City of Tacoma v. Luvene
1992 Wash. LEXIS 98, 827 P.2d 1374, 118 Wash. 2d 826 (1992)
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Rule of Law:
A municipal loitering ordinance is not unconstitutionally vague or overbroad if it is construed to require both a specific intent (mens rea) to engage in unlawful drug activity and an overt, objectively ascertainable act (actus reus) beyond mere loitering that manifests this intent.
Facts:
- On August 26, 1988, Tacoma police were monitoring an intersection known for drug dealing based on citizen complaints.
- An officer observed John Luvene and two other men pacing, surveying their surroundings, and attempting to flag down vehicles.
- Luvene successfully flagged down a car and then beckoned one of his companions to approach it.
- Luvene's companion went to the car, pulled out a plastic bag containing what appeared to be rock cocaine, and exchanged it with the driver for money.
- During this transaction, Luvene stood beside his companion, actively watching the exchange and surveying the street.
- Shortly thereafter, the officer saw Luvene walking on the sidewalk with another individual who appeared to be smoking a crack pipe.
- Police arrested Luvene for drug loitering, but no drugs or paraphernalia were found on his person.
Procedural Posture:
- John Luvene was charged with drug loitering in Tacoma Municipal Court.
- Luvene's motion to dismiss the charge on constitutional grounds was denied by the municipal court.
- After stipulating to the facts in the police report, Luvene was found guilty by the Tacoma Municipal Court (trial court).
- Luvene (appellant) appealed to the Pierce County Superior Court (intermediate appellate court), which affirmed the conviction.
- The Superior Court held the ordinance was not vague and declined to consider the facial overbreadth challenge, finding Luvene lacked standing.
- Luvene (petitioner) sought and was granted direct review by the Supreme Court of Washington.
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Issue:
Is a municipal drug loitering ordinance, which makes it unlawful for a person to loiter 'in a manner and under circumstances manifesting the purpose to engage in drug-related activity,' unconstitutionally vague or overbroad?
Opinions:
Majority - Utter, J.
No, the municipal drug loitering ordinance is not unconstitutionally vague or overbroad when properly construed. The court upheld the ordinance by applying a limiting construction. For the ordinance to be constitutional, it must be interpreted to prohibit loitering while possessing the specific intent to engage in unlawful drug activity. The court construed the ordinance's word 'purpose' to mean 'intent,' establishing a required mens rea. Furthermore, the court held that the word 'manifesting' requires an overt act beyond mere loitering. This actus reus must be an identifiable, articulable conduct reasonably consistent with the intent to buy, sell, or use illegal drugs, such as soliciting, enticing, or acting as a lookout. By requiring both specific intent and an overt act, the ordinance is sufficiently narrowed to avoid criminalizing constitutionally protected conduct like free association and movement (overbreadth) and provides clear notice of prohibited conduct while limiting police discretion (vagueness).
Analysis:
This case is a classic example of judicial 'saving construction,' where a court interprets a statute narrowly to avoid finding it unconstitutional. By reading in the requirements of specific intent and an overt act, the court provided a constitutional blueprint for municipalities drafting loitering ordinances aimed at specific criminal activities. The decision establishes that for such laws to be valid, they cannot punish mere presence or suspicion but must target conduct that clearly demonstrates both a criminal mindset and an action taken to further it. This ruling balances the government's interest in combating street-level crime with the protection of individual liberties against vague laws and arbitrary enforcement.
