dissent">J. H. Gillis, J.

(dissenting). Defendant was charged with possession of heroin with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Pursuant to a defense motion, the trial court *4quashed the information. From this action, plaintiff appeals.

Defendant was found in the living room of a house the police had entered pursuant to a search warrant. Syringes and other narcotic paraphernalia were in plain view. Defendant was arrested for knowingly loitering in a place where such paraphernalia is kept or sold. Detroit Municipal Code, § 28-8-8. A search of defendant revealed a quantity of powder alleged to contain heroin.

After being bound over on the instant charge defendant made a motion to quash the information. The trial court found the ordinance under which defendant was initially arrested to be unconstitutional on the basis of People v Smith, 75 Mich App 64; 254 NW2d 654 (1977).

In Smith, this Court found the following Dear-born ordinance unconstitutional:

" '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.’ ” Id., at 66.

The Court stated that the ordinance infringed upon First Amendment freedom of association. Applying the "compelling state interest” test the Court concluded that there were less drastic ways to achieve the state interest in curbing illegal drug activity than to make "mere presence” a crime. In addition, while the trial court had implied a "knowledge” requirement, this Court refused to read such a requirement into the ordinance. Consequently, the ordinance was found unconstitutional on its face due to vagueness and over-breadth. Id., at 69-70.

*5Section 28-8-8 of the Detroit Municipal Code, the ordinance at issue here, provides:

"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.” Ch 187, § 9, City (Detroit) Ordinances (1954). (Emphasis supplied.)

The essential difference between this ordinance and the ordinance struck down in Smithis that the Detroit ordinance does include a "knowledge” requirement. While the Dearborn ordinance made completely innocent conduct a crime, the Detroit ordinance applies only to conduct harmful to the public good. It must be shown that the person loitered in a place knowing illegal narcotic paraphernalia was kept or sold there. Detroit v Hodges, 13 Mich App 531; 164 NW2d 781 (1968). The Court in Hodgesnoted the following:

"To sustain a conviction, there must be evidence to show (1) loitering, (2) in a place where narcotic drugs or narcotic paraphernalia are illegally sold, dispensed, furnished, given away, or stored, and (3) that the defendant, when loitering in such place, knew that the narcotic paraphernalia were illegally stored or kept there. There must be evidence to show beyond a reasonable doubt the existence of each element of the offense. The word 'loiter’ has no sinister meaning and, by itself, implies no wrongdoing or misconduct or engagement in prohibited practices. City of Seattle v Drew (1967), 70 Wash 2d 405 (423 P2d 522, 524); Cates v Jones (Tex Civ App, 1939), 129 SW2d 476, 477; Territory of Hawaii v Anduha (CA 9, 1931), 48 F2d 171, 172. Only where the statute or ordinance clearly distinguishes between conduct calculated to harm or the prohibited activity on *6the one hand, and essentially innocent conduct on the other hand, can a conviction be upheld; and only where such distinctions have been made have convictions been sustained. CL 1948, § 750.167 as amended by PA 1964, No 144 (Stat Ann 1968 Cum Supp § 28.364). Consistent with the above principles, the Michigan disorderly persons statute distinguishes between the conduct proscribed and all other innocent loitering. It proscribes loitering where the defendant is aware of the illegality of the occupation or business.” (Emphasis supplied.) 13 Mich App at 534.

In People v Morris, 66 Mich App 514, 519; 239 NW2d 649 (1976), the Court, in discussing the ordinance under consideration here, stated:

"[S]ome conduct deleterious to the public good must be connected to the loitering. In this case, that conduct is the knowing acquiescence of narcotics paraphernalia in an individual’s presence.”

The Detroit ordinance is not drawn as narrowly as was the ordinance upheld against a constitutional challenge in People v Pagnotta, 25 NY2d 333; 305 NYS2d 484; 253 NE2d 202 (1969). There, the proscribed activity consisted of loitering with intent to acquire or use a forbidden substance. Nevertheless, I would conclude that because the Detroit ordinance proscribes only conduct which is harmful to the public good it is not overbroad as was the ordinance struck down in Smith. Any infringement upon freedom of association is minimal and outweighed by the governmental interest in preventing illicit drug activity.

I would reverse.

Citation profile

How this case has been treated — in progress