Opinion
Docket No. 69288.
Decided March 21, 1984. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.
Joselyn, Rowe, Jamieson, Grinnan, Callahan Hayes, P.C. (by James A. Callahan), for defendant.
Defendants were arrested on May 10, 1982, and charged in district court under subsection (j) of the disorderly persons statute, MCL 750.167(1)(j); MSA 28.364(1)(j), which provides:
"A person is a disorderly person if the person is any of the following:
* * *
"(j) A person who knowingly loiters in or about a place where an illegal occupation or business is being conducted."
Defendants were allegedly present in the home of Mr. Boutillier at the time Boutillier sold a controlled substance to an undercover police officer. Defendants' motion to quash the information on the ground that subsection (j) is unconstitutional was denied by the trial court. Defendants were convicted by a jury and each was sentenced to 12 months probation. On appeal to the circuit court, the circuit court affirmed the convictions. Defendants appeal by leave granted, challenging the constitutionality of subsection (j) of the disorderly persons statute.
Defendants rely on People v Smith, 75 Mich. App. 64; 254 N.W.2d 654 (1977), and People v Hunter, 90 Mich. App. 1; 282 N.W.2d 218 (1979), remanded 406 Mich. 1006 (1979), rev'd on remand, 94 Mich. App. 50; 287 N.W.2d 366 (1979).
In Smith the defendant was convicted of violating a Dearborn ordinance which provided that:
"`"No person shall loiter in any place within the City of Dearborn where marijuana or paraphernalia used or adapted for use with marijuana are used, sold, dispensed, furnished, given away, or stored, or otherwise illegally kept."'" 75 Mich. App. 66.
A panel of this Court held that the ordinance violated the First Amendment right of association and was unconstitutionally vague and overboard. However, Smith should be distinguished from the instant case because the ordinance there did not include a knowledge or intent requirement. The Smith Court was concerned that the ordinance prohibited constitutionally protected activity by including within its scope persons who were merely present without knowledge of the marijuana or paraphernalia. That concern is not present here because subsection (j) is limited to persons who loiter with knowledge that the illegal business or occupation is being conducted.
In People v Hunter the defendant was arrested for violation of a Detroit Municipal Code provision which stated:
"`No person shall knowingly loiter about, frequent or live in any building, apartment, store, automobile, boat, boathouse, aeroplane or other place of any description whatsoever where narcotic drugs, hypodermic syringes, needles or other instruments or implements or empty gelatin capsules are sold, dispensed, furnished, given away, stored or kept illegally.'" 90 Mich. App. 5.
A search of the defendant at the time of arrest revealed a quantity of powder alleged to contain heroin, and defendant was charged with possession of heroin with intent to deliver. On the defendant's motion the trial court quashed the information finding the ordinance under which defendant was initially arrested to be unconstitutional. A majority of the Court of Appeals panel affirmed, finding that the interest sought to be achieved by the ordinance was not accomplished through the most narrow means possible. The majority held that there existed a less drastic means of seeking to curb drug abuse, i.e., the requirement of an intent to participate in the unlawful activity. The Supreme Court subsequently remanded the case to the Court of Appeals for reconsideration in light of Michigan v DeFillippo, 443 U.S. 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979). On remand, the Court of Appeals reversed its earlier decision and held that the arrest and search incident thereto, made in reliance on an ordinance which at the time had not been declared unconstitutional, were valid regardless of the subsequent judicial determination of unconstitutionality.
The issue in Hunter was the validity of the arrest and search which led to the charge of possession of heroin with intent to deliver. In view of the court's holding on remand, the majority's original finding that the arrest was made pursuant to an unconstitutional ordinance was not necessary to resolution of the case and was therefore dictum. Furthermore, the dictum in Hunter is not applicable to the instant facts. The majority in Hunter expressed the following concern:
"Under such `knowledge' standard, persons with acceptable or laudable reasons for being knowingly present where paraphernalia and/or drugs are allegedly located could be prosecuted under the ordinance. Counselors, religious advisors, or other persons seeking to work with drug users on their own ground would be covered. Family members, aware that a person was using drugs in the home, but not wishing to sever ties, could likewise be convicted." 90 Mich. App. 3.
The statute in the instant case, however, prohibits a person from knowingly loitering in a place where an illegal occupation or business is being conducted. Subsection (j) covers a much narrower set of circumstances than the ordinance involved in Hunter and the concerns expressed in that case are simply not present here.
Finally, we are in agreement with the dissent of Judge GILLIS in Hunter and find his reasoning even more appropriate to the case at bar. Subsection (j) is narrowly drawn and proscribes only conduct which is harmful to the public good. There is no danger that persons engaging in constitutionally protected activities will be convicted under the statute. Any infringement upon freedom of association is minimal and is outweighed by the legitimate governmental interest in preventing the conduct of illegal businesses and occupations. We conclude that the statute is not unconstitutionally overbroad and does not infringe upon the First Amendment freedom of association.
Affirmed.