Bayes v. Nancy C.

Opinion

This is an appeal from an order of the juvenile court continuing the minor as a ward of the juvenile court.

On June 22, 1971, a supplemental petition was filed in the Superior Court of Solano County, sitting as a juvenile court, alleging two violations of Welfare and Institutions Code section 602, by Nancy C., age 15. She was charged in count one with the failure to obey an order of the juvenile court by leaving her foster parents’ home without their consent, and in count two with a violation of Health and Safety Code section 11530, possession of marijuana.

At the jurisdictional hearing the referee sustained the petition on both counts, ordered the minor continued as a ward of the juvenile court and committed the minor to the California Youth Authority.

Nancy C. first appeared before the Solano County Juvenile Court in 1969, when she was adjudged a ward of the court and placed in the home of an aunt. Subsequently, she was before the court several other times and continued as a ward of the court with placement in various foster homes. In April 1971, Nancy was placed in a foster home in Sacramento, California, where she remained until June 14 of that year.

On the evening of June 14 Nancy left the foster home and failed to return as directed. The foster parents did not see her again until after she was apprehended by Sacramento police officers five days later.

On June 19, 1971, at 10 p.m., two Sacramento police officers observed a female who appeared to be a minor walking east on S Street between 3d and 4th Streets. The area bounded by 3d and 5th, and S and

The minor was arrested for violation of a Sacramento curfew ordinance, the terms of which are set forth below, and was booked at city jail. During the booking her purse was searched and a bag appearing to contain marijuana was discovered. It was stipulated that the bag did contain marijuana.

Questions Presented

1. Was there probable cause to arrest for violation of the curfew ordinance?

2. Is the curfew ordinance unconstitutionally broad?

Since the arrest was made without a warrant, the burden rests upon the prosecution to show proper justification for the arrest. (Tompkins v. Superior Court (1963) 59 Cal.2d 65 , 67 [ 27 Cal.Rptr. 889 , 378 P.2d 113 ]; Badillo v. Superior Court (1956) 46 Cal.2d 269 , 272 [ 294 P.2d 23 ]; People v. Waller (1968) 260 Cal.App.2d 131 , 137 [ 67 Cal.Rptr. 8 ]; People v. Rodriguez (1966) 242 Cal.App.2d 744 , 747 [ 51 Cal.Rptr. 873 ].) That justification can be found in the existence of probable cause to make an arrest. The applicable principles governing the existence of probable cause were stated in People v. Ingle (1960) 53 Cal.2d 407 , 412-413 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ], as follows: “Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (People v. Fischer, 49 Cal.2d 442 , 446 [ 317 P.2d 967 ]; People v. Kilvington, 104 Cal. 86 , 92 [ 37 P. 799 , 43 Am.St.Rep. 73 ]; People v. Silvestri, 150 Cal.App.2d 114 , 117 [ 309 P.2d 871 ]; People v. Soto, 144 Cal.App.2d 294 . 298 [ 301 P.2d 45 ]; People v. Smith, 141 Cal.App.2d 399 , 402 [ 296 P.2d 913 ]; People v. Rodriguez, 140 Cal.App.2d 865 , 869 [ 296 P.2d 38 ].)

Even if probable cause for an arrest does not originally exist, it has long been recognized that circumstances short of probable cause to make an arrest may still justify an officer stopping pedestrians on the streets for questioning (Cunha v. Superior Court (1970) 2 Cal.3d 352 , 355 [ 85 Cal.Rptr. 160 , 466 P.2d 704 ]; People v. Mickelson (1963) 59 Cal.2d 448 , 450 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ]). In People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92 , 95-96 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ], it was stated: “[A] police officer . . . may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of [his] duties.” If the investigation reveals probable cause, then the officer may arrest the suspect and conduct a reasonable search. (People v. Mickelson, supra, at pp. 450-451; Irwin v. Superior Court (1969) 1 Cal.3d 423 , 426-427 [ 82 Cal.Rptr. 484 , 462 P.2d 12 ]. See also Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237 , 242 [ 93 Cal.Rptr. 155 ].)

Clearly the officers upon seeing a young female engaged in a “prostitution stroll” after 10 p.m. on a public street in an area where prostitution' abounds, had the right, indeed the duty, to detain and question her regarding her activities. The officers did not observe any acts of solicitation by the minor nor any act of prostitution and questioning her elicited no information concerning prostitution. There was, thus, no basis for further detention of the minor for any prostitution related crime. However, following the initial questioning of the minor, the officers ascertained she was in fact under 18 years of age and was in ostensible violation of the curfew ordinance since it was after 10 p.m. The ordinance read as follows: “It is unlawful for any minor under the age of eighteen years to loiter, idle,- wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places and public buildings, places of amusement and eating places, vacant lots or any unsupervised place between the hours of ten p.m. and

The minor was unquestionably in violation of the ordinance unless she came within one of the three exceptions spelled out in the ordinance. The first exception does not assist the minor since it was obvious she was not accompanied by her parents or other person having her custody. The second and third exceptions relate to (a) the minor being on an emergency errand for a parent or one in custody or (b) the minor returning directly home from a meeting or recreational activity. From the answers given by the minor to the questions asked by the police it can be readily and reasonably inferred that she was not on an errand nor was she returning directly home from a recreational activity.

Under the totality of circumstances we hold that the officers could conscientiously entertain an honest and strong suspicion that the minor was in violation of the curfew ordinance. Accordingly the officers had probable cause to arrest the minor for a violation of the curfew ordinance and conduct the search incident to the arrest.

We turn to a consideration of the constitutionality of the ordinance. Appellant contends that the ordinance violates article I, section 1, of the California Constitution and the Fourteenth Amendment of the United States Constitution in that it unreasonably interferes with the exercise of personal rights guaranteed by these provisions by being too broad and discriminatory. Respondent argues that the statute is not overly broad or discriminatory in that it proscribes “loitering” and not “presence”; it applies to juveniles and not adults; and contains reasonable exceptions.

Appellant agrees that the City of Sacramento had a right to pass a curfew ordinance, even one embodying severe restrictions, if an emergency was involved. (See United States v. Chalk (4th Cir. 1971) 441 F.2d 1277 , 1280-1283; Glover v. District of Columbia (D.C. App. 1969) 250 A.2d 556 , 560-

The constitutional standard to be applied when an ordinance such as this is attacked as unduly restrictive of personal rights is one of “reasonableness.” (Alves v. Justice Court (1957) 148 Cal.App.2d 419 , 423-424 [ 306 P.2d 601 ].) In Alves the court stated at page 422: “The rule is too well established to warrant citation of authority that a municipality, under its inherent police power, may enact legislation which may interfere with the personal liberties of its citizens and impose penalties for the violation thereof where the general welfare, public health and safety demand such enactment; but this rule is always subject to the rule of reasonableness in relation to the objects to be attained.”

The question then is whether the ordinance in question was reasonable, in view of the needs of the state, with reasonableness being roughly measured by the gravity of the evil to be corrected and the importance of the right invaded. (See Note, Curfew Ordinances and the Control of Nocturnal Juvenile Crime (1958) 107 U.Pa.L.Rev. 66 , 97.) Expressed another way, “the measure so adopted must have some relation to the ends thus specified.” (In re Hall (1920) 50 Cal.App. 786 , 789 [ 195 P. 975 ].) The court in Thistlewood v. Ocean City (1964) 236 Md. 548 , 556 [ 204 A.2d 688 , 693] suggested the following test: “(1) Is there an evil? (2) Do the means selected to curb the evil have a real and substantial relation to the result sought? (3) If the answer to the first two inquiries is yes, do the means availed of unduly infringe or oppress fundamental rights of those whose activities or conduct is curbed?”

Commentators have suggested that “the interest of children in being abroad during the night hours is not nearly so important to the social, economic and healthful well-being of the community,” as the free movement of adults. (Curfew Ordinances and the Control of Nocturnal Juvenile Crime, supra, 107 U.Pa.L.Rev. 66 , 99.) In addition, the community has a special interest in “the protection of children of immature years.” (In re Weber (1906) 149 Cal. 392 , 395 [ 86 P. 809 ].) Furthermore, the community has an interest in the reduction of juvenile nocturnal crime. Thus “curfew ordinances for minors are justified as necessary police regulations to control the presence of juveniles in public places at nighttime with the attendant risk of mischief, and . . . such ordinances promote the safety and good order of the community by reducing the incidence of juvenile criminal activity.” (City of Eastlake v.

We also note the ordinance in question is not applicable to all persons but only to minors under 18 years of age. Loitering and vagrancy ordinances purporting to regulate the nocturnal activities of all persons have been frequently struck down by the courts as an unreasonable interference with the activities of the citizenry. (See Papachristou v. City of Jacksonville, (1972) 405 U.S. 156 [ 31 L.Ed.2d 110 , 92 S.Ct. 839 ]; Seattle v. Drew, supra, 423 P.2d 522 ; Territory of Hawaii v. Anduha, supra, 48 F.2d 171 .) It is well settled, however, that juveniles may be reasonably classified differently from adults since “[T]he law has long recognized the validity of classifications based upon age." (Ames v. City of Hermosa Beach, 16 Cal.App.3d 146 , 153 [ 93 Cal.Rptr. 786 ].) Moreover it has been specifically held that curfew regulation of minors is one such reasonable classification. (See People v. Walton, supra, 70 Cal.App.2d Supp. 862 .)

Finally, we note the ordinance in question has reasonable and comprehensible exceptions. It has been held that the failure to provide for any exceptions in a curfew ordinance applicable to all persons may render it unconstitutional. (People v. Kearse, 58 Misc.2d 277 [ 295 N.Y.S.2d 192 ].) Curfew ordinances have also been invalidated where the exceptions were overly vague. Thus in City of Shreveport v. Brewer, 225 La. 93 [ 72 So.2d 308 ], the court struck down an ordinance containing an exception that was in terms of being on a street “without satisfactory explanation." The court noted “The words ‘satisfactory explanation’ are too broad and general and do not have a definite or fixed meaning.” ( 72 So.2d 308 , 310.)

In contrast the exceptions in the curfew ordinance in question do not leave it to the whim of a police officer to determine if a minor is on a street for a lawful purpose. If the minor is accompanied by parents there is no violation; if the minor is unattended but is on an errand for a parent or is returning directly home from a meeting, dance or recreational activity, the curfew provisions are not applicable to such minor. In Alves v. Justice Court, supra, 148 Cal.App.2d 419 , the curfew ordinance was “a presence type” curfew ordinance. The court observed at page 424 that “the ordinance completely prohibits all minors actually going to or coming from, or being at night classes, library study, games, dances or other school activities, church functions or the theater, . . ." No such unreasonable prohibition is present in the Sacramento ordinance. On the contrary the exceptions specifically preclude such activity from the impact of the ordinance.

The order appealed from is affirmed.

Molinari, P. .1., and Elkington, J., concurred.