New York Law Review

Tag: loitering

  • People v. Bright, 71 N.Y.2d 376 (1988): Unconstitutional Vagueness of Loitering Statute

    People v. Bright, 71 N.Y.2d 376 (1988)

    A loitering statute is unconstitutionally vague if it (1) fails to provide adequate notice of the prohibited conduct, (2) permits arbitrary and discriminatory enforcement by law enforcement, and (3) compels a citizen to forfeit their right against self-incrimination to avoid arrest.

    Summary

    The New York Court of Appeals held that Penal Law § 240.35(7), which criminalized loitering in transportation facilities for those unable to provide a satisfactory explanation for their presence, was unconstitutionally vague. The court reasoned that the statute failed to provide fair notice of prohibited conduct, lacked minimal guidelines for enforcement, and infringed on the right against self-incrimination. The statute’s broad definition of “transportation facility” further contributed to its vagueness, encompassing areas akin to public streets. This decision affirmed the lower courts’ rulings in two separate cases, impacting law enforcement’s ability to address loitering in public transportation hubs.

    Facts

    People v. Bright: Bright was observed in the Long Island Railroad Concourse in Pennsylvania Station displaying a satchel to a passerby. When questioned by police, he stated he had no ticket or money and wasn’t planning to board a train. He failed to produce identification and was arrested for loitering. A subsequent search revealed stolen credit cards.

    People v. Clark: Clark was approached by an officer in the Port Authority Bus Terminal and arrested for loitering after failing to provide a satisfactory explanation for his presence. A search incident to the arrest revealed cocaine and drug paraphernalia.

    Procedural History

    People v. Bright: The Supreme Court granted Bright’s motion to suppress evidence, finding the loitering statute unconstitutionally vague. The Appellate Division affirmed.

    People v. Clark: The Criminal Court denied Clark’s motion to dismiss the loitering charge, and he pled guilty. The Appellate Term reversed, holding the statute unconstitutional, dismissing the loitering charge, and remanding for further proceedings on the drug possession charge.

    The People were granted leave to appeal in both cases.

    Issue(s)

    1. Whether Penal Law § 240.35(7) is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions.

    Holding

    1. Yes, because the statute fails to provide fair notice of what conduct is prohibited, lacks minimal guidelines for law enforcement, and requires citizens to relinquish their constitutional right against compulsory self-incrimination.

    Court’s Reasoning

    The Court of Appeals analyzed the statute under the two-pronged vagueness test. First, a statute must provide sufficient notice of prohibited conduct. Second, it must not permit or encourage arbitrary enforcement. The court noted that a penal law must be sufficiently definite to give a person of ordinary intelligence fair notice that contemplated conduct is forbidden.

    The court distinguished between statutes prohibiting loitering for a specific illegal purpose or in a specific place of restricted public access, which have been upheld, and the current statute, which lacks such specificity. Quoting United States v. Harriss, the court stated, “that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed”.

    The court found the “satisfactory explanation” requirement problematic, as it vested complete discretion in the police officer to determine what constitutes an acceptable explanation, without any legislative guidance. The court cited Kolender v. Lawson in stating that the statute provides “no standard for determining what a suspect has to do in order to satisfy the requirement”.

    Furthermore, the court reasoned the statute compels a citizen to choose between providing an explanation and potentially incriminating themselves, or remaining silent and being arrested, which infringes on the right against self-incrimination. The court also found that the definition of “transportation facility” was overly broad, encompassing areas resembling public streets where loitering is not inherently suspicious. Therefore, it cannot be said that the ordinary citizen is fairly informed that an otherwise innocent act is illegal. As such, the statute provides no legislative “guidelines governing the determination as to whether a person is engaged in suspicious loitering” in public places.

  • People v. Uplinger, 58 N.Y.2d 936 (1983): Public Solicitation and Consensual Sodomy

    People v. Uplinger, 58 N.Y.2d 936 (1983)

    A statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse is unconstitutional when the conduct it seeks to prevent (consensual sodomy) has been decriminalized.

    Summary

    The New York Court of Appeals held that a statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse was unconstitutional. The court reasoned that since consensual sodomy had been decriminalized, the state no longer had a legitimate interest in punishing conduct anticipatory to that act. The majority opinion reasoned that the loitering statute was essentially a companion to the sodomy statute, and therefore, suffered the same constitutional deficiencies. The dissent argued that the statute was a valid effort to regulate public conduct and prevent harassment, regardless of the legality of the intended private act.

    Facts

    Two defendants, Uplinger and Butler, were arrested and charged under New York Penal Law § 240.35(3), which prohibits loitering in a public place for the purpose of soliciting another person to engage in deviate sexual intercourse or other sexual behavior of a deviate nature. Specific details of their conduct leading to arrest are not emphasized in the majority opinion, but the dissent notes that Butler was flagging down cars and making overt offers to sell sexual favors.

    Procedural History

    The defendants were convicted at the trial level. The cases reached the New York Court of Appeals, which reversed the convictions, holding the statute unconstitutional. The court did not provide specific details of lower court rulings.

    Issue(s)

    Whether a statute prohibiting loitering for the purpose of soliciting deviate sexual intercourse is constitutional when the conduct ultimately contemplated (consensual sodomy) is no longer criminal.

    Holding

    No, because the state has no legitimate interest in punishing conduct anticipatory to an act (consensual sodomy) that is no longer criminal. The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy; inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, the court perceived “no basis upon which the State may continue to punish loitering for that purpose.”

    Court’s Reasoning

    The court reasoned that the loitering statute was a companion statute to the consensual sodomy statute, which the court had previously struck down as unconstitutional in People v. Onofre, 51 N.Y.2d 476 (1980). The court in Onofre held that the state could not prohibit consensual sexual conduct between adults in private. Because the loitering statute targeted conduct intended to lead to such consensual acts, the court found it to be similarly unconstitutional. The majority opinion emphasizes that since the ultimate act is now legal, the state lacks a basis to punish actions leading up to it. The dissent strongly disagreed, arguing that the statute was a valid exercise of the state’s police power to regulate public conduct and prevent harassment. The dissent referenced the Model Penal Code, which supports statutes that prohibit public solicitation of deviate sexual relations to prevent public nuisance and harassment. The dissent also argued that the majority implicitly applied the overbreadth doctrine inappropriately and that a narrower interpretation of the statute (requiring an overt act of solicitation) would render it constitutional. The dissent argued that the statute was not vague because it sufficiently informs a person of ordinary intelligence of the prohibited conduct. The dissent further noted that the statute bears a reasonable relation to the public good by protecting individuals from harassment in public places. Ultimately, the majority focused on the decriminalization of consensual sodomy as the controlling factor, while the dissent emphasized the state’s interest in regulating public behavior.

  • People v. Stokes, 32 N.Y.2d 204 (1973): Limits on Loitering Arrests and Searches

    People v. Stokes, 32 N.Y.2d 204 (1973)

    An arrest for loitering requires specific evidence that the suspect’s behavior suggests they are engaged in or about to engage in criminal activity, and a refusal to identify oneself, without more, is insufficient to justify such an arrest.

    Summary

    The New York Court of Appeals reversed a conviction based on evidence obtained during a search incident to an arrest for loitering. The Court held that the arrest was unlawful because there was no probable cause to believe the defendant was engaged in criminal activity beyond simply being in a building lobby and refusing to identify himself. The Court emphasized that a refusal to answer police questions, without other suspicious circumstances, cannot justify an arrest for loitering. Therefore, the search was illegal, and the evidence seized should have been suppressed.

    Facts

    Albert Stokes and a friend entered the unlocked lobby of an apartment building. After a brief conversation, two housing authority policemen, who had been observing them, approached Stokes and asked if he lived there. Stokes said he did not. When asked to identify himself and explain his presence, Stokes refused. The officers arrested him for loitering, searched him, and discovered hypodermic instruments and heroin.

    Procedural History

    Stokes was charged with possession of a dangerous drug, possession of a hypodermic instrument, and loitering. After a hearing, his motion to suppress the evidence was denied, and he was convicted of loitering. Subsequently, he pleaded guilty to attempted possession of a hypodermic instrument. The Appellate Term reversed the loitering conviction but affirmed the judgment, finding probable cause for the loitering arrest. Stokes appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether there was probable cause to arrest Stokes for loitering under Penal Law § 240.35(6).
    2. Whether the evidence seized during the search incident to the arrest should have been suppressed.

    Holding

    1. No, because the circumstances did not justify a suspicion that Stokes was engaged or about to engage in crime.
    2. Yes, because the arrest was unlawful, making the subsequent search and seizure also unlawful.

    Court’s Reasoning

    The Court of Appeals held that an arrest for loitering under Penal Law § 240.35(6) requires evidence that the suspect is loitering “in or about a place without apparent reason,” that the circumstances justify suspicion that they may be engaged or about to engage in crime, and that they refuse to identify themselves or provide a credible explanation when questioned by a peace officer. The Court found that the police lacked any evidence suggesting Stokes was engaged in criminal activity. The complaint lacked any allegation that Stokes was suspected of being involved in a crime. The Court stated, “Absolutely lacking is evidence that the policeman had any information whatever…that would have rendered this otherwise innocent conduct suspicious within the sense of the statute.”

    The Court distinguished this case from People v. Gresham, where the defendant’s suspicious behavior (fleeing with an envelope in a deserted train station) provided probable cause. The Court emphasized that Stokes’s refusal to identify himself was insufficient to justify the arrest. Citing People v. Schanbarger, the Court noted that while it may have been preferable for Stokes to answer the officer’s questions, his failure to do so did not constitute a criminal act or a violation of the loitering statute. Since the arrest was unlawful, the search was also unlawful, and the evidence should have been suppressed. The Court found it unnecessary to address the constitutionality of the loitering statute.

  • People v. Schanberger, 24 N.Y.2d 288 (1969): When Refusal to Answer Police Questions Does Not Justify Loitering Conviction

    People v. Schanberger, 24 N.Y.2d 288 (1969)

    A conviction for loitering requires proof beyond a reasonable doubt of each conjunctive element of the statute, including circumstances justifying suspicion that the individual may be engaged or about to engage in crime; mere refusal to answer a police officer’s questions is insufficient to establish such suspicion.

    Summary

    Donald Schanberger was convicted of violating New York’s loitering statute after refusing to answer a state trooper’s questions about his identity, destination, and purpose. The New York Court of Appeals reversed the conviction, holding that the statute requires proof of circumstances justifying suspicion that the individual is engaged in or about to engage in criminal activity. The court found that the trooper’s observation of Schanberger walking along a highway, even in an area with frequent burglaries, was insufficient to establish a reasonable suspicion of criminal intent. The court emphasized that an individual’s refusal to answer questions cannot, by itself, constitute a criminal act under the loitering statute.

    Facts

    State Trooper Kellogg observed Schanberger walking along a highway late at night in a residential area. Approximately thirty minutes later, the trooper saw Schanberger walking along the same highway near a shopping center, an area known for frequent burglaries. Aroused by suspicion, the trooper stopped Schanberger and asked him to identify himself, state his destination, and explain his purpose. Schanberger refused to answer these questions, asserting that he was not obligated to do so. The trooper then warned Schanberger that his refusal could lead to an arrest for loitering. When Schanberger persisted in his refusal, the trooper arrested him. A subsequent search revealed Schanberger’s identity.

    Procedural History

    Schanberger was charged with violating Section 240.35(6) of the New York Penal Law (loitering). At trial, the trooper testified to the facts of the encounter. Schanberger was convicted and fined $10. Schanberger appealed the conviction pro se, challenging the constitutionality of the statute.

    Issue(s)

    Whether a conviction under New York Penal Law § 240.35(6) can be sustained when the information and evidence fail to establish circumstances justifying a reasonable suspicion that the individual was engaged or about to engage in crime, and the conviction is based solely on the individual’s refusal to answer a police officer’s questions.

    Holding

    No, because the statute requires proof beyond a reasonable doubt of each conjunctive element, including circumstances that justify suspicion of criminal activity; mere refusal to answer questions does not satisfy this requirement.

    Court’s Reasoning

    The court focused on the conjunctive nature of the loitering statute. To secure a conviction under Section 240.35(6), the prosecution must prove each element beyond a reasonable doubt. A critical element, missing from both the information and the trooper’s testimony, was that the circumstances justified a reasonable suspicion that Schanberger was engaged or about to engage in criminal activity. The information failed to allege this element. The trooper’s testimony—that he observed Schanberger walking in an area with frequent burglaries—was insufficient to establish reasonable suspicion directed specifically at Schanberger. The court emphasized that the conviction appeared to be based on Schanberger’s refusal to answer the trooper’s questions, stating, “While it may be true that there was no reason why the defendant should not have answered the trooper’s questions, it equally is true that his failure to answer cannot constitute a criminal act and, particularly, a violation of subdivision 6 of section 240.35.” The court implicitly rejected the argument that refusal to answer police questions, without more, provides a basis for reasonable suspicion of criminal activity. The court stated that the information “nowhere states that the circumstances were such that the trooper was justified in suspecting that the defendant might be engaged or was about to engage in crime.”