California Passes "Loitering" Law to Crack Down on Drug Activity

STATE LAWS February 1996

On October 16, 1995, California Governor Pete Wilson signed into law a "loitering" bill that makes it possible for police to arrest someone they suspect is engaging in drug dealing or prostitution (Julie Tamaki, "Law Gives Police Broader Powers in Drug, Vice Arrests," Los Angeles Times, Oct. 18, 1995, p. A3).

The law makes it a misdemeanor to loiter in a public place under conditions that police believe constitute "requisite intent" to engage in a drug or prostitution offense. The text of the law lists ten actions police and judges can look for to determine if a person has such requisite intent to engage in drug trafficking. A defendant may be considered having the requisite intent if he or she:

• Acts as a "look-out."
  
  
• Transfers small objects or packages for currency in a furtive fashion.
  
  
• Tries to conceal himself for herself or any object that reasonably could be involved in an unlawful drug-related activity.
  
  
• Uses signals or language indicative of summoning purchasers of illegal drugs.
  
  
• Repeatedly beckons to, stops, attempts to stop, or engages in conversations with passersby, whether on foot or in a motor vehicle, indicative of summoning purchasers of illegal drugs.
  
  
• Repeatedly passes to or receives from passersby, whether on foot or in a motor vehicle, money or small objects.
  
  
• Is under the influence of a controlled substance or possesses narcotic or drug paraphernalia ... including, but not limited to, roach clips, cigarette papers, and rollers designed or marketed for use in smoking a controlled substance.
  
  
• Has been convicted ... within [California], within five years ... of any violation involving the use, possession, or sale of any controlled substance ...
  
  
• Is currently subject to any order prohibiting his or her presence in any high drug activity geographic area.
  
  
• Has engaged, within six months prior to the date of arrest under this section, in any behavior described in this subdivision ... [or] in any other behavior indicative of illegal drug-related activity.

The law states that these factors should be considered "particularly salient" if the person is in an area known for drug trafficking or if the location has been reported to the police as a possible site of drug activity. The text of the law also lists a number of factors to be considered requisite intent for engaging in prostitution. It states that these factors are not exclusive, and police and judges should make determinations on a case-by-case basis.

The ACLU of California opposed the bill, arguing it is an unconstitutional violation of the Fourth and First Amendments, and is vague. In a letter to members of the state Senate Criminal Procedure Committee, the ACLU argued that the law does not give enough information about what activities would be illegal, that by prohibiting actions such as "signals or language" it violates freedom of speech, that it prohibits ordinary activities, and that it opens the door to arbitrary enforcement by police.

The law is intended to aid police in preventing drug activity. Before the law went into effect on January 1, police were required to wait for a person to engage in a drug transaction or an act of prostitution before making an arrest.

[For a copy of the law and the ACLU's response, contact the NewsBriefs office.]