-inquire principles would be pointless. If a lesser standard to detain and ‘inquire is converted into cause for arrest, the effect . is to defeat the more stringent. requirements of prob- . able catise to arrest—a result which ‘cannot be ore 42People v. Simon, supra, 45 Cal.2d ‘a 650; People v. tine - 1960 Cadillac Coupe, supra, 62 Cal. 2d at 95-96: Gisske v.. Sanders, supra, 9 Cal.App. at 16-17. The same distinction has been seein maintained in drafting . statutes authorizing detention and questioning for ‘in- vestigatory purposes, such as the Uniform Arrest. Act’ and its ' variations, ee supra. / i ro with the probabi¢ cause standard imposed ttpon the law of arrest by the Fourth Amendment. If we attempt to avoid the F ourth Amendment dif- | ficulties by raising the standards of detention to the ° level of probable cause to arrest, we immediately en- counter :the identical Fifth Amendment . problems to which the first two constructions have succumbed. . *, We theréfore conclude that Section 647 (€), how- _ €ver construed, is unconstitutional on its face.®- © at Nothing in our decision striking down’ Penal Code _ Section 647 (e) should be interpreted as reflecting ad- versely upon the right of ‘law enforcement officers to - Stop and inquire or to stop and frisk as those prin- - ciples have: been repeatedly ‘stated by the appellate courts of this State. The constitutional. infirmity of this statute lies, not in a statement of rights of law enforcement officers, but in the imposition of penal ‘sanctions to compel performance of a duty to respond testimonially by one. upon whom suspicion of* crime - . has clearly focused. : | | ae The judgment is affirmed. Hufstedler Judge Iconcur: — | Aiso, | a Presiding Judge , a . + . : ‘8We have noted the dictum ‘to. the coritrary in People v. ~ Bruno (1962) 211 Cal.App.2d Supp. 855, 863, but we canny ~ agree with it. © a ek pb ce hc ioe, 7 "oo APPENDIX C. m Order Denying Hearing After Judgment by ‘the Court of Appeal, 2nd a ve Division 2, Crim. No. 13090. nova In the Supreme Court of | the State of California, in Bank. MeCoy, J. People V. Weaw. Filed Jul 26 196/, William I. Sullvan, Clerk. By. S. F. Deputy. _ Resporident’ s petition for hearing DENIED. Traynor — Chief Justice a ee ee, A) = ik APPEN DIX D. Constitutional Provisions and Statutes Involved. 1. The pertinent provisions of the First Amend- ment to the United States Constitution are: “Con- gress shall ees no law . 7 ENS the freedom of ‘ speech, . 2. The ie provisions of the F ourth Amend- ment to the United States Constitution are: “The right of the people to be secure in their persons, . . . against rsiraniaienee searches and seizures, shall 1 not be vio- lated, . 3. The pertinint provisions of the Fifth Amend- | ment to the United States Constitution are: “No per- ‘son shall: . . be compelled i in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law;.. .” 4. The pertinent provisions of the Sixth Amend- ment to the Constitution of the United States are: “In all criminal prosecutions, the accused shall . . . have . the Assistance of Counsel for his defense.” : 5. The pertinent provisions of the Ninth. Amend-- ment to the Constitution of the United States are: “The enumeration in the Constitution, of certain rights, shall not be construed to deny’ or disparage others retained by the people.” 6. The pertinent provisions of the Fourteenth _ Amendment to the Constitution of the -United States - are: . No State.shall make or enforce any law which shali abridge the privileges or immunities of citizens of the United States; nor shall any State de- Prive any. person of life, liberty, or sroperty, without due process of law;...” are —08-- _7. The pertinent provisions of California Penal. © Code Section 647(e) are: “Every person who Commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: “. . . (e) Who loiters or wan- ders upon the streets or from place to place without apparent reasonor business and who refuses to iden- tify himself and to account for his presence when re-— quested’ by any- peace officer.so to do, if the surround- ing circumstances are such as to indicate to a reason- able man that the public safety demands such identifi- cation.” (effective 1961, Cal.,-Stats. ¥1961, c. 560, p. 1672). 3 | * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1048%3A2. Public record. Not legal advice.