Rhodes v City of Little Rock Arkansas Abstract and Brief for Appellants

    Supreme Court ̂ A rkansas

John Rhodes and
Patricia Dr e n n a n ................ ...........Appellants

V. No...................

City of Little Rock.
A r k a n s a s .................................. ............... Appellee

APPEAL FROM
PULASKI COUNTY CIRCUIT COURT 

Hon. W illiam J. K irby, Judge

ABSTRACT AND BRIEF 
FOR APPELLANTS

STATEMENT OF THE CASE

Appellants were arrested about 2 :30 A.M. on 
October 21, 1966, inside appellant Rhodes’ apart­
ment at I 860 Izard Street, Little Rock, Arkan­
sas, and charged with “ immorality”  under §25- 
121, Code o f Ordinances, City of Little Rock, 
after police officers of the City had entered the



apartment without a search or an arrest war­
rant.

A fter pleading not guilty to the charges 
against them, appellants were tried on that same 
day, before Hon. John L. Sullivan, Judge of the 
Municipal Court of Little Rock, found guilty, and 
sentenced to thirty days’ imprisonment and a fine 
of $200 plus $3 costs. On appeal to the Circuit 
Court of Pulaski County, motions to quash and to 
dismiss, and to declare said ordinance unconstitu­
tional, were overruled. Appellants were tried 
before Hon. William J. Kirby and a jury on Jan­
uary 31, 1967, were found guilty, and each was 
sentenced to thirty days’ imprisonment and a fine 
of $100 plus $24.65 costs. Motion for New Trial 
was overruled February 28, 1967.



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POINTS RELIED UPON

I

The Ordinance Which Petitioners Were Convicted 
of Violating is so Vague and Sweeping as to 
Violate the Due Process Clause of the Four­
teenth Amendment to the United States 
Constitution.

H

Appellants’ Convictions Deny Them Due Process 
of Law, Guaranteed by the F o u r t e e n t h  
Amendment Because There is no Evidence in 
this Record of an Essential Element of the 
Offense and Because the Verdict is Against 
the Weight of the Evidence.

Ill

Appellants Were Denied Their Rights Under the 
Fourth and Fourteenth Amendments to the 
United States Constitution Because their 
Arrest Was the Product of an Antecedent 
Unreasonable Search and Because the Ar­
resting Officers Were Improperly Permitted 
to Testify as to their Visual Observations 
During a S u b s e q u e n t  Unconstitutional
Search.

IV

Little Rock City Code of Ordinances %25-121 is an 
Ex Post Facto Law Forbidden by the Arkan­
sas Constitution.

It1 Is
i

II

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iflaafi a IMM lu x * - -

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ABSTRACT

PLEA AND ARRAIGNMENT

(R.12)

Pulaski Circuit Court, First Division 
September Term, 1966 

Monday, December 12, 1966

City of Little R o c k ................................Plaintiff

V. No. 66392 Immorality

Patricia Ann D ren n an ........................Defendant

This day comes the City of Little Rock by 
Perry Whitmore, Assistant City Attorney, and 
comes the defendant in proper person and by her 
attorney, John Walker, and defendant is called 
to the bar of the Court and informed of the nature 
of the charge filed herein, enters her plea of not 
guilty thereto, and by agreement the case is 
passed to January 31, 1967, for a jury trial.

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I

PLEA AND ARRAIGNMENT

(R.13)

Pulaski Circuit Court, First Division 
September Term, 1966 

Wednesday, December 14, 1966

City of Little R o c k ...................................Plaintiff

v. No. 66393 Immorality

John L. Rhodes .....................................  Defendant

This day comes the City o f Little Rock by 
Perry Whitmore, Assistant City Attorney, and 
comes the defendant in proper person and by his 
attorney, John Walker, and defendant is called 
to the bar of the Court and informed of the na­
ture of the charge filed herein, enters his plea of 
not guilty thereto, and by agreement the case is 
passed to January 31, 1967, for a jury trial.

MOTION TO DISMISS 
. (R.14-15)

Defendants, by their attorney, John Walker, 
hereby move that the charges against them be 
dismissed, and as grounds therefor, state the fol­
lowing :

1. The alleged arrest of the defendants was [
invalid because (1 ) no warrant of arrest was is-



6
sued nor delivered to any peace officer prior to 
the alleged arrest; (2 ) the defendants commit­
ted no public offense in the presence of any peace 
officer; and (3 ) no peace officer had any reason­
able ground to believe that either defendant or 
both of them had committed a felony; and there­
fore, the alleged arrest of defendants was in vio­
lation of Ark. Stat. Anno. Sec. 43-403 (Repl. 
1964).

2. The alleged arrest of the defendants took 
place within the apartment of defendant John 
Rhodes, while the charges against the defendants 
are brought under Little Rock Ordinance No. 25- 
121, concerning “ immorality”  in a public place. 
Defendants may not now be tried for a violation 
o f another ordinance. Cole v. Arkansas, 333 
U.S. 196 (1948).

3. All evidence gained from the illegal 
entry by peace officers into defendant Rhodes’ 
apartment, including visual observations of the 
police officers, Johnson v. United States, 333 U.S. 
10 (1948), cannot be admitted into evidence. 
U.S. Constitution Amend. 4, 14; Mapp v. Ohio, 
367 U.S. 643 (1961).



Wherefore, defendants respectfully pray this 
Honorable Court to dismiss the charges against 
them and quash the information herein.

Respectfully submitted,
/ s /  John W. Walker

h

Filed: Jan. 31, 1967

MOTION TO QUASH INFORMATION AND TO DECLARE 
MUNICIPAL ORDINANCE UNCONSTITUTIONAL

(R.16)

Defendants by their attorney, John W. 
Walker, hereby move the Court to Quash the In­
formation herein and to declare the Municipal 
Ordinance of the City of Little Rock, Arkansas 
under which they were arrested, Sec. 25-121, to 
be unconstitutional on the ground that said ordin­
ance is too broad, too vague and too indefinite to 
be objectively applied in that it fails to specify 
and otherwise give notice to defendants of the 
conduct or acts proscribed.

Wherefore, defendants respectfully pray this 
Honorable Court to Quash the Information here­
in and to Declare the Ordinance under which 
they were arrested to be unconstitutional.

Respectfully submitted,
/ s /  John W. Walker

Filed: Jan. 31, 1967

1—̂



s

ABSTRACT OF TESTIMONY

(Given at trial in the Pulaski County Circuit 
Court, January 31, 1967 (R .45-83).)

Officer John Terry (R .45 -63 ):

I am a detective sergeant, Special Detail, 
Little Rock Police Department (R .45). On 
October 21, 1966, after having previously re­
ceived complaints, I went to 1865 Izard Street 
about 2:30 a.m. There are two separate build­
ings there— a house with an apartment in the 
rear (R .46). I knocked on the door of the ga­
rage apartment but received no answer. I could 
see someone looking at me through the Venetian 
blinds. I went to the window and shined my 
flashlight through the blinds; I could see a white 

. female and a colored male in bed. I identified 
myself as “ Sergeant Terry with the Police De­
partment” and told them to open the door. After 
a minute or two I told the colored male he was 
under arrest and again told him to open the door. 
A  minute or two after that I pushed open the 
door and went inside. He was out of bed (R. 
47). I lifted the covers of the bed and saw that 
Pat Drennan had on a brassiere and pants. I 
gave her the rest of her clothes and she dressed.
I asked if they were married. Rhodes said he 
was married to a Ruby Rhodes, 1800 Thayer 
Street (R .48). Drennan said she was married



9

to Frank Drennan. Neither commented on the 
other’s answer (R .49). I had been assigned to 
this case for a week or so. I could have obtained 
an arrest warrant— I had plenty o f time— but I 
did not have one (R .50). I had no reason to 
believe that Rhodes and Drennan were commit­
ting a felony, or anything but immorality. A  
neighbor, Charles Bussey, made an oral complaint 
to me at his residence (R .51). I don’t know 
whether his complaint to the Chief of Police was 
in writing or not. I saw them together in bed 
and assumed they were nude (R .52). I shined 
my flashlight through the Venetian blinds, which 
were not totally closed; I could get a clear view of 
the bedroom (R .53). At that time I had not 
told anybody that they were under arrest (R .54). 
When I saw someone looking at me through the 
blinds, I did not know who it was (R .56). When 
the door was not opened, I pushed it open; it was 
locked (R .57). I had to use force to open the 
door (R .58). My understanding is that any 
time any offense is committed in my presence, I 
have the right to make an arrest (R .60). They 
were not armed (R .61). I did not notice that 
either one had been drinking; they did not use 
obscene language in my presence. This was not 
what I would call a public place. I had known 
Drennan for several years (R .62).



10

Officer W illiam D. Gibson (T .63-73):

I am a detective with the Vice Squad. I was 
with Officer Terry on the night in question. We 
had received complaints about ‘ an incident oc­
curring at this address” . We knocked on the 
door, saw a blind being opened, and shined a 
flashlight in the window. We observed two 
people in bed together in a state o f undress, and 
asked them to open the door (R .64). Sergeant 
Terry pushed the door open. Rhodes and Dren- 
nan were inside. Sergeant Terry told them they 
were under arrest and we took them to the Police 
Department (R .65). The building was a resi­
dence, located in a residential area (R .67). I 
had not seen the defendants talking together 
earlier that day;-1 had never seen them before. 
I had never seen Rhodes invite Drennan to his 
apartment (R .69). I had never seen either 
person attempt to entice the other to the apart­
ment. I did not see them enter the apartment 
together (R .70). At the police station we told 
them what they were charged with but we did 
not advise them of their right to counsel or to re­
main silent. We took no statement from them 
(R .71). We had to use force to get in the apart­
ment; the door was locked. We had no search 
warrant or arrest warrant (R .72).



THE CITY’S REQUESTED INSTRUCTION NO. 1

(R.75-76)

It is hereby declared to be a misdemeanor for 
any person to participate in any public place in 
any obscene or lascivious conduct, or to engage 
in any conduct calculated or inclined to promote 
or encourage immorality, or to invite or entice any 
person or persons upon any street, alley, road or 
public place, park or square in Little Rock, to 
accompany, go with or follow him or her to any 
place for immoral purposes, and it shall be un­
lawful for any person to invite, entice, or address 
any person from any door, window, porch or 
portico of any house or building, 'to  enter any 
house or go with, accompany or follow him or her 
to any place whatever for immoral purposes.

The term “ public place” is defined to mean 
any place in which the public as a class is invited, 
allowed or permitted to enter, and includes the 
public streets, alleys, sidewalks and thorough­
fares, as well as theaters, restaurants, hotels, as 
well as other places. The term “ public place” 
is to be interpreted liberally.

Any person found guilty of violating the pro­
visions of this section shall, upon conviction, be 
fined in any sum not less than ten dollars, nor 
more than two hundred and fifty  dollars, or im-



12

prisoned for not less than five days nor more 
than thirty days, or both fined and imprisoned.

The Court gave the City’s Requested Instruc­
tion No. 1.

The defendant objected to the action of the 
Court in giving the City’s Requested Instruction 
No. 1, and at the time asked that their excep­
tions be noted of record, which was accordingly 
done.

THE DEFENDANTS’ REQUESTED INSTRUCTION 

NO. 1 
(R.80)

You are instructed that an element of the 
offense of immorality, as used in Section 25-121 
of the Code of Ordinances of the City of Little 
Rock, is that the offense of immorality be per­
formed in a public place, as defined in the said 
ordinance.

The Court refused to give the Defendants’ 
Requested Instruction No. 1.

CHARGE TO JURY
(R.81-83)

THE COURT*.

Ladies and Gentlemen, I am going to give you 
the law in this case. It is not particularly com-



j|^K n r  J— 1 •

V

13

plicated and the instructions are not long. It 
is my duty to give you the law and it is your duty 
to apply that law to the facts as you find them 
from the evidence that is developed here from the 
witness stand and bring me in a verdict m ac­
cordance with both the law and the evidence.

(A t this time, the Court read to the 
jury the Instructions indicated as given, 
above, after which the closing arguments 
were made to the jury on behalf of the City 
and the defendants, after which the fol­
lowing proceedings occurred.)

THE court:

Ladies and Gentlemen, I will now give you 
the forms of your verdict. I f you feel like John 
Rhodes is guilty of immorality, you will say: 
“ We, the jury, find the defendant guilty of im­
morality, as charged in the information, and fix  
punishment at a fine of . . . . . . .  dollars, or . . .
days imprisonment, or a fine o f .............  0 ars
and . . . .  days imprisonment.”  That is any­
thing not less than ten dollars nor more than two 
hundred fifty  dollars, or imprisonment not less 
than five nor more than thirty days, or both sue 
fine and imprisonment.

If you feel like he is not guilty, or you have 
a reasonable doubt of his guilt on the whole case,

l i

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you will say : “ We, the jury, find the defendant
not guilty.”

Likewise, in the case o f Patricia Drennan, 
if  you believe she is guilty of immorality, you 
will say: “ We, the jury, find the defendant
guilty o f immorality, as charged in the informa­
tion, and fix  her punishment at a fine o f .............
dollars o r .........days imprisonment, or a fine of
............. dollars a n d ........... days imprisonment.”
That is not less than ten or more than two hun­
dred fifty  dollars, and not less than five nor more 
than thirty days, or both a fine and imprison­
ment.

I f you feel like she is not guilty, or have a 
reasonable doubt of her guilt on the whole case, 
you will say: “ We, the jury, find the defendant 
not guilty.”

These verdicts must be signed by one of you 
ladies or gentlemen as foreman and must be unan­
imous. You may retire and consider your ver­
dict.

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15

TRIAL VERDICT AND JUDGMENT

(R.17-18)

Pulaski Circuit Court, First Division, September 
Term, 1966

Tuesday, January 31, 1967

City of Little Rock Plaintiff,

No. 66392 & 63393 Immorality

Patricia Ann Drennan and
John L. Rhodes, Defendants

This day comes the City of Little Rock by 
Perry Whitmore, Assistant City Attorney, and 
come the defendants in proper persons and by 
their attorney, John Walker, and by agreement 
the cases are consolidated for trial, and defend­
ants’ Motion to Dismiss is filed, heard and over­
ruled, the defendants’ Motion to Quash is filed, 
heard and overruled, and defendants exceptions 
are saved, and both defendants having previously 
entered a plea of not guilty, parties announce 
ready for trial, thereupon comes twelve qualified 
electors of Pulaski County, viz: E. B. Hearn,
Rev. Curtis Rideout, J. E. Cochran, Soloman 
Johnson, Mrs. R. E. Bibby, A. T. Miller, Mrs. 
Gladys Buckles, B. D. Henry, L. V. Bettis, Charles 
Wade, Mrs. Haco Boyd and Alfred Treadway, 
who are emapneled and sworn as a trial jury in

N



16

these cases, and after hearing the testimony of 
the witnesses, the instructions of the Court and 
the arguments of counsel, the jury doth retire to 
consider arriving at a verdict for each defendant, 
and after deliberating thereon, the jury doth re­
turn into open court with the following verdicts: 
“ We, the jury, find the defendant, Patricia Ann 
Drennan, guilty of Immorality, as charged, and 
fix  her punishment at a fine of $100.00 and 30 
days imprisonment. Mrs. Gladys Buckles, 
Foreman.”  “ We, the Jury find the defendant, 
John L. Rhodes, quilty of Immorality, as charged, 
and fix his punishment at a fine of $100.00 and 
30 days imprisonment. Mrs. Gladys Buckles, 
Foreman.”  Whereupon, the Court doth dis­
charge the jury from these cases, and each de­
fendant is given fifteen days in which to file a 
Motion for New Trial and committed to jail in 
lieu o f $1,000.00 bond.

MOTION FOR NEW TRIAL 
(R.31-34)

Comes the defendants, John Rhodes, a Negro 
male, and Patricia Drennan, a white female, and 
hereby move the court to set aside the verdicts 
of the jury herein and to grant them a new trial 
of this cause, and in support of same state as 
follows:

1. That Little Rock Municipal Ordinance 
Sec. 25-121, under which defendants were ar­



rested, tried and convicted, violates the due pro­
cess clause to the Fourteenth Amendment to the 
United States Constitution in that said ordinance 
is too broad, too vague, and too indefinite or un­
certain to give defendants notice of the acts 
and/or conduct prescribed thereunder.

2. That the arrest of the defendants by the 
police was invalid because it was made without 
warrant and without “ probable cause” ; and be­
cause the sole basis of the arrest was the race of 
the parties involved, and thus in violation of the 
equal protection and due process clauses of the 
Fourth and Fourteenth Amendments to the 
United States Constitution.

3. That the entry,' and manner of same, 
into defendant Rhodes’ apartment by the arrest­
ing officers and the search and seizure therein, 
without a warrant, was illegal and thus in vio­
lation of the Fourth and Fourteenth Amendments 
to the United States Constitution.

4. That the visual observations of the ar­
resting officers were improperly admitted into 
evidence in violation of the Fourth and Fourteenth 
Amendments to the United States Constitution.

5. That defendants were not advised of . 
their rights to counsel, nor afforded the oppor­
tunity to retain counsel at their trial in the Mu-

17

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18

nicipal Court of Little Rock, Arkansas; and were 
thus deprived of rights secured to them by the 
Sixth and Fourteenth Amendments to the United 
States Constitution.

6. That defendants were prosecuted on the 
basis of a “ personal arrest’’ and thereby de­
prived of due process of law under the Four­
teenth Amendment to the United States Consti­
tution.

7. That the defendants were not properly 
apprised of the charges against them because 
there was no indictment, information, or warrant 
filed against them in violation of their rights as 
secured by the due process clauses of the Fifth 
and Fourteenth Amendments to the United States 
Constitution.

8. That there was no evidence to support 
defendants’ convictions in violation of the due 
process clause of the Fourteenth Amendment to 
the Constitution of the United States.

9. That the prosecutions under said mu­
nicipal ordinance infringed upon and violated de­
fendants’ rights of privacy and association guar­
anteed to them by the due process clause of the 
Fourteenth Amendment to the United States Con­
stitution.

10. That the verdicts of the jury are con­
trary to law.

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X

11. That the verdicts of the jury are con­
trary to the evidence.

12. That the verdicts of the jury are against 
the weight of evidence.

13. That it was error for the trial court 
to deny defendants’ motion to declare the Little 
Rock Municipal Ordinance Sec. 25-121 unconsti­
tutional.

14. That it was error for the court to re­
fuse defendants’ requested instruction No. 1, 
which reads: “ You are instructed that an
element of the offense of immorality, as used in 
Section 25-121 of the Code of Ordinances of the 
City of Little Rock, is that the offense of im­
morality be performed in a public place, as de­
fined in the said ordinance.”

15. That it was error for the trial court to
refuse defendants’ requested instruction No. 
2, which reads: “ You are instructed that the
word ‘immorality,’ as used in Section 25-121 of 
the Code of Ordinances of the City of Little Rock, 
Arkansas, does not include an act of sexual inter­
course not sanctioned by marriage vows.”

Wherefore, defendants respectfully pray that 
the court set the verdict of the jury herein aside

19



and that they be granted a new trial in this 
cause.

Respectfully submitted,

s /  John W. Walker

Jack Greenberg 
Michael Meltsner 
Attorneys for Defendants

ORDER ON MOTION FOR NEW TRIAL

(R.35)

In the Circuit Court of 
Pulaski County, Arkansas 

Third Division

September Term, 1966 No. 66392 and 66393 
City of Little Rock, Arkansas

V.

John Rhodes and Patricia Drennan

ORDER

Came on defendants’ Motion for a New Trial 
for a hearing before this Court at 10:00 a.m., 
February 28, 1967, defendants being represented 
by their attorney, Mr. John W. Walker, and the 
plaintiff being represented by Mr. Perry V. Whit-

20



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21

more, and after a hearing on said Motion, the 
Court doth Find, Order, Adjudge, and Decree.

That defendants’ Motion for a New Trial is 
denied.

/ s /  Wm. J. Kirby 
Circuit Judge

Dated: February 28, 1967

MOTION FOR NEW TRIAL OVERRULED

(R.36)

Pulaski Circuit Court, First Division 
September Term, 1966 

Tuesday, February 28, 1967

City- of Little Rock, A rkan sas............... Plaintiff

V. Nos. 66392 and 66393

Patricia Ann Drennan and 
John L. Rhodes

This day comes the City of Little Rock by 
Perry Whitmore Assistant City Attorney, and 
come the defendants in proper persons and by 
their attorney, John Walker, and defendants’ Mo­
tion for New Trial is heard and overruled, and 
defendants exceptions are saved and an appeal is 
prayed and granted and the defendants are given 
forty-five days in which to get up and file their 
Bill of Exceptions.

T  '#«<■ t. w  « r .r r  -



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22

ARGUMENT

I

The Ordinance Which Petitioners Were Convicted 
of Violating is so Vague and Sweeping as to 
Violate the Due Process Clause of the Four­
teenth Amendment to the United States 
Constitution.

Petitioners were convicted of violating §25- 
121 of the Code of Ordinances, City of Little Rock, 
which provides as follows:

“ It is hereby declared to he a misde­
meanor for any person to participate in any 
public place in any obscene or lascivious 
conduct, or to engage in any conduct cal­
culated or inclined to promote or encourage 
immorality, or to invite or entice any per­
son or persons upon any street, alley, road 
or public place, park or square in Little 
Rock, to accompany, go with or follow him 
or her to any place for immoral purposes, 
and it shall be unlawful for any person to 
invite, entice, or address any person from 
any door, window, porch or portico of any 
house or building, to enter any house or go 
with, accompany or follow him or her to 
any place whatever for. immoral purposes.



------ ------------ ....... ' ------------ i l l f i . i r l l .  i m V  -------1 ,

23

The term ‘public place is defined to 
mean any place in which the public as a 
class is invited, allowed or permitted to 
enter, and includes the public streets, al­
leys, sidewalks and thoroughfares, as well 
as theaters, restaurants, hotels, as well as 
other places. The term ‘public place’ is 
to be interpreted liberally.

Any person found guilty o f violating 
the provisions of this section shall, upon 
conviction, be fined in any sum not less 
than ten dollars, nor more than two hun­
dred and fifty  dollars, or imprisoned for 
not less than five days nor more than 
thirty days, or both fined and imprisoned.”

On its face, this section attempts to make 
criminal four separate kinds of conduct:

(1 ) obscene or lascivious conduct in a pub­
lic place;

(2 ) conduct in a public place calculated or 
inclined to promote or encourage immorality;

(3 ) enticing or inviting, in a public place, 
any person to follow or accompany one to any 
place for immoral purposes;



(JKiuie SmiSBfb* J»T«.. M’M-l ■ 11 iMMUjlff

f r  o r

!
f
j-

24

(4 ) inviting or enticing from a house, win­
dow or porch, etc., to enter or accompany one to 
any place for immoral purposes.

i Althoueh the ordinance seems to include within its pro- 

“p0HhC:t’ No indictment was ever returned against appel-

= f r « S 3« 3 ^ p

Wp „ rp unable to agree with this disposition of the case. 
The ̂ verdict “ against the appellant was a general one-JEt

?pect ^ lpanL  say under whkh dause of the statute the impossible to say unoei these clauses, which

s s l i s s s ^ i
not convicted under that clause . ith the state court,
f h i f t h f  verdict S  be sustained if any one of the clauses 
S  lhe statute were found to be valid, the necessary con­
clusion  from the manner * * £ * < *  « £ *

cannot be upheld

A statute which upon
lively construed, is 30 v^ e f t£is opportunity is repugnant 
punishment of the fair use oi l w  the 14th Amendment.

discloses may"have'rested upon ’that clause exclusively, must 
be set aside.

_ of ctate 378 U.S. 500, 515-16 (1964).Cf. Aptheker v. Secretary of State,

■

I



25

The ordinance is phrased in broad terms not 
defined therein, nor in any related sections of the 
City Code. While the core of the law is “ im­
morality,”  a word of considerable breath whose 
meaning is open to considerable disparity of views 
(Cf. Ex parte Jackson, 45 Ark. 158, 164 (1885), 
South Carolina v. Katzenbach, 383 U.S. 301, 312, 
313 (1966), no specific substantive content is 
given the word in the ordinance or in any other 
sections of the City Code.

The language of the ordinance which speci­
fies what kinds of conduct are so related to “ im­
morality”  as to be made criminal by this law is 
similarly broad and without explanation or modi­
fication : e.g., “ calculated or inclined to promote 
or encourage.”  This ordinance presents those 
who would attempt to conduct themselves within 
the permissible confines of the law with a dilem­
ma, because they are unable to choose a course of 
action with any fair assurance that they are not 
violating the ordinance.

The very application of this ordinance, de­
signed to punish solicitation and prostitution (see 
II infra), to the facts of this case affords the 
clearest demonstration of its overbreadth. The 
ordinance concerns public conduct; yet appellants 
were convicted and sentenced to imprisonment on 
the basis of conduct which even the arresting of-



-a—
■ . - ... - .......„ ----- -.r-.

26

ficer did not believe occurred in a public place (R. 
62 ).2 Since the trial court upheld the constitu­
tionality of the ordinance by overruling the Mo­
tion to Quash (R.42) and the Motion for New 
Trial (R .36), the convictions must be reversed.

This is a law which, because it “ forbids . . . 
the doing of an act in terms so vague that men 
of common intelligence must necessarily guess 
at its meaning and differ as to its application, 
violates the first essential of due process.”  
Connally V. General Const. Co., 269 U.S. 385, 
391 (1926). “  . . .  No one may be required at
peril o f life, liberty or property to speculate as 
to the meaning of penal statutes. All are en­
titled to be informed as to what the state com­
mands or forbids . . . ”  Lanzetta v. New Jersey, 
306 U.S. 451, 453 (1938); see also Winters v. 
New York, 333 U.S. 507, 515 (1948); Gamer 
v. Louisiana, 368 U.S. 157, 185, 207 (1961) 
(concurring opinion). Where a law incorpo­
rates only the general substantive standard of 
morality or immorality, it necessarily affords 
but minimal notice of its proscriptions. Musser 
V. Utah, 333 U. S. 95, 96-97 (1948).

^Although the ordinance contains a purported definition of 
“public place,” that “definition” merely creates an explicit re­
quirement of broad construction, in derogation of the usual 
rule that penal laws are to be strictly construed, and demon­
strates that the ordinance was purposefully drafted as loosly 
as possible.



27

But this ordinance is not defective solely be­
cause it defines criminal conduct with insuffic­
ient clarity so that its scope may be misunder­
stood by those anxious to avoid its sanctions. The 
unpredictability of its application infects the 
judicial process as well. “ [SJince the broadness 
o f the law creates an unclear, variable standard 
o f guilt for the fact-finder, . . . the possibilities 
o f an evenhanded application of law and of ef­
fective judicial review are substantially de­
creased/’ Lewis, The Sit-In Cases: Great Ex­
pectations, [1963] Supreme Court Review 101, 
110. In effect, this ordinance ‘ ‘licenses the jury 
to create its own standard in each case,”  Herndon 
V. Lowry, 301 U.S. 242, 263 (1937); Musser v. 
Utah, supra; see Ex parte Jackson, supra, 45 
Ark. at 164.

The Supreme Court of the United States has 
recently passed upon a state statute which pro­
vided the jury with no standards in the imposi­
tion o f sanctions save its own discretion. A 
Pennsylvania statute3 allowed juries to assess

court costs against acquitted misdemeanor de­
fendants. The Court held the statute to be un­
constitutional, because it

contains no standards at all. nor does
it place any conditions of any kind upon

3Pa. Stat. Ann., Tit. 19 Sec. 1222.



28

the jury ’s power to impose costs. . . . Cer­
tainly one of the basic purposes of the Due 
Process Clause has always been to protect 
a person against having the Government 
impose burdens upon him except in ac­
cordance with the valid laws of the land.

. . .  It would be difficult, if  not im­
possible for a person to prepare a defense 
against such general abstract charges as 
“ misconduct,”  or “ reprehensible conduct.” 
I f used in a statute which imposed for­
feitures, punishments, or judgments for 
costs, such loose and unlimiting terms 
would certainly cause the statute to fail 
to measure up to the requirements of the 
Due Process Clause. (emphasis in orig­
inal) Giaccio v. Pennsylvania, 382 U.S. 
399, 403, 404 (1966).

The teaching of Giaccio is that penal laws 
may not, consistent with the Due Process clause,

- remit to the unbridled discretion of court or jury 
the decision to impose sanctions, much less the 
determination of criminality. §25-121 of the 

_  . Little Rock Code of Ordinances does just that.

These objections are the more forceful be­
cause this ordinance sweeps within its broad pro­
hibition freedom of association which is protected 
against infringement by the State. See Note,

___ The Void-for-Vagueness Doctrine in the Supreme
: Court, 109 U. Pa. L. Rev. 67 (1960). The or­

dinance is directed not at overt acts harmful in 
themselves, but at incidents of a relationship be-



29

tween persons which becomes illegal only by the 
application of a totally subjective standard. For 
example, the line between what is protected as­
sociation and what is invitation or enticement to 
immorality depends upon the subjective compre­
hension of a police officer about the ultimate in­
tent of the parties in speaking to one another.

/  In this manner, the definition of the actions which 
may be punished is effectively relegated to the 
police, and ultimately to the courts, for ad hoc 
determination after the fact in every case. A 
law with such a potential for selective enforce­
ment, NAACP v. Button, 371 U.S. 415, 435 
(1963), inevitably creates a “ chilling effect upon 
the exercise of First Amendment rights,”  Dom- 
browski v. Pfister, 380 U.S. 479, 487 (1965), of 
speech and association. The circumstances of 
this case illustrate graphically the extent to 
which personal privacy, Griswold v. Connecticut, 
381 U.S. 479 (1965), may be invaded under this 
law. For these reasons, the principle that penal 
;laws may not be vague must, if  anything, be 
enforced even more stringently.

II

Appellants’ Convictions Deny Them Due Process 
of Law, Guaranteed by the F o u r t e e n t h  
Amendment Because There is no Evidence in 
this Record of an Essential Element of the



Offense and Because the Verdict is Against
the Weight of the Evidence.

§25-121, Code of Ordinances of the City of 
Little Rock, was plainly designed to punish solici­
tation and prositution. One of its essential ele­
ments is that some act— obscene or lascivious con­
duct, enticement or solicitation, etc. occur on a 
public street or in a public place.4 Any other con­
struction of the ordinance would raise grave ques­
tions of infringement of constitutionally protected 
rights of association and privacy recognized in 
Griswold V. Connecticut, 381 U.S. 479 (1965). 
See Roberts V. Clement, 252 F. Supp. 835, 848 
(E  D. Tenn. 1966) (concurring opinion) (anti-
nudism statute).

Yet there is no evidence on this record that 
either or both of the appellants performed any 
proscribed act in a public place. To the con­
trary, the arresting officers testified that they 

-did not arrest appellants in a public place (R.62, 
67) and that they had not seen the appellants 
talk to one another or invite or entice one another 
to the apartment (R.69-70). The conduct de­
scribed by the officers took place entirely within 
a private residence, not bordering a public street, 
behind a locked door, at 2:30 A.M.

— TiTThis regard,
Requested Instruction No. 1 (R.80).



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“ Under the words of the ordinance itself, 
i f  the evidence fails to prove all . . . elements of 
this [immorality] charge, the conviction is not 
supported by the evidence, in which event it does 
not comport with due process of law.”  Thomp­
son w. City of Louisville, 362 U.S. 199, 204 (1960) 
(emphasis supplied).

The convictions must be reversed for failure 
to prove a public act, Shuttlesworth v. Birming­
ham, 382 U.S. 87 (1965); Barr v. City of 
Columbia, 378 U.S. 146 (1964); Fields v. Fair- 
field, 375 U.S. 248 (1963); Taylor v. Louisiana, 
370 U.S. 154 (1962 ); Garner V. Louisiana, 368 
U.S. 157 (1961); Thompson v. City of Louisville, 
supra, and because the verdicts were against the 
weight of the evidence Ark. Stat. Ann. §§43-2203,
2725 (Repl. 1964).

in

Appellants Were Denied Their Rights Under the 
Fourth and Fourteenth Amendments to the 
United States Constitution Because their 
Arrest Was the Product of an Antecedent 
Unreasonable Search and Because the Ar­
resting Officers Were Improperly Permitted 
to Testify as to their Visual Observations 
During a S u b s e q u e n t  Unconstitutional 
Search.

The shocking police misconduct shows on the 
face o f this record requires a reversal of appel-

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32

lants’ convictions. Rochin V. California, 342 
U.S. 165 (1952). An unreasonable, unwar­
ranted and unconstitutional invasion of privacy 
and property cannot legitimize a subsequent un­
lawful arrest; nor may that arrest in turn justify 
a later search, without overstepping the bounds 
of due process. See Johnson v. United Spates, 
333 U.S. 10 (1948).

The arresting officers testified that they 
were investigating a complaint previously re­
ceived (R.46, 5 1 ); yet they chose to make their 
investigation at a patently unreasonable houi 
2:30 a.m. (R .46). They had plenty of time to 
obtain a warrant (R .5 0 ); yet they failed to do 
so but entered appellant Rhodes’ apartment un­
lawfully, having neither a search nor an arrest 
warrant (R .72). This fact alone is sufficient 
to invalidate the searches o f appellant Rhodes’ 
home and to require a reversal here. See Agnel- 
lo V. United States, 269 U.S. 20, 33 (1925). The 
officers did not make their investigation on the 
public streets or on public property. Appellant’s 
o-arage apartment was at the rear of a house in 
a residential area (R .4 6 ); thus, in walking to the 
door of the apartment (R.47) the officers weie 
already trespassing. “ Whatever quibbles there 
may be as to where the curtilage begins and ends, 
clear it is that standing on a man’s premises and 
looking in his bedroom window is a violation of

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33

his ‘right to be let alone’ as guaranteed by the 
Fourth Amendment.”  Brock V. United States, 
223 F. 2d 681, 685 (5th Cir. 1955). It is clear 
that the ground surrounding Rhodes’ apartment 
was protected against police intrusions The 
following definition of curtilage appears in 
corpus juris:

In its most comprehensive and proper 
legal signification it includes all that 
space of ground and buildings thereon 
which is usually enclosed within the gen­
eral fence, immediately surrounding a 
principal messuage, outbuildings, and 
yard closely adjoining to a dwelling house. 
(25 C.J.S. 82).

The principle has also received widespread 
judicial recognition. E.g., Rosencranz v. United 
States, 356 F. 2d 310, 313 (1st Cir. 1966) 
(b a rn ); Kroska v. United States, 51 F. 2d 330 
(8th Cir. 1931) (farm yard ); Whitley V. United 
States, 237 F. 2d 787 (D.C. Cir. 1956) (porch).

The circumstances of Brock, supra, are simi­
lar to the instant case. There, officers observed 
a still located a quarter of a mile from the house 
in question. An agent knocked at the door of 
the house, received no answer, and then looked in 
a bedroom window where he saw the defendant. 
The agent awakened the defendant and ques­
tioned him through the window while defendant 
was still somnolent. The United States Court



34

of Appeals for the Fifth Circuit held it error to 
admit the statements made by the defendant be­
cause “ the agents, when they appeared outside 
Brock’s bedroom window, were in violation of his 
rights under the Fourth Amendment.”  (223 F. 
2d at 685.)

Equally relevant is the opinion of the United 
States Supreme Court in Taylor v. United States, 
286 U.S. 1 (1932):

During the night, November 19th, 
1930, a squad (six or more) of prohibition 
agents while returning to Baltimore City 
discussed premises 5100 Curtis Avenue, of 
which there had been complaints over a 
period of about a year.”  Having decided 
to investigate they went at once to the ga 
rage at that address, arriving there about 
2:io  a.m. The garage— a small metal 
building— is on the corner of a city lot and 
adjacent to the dwelling m which petition­
er Taylor resided. The two houses are 
parts of the same premises.

As the agents approached the garage 
they got the odor of whiskey coming from 
within. Aided by a searchlight they 
looked through a small opening and saw 
many cardboard cases which they thought 
probably contained jars of liquor. There­
upon they broke the fastening upon a door, 
entered and found one hundred twnety-two 
cases of whiskey. . . .

Although over a considerable period 
numerous complaints concerning the use of



35

these premises had been received, the agents 
had made no effort to obtain a warrant for 
making a search. They had abundant op­
portunity so to do and to proceed in an 
orderly way even after the odor had em­
phasized their suspicions; there was no 
probability of material change in the sit­
uation during the time necessary to secure 
such warrant. Moreover, a short period 
of watching would have prevented any 
such possibility.

We think, in any view, the action of the 
agents was inexcusable and the seizure un­
reasonable. The evidence was obtained 
unlaivfully and should have been suppressed. 
(286 U.S. at 5-6) (italics supplied).

Evidence, including visual observations, ob­
tained as a result of such a trespass, should have 
been excluded. Silverman v. United States, 365 
U.S. 505 (1961); Silverthome Lumber Co. v. 
United States, 251 U.S. 385 (1920); McGinnis v. 
United States, 227 F. 2d 598 (1st Cir. 1955); 
Williams v. United States, 263 F. 2d 487 (D.C. 
Cir. 1959).

Thus, the officers should not have been per­
mitted to testify concerning their observations 
in the window of Rhodes’ apartment. Those ob­
servations likewise cannot support the arrest o f 
appellants for the arrest may not be validated 
by either the antecedent unconstitutional search 
from the window, Taylor V. United States, 286 
U.S. 1 (1932), or the subsequent forceful entry



36

and search of the apartment. Johnson V. United 
States, 333 U.S. 10 (1948); cf. Chapman v.
United States, 365 U.S. 610 (1961). Further, 
the conduct of the officers in this case does not 
fall within their statutory authority to arrest 
without a warrant. Ark. Stat. Ann §43-403 
(Repl. 1964).

Since the arrest does not meet constitutional 
or statutory standards, there was no justification 
for breaking down the door to the apartment and 
searching the premises. It was error to allow 
the officers to testify concerning their visual ob­
servations inside the apartment, Silverthorne 
Lumber Co. V. United States, supra; Johnson v.
United States, supra. Appelants’ constitutional 
rights can be vindicated only by a new trial free 
of the taint of such unconstitutionally obtained 
evidence. Mapp v. Ohio, 367 U.S. 643 (1961 );
Kerr v. California, 374 U.S. 23 (1963).

rv

Little Rock City Code of Ordinances §25-121 is an 
Ex Post Facto Laiv Forbidden by the Arkan-

\

sas Constitution.

The principle laid down by this Court in Ex 
parte Jackson, 45 Ark. 158 (1885) controls this 
case and requires that appellants’ convictions be 
reversed and the prosecutions dismissed.

II

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37

§25-121 of the Code of Ordinances, City of 
Little Rock, declares it to be a misdemeanor to 
“ engage in any conduct calculated or inclined to 
promote or encourage immorality,”  and to per­
form certain acts “ for immoral purposes.”  How­
ever, the ordinance nowhere suggests any ob­
jective standard for interpreting the terms “ im­
moral”  and “ immorality.”  Nor did the trial 
court’s instructions give the jury any guide to be 
applied in determining the meaning of the words. 
Thus the jury was unaware of the proper stand­
ards it should employ in deciding whether any 
crime had in fact been committed.

The ultimate question of appellants’ guilt 
or innocence was left to be decided according to 
“ the moral idiosyncrasies of the individuals who 
compose [d] the court and jury,”  Ex parte Jack- 
son, 45 Ark. at 164. Jackson was a prosecution 
for the crime of committing an act injurious to 
public morals. The statute was struck down 
by this Court because it was ex post facto:

We cannot conceive how a crime can, 
on any sound principle, be defined in so 
vague a fashion. Criminality depends, 
under it, upon the moral idiosyncrasies of 
the individuals who compose the court and 
jury. The standard of crime would be 
ever varying, and the courts would con­
stantly be appealed to as the instruments 
of moral reform, changing with all fluctu­
ations o f moral sentiment. The law is



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38

simply null. The constitution, which for­
bids ex post factor laws, could not tolerate 
a law which would make an act a crime, 
or not, according to the moral sentiment 
which might happen to prevail with the 
judge and jury after the act had been com­
mitted.

Ark. Const. (1874), Art. 2 §17 provides that 
“ No bill of attainder, ex post facto law or law 
impairing the obligation of contracts shall ever 
be passed . . . . ”  Appellants submit that §25- 
121 of the Little Rock Code of Ordinances is in­
distinguishable from the law struck down in 
Jackson.' Indeed, the vices of this ordinance are 
greater, since the acts here need not be injuiious 
to public morals”  but merely “promote or en­
courage immorality.”  This ordinance is clearly 
beyond the power of the Legislature, or the gov­
erning body of any municipality, if  the worthy 
principle enunciated by this Court in Ex parte 
Jackson, supra, is respected. Since the trial 
court took a different view in refusing to quash 
and declare the ordinance unconstitutional (R. 
16) the judgments of conviction should be re­
versed with instructions to dismiss the prosecu­
tions.

" scf Musser v. Utah, 333 U.S. 95 (1948), on remand, State 
Musser U8 Utah 537, 223 P. 2d 193 (1950).



.«,. ----- "** — ,V _. --- ,

39

CONCLUSION

Wherefore, for all the foregoing reasons, ap­
pellants respectfully submit that the judgments 
o f the trial court should be reversed and dis­
missed.

Respectfully submitted,

John W. W alker 
1304-B Wright Avenue 
Little Rock, Arkansas 72206 
Jack  Greenberg

James M. Nabrit, III 
M ichael Meltsner 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellants

... --- - • ( ! « p -----fa -



Supreme Court ̂ A rkansas

John Rhodes and
Patricia Dr e n n a n ........................... Appellants

v. No.................

City of Little Rock,
A r k a n s a s ........................................... .. Appellee

APPEAL FROM
PULASKI COUNTY CIRCUIT COURT 

Hon. W illiam J. K irby, Judge

REPLY BRIEF FOR APPELLANTS

The Appellee’s Brief fails to respond directly 
to the serious issues in this case or to Appellants’ 
arguments as set forth in their brief.

The defendants below were tried for an 
alleged violation of Section 25-121 of the Little 
Rock Code of Ordinances, and the trial judge read 
the entire Ordinance to the jury as part of his 
charge (R„75-76)'. The City o f Little Rock 
may not confine constitutional scrutiny o f this



2

Ordinance by now stating the theory of the prose­
cution to have been that Appellants were guilty 
of violating only a particular part of the Ordi­
nance (Brief for Appellee, p. 5). Stromberg 
V. California, 283 U. S. 359 (1931); Cole V. Ar­
kansas, 333 U.S. 196 (1948).

Appellee’s construction of the Ordinance is 
self-contradictory. It first seeks to read the law 
“ in its entirety” to discover a common denomi­
nator of “unacceptable sexual behavior”  and then 
emphasizes the “ particular part of the Ordinance 
violated” to rebut Appellants’ claim that the 
Ordinance proscribes only public conduct. Ap­
pellants submit that this is not “ rational inter­
pretation.”  1

The unconstitutionality of a law purporting 
to punish “ immorality”  is clear, and while Ap­
pellee has drawn this Court’s attention to cases 
from other jurisdictions which have found suf­
ficiently definite penal laws employing other 
terms, Appellee has made no attempt to distin-

1 Appellee relies upon Beasley v. Parnell, 177 Ark. 912, 9 
S.W. 2d 11 (1928). However, the statute in that case contained 
no separate indication of legislative intent, while such intent is 
made clear in this Ordinance by the inclusion of a paragraph 
defining “public place” immediately following the paragraph- 
ing setting out the criminal acts. The very title of the Ordi- 
nance is revealing: Public places; immoral conduct within,
penalty (R.43). Appellants do not contend, as Appellee ap­
parently believes, that this Court should read the word or as 
the word “and.” Rather, the legislative intent to interdict only 
public conduct is otherwise clear from the language of the 
Ordinance, and proof of public misbehavior is an integral part 
of any prosecution under this Ordinance.



aguish this Court’s condemnation of such 
statute:

3

The standard of crime would be ever 
varying, and the courts would constantly 
be appealed to as the instruments of moral 
reform, changing with all the fluctations 
o f moral sentiment. The law is simply 
null. The constitution, which forbids ex 
post facto laws, could not tolerate a law 
which would make an act a crime, or not, 
according to the moral sentiment which 
might happen to prevail with the judge 
and jury after the act had been committed. 
(Ex parte Jackson, 45 Ark. 158, 164 
(1885 )).

Nor has Appellee sufficiently answered the 
claim that the Ordinance is unconstitutionally 
vague, for as pointed out in Appellants’ Brief and 
as emphasized by this Court in Ex parte Jackson, 
supra, the overbreadth of the Ordinance not only 
causes problems of adequate notice but also leads 
to unpredictable and capricious judicial applica­
tion.

Finally, Appellee also mistakes the nature of 
Appellants’ Fourth Amendment claims. Appel­
lee as much as admits the illegality of the arrest 
but argues that such an illegal arrest does not re­
quire suppression of evidence previously ob­
tained.2 The evidence here is in consequence

2 Appellee cites Perkins v. City of Little Rock to support 
this proposition. There, however, the evidence consisted of 
voluntary statements made after arrest, not before it.



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of the nighttime peeping of the officers through 
the window of the apartment. Appellants con­
cede the right of an officer, under Arkansas law, 
to arrest when a misdemeanor is committed in 
his presence. What Appellants cannot agree is 
that the term ‘ ‘presence” includes the totally war­
rantless, unauthorized peering into the window 
o f a private apartment at 2 :30 A.M. by officers 
standing within the curtilage of the property. 
Such police action constitutes a violation o f the 
constitutional rights to privacy which cannot 
justify any prosecution based on what was ob­
served. However great the harm of “ immoral” 
conduct, to sanction such peeping-tom police 
tactics would inflict a far greater injury upon 
society and upon individual rights and the 
sanctity of the home.



o

CONCLUSION

Wherefore, for all the foregoing reasons, ap­
pellants respectfully submit that the judgments 
of the trial court should be reversed and dis­
missed.

Respectfully submitted,

John W. W alker 
1304-B Wright Avenue 
Little Rock, Arkansas 72206

Jack Greenberg 
James M. Nabrit, III 
Michael Meltsner 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants