Fifth Amendment concerns

The Solomon court apparently read Terry v. Ohio, 392 U. S. 1 (1968), to hold that the test for a Terry detention was whether the officer had information that would lead a reasonable man to believe that the intrusion was appropriate. The Ninth Circuit noted that according to Terry, the applicable test under the Fourth Amendment requires that the police officer making a detention "be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. " 392 U. S. , at 21 .

The Ninth Circuit then held that although what Solomon articulated as the Terry standard differed from what Terry actually held, "[w]e believe that the Solomon court meant to incorporate in principle the standards enunciated in Terry. " 658 F. 2d, at 1366, n. 8. We agree with that interpretation of Solomon. Of course, if the Solomon court misread Terry and interpreted 647(e) to permit investigative detentions in situations where the officers lack a reasonable suspicion of criminal activity based on objective facts, Fourth Amendment concerns would be implicated.

See Brown v. Texas, 443 U. S. 47 (1979). In addition, the Solomon court appeared to believe that both the Terry detention and frisk were proper under the standard for Terry detentions, and since the frisk was more intrusive than the request for identification, the request for identification must be proper under Terry. See 33 Cal. App. 3d, at 435, 108 Cal. Rptr. , at 870-871. The Ninth Circuit observed that the Solomon analysis was "slightly askew. " 658 F. 2d, at 1366, n. 9.

The court reasoned that under Terry, the frisk, as opposed to the detention, is proper only if the detaining officer reasonably believes that the suspect may be armed and dangerous, in addition to having an articulable suspicion that criminal activity is afoot. [ Footnote 6 ] In People v. Caylor, 6 Cal. App. 3d 51, 56, 85 Cal. Rptr. 497, 501 (1970), the court suggested that the State must prove that a suspect detained under 647(e) was loitering or wandering for "evil purposes.

" However, in Solomon, which the court below and the parties concede is "authoritative" in the absence of a California Supreme Court decision on the issue, there is no discussion of any requirement that the State prove "evil purposes. " [ Footnote 7 ] Our concern for minimal guidelines finds its roots as far back as our decision in United States v. Reese, 92 U. S. 214, 221 (1876): "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.

This would, to some extent, substitute the judicial for the legislative department of government. " [ Footnote 8 ] In his dissent, JUSTICE WHITE claims that "[t]he upshot of our cases . . . is that whether or not a statute purports to regulate constitutionally [461 U. S. 352, 59]   protected conduct, it should not be held unconstitutionally vague on its face unless it is vague in all of its possible applications. " Post, at 370. The description of our holdings is inaccurate in several respects. First, it neglects the fact that we permit a facial challenge if a law reaches "a substantial amount of constitutionally protected conduct.

" Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489, 494 (1982). Second, where a statute imposes criminal penalties, the standard of certainty is higher. See Winters v. New York, 333 U. S. 507, 515 (1948). This concern has, at times, led us to invalidate a criminal statute on its face even when it could conceivably have had some valid application. See, e. g. , Colautti v. Franklin, 439 U. S. 379, 394 -401 (1979); Lanzetta v. New Jersey, 306 U. S. 451 (1939). The dissent concedes that "the overbreadth doctrine permits facial challenge of a law that reaches a substantial amount of conduct protected by the First Amendment .

. . ." Post, at 371. However, in the dissent's view, one may not "confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own. " Post, at 370. But we have traditionally viewed vagueness and overbreadth as logically related and similar doctrines. See, e. g. , Keyishian v. Board of Regents, 385 U. S. 589, 609 (1967); NAACP v. Button, 371 U. S. 415, 433 (1963). See also Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 110-113 (1960).

No authority cited by the dissent supports its argument about facial challenges in the arbitrary enforcement context. The dissent relies heavily on Parker v. Levy, 417 U. S. 733 (1974), but in that case we deliberately applied a less stringent vagueness analysis "[b]ecause of the factors differentiating military society from civilian society. " Id. , at 756. Hoffman Estates, supra, also relied upon by the dissent, does not support its position. In addition to reaffirming the validity of facial challenges in situations where free speech or free association are affected, see 455 U. S.

, at 494 , 495, 498-499, the Court emphasized that the ordinance in Hoffman Estates "simply regulates business behavior" and that "economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow. " Id. , at 499, 498. [ Footnote 9 ] To the extent that 647(e) criminalizes a suspect's failure to answer such questions put to him by police officers, Fifth Amendment concerns are implicated. It is a "settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.

" Davis v. Mississippi, 394 U. S. 721, 727 , n. 6 (1969). [ Footnote 10 ] Because we affirm the judgment of the court below on this ground, we find it unnecessary to decide the other questions raised by the parties because our resolution of these other issues would decide constitutional questions in advance of the necessity of doing so. See Burton v. United States, 196 U. S. 283, 295 (1905); Liverpool, N. Y. & P. S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). See also Ashwander v. TVA, 297 U. S. 288, 346 -347 (1936) (Brandeis, J. , concurring).

The remaining issues raised by the parties include whether 647(e) implicates Fourth Amendment concerns, whether the individual has a legitimate expectation of privacy in his identity when he is detained lawfully under Terry, whether the requirement that an individual identify himself during a Terry stop violates the Fifth Amendment protection against compelled testimony, and whether inclusion of the Terry standard as part of a criminal [461 U. S. 352, 362]   statute creates other vagueness problems. The appellee also argues that 647(e) permits arrests on less than probable cause. See Michigan v. DeFillippo, 443 U. S. 31, 36 (1979).