Rhodes v City of Little Rock Arkansas Abstract and Brief for Appellants
Public Court Documents
January 31, 1967

44 pages
Cite this item
-
Brief Collection, LDF Court Filings. Rhodes v City of Little Rock Arkansas Abstract and Brief for Appellants, 1967. 18585a1f-c29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2598254a-314b-44c6-8794-a3722ae6b900/rhodes-v-city-of-little-rock-arkansas-abstract-and-brief-for-appellants. Accessed July 10, 2025.
Copied!
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. — - — 6 - — .... . - — - ----- ■>! * ---- \ 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 ---- iflaafi a IMM lu x * - - \ . 4 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. --------- r ------------ - 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 -m .------------ ’ 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. 14 ■ |ir; . -- ------■«*■.■■■■».». d ft . . . . . . ..M 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 \ 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. ------- ' ' 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 i . i . ... . . ------- ■ '•> '.—a t . 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 - --- -------------------- ... ■ i . * . a . « ift» W ir ____ 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). *̂**̂ *— ***■ iLi diV i M * ■■n iim . — - - -| m i l 'iI'h n n n rr“ lt? na > ■W M m tt m ,k t ■ . J l * « * l . i .1 31 “ 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- ji I !i * ! 'i I 1 : i < i - — - '• -i '-- --- --- --- . ,•„ , |,„,„ , „ m i M in _ m , i. ■ a n ___ - - - - - n ! Jr -'/ T y o . i ) \ | 1! I t 1j i. i 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 * t ff t J ........ urMt i m n ifMi r r in t i » ' i i ^ f a . l , i . H M . ' i , 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 X .... ... ... ... ... ... ... ... ... ... ... ... .m m m \* «« un ns "." " .... ... ... ..m um / - j ii i r f i i Ta f * i i i v ^ m .i. mil . .— _______ if * ■ « J ,.—■ ̂_ ___ 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 i . n > - y i - j t i i n n n i ■ n t f - f i * > '« i i f . - n ■ — n M r i ' . i ■ d r a - a t M n i n . - f t t i t o - A i • i ^ ■ a l t l i 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. ■ '• — "■* '-- --- --- t r "M i'V i-n . ........... - ........ - — ...— __— . —....— .— ..... - It 11------------------------- --- 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