Smith v. Florida

PETITIONER:Smith
RESPONDENT:Florida
LOCATION:Circuit Court of Cook County, Juvenile Division

DOCKET NO.: 70-5055
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Florida Supreme Court

CITATION: 405 US 172 (1972)
ARGUED: Dec 08, 1971
DECIDED: Feb 24, 1972

ADVOCATES:
Nelson E. Bailey – for respondent, pro hac vice, by special leave of Court
Phillip A. Hubbart – for petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – December 08, 1971 in Smith v. Florida

Warren E. Burger:

We will hear arguments next, number 5055 Smith and McClain against Florida.

Mr. Hubbart.

Phillip A. Hubbart:

Mr. Chief Justice may it please the Court.

I move that Nelson Bailey be permitted to argue pro hac vice on behalf of the respondent in this case.

He is a member in good standing of the bar of the of State of Florida but he has been a member for less than three years.

Warren E. Burger:

Your motion will be granted.

Phillip A. Hubbart:

This case is here on a petition for writ of certiorari to the Supreme Court of Florida to review a decision upholding the constitutionality of a wander on this section of Florida’s vagrancy statute against an attack made and considered by the Florida Supreme Court and rejected that violated the Due Process clause of the Fourteenth Amendment for vagueness and over breath.

In this particular case the petitioners were charged in a criminal Court of record and in four day County at Florida by an information filed by the State Attorney charging the defendants and tracking the exact language of the statute 856.02 which is before this Court to review charging that a petitioners were “vagrants by wandering and strolling around from place to place without any lawful purpose or objective.”

To this charge the petitioners entered a plea of not guilty and waived trial by jury.

At the time of the trial, the defense counsel made an oral motion to dismiss this particular charge on the grounds that the statute was void for vagueness and consequently violated Due Process clause for the Fourteenth Amendment.

That motion was denied and the trial judge made a specific finding of the statute in question “crystal clear.”

He furthermore entered a written order in which he found that the statute was “constitutional” within the meaning of the Due Process clause of Fourteenth Amendment of the United State Constitution.

A motion for new trial was is filed in this case attacking the statute not only in the grounds that it was too vague but also on the ground of over breath and that motion was denied and again the trial Court specifically ruled that the statute was constitutional within the meaning of the Due Process clause.

Question has been raised as to whether not the broadness issue was properly raised in the Florida Courts.

That was a contended on the motion for new trial and specifically rejected by the trial judge.

On appeal, the Supreme Court of Florida in a 5:2 decision upheld the constitutionality of a statute and specifically considered and rejected.

In the opinion, the petitioner’s dual contentions, the dual contentions made before this Court of the statute was “so broad and vague in nature” as to violate the Due Process clause of the Fourteenth Amendment.

The Court has granted certiorari on the question phrased in the petition for writ of certiorari namely whether the wandering section of the statute in question is so broad and vague in nature as to violate the Due Process clause of the Fourteenth Amendment.

On resolving that issue, I think it is important to examine first the exact language of statute.

Its legislative history and the construction given to it by the Florida Courts.

Statutes provides–.

What was the purpose?

Phillip A. Hubbart:

In this particular case Your Honor the State presented one witness who was guard employed by the sea coast line railroad and he testified that he was patrolling this area in Dade County about 7:30 to 8:00 at night.

He saw a car — he was in the car and he saw the two petitioners along with the third party walking along the roadway on the public street.

He passed them when he turned around of the corner, he saw them go into a warehouse area.

He saw them go behind the box car which belong to the sea board airline railroad.

And up to the box car he did not see them but he heard some noises from behind the box car and he saw one the petitioners Smith running from that area, he went over and placed him under arrest he went called for some help from highly a police department.

And the petitioners were then placed under arrest.

The petitioners testified in this case that they were never in the railroad yard.

The warehouse yard rather.

Phillip A. Hubbart:

That they never attempted to break in any railroad car.

That they were walking along the street and they were going to see a friend.

Those are the proofs.

Mr. Hubbart did you think that the State of Florida could validly legislate in making an offense to wander around the railroad yard when one has no business taking in there?

Phillip A. Hubbart:

I think they have a legislate certainly, a legislative power to proscribe trespassing and if the statute in question was a trespass statute that is going on the property of another party, a Railroad company without permission and it pretty clearly make a (Inaudible).

Warren E. Burger:

In their claim, if they were just walking did they concede that they were walking on railroad property?

Phillip A. Hubbart:

Not.

In fact there was —- that their testimony explicitly was they were on the public street at all times.

And what is the argument that they will without lawful any lawful person, purpose or object?

Phillip A. Hubbart:

Well I am really lost to answer that your honor because their whole contention is that the statute lacks an ascertainable standard of criminal conduct.

I just wanted what was the States—

Phillip A. Hubbart:

State’s theory?

How it proves if that was — that they were without a lawful purpose around this place.

Phillip A. Hubbart:

The State did not really offer any argument in the Lower Court.

The defense counsel offered an argument but the State did not.

On resolving the—

Counsel what if the — what the two counts here?

Phillip A. Hubbart:

Yes, the second count was—

Oh what was the first count?

Phillip A. Hubbart:

The first count was the vagrancy.

Second count was attempt to breaking and entering a railroad car.

And we are talking about car road.

Phillip A. Hubbart:

That is correct.

Well the States proves certainly, on the count two, certainly whether it is explicit–

Phillip A. Hubbart:

Yes.

They claimed an unlawful purpose.

Phillip A. Hubbart:

There is no question but the evidence was sufficient if believed by the Trail Judge was—

To proved but unlawful purpose.

Phillip A. Hubbart:

Not to prove an unlawful purpose but to prove attempt to break in a railroad car which is separate—

Is that something different?

Phillip A. Hubbart:

Well it is a separate statute.

By the way was there — the there was a sentence on the count two.

Phillip A. Hubbart:

Yes.

36 six months?

Phillip A. Hubbart:

36 days on count one credit for time serve.

The second count was six months on the County jail and one year probation.

And direct concurrently?

Phillip A. Hubbart:

That is correct.

Has he been serving?

Phillip A. Hubbart:

He served his sentence current.

So there were concurrent sentences?

Phillip A. Hubbart:

That is correct.

And you do not challenge that?

Phillip A. Hubbart:

No, we do not I mean that was—if they were convicted under a valid statute, no question about that breaking in to the railroad.

Why should we reach the constitutionality of the statute under which —

Phillip A. Hubbart:

Why had it—they have not appealed count two at all that is not the before the Court.

Well, I understand but the sentences were concurring.

Do you think that you would not appeal in count two, prevents us to following our concurring sentence.

Phillip A. Hubbart:

Well, You Honor as long as the person as I understand law.

As long as the person has a conviction against me as a standing to object to it and there is a conviction in this case against to the defendant for vagrancy.

We did appeal the other portion to the District Court of Appeal, Third District and they affirmed.

I understand that but you do not see any problem here about — .

Phillip A. Hubbart:

No, I do not as long as the petitioner has a conviction against him, it seems to me we have standing to object it.

The statute provides person wandering or strolling around from place to place without any lawful purpose or object shall be deemed to vagrants and punished according to another statute which provides the maximum punishment of a $200.00 fine and six months in the County Jail.

Statute itself, of course condemns 20 other varieties of vagrants which are before the Court I believe in a comparable case of the Jacksonville ordinance just argued.

Professor Arthur Sherry of the University of California Law School in a survey of State vagrancy laws has referred to Florida act as “distinctly Elizabethan” and seems to have been selected at random from the Statute of Elizabeth that was inactive in 1597 or 1598.

It is based on a long line of English vagrancy statutes dating back to the Fourteenth Century which constitute some of the most oppressive pieces of class legislation ever enacted by the English Parliament.

And the words of Steven and in history of the criminal law of England, these vagrancy laws constituted the criminal aspect of the poorer laws.

The purpose of which was to confine the laboring population in England to Stated places and fixed places of the board where they required to work at fixed wages.

Furthermore the legislation prohibited wandering around in England and it was exclusively applied of course against the laboring classes in England.

Phillip A. Hubbart:

Now, the Florida Courts have given some construction to the statute in the line with the decisions of this Court that the Court is bound by State Court in construction of the statute.

It is important to examine several cases.

Leading case is Hanks v. State, Third District Court of Appeal decision.

And that case, the Third District Court interpreted the terms persons wandering or strolling around from place to place to mean by any mode of travel whether on foot or in a vehicle.

In that particular case, the petitioner contended that he was not in violation of the statute because he was arrested in a stationary automobile.

And the Court held that the mode of travel was in material and that one could wander and stroll even in a stationary automobile.

On remand in Johnson versus State after this Court reversed in Johnson vs. Florida the Supreme Court of Florida reluctantly held that this statute had no application to a person sitting on a bus bench.

That was not wandering and strolling.

And finally the terms without any lawful purpose or object has been construed in the Hanks case to mean “without good or sufficient reason.”

Which we submit is even vagrant than the statute itself without good or sufficient reason.

And finally, the Supreme Court of Florida in Hedley against Oakwood’s has held that the statute cannot be applied against any person unless they are vagrants of their own volition and choice.

Can I just ask you, it is not clear as to go back at the moment did you say he had served his sentence?

Phillip A. Hubbart:

Yes.

Is it six months.

Phillip A. Hubbart:

He served a 36 days for which he was sentenced in this case.

And the six months on count two.

Phillip A. Hubbart:

That is right.

He served both.

And any collateral consequences to his conviction on count one?

Phillip A. Hubbart:

Well, he has a conviction on his record there will be some certainly employment consequences are there, the consequences not in terms of both of losing the right to vote or take advantage.

In the Court below the Supreme Court of Florida interpreted the statute and construed, it has been derived from “the genera of vagrancy laws” which have longed been upheld as necessary regulations to the term vagabondage and prevent crimes.

And the imposition upon society of able body be responsible through of their own volition become burdens upon others in particularly their family for support.

And we submit that this section of the statute as construed by the Florida Courts is unconstitutional on its base in violation of the Due Process clause of the Fourteenth Amendment for two reasons.

First, the statute is so vague that a person of common intelligence cannot know what it is forbidden thereby in abiding arbitrary and discriminatory enforcement of the statute by State authorities and secondly the statute is so broad that it abridges rights protected by the United States constitution to the right to be free from unreasonable searches and seizures, and the right to travel.

The law necessarily enforces — pretty clear, it has been Stated by this Court in the Conley case that the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it. What conduct on their part will render them liable to the court’s penalties.

And a statute which either forbids or requires the doing of an act in terms of vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of Due Process of law.

And the Lanzetta case, this Court held that a vague criminal statute was void on space, regardless of the facts of the case, and regardless of the details of the offense charged.

Now the Supreme Court in this particular case has interpreted this statute to be a necessary regulation “to prevent crimes, to deter vagabondage, to prevent people from levying off other people.”

Now this construction of the statute, we submit is a frank concession that the law does not even purport to prohibit specific acts of criminal conduct but instead prohibits a vaguely defined way of life which is thought in the future to lead the crime.

But it is clear that the construction of the statute is that it is not aimed at any specific acts of criminal conduct.

Phillip A. Hubbart:

And District Justice Frankfurter took a narrow view of the void for vagueness doctrine in the Winters case pointed this out precisely when he said that these vagrancy statutes are on the class by themselves.

In view of the familiar pieces to which they are put definiteness is designably avoided so as to allow the net to be casted large to enable men to be caught who are vaguely undesirable on the eyes of police in prosecution.

Although not chargeable with any particular offense.

In short, these vagrancy statutes and laws against gangs are not fenced in by the text of the statute or by the subject matters so as to give notice of the conduct to be avoided.

And that is exactly how the Florida Court has interpreted the statute.

Namely it is designed to prevent crimes and not to act on any specific acts of criminal conduct and the Attorney General with commendable candor in this case has conceded, that this statute is designed to prevent crime not to punish crime but to prevent it before it even happens.

It is aimed at this vaguely defined way of life.

Vagabondage and wandering around.

This Court in Lanzetta v. New Jersey considered a statute which is rather similar to this case.

It was an anti-gangster statute, the purpose of the statute according to the Supreme Court of New Jersey and the Attorney General of New Jersey was exactly the purpose as urged here in the statute.

Namely it was designed to prevent crime before it happened.

And in that particular case there was a New Jersey statute which committed a crime for any person not engaged in any lawful occupation and known to be a member of a gang consisting of two or more persons.

And this Court held that the term gang was too vague to withstand any type of constitutional test.

Now we contend that the term without any lawful purpose or object which means according to the Florida Court “Without good or sufficient reason is too vague to withstand constitutional test.”

Is there any question with their counsel that someone when there was a who — if you believed the police officer in this case there was an attempt to break in a freight car, no one would have any doubt but with without lawful purpose would apply to this —

Phillip A. Hubbart:

When you got to have it.

I mean anybody would understand that would they?

It means anything, it means you should not be around with the purpose of robbing a freight car.

Phillip A. Hubbart:

If Your Honor please he certainly had noticed that this activity violated the burglary statute.

And not —

Phillip A. Hubbart:

But he did not have notice—

Why?

Phillip A. Hubbart:

That it violated a vagrancy statute.

Why, without lawful purpose?

Phillip A. Hubbart:

No.

Or—

Phillip A. Hubbart:

It is impossible for a person of common intelligence to know what this means.

To know that being on the street for the purpose of robbing a freight car is not covered by the statute.

You would know that?

Phillip A. Hubbart:

No.

Phillip A. Hubbart:

No, I mean it is impossible for a person of common intelligence to — no of course that type of activity or might violate another statute.

Why did you say that?

Phillip A. Hubbart:

But it is the way it is interpreted by the Florida Courts is without good and sufficient reason.

Now, I submit there is no —

No is that unlawful to rob a freight car, does it not?

Phillip A. Hubbart:

Yes.

(Inaudible)

Phillip A. Hubbart:

Attempting.

To attempt to and you suggest that he really would not know that that statute which says he should be on his feet with unlawful purpose includes being on the street for the purpose of robbing a freight car?

Phillip A. Hubbart:

Your Honor please, my our position is that the statute is vague on its face that it is not necessary to get in to the facts of the case at all.

If the statute lacks an ascertainable standard in criminal conduct, as I understand the law.

I know but—

Phillip A. Hubbart:

It is not necessary to even consider the facts of the case.

I understand, I understand that but here facts are lot of vague statutes, they are vague in some applications and not another—

Phillip A. Hubbart:

Well it is our position that there is no conceivable set of facts.

That any—

Phillip A. Hubbart:

That this statute could be constitutionally applied.

Person of common intelligence in not placed on notices to what a good or sufficient reason for wandering and strolling might be.

What a good and sufficient reason to one person may not appear so to another.

The statute for instance gives no notices to whether or anyone for wandering and strolling.

Why not robbing a freight car?

Phillip A. Hubbart:

Well your honor that is — we submit is simply too vague.

To let a person know exactly what he is not supposed to do.

Now there is no question that your honor is alluding to the fact that this man was violating a specific statute in a Florida books which was attempted burglary statute which I think illustrates, the really non essentialness of this type of legislation.

There is no question whether it is essential but the question is whether it is unconstitutional.

Phillip A. Hubbart:

That is correct.

In this case.

Phillip A. Hubbart:

Well, perhaps I am misreading some of the cases in this area but as I understand the law it is if the statute lacks an ascertainable standard of criminal conduct, that is if we look at this statute on its face and we saw no real ascertainable standard criminal conduct.

Then statute is unconstitutional, regardless of what the facts of case maybe.

In other words, the facts of the case do not save the statute.

Phillip A. Hubbart:

The statute gives no notice for instance as to whether or not aim was wandering or strolling around from place to place.

It was about good and sufficient reason.

If so, I suppose most of Florida’s tourists and retirees who come to Florida who wander around out of aimlessly in the resort areas and on the beaches of our State and shopping areas would arguably would be in violation of the statutes.

A person of common intelligence is also not placed on notice as to whether not he is to give a good or sufficient reason for his wandering and strolling when stopped by an inquiring police officer, or whether his silence on the subject would automatically mean he did not have a good and sufficient reason for wandering and strolling.

Also the statute gives no notice as to whether or not the inquiring police officer must be satisfied that the reason given by the person was good and sufficient reason for wandering and strolling.

Warren E. Burger:

What if it were 3 o’ clock in the morning, would that make any difference so to distinguish from others, say if it is three in the afternoon?

Phillip A. Hubbart:

Your honor I think there is a difference between suspicious conduct and a violation of statute, there is no question that if a police officer saw a man at 3 o’ clock in the morning, wandering around the place in a dark area.

That he would be on inquiry to investigate that thing but I submit as Mr. Justice Stewart pointed out in his concurring opinion before that the government has no constitutional authority to make that suspicious circumstance a criminal offense.

Warren E. Burger:

What does the police officer do when he stops him ar 3 o clock in the morning and makes the inquiry.

What inquiry does he make constitutionally in your view?

Phillip A. Hubbart:

In Terry v. Ohio, I think it is pretty clear, it is fairly clear as to what his constitutional authority is, if he has any facts to which he can point to, which are really less than probable cause, that the man is armed and dangerous and a threat either him or people in the vicinity he may conduct a carefully limited search in all his clothing to determine whether or not he has any weapons.

Certainly, there is no constitutional prohibition against any police officer asking somebody what he is doing in the area.

Without getting in to the question of whether or not, a person has to answer the question.

Warren E. Burger:

Are you then conceding that there is an obligation to give an account of yourself?

Phillip A. Hubbart:

No.

Warren E. Burger:

Well, it is as good as saying the policeman can ask him if he —

Phillip A. Hubbart:

Because I think that may stop any potential criminal conduct if the officer —

Warren E. Burger:

Do you want to speculate that police inquiries will have a therapeutic effect on crime?

Phillip A. Hubbart:

No, not at all.

But I do think that —

Warren E. Burger:

Well, is it not a little bit abstract to say that the police may inquire if in the next sentence you say that he need not answer.

Phillip A. Hubbart:

Well without reaching that question, I do not know whether this Court has ever really resolved that issue.

Whether or not it is possible for a person to be detained and requires some answers but I am saying.

Warren E. Burger:

The stop and frisk statutes have some relationship to this, do they not?

Phillip A. Hubbart:

Yes, I think they do.

Certainly and I think the Terry case, just in a concurring opinion by Mr. Justice White, a suggestion was made that they should have a power of police in addition to stopping and frisking and also inquire.

Now, the vague and — yes sir.

If this statute were worded the way the respondents would have us read and I am saying that just on the basis of the respondent’s brief, as thought it said, as though it made it unlawful for a person to wander from place to place with a criminal purpose, with a criminal purpose, would it be unconstitutionally vague?

Phillip A. Hubbart:

I believe so but –

You have a weaker argument.

Phillip A. Hubbart:

I have a weaker argument, I think yes.

There is some caselaw interpreting mens rea, and what mens rea means criminal intent, but even that body of law refers to intent to do something, was a concept of criminal act as I understand that it is a combination of intent of an act.

The wandering is certainly not to and if a social —

Then wandering had a criminal —

Phillip A. Hubbart:

Criminal and I deny that the government has a constitutional authority to punish him.

And to walk around thinking that you are going to commit a crime in one thing but doing in to something else.

It is certainly the crime of attempt has been upheld and that crime of conspiracy has been upheld even though the act for the conspiracy is never realized.

Phillip A. Hubbart:

That is correct but the attempt law as I understand it is that mere preparation to commit an offense is not an attempt.

There must be an over it act, toward commission of that offense.

In other words to think about committing the offense yourself.

I mean not in conspiracy with anyone else but to think about it and even make some arrangements to commit it, is not an attempt to commit it.

There must be an over it act toward designed to accomplish that so I would deny that this government has the constitutional authority to punish somebody for thinking about committing a crime.

Well—

This is walking to a private building and rob an apartment.

Phillip A. Hubbart:

There is no question that is a suspicious circumstance which a police officer may want to inquire about but I do not think if that is suspicion on itself to punish him for committing a crime.

Is the construction of this phrase without any lawful purpose or object contained in the case of Hanks against State.

Phillip A. Hubbart:

That is correct.

The only judicial construction of those words—

Phillip A. Hubbart:

That is good.

Imparted the prohibitions.

Phillip A. Hubbart:

And the construction is well, good or sufficient reason.

Yes I just heard.

Thurgood Marshall:

Why did you say that man wandering around in the street day or night with the object in his mind that if I see of coward piece, then I must steal it.

Phillip A. Hubbart:

I do not think, that government has a constitutional authority to prohibit that.

He is in the process of doing it or commits an act towards accomplishing that.

With what provisions does the constitution says that — .

I gather what Justice Marshall is suggesting of a specific statute and if you are wandering around with a purpose in mind of stealing a car to find keys on it.

I gather that is the phrasing of the statute.

What is in the constitution says the State cannot make that a crime?

Phillip A. Hubbart:

Well I would say a due process clause and I do not know if that answers You Honors question of the Due Process clause of the Fourteenth Amendment.

Phillip A. Hubbart:

I submit limits to power of the State to punish certain types of acts of crimes.

I supposed this goes to–

I would think that in independent ground that you could argue here, as this most– you cannot be on the streets with an unlawful purpose.

Phillip A. Hubbart:

But the unlawful purpose means without good and sufficient reason.

Same thing.

Phillip A. Hubbart:

That is a same thing.

Well not really the same thing is not really — it is vagrants.

Are you making a argument then, the State, the criminal law just may not either be interpose this consistently with the due process?

Phillip A. Hubbart:

That is right, that is my position.

That is a violation of a Due Process.

That is substantive argument.

Phillip A. Hubbart:

Yes I guess, if does he seem to substantive argument.

Yes, that is correct I think I could we arguing into a substitute argument.

The vagueness point however is still valid, seems to me.

If it does not apprise a person, as to what an unlawful purpose is?

I mean is one thing to — as the respondent argues that a person should know in heart of hearts, what is unlawful.

It seems to me that is function of the criminal statute to say exactly what is unlawful.

And it does not, it simply does not.

You have to be pretty normal to realize that (Inaudible).

Phillip A. Hubbart:

As a matter of fact your honor, if there was a statute saying, you shall not commit an unlawful act and the evidence was that this man had broken and entered a railroad car, I do not think that there would be any question statute be struck down on the board for vagrancy.

Well I should say, if the state may constitutionally, if (Inaudible) unlawful purpose or object, doubles there for the purpose of robbing a freight car, I think yes,that he knows he is violating the statute.

Phillip A. Hubbart:

Well I do not agree because—

I know you do not.

May I ask before you sit down.

Getting back to what Justice White asked you earlier.

This conviction in front of this statute, he got 36 days you said.

What might have been his punishment?

Phillip A. Hubbart:

Pardon me.

What might have been, what the maximum.

Phillip A. Hubbart:

Six months.

Six months.

On the Florida law may that conviction be used in a recidivist situation do you know.

Phillip A. Hubbart:

No I do not believe so.

There are set of a statute on felonies.

But if he used on impeachment, if you took the stand.

Phillip A. Hubbart:

Yes sir.

Some latter case either civil of criminal charge.

Phillip A. Hubbart:

Let me answer this way.

Violation of a State statute whether be felony or misdemeanor maybe used to impeach the man if the defendant takes to stand as a witness he is violate—

Civil or criminal.

Phillip A. Hubbart:

That is correct.

Yes.

Phillip A. Hubbart:

Now if he violates a municipal ordinance, he cannot be impeached for that.

Is there any other disability from this conviction that might follow?

Phillip A. Hubbart:

Legal disability?

Yes, that affects his right to vote.

Phillip A. Hubbart:

No it does not affect the right to vote.

How about employment?

Phillip A. Hubbart:

Well, the employment certainly — it would prohibit him —

You mean an employer is having the hold of recruiting him?

Phillip A. Hubbart:

A State employer, yes.

The State would not employ him.

Phillip A. Hubbart:

That is right.

You say would not but there is not any law which says they could not —

There is no law disqualifying him from any kind of position or employment matter.

Phillip A. Hubbart:

I really do not know your know I mean I am trying to think there are.

But I could not, I really cannot search any statutes on that.

I am trying to think they are.

I am just wondering why is the case moot?

Phillip A. Hubbart:

Well I do not think the case is moot by virtue of the fact that he has a conviction on his record and this is going to affect him.

Yes but he served his time and the I think that sometimes has considerable affect, if there is no real disability to travel from —

Phillip A. Hubbart:

I think your honor is already mentioned one, legal impeachment — .

Well, then what would you suggest then?

Phillip A. Hubbart:

Well, I am also suggesting a social disability as well, I mean, it is difficult certainly and I think the stigma which comes from conviction of any crime is a very heavy one in this society.

Thurgood Marshall:

What about stigma to two instead of one conviction.

Phillip A. Hubbart:

That is correct, he had two convictions.

Thurgood Marshall:

Right, do you think people measure that?

Phillip A. Hubbart:

I think they certainly do, the longer the record the worst it becomes.

Thurgood Marshall:

You speculate too much.

Phillip A. Hubbart:

I do not think I am speculating at all from what I have seen trial judges do, the longer the record the bigger the sentence.

Thurgood Marshall:

But it says I will not have man convicted or breaking in to box car, especially since he was also convicted at disorderly conduct.

Do you think that is normal?

Phillip A. Hubbart:

No, no the way you phrase is no there is no question at it.

But is that not pretty close to the situation you have here Justice Marshall’s hypothesis?

Phillip A. Hubbart:

I do not think so because I think some employers might want to take chance with somebody which is one conviction second one is the vagrant then may consider him to be an irresponsible type of person, just not going to be able to (Inaudible) it.

I do not know I guess, we are speculating really in one of this area but it seems to me as almost given that any conviction of any crime of whatever who variety it is, is bound to hurt a person living in this Country.

It certainly cannot help him, especially.

Thank you.

Warren E. Burger:

Mr. Bailey.

Nelson E. Bailey:

Mr. Chief Justice and may it please members of the Court.

There is only one section or the Florida vagrancy statute that is at issue here and that is the section which proscribes the act of wandering or strolling around from place to place without any lawful purpose or object.

Mr. Bailey, may I ask, this practice in Florida — what you have it is the same conduct right?

Nelson E. Bailey:

That is correct.

And, that this petition two, the identical conduct was made the subject of two different counts.

Nelson E. Bailey:

That is correct.

Is that a practice, that you follow up on Florida?

Nelson E. Bailey:

The State of Florida does not recognize the same transaction concept of double jeopardy.

That is what you are asking —

(Inaudible).

Nelson E. Bailey:

Well, perhaps I misunderstand your question.

I asked you, what happened here was the identical conduct was made the subject the two different counts.

Nelson E. Bailey:

That is correct.

And he is convicted on both.

Nelson E. Bailey:

Different elements of the same incident, yes.

Different elements?

Nelson E. Bailey:

Yes.

Why?

The essential element I gather was the unlawful purpose element of this statute was satisfied by the attempt to break in the box car was it not?

Nelson E. Bailey:

That is correct.

That is what you relied on.

Nelson E. Bailey:

That is correct.

And without that would you convict him, without that proof under that statute.

Nelson E. Bailey:

Not under this statute.

Why?

So let us say, so you have made the same conduct, the identical conduct attempting to break in the box car.

The subject of two, prosecution for two offenses.

Nelson E. Bailey:

Well there being abroad for that purpose, supports this conviction here.

But if you did not have the proof that he attempted to break in the box car, could never have convicted.

Nelson E. Bailey:

It would have been no case, yes.

That is right, well, once did tape attempting to break in to the box car and you made it the subject of two offenses.

You gave it two convictions on two separate things.

Nelson E. Bailey:

Well let us put it this way.

We could arrest them before they got to it and attempted to—

That is what you did, I am talking about what happened in this case if I understand it right.

Nelson E. Bailey:

Yes, I do not understand what is the nature of your question.

Are you suggesting it is objectionable to charge him with two charges?

I asked you what the practice was in Florida, is that what you do?

Nelson E. Bailey:

This is not a general practice that I know of no.

There are other types cases where we do charge two or three charges where in another States that would not be proper because of their double jeopardy concepts.

But in this—

I thought that was a federal question.

Nelson E. Bailey:

Referring to what?

Double jeopardy.

Nelson E. Bailey:

Yes, no what I am saying is in some States our statute would not be used in many situations where it is used or could be used in State of Florida.

I believe that State of New York in the federal crimes, the single transaction concept applies so that many instances, it will not be proper to charge a man for being abroad for that purpose if you charged him for actually attempting or doing the criminal act.

The time of Federal law.

Nelson E. Bailey:

Yes.

Of Florida law.

Nelson E. Bailey:

No what I am saying is there is no federal law that I know of that prohibits or that requires the State of Florida to recognize the single transaction concept.

Now, you are arguing this case, that is not the argument here –.

Nelson E. Bailey:

Okay, but let me continue then because this does not cover every situation of that issue anyway.

Mr. Bailey, let me follow through on Justice Brennan’s question, do you bring the two charges because you are not sure how far your evidence will take you?

Nelson E. Bailey:

There are situation where you could feel as a prosecuting officer that you could have proved he was abroad with that intent but you might feel that you would not have sufficient evidence to prove that he actually perpetrated the act.

But you have no eye witness here on the act —

Nelson E. Bailey:

No, the only eye witness saw I am going to and coming from and he heard the noises while they were at the box car.

The seal of the box car was broken.

The type of the noise that this officer heard with that noise was made and breaking the seal box car.

Warren E. Burger:

That made out the offense is it not?

Nelson E. Bailey:

Yes it did.

Warren E. Burger:

And you got the conviction.

So you got the conviction for the lesser and for the defense sound the–.

Nelson E. Bailey:

No it is not a lesser included defense it is entirely separate thing.

Warren E. Burger:

You do not think it is a lesser included defense.

Nelson E. Bailey:

No I do not believe so.

Warren E. Burger:

If you had read that the same fact it is make are essential to—

Nelson E. Bailey:

Support for conviction in this case?

We could have convicted him on–we could have convicted this two petitioners conceived by for being abroad with the unlawful purpose without been ever actually having got there and committed the act.

Is that as to answer your question.

Warren E. Burger:

To prove they are intent.

Nelson E. Bailey:

To the—well that is a promise search purpose supposedly they had lived in Tampa Florida and they had told the 15 friends of theirs that they are going to go over—

Warren E. Burger:

Well that is not this case.

Nelson E. Bailey:

No but I am saying you could prove intent for they actually got there committed the act.

And you could arrest them in the process of going abroad for the purpose of committing that—

Warren E. Burger:

That here the only way you could prove the intent was the observation of the officers of coming and going and hearing the noises.

Is it not?

Nelson E. Bailey:

That in this particular case that was a circumstance or evidence to support to prove of the intent yes.

Warren E. Burger:

And that supported the other offense too did it not?

Nelson E. Bailey:

That is correct.

Thurgood Marshall:

Mr. Bailey have done is being viewed that is the man served the 15 people I thin with your number that is going over to rob a box car.

And he goes down the street and go to church he get convicted?

Nelson E. Bailey:

It is a problem and circumstantial proof, you could have the testimony of those 15 people plus his acts of going abroad if he was going abroad in the direction of the box car if he is walking down the river of the property.

Thurgood Marshall:

(Inaudible) walking down the street and he cannot prove them with on his mind (Inaudible).

Nelson E. Bailey:

You cannot prove it you have no case to answer that.

There are circumstances—

Thurgood Marshall:

How can you convict them?

Nelson E. Bailey:

On an example—

Thurgood Marshall:

How can you convict them on what in his mind?

Nelson E. Bailey:

The same way of (voice overlap).

Thurgood Marshall:

How did you get out of his mind in to the record?

Nelson E. Bailey:

By circumstance of evidence, it is the same way to convict a man for waiting there –.

Thurgood Marshall:

Now we got a circumstance and evidence on top of an ambiguous statute.

where will that lead us?

Nelson E. Bailey:

Well, there is nothing ambiguous about the statute Your Honor.

That would be our position.

And as far as proving a man’s intent—

Thurgood Marshall:

How do you know when you see man walking down the street that he is violating a statute?

Nelson E. Bailey:

You have to have some reason, some circumstance or evidence or some statements by him or other reasons for having probable cause or relief that he is violating the statute.

Thurgood Marshall:

You can take a lot of help from the old cases.

My second point is you when the concurrent sentence came up.

He knew he is going to get a concurrent sentence, did not he?

Nelson E. Bailey:

It is rather once ignore—

Thurgood Marshall:

Why did you suggest count one.

Why did you leave it in that?

Nelson E. Bailey:

Why should we drop it Your Honor, he was guilty of that crime.

That this crime is in State of Florida and we proved it and we convicted—

Thurgood Marshall:

But why do you leave that as conviction?

For what purpose?

Nelson E. Bailey:

Well as a practical matter to be honest with you, this would be a secondary charge if you failed to prove the actual perpetration of the attempt.

It is not a lesser included offense, it is a separate act.

Thurgood Marshall:

But even after that, why did you insist on leaving both charges at the end?

It was because you wanted him to be — have some effect on his future did you not.

Nelson E. Bailey:

Yes, I did not prosecute case I rather imagine the only reason—

Thurgood Marshall:

I mean the State of Florida, that is the State of Florida prosecutor.

Nelson E. Bailey:

Yes the State of Florida prosecutor.

I have not talked to people who made the decision of why to prosecute this person?

Thurgood Marshall:

Well is it the reason that you wanted them to have two strikes on him.

Nelson E. Bailey:

However they adopted that case at all your honor it would seem rather apparent to me that the objective was if they failed to prove the actual perpetration of an act towards accomplishing this intent on the box car itself, an actual attempt to break and enter, and they still convict him for being abroad with that intent because he went there with that purpose and the evidence established that.

The evidence of his action in this case—

Thurgood Marshall:

Well I am talking—

Nelson E. Bailey:

Well, all the other case you can have the evidence not based upon action.

Thurgood Marshall:

(Inaudible).

Nelson E. Bailey:

I see you probably get to —

Thurgood Marshall:

(Inaudible) I get the impression as to now that he wanted to have (Inaudible). And you have to identify some reason for having to convict him.

Nelson E. Bailey:

Well, if there is I am not aware of it, but even if there is a reason it would be my position and statement that Florida has the authority under this statute to do so.

Thurgood Marshall:

Because that is the law of Florida, The law of Florida but what is the federal law on that?

Nelson E. Bailey:

Federal law?

Thurgood Marshall:

The double jeopardy.

Nelson E. Bailey:

Because of the nature of the evidence in this case, I suppose if the man had not been convicted if he had been acquitted of an attempt and there was other evidence other than his attempt to establish his intent, then there would have been no evidence to support this charge.

Thurgood Marshall:

Which two or one, count two or count one?

Nelson E. Bailey:

There would have been no evidence to support count one the vagrancy charge.

But is that why the point is that under Florida law he was found guilty of two separate offenses —

Nelson E. Bailey:

Right.

It is not an offense that a lesser included offenses, two separate offenses.

Nelson E. Bailey:

That is exactly right.

So I have the same basic transaction, that is a perfectly rationale and a legitimate position to take it seems to me.

Thurgood Marshall:

And they also have objection to statute.

Nelson E. Bailey:

Yes, yes we do have —

Thurgood Marshall:

Charge with that too — .

Nelson E. Bailey:

I do not know why the reason is —

Thurgood Marshall:

Is it possible under Florida law, he could have convicted on all three counts.

Nelson E. Bailey:

I presume it would be yes.

Thurgood Marshall:

You see nothing wrong with that.

Nelson E. Bailey:

No I do not, they are all separate acts.

Separate crimes.

Thurgood Marshall:

You mean they are called separate crimes.

Nelson E. Bailey:

He could have committed any one of those crimes without committing the other two let us put it that way.

Mr. Bailey, I may ask that the State have a reason not to urge on this if we ought not reach the constitutional question here as to a concurrent sentence?

Nelson E. Bailey:

Because of the mootness issue also–.

The concurrent sentences.

Nelson E. Bailey:

No Your Honor.

When he served one —

Nelson E. Bailey:

Yes, no your honor if I had a good argument there will be basically just that I missed it.

I also am inclined to urge this Court to go ahead and decide the case.

We are not going rely on mootness.

Because the State of Florida is in the process and has been for a while of redrafting its vagrancy statute.

We know other States also are in the process.

There is some confusion among State legislatures because recent opinions by this Court and they need some guidelines and this is the time when there redrafting the vagrancy statutes.

These are being decided to avoid the kind of this offense?

Nelson E. Bailey:

I am not sure I understand the question, the constitution question is only one—

Well apparently if the concurrent sentence doctrine applies here, we can avoid decision of the constitutional question.

It would be rather we not avoid it but decide it even if you could have urged it.

Nelson E. Bailey:

Yes, I mean if you are going to turn around and say that single translation concept is required for constitutional law.

You did not say that, you have concurrent sentences here do you not?

Nelson E. Bailey:

Yes.

And he served one of them.

Nelson E. Bailey:

Both of them.

Served both.

Nelson E. Bailey:

Both are completed, that is correct.

I am not prepared to urge upon you that there are no consequences upon this man, they do not give him standing to raise it.

As I understand State law there are certain positions in State government, he probably could not obtain it because of this conviction.

Police officer, for example –.

Before, even on the count one.

Nelson E. Bailey:

On count one, well I am not sure—

That is the only one we are talking about.

Nelson E. Bailey:

Yes sure.

Why you would sure or not.

Nelson E. Bailey:

I am not positive, no Your Honor.

In other words, whatever disqualification he has flow from count two and nothing more from count one.

Nelson E. Bailey:

I do not know to be honest your honor.

Let us go back to the wording of the statute, Statutory provision of bar.

The Florida statute provision, the one under consideration on its face refers only to the lawful versus the unlawful nature of one’s purpose or object for being abroad.

It cannot be Stated that there is no ascertainable standard of conduct right on the face of the statute, because honestly there is — it refers only to the lawfulness or unlawfulness of the purpose or object for being abroad.

The question was raised whether or not a person would be required in Florida to give a satisfactory response to police officers upon inquiry under suspicious circumstances.

In Hadley v Salkovitz (ph), I believe ’65 or ’67 opinion of for the Florida Supreme Court, they held unconstitutional, a Miami City ordinance that required a reasonable explanation towards suspicious circumstances to be given to a police officer.

So under Florida Law there is no requirement that you explain the circumstances to a police officer and there can be no such requirements.

Now Chief Justice or rather Justice Irvin of the Florida Supreme Court in Johnson v State at 202 7 2d stated the statute does not purport to make it an offense for a person merely to stroll or loiter about without being able to explain to the satisfaction of an arresting officer, or a judge, or a jury why he was strolling or loitering.

Now, this is the nature of Florida law.

The police officer must have probable cause to believe the person is abroad with an unlawful purpose with the criminal intent in other words.

That is not the way that language has been construed by the only Court that has construed it, as we are told.

The Intermediate Appellate Court of Hanks against States, which said that without any lawful purpose or object simply meant without good or sufficient reason and that is quite different from saying an unlawful purpose.

Nelson E. Bailey:

Yes, that is substantial difference.

That term—

And as you know, we have to take, we have no choice but to take the construction of a state statute given to it by the State Courts as the authoritative construction.

Nelson E. Bailey:

Your honor the term used there by the Third District is in itself vague.

If the statute said that I would be in a very bad position before this Court.

If the statute –

Well that is what the statute does say — .

Nelson E. Bailey:

Do they explain what they are talking about?

They tell us that is what the statute says –.

Nelson E. Bailey:

Well, if you are going to take that as the meaning of the statute, and the only meaning then I would be in a very rough position here.

I am telling you that the statute right on the face of it refers only to the lawful versus the unlawful major of conduct.

Look also at Chief Justice Irvin’s concurring opinion in the Florida Supreme Court right in Johnson V. State and I think you will find a clear indication there that is not a correct interpretation.

Also, in the instant case, the Florida Supreme Court referred to Justice Irvin’s concurring opinion and said that it was a well considered concurring opinion and I think this further indicates that position taken by Chief Justice Irvin is the position of the Florida’s Supreme Court in respect to this law.

That it relates only to unlawful intent for being abroad.

Now, referring again briefly to proving one’s intent, a man can be convicted for what the state of his mind is when he is used to committing a certain act.

You can convict a man of breaking and entering with an intent to commit rate and his state of mind at the time of breaking and entering — the conviction is the basis of his intent.

No, also it is federal criminal law, they are not where the criminality depends upon the man’s purpose when he travels at a State.

Nelson E. Bailey:

That is correct your honor, that is correct, very correct.

His intent of time crossing the state lines and so forth.

Right.

Nelson E. Bailey:

And it is strictly a state of man’s mind, what he is thinking, his purpose, which support criminal–.

Purpose or intent.

Nelson E. Bailey:

That is correct.

Thurgood Marshall:

Mr. Bailey do you know that this case is made of crime, for someone to have a man’s —

Nelson E. Bailey:

No, in every case including this one, it takes some act in perpetration actually, all that —

Thurgood Marshall:

An act here is walking.

Nelson E. Bailey:

Going abroad, moving from place to place, that is correct.

Thurgood Marshall:

Do you agree, that is walking.

Nelson E. Bailey:

Among other things, yes.

Thurgood Marshall:

Certainly the person has a right to walk.

Nelson E. Bailey:

That is true.

Thurgood Marshall:

And so the crime is really what is in his mind.

Nelson E. Bailey:

That is correct.

Thurgood Marshall:

You see nothing wrong with it.

Nelson E. Bailey:

I see nothing wrong with it, that you can convict him or breaking and entering the house with the intent to rape, then you also can convict him for walking towards that house with that intent if you can prove–case

Thurgood Marshall:

I would submit that committing a crime of rape has a different legal status from right to walking down the street.

Nelson E. Bailey:

According to the crime, rape is on different legal status from breaking and entering also.

Thurgood Marshall:

And there is a “different from walking down the street”.

This is man is convicted of —

Nelson E. Bailey:

He is convicted of walking down the street with a criminal intent.

There is a difference I can walk down the street with the intent other than criminal and of doing nothing of danger to society.

Thurgood Marshall:

A lot of people can and it is up to the (Inaudible)

Nelson E. Bailey:

Your honor.

Thurgood Marshall:

You arrest him, he does not know what is in his mind and he is honest —

Nelson E. Bailey:

Your honor there is nothing in our statute that authorizes his arrest on less than probable cause.

Other vagrancy statutes which you have either stricken down or determined inapplicable in certain situations authorized arrest on less than probable cause and that was part of the problem with the statutes.

Now, the big police officer here must have a probable cause to believe that person is abroad with criminal intent.

In the Palmer Case, Palmer v City of Euclid, here the statute which required explanation, reasonable explanation to be given to the police officer.

And we do not have that here in Hadley v. Salkovitz, specifically by said that standard cannot be applied in the State of Florida.

You cannot require by statute or ordinance that a person give a reasonable explanation of that conduct to a police officer.

So we do not have that problem.

There must be a probable cause to support the police officer believing they are abroad with the criminal intent.

It should be noted that the Florida statute does not relate to loitering in an unusual manner or it does not authorize an arrest under unusual circumstances, neither does it require once to dispel like policeman suspicions even though his suspicions maybe based upon a reasonable suspicions under the circumstances.

Florida vagrancy statute does not allow arrest on anything less than probable cause and neither does it make arousing a policeman’s suspicions a crime.

Much of the problem with vagrancy statutes is a fear about many people and many judges that a law enforcement officer when he cannot think anything to charge a man with, he is just going to say, you are under arrest with vagrancy.

And there is a fear by many, this will be abused and it will authorize arrest where there is no proper grounds for arrest.

Looking at the provision under consideration not to arrest under the vagrancy statute but the very provision not a consideration, there is nothing in the wording of it, that authorizes a police officer to arrest you simply because he cannot think of anything to charge him with.

There is nothing mere that authorizes an arrest on anything less than probable cause to believe, you are abroad with a criminal intent and he must have knowledge of circumstance or evidence to that effect.

Unless there are any further questions in Court.

Do you think the state has the constitutional power that a person be on the street with a — to be on the street with a criminal intent.

Nelson E. Bailey:

My position is that this all the — wording in the statute authorizes is an arrest when they are on the street going from place to place with a criminal intent and the State does have that power.

No, even though you — he has not committed any crime yet — he has not attempted to commit any crime yet —

Nelson E. Bailey:

That is correct.

But he intends to, do you think that is enough.

Nelson E. Bailey:

I believe that is enough, it is a very difficult problem with proof in many cases.

I understand that but what about, do you think that the state police power reaches back that far in to the incubation of the crime.

Nelson E. Bailey:

When a person sets out with a purpose of committing the crime yes.

What could be a more appropriate crime prevention statute?

I used a example in my brief, a police officer is informed that John Smith, let us say is going to rob a liquor store.

He is going to rob it, he is going to be on the robs tomorrow night, tonight he is going to go there and case the joint, he is no going to do anything he is just going to case it and see how the customer come in and how to set up his robbery, what is there in constitutional that you stop the officer from arresting the man tonight when he is on there for wandering and strolling around with an unlawful purpose rather than waiting until the man comes armed tomorrow night and either try to stop before he gets in or stop when he is in good place of the act.

This count has not been in the statute anyway — in this case?

Nelson E. Bailey:

That issue is not raised in the petitioner’s position.

I am saying there are many positions, situations when this is a perfectly proper crime prevention statute.

The only example statutes (Inaudible)

Nelson E. Bailey:

Well, my position is that he only raised the vagueness issue and preserved it for this Court.

Starting at page three of the appendix to this case, his oral motion in Court refers only to the vagueness of the statute not to its over breath.

And the Trial Court made a written order attempting to put on a record this oral motion and the denial of it and it is from there that this case comes before this Court.

It is my position that only the vagueness and not the over breath is involved.

Thurgood Marshall:

Is in that case, you just gave your hypothetical of the man about to rob the bank the next day.

Nelson E. Bailey:

Yes.

Thurgood Marshall:

If you are in Ohio, you could arrest him, they did not say, you could convict from being out on the street.

Nelson E. Bailey:

What would you arrest him for?

Thurgood Marshall:

As he was arrested in Terry of carrying a gun.

Nelson E. Bailey:

No, the night before he is there, a case is enjoined — unarmed.

Thurgood Marshall:

Well, he has a right to question.

Nelson E. Bailey:

That is all he has a right to do –.

Thurgood Marshall:

Tell him down.

Nelson E. Bailey:

And if there is any police officers sitting there and knowing that man is walking around with an intent to commit that crime.

Thurgood Marshall:

You say it is a great prevention of crime why not lock up all those people.

And do not give them trial of anything that is preventive too was it.

Nelson E. Bailey:

Your Honor—

Thurgood Marshall:

Put them — they cannot simply.

Nelson E. Bailey:

Your Honor–.

Thurgood Marshall:

I do not think you have to go that far to win your point, I do not think you have the go that far.

Nelson E. Bailey:

At what point?

Thurgood Marshall:

Your point is that in this statute, if the State can prove that you had the intent, you can get convicted.

That is all you have to argued?

Nelson E. Bailey:

Well, actually there are two elements, they have to prove he was abroad going from place to place with that intent —

Thurgood Marshall:

Well how could he get arrested, when he was abroad.

Police is not going to go in his house and look for it.

Nelson E. Bailey:

No, my point is if he is sitting in his house just thinking about it, there is no crime on a Florida statute.

Thurgood Marshall:

He has to prove he is abroad, your argument is, if you can prove his intent then it follows the statute.

Nelson E. Bailey:

That is correct, that is correct.

Thurgood Marshall:

You do not say he is thinking up on general principles.

Nelson E. Bailey:

No.

Thurgood Marshall:

Not, you are not arguing that at all?

Nelson E. Bailey:

No you cannot pick him up just because of the unusual circumstance do.

Thurgood Marshall:

That is what I am saying.

Nelson E. Bailey:

Okay, thank you.

That is for conclusion.

Warren E. Burger:

Thank you Mr. Bailey, thank you gentleman.

The case is submitted.