NCJ Number
45289
Journal
Yale Law Journal Volume: 87 Issue: 3 Dated: (JANUARY 1978) Pages: 603-626
Date Published
1978
Length
24 pages
Annotation
LOITERING AND VAGRANCY LAWS ARE EXAMINED AND SHOWN TO BE INADEQUATE IN PREVENTING CRIME, AND A STATUTE IS PROPOSED WHICH, WHILE RETAINING ADEQUATE REMEDIES FOR ABUSES, AUTHORIZE POLICE TO GIVE ORDERS TO MOVE ON.
Abstract
POLICE OFFICERS HAVE THE DUTY NOT ONLY OF DETECTING CRIME BUT ALSO OF PREVENTING IT FROM OCCURRING. IN ORDER TO CARRY OUT THIS DUTY, AN OFFICER MUST INTERRUPT SUSPICIOUS ACTIVITY BEFORE IT BECOMES A CRIME. ARREST FOR VAGRANCY OR LOITERING, THE TRADITIONAL METHODS OF STOPPING CRIMINAL ACTIVITY, HAVE BEEN CHALLENGED ON CONSTITUTIONAL GROUNDS. FOUR REMAINING CONSTITUTIONAL METHODS ARE: THE INVESTIGATIVE STOP, STOP AND FRISK, ARREST FOR INCHOATE CRIME, AND ARREST FOR COMPLETED CRIME. REQUIREMENTS FOR IMPLEMENTATION OF THESE MEASURES RANGE FROM 'REASONABLE SUSPICION' OF CRIMINAL ACTIVITY TO 'PROBABLE CAUSE' TO BELIEVE A CRIME HAS OCCURRED. LOITERING AND VAGRANCY LAWS ONCE PERMITTED ARREST WHEN THE EXERCISE OF AN OFFICER'S OTHER PREVENTIVE POWERS DID NOT DISPEL THE SUSPICION THAT A CRIME WAS ABOUT TO TAKE PLACE AND DID NOT ALLOW HIM TO REMOVE THE SUSPICIOUS PERSON FROM THE AREA. CONSTITUTIONAL LIMITS HAVE BEEN SET SEVERELY RESTRICTING LOITERING AND VAGRANCY LAWS. CLEAR LINES MUST BE DRAWN BETWEEN PERMISSIBLE AND IMPERMISSIBLE CONDUCT, AND THE LAWS MAY NOT DELEGATE EXCESSIVELY BROAD OFFICIAL DISCRETION. THE LAWS WERE FOUND TO VIOLATE RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES AND AGAINST SELF-INCRIMINATION. MORE PRECISE LAWS HAVE BEEN INEFFECTIVE IN PREVENTING CRIME. THE PROPOSED STATUTE ALLOWING ORDERS TO MOVE ON WOULD REQUIRE THAT THE OFFICER KNOW SPECIFIC AND ARTICULABLE FACTS WARRANTING 'ALARM' THAT A SUSPECT WILL IMMINENTLY COMMIT A CRIME AND WOULD PROVIDE SUSPECTS ENGAGED IN INNOCENT ACTIVITY AN OPPORTUNITY TO DISPEL THAT ALARM. THE ORDER MUST SPECIFY THE AREA TO BE AVOIDED AND THE DURATION OF THE ORDER. THE STATUTE WOULD MEET THE CONSTITUTIONAL LIMITATIONS WHICH HAD RENDERED VAGRANCY AND LOITERING LAWS INEFFECTIVE. IT IS SPECIFIC, REQUIRES A SUFFICIENT DEGREE OF ALARM ON THE PART OF THE POLICE OFFICER TO JUSTIFY THE 'SEIZURE' (I.E., RESTRICTION OF THE SUSPECT'S FREEDOM OF MOVEMENT), AND DOES NOT MAKE A SUSPECT'S SILENCE AN ELEMENT OF A CRIMINAL OFFENSE (WHICH WOULD VIOLATE THE FIFTH AMENDMENT).