Dokes v. Arkansas Petition for a Writ of Certiorari to the Supreme Court of Arkansas

    3 # -

Isr th e

(tart rtf tin Btatm
O ctober T eem , 1966 

N o .............. .

J o h n  H en ry  D okes and  S ylvia  D okes,

Petitioners,
— v . —

S tate of A rk an sas .

PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF ARKANSAS

J ack  G reenberg

J am bs M . N abrit , H I
M ic h ael  M eltsner

10 Columbus Circle 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

J o h n  W « W alk er

1304-B Wright Avenue 
Little Rock, Arkansas

D elector T iller

2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Petitioners



I N D E X

Citation to Decision Below .............................. -.... -.......  1

Jurisdiction ..........................................................................  1

Questions Presented ...........................................................  2

Constitutional and Statutory Provisions Involved....... 2

Statement ...................................................... -...................  4

How the Federal Questions Were Raised and De­
cided Below .......................................................................  7

Reasons For Granting The Writ:
I. Arkansas Has Not Met Its Heavy Burden of 

Showing a Waiver of Fourth-Fourteenth 
Amendment Rights and That the Waiver Doc­
trine Was Properly Applied to Excuse the 
Warrantless and Unreasonable Nighttime 
Search of Petitioners’ Apartment ..................  10

II. The Standards Under Which a State Meets 
its Burden of Showing a Waiver of Fourth- 
Fourteenth Amendment Rights is a Question 
of Public Importance Which Merits the Exer­
cise of This Court’s Certiorari Jurisdiction .... 15

III. Petitioners’ Convictions Are Unsupported by
Any Evidence in the Record .............................  18

IV. Petitioners Were Convicted Under a Contribu­
tory Delinquency Statute So Sweeping and 
Vague as to Deny Them Due Process of Law 
Guaranteed by the Fourteenth Amendment .... 23

C onclusion  ..........................................................................................  32

PAGE



II

A ppen d ix  : page

Opinion of Supreme Court of Arkansas ..............  la

Denial of Petition for Rehearing .......................... 5a

T able oe C ases

Amos v. United States, 255 U.S. 313 (1924) .............. 13,15
Anderson v. State, Sup. Ct. Op. #156 (File 271);

384 P.2d 669 (Alaska 1963) ..................................... 28,29
Ashton v. Kentucky, 384 U.S. 195 (1966) ..................  25

Brookhart v. Janis, 384 U.S. 1 (1966) .................. 12,13,14

Carnley v. Cochran, 369 U.S. 506 (1962) ..................  14
Carroll v. United States, 367 U.S. 132 (1925) ................  11
Champlin Ref. Co. v. Corporation Comm’n, 286 U.S.

210 (1942) .....................................................................  29
Chapman v. United States, 346 F.2d 383 (9th Cir.

1965) ...............................................................................  16
Commonwealth v. Jordon, 136 Pa. Super. 242, 7 x\.2d

523 (1939) .................................................................... 28
Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709

(1963) .............................................................................  16
Connally v. General Const. Co., 269 U.S. 385 (1926) .... 31

Davis v. California, 341 F.2d 982 (9th Cir. 1965) ....... 16
Davis v. United States, 328 U.S. 582 (1946) ..............  16
Dombrowski v. Pfister, 380 U.S. 479 (1965) ..............  25

Fay v. Noia, 372 U.S. 391 (1963) ..................................  14
Florence v. Meyers, 9 Race Rel. L. R. 44 (M.D. Fla.

1964)     30
Frye v. United States, 315 F.2d 491 (9th Cir. 1963) .... 16

Gatlin v. United States, 326 F.2d 666 (D.C. Cir.
1963) 1 6



I l l

Gouled v. United States, 255 U.S, 298 (1921) ............. . 15
Griffin v. Hay, 10 Race Eel. L. R. I l l  (E.D. Ya. 1965) 30
Griswold v. Connecticut, 381 U.S. 479 (1965) ..............  30

Higgins v. United States, 209 F.2d 819 (D.C. Cir.
1954) ............................................................................... 17

Holt v. State, 17 Wis. 2d 468, 117 N.W. 2d 626 (1962) 16

In re Wright, 251 F. Supp. 880 (M.D. Ala. 1965) ....... 30

Johnson v. United States, 333 U.S. 10 (1948) ....10,11,14,15
Johnson v. Zerbst, 304 U.S. 458 (1938) ......................12,14
Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951) .... 17

Ker y. California, 374 U.S. 23 (1963) ......................12,15

Landsdown v. United States, 348 F.2d 405 (5th Cir.
1965)     16

Lankford v. Schmidt, 240 F. Supp. 550 (D.Md. 1965), 
rev’d on other grounds; Lankford v. Gelston, 364
F.2d 197 (4th Cir. 1966) ...............   10,15

Lavvorn v. State, 389 S.W.2d 252 (1965) ........................ 28
McDonald v. United States, 335 U.S. 451 (1948) ....... 15
McDonald v. United States, 307 F.2d 272 (10th Cir.

1962) ............................................................................... 16
Martinez v. United States, 333 F.2d 405 (9th Cir.

1964)     17
Massachusetts v. Painten, 368 F.2d 142 (1st Cir. 1966) 16
Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965) .... 16
Miranda v. Arizona, 384 U.S. 436 (1966) ..................14,17
Mosco v. United States, 301 F.2d 180 (9th Cir. 1962) 16

hi A A CP v. Button, 371 U.S. 415 (1963) .................. 25, 29

PAGE

Pekor v. United States, 315 F.2d 319 (5th Cir. 1963) .... 17



IV

People v. Calkins, 48 Cal. App.2d 33, 119 P.2d 142
(1941) .............................................................................  28

People v. Dritz, 259 App. Div. 210, 18 N.Y.S. 2d 455 
(1940) ..........................................................................  28

Reed v. Rhay, 323 F.2d 498 (9th Cir. 1963) .............. 16,17
Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965) ..............  16
Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965) ___  16
Rivers v. United States, 321 F.2d 704 (2d Cir. 1963) .... 16 
Robbins v. MacKenzie, 364 F.2d 45 (1st Cir. 1966) .... 16 
Robinson v. United States, 325 F.2d 880 (5th Cir.

1964) ...........................................    16
Rogers v. United States, 369 F.2d 944 (10 Cir. 1966) .... 16

Schultz v. United States, 351 F.2d 287 (10th Cir. 1965) 16
Schware v. Board of Examiners, 353 U.S. 232

(1957)  ....................................................................... 22,23
Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965) ....... 16
Smithson v. State, 34 Ala. App. 343, 39 So.2d 678

(1950) ..........................................................................  28
Spencer v. Texas, 385 U.S. 554 (1967) ...........................  25
State v. Crary, 10 Ohio Op.2d 36, 155 N.E.2d 262

(1959) ..........................................................................  31
State v. Drury, 25 Idaho 787, 139 Pac. 1129 (1914) .... 28 
State v. Griffin, 93 Ohio App. 299, 106 N.E.2d 668

(1952) ..........................................................................  28
State v. Hanna, 150 Conn. 457, 191 A.2d 124 (1963) .... 16 
State v. Johnson, 145 S.W.2d 468 (Mo. App. 1940) .... 28
State v. Locks, 94 Ariz. 134 382 P.2d 241 (1963) ....... 28
State v. Scrotsky, 39 N.J. 410, 189 A.2d 23 (1963) .......... 16
Stoner v. California, 376 U.S. 483 (1964) ..................... 11
Swenson v. Bosler, 35 U.S.L. Week 3320 (March 13, 

1967) ............................................................................... 14

PAGE



V

Thompson v. Louisville, 362 U.S. 199 (1960) .......2,19,22
Thornhill v. Alabama, 310 U.S. 88 (1941) ....................  31

United States v. Arrington, 215 F.2d 630 (7th Cir.
1954) ..............................................................................  15

United States v. Blalock, 255 F. Supp. 268 (E.D. Pa.
1966) .................................... .......................... ................ 14

United States v. Corman, 355 F.2d 151 (2d Cir. 1965) 16
United States v. Evans, 194 F. Supp. 90 (D.D.C. 1961) 17
United States v. Haas, 106 F. Supp. 295, 109 F. Supp.

433 (W.D. Pa. 1952) ..............................................  17
United States v. Hilbrich, 341 F.2d 555 (7th Cir.

1965)   16
United States v. Horton, 328 F.2d 132 (3rd Cir. 1964) 16 
United States v. MacLeod, 207 F.2d 853 (7th Cir.

1953) ............................................................................... 17
United States v. Minor, 117 F. Supp. 697 (E.D. Okla.

1953) ...............................................................................  17
United States v. Mitchell, 322 U.S. 65 (1944) ........ 15
United States v. Rabinowitz, 339 U.S. 56 (1950) ........ 11
United States v. Smith, 308 F.2d 657 (2d Cir. 1962) .... 16 
United States v. Torres, 354 F.2d 633 (7th Cir. 1966) 16
United States v. Ziener, 291 F.2d 100 (7th Cir. 1961) 17

Yillano v. United States, 310 F.2d 680 (10th Cir.
1962) ............................................................................... 16

Yon Moltke v. Gillies, 332 U.S. 708 (1948) ..................  14

Wallin v. State, 84 Okla. Cr. 194, 182 P.2d 788 (1947) 28
Westbrook v. Arizona, 384 U.S. 150 (1966) ..............  14
Wong Sun v. United States, 371 U.S. 471 (1963) ....... 11

Zap v. United States, 328 U.S. 624 (1946) ................... 16

PAGE



VI

S tatutes  I nvolved

Ala. Code Ann. Tit. 13 §366 (Recomp. 1958) ............  26
Alaska Stat. Ann. §11.40.130 (1962) .............................  26
Alaska Stat. Ann. §11.40.150 (1962) .............................. 28
Ariz. Rev. Stat. Ann. §13-822 (1956) .......................... 26
Ariz. Rev. Stat. §13-823 (1956) .....................................  28
Ark. Stats. Ann., §45-204 (1964 Replacement) .......3,19, 23
Ark. Stats. Ann. §45-204 .....................................6,18, 25, 31
Ark. Stats. Ann., §45-239 (1964 Replacement) ............  2
Ark. Stats. Ann. §45-239 ..............................6, 23, 24, 25, 29
Ark. Stats. Ann., §48-903.1 (1964 Replacement) ..4,19,20, 21
Cal. Penal Code (West) §272 (Supp. 1966) ..................  26
Colo. Rev. Stat. §22-7-1 (1963) ............................. 26, 27, 28
Conn. Gen. Stat. Ann. §53-254 (1960) ...................... 28,29
Conn. Gen. Stat. Ann. §53-254 (1958) .......................... 26

D.C. Code Enc. §16-2314(b) (1966) .............................  26
Del. Code Ann. Tit. 10 §§901, 1101 (1953) ..................  28
Del. Code Ann. Tit. 11 §431 (a) (3) (Snpp. 1964) ........... 28
Fla. Stat. Ann. §39.01(11) (1961) .................................  28
Fla. Stat. Ann. §828.21 (1965) .....................................  26

Ga. Code Ann. §§24-9904, 26-6802 (Repl. 1959) .......26, 27

Hawaii Rev. Laws §330-6 (1955) ..................................... 27
Idaho Code §16-1817 (Supp. 1965) ............................... . 27
111. Stat. Ann. (Smith-Hurd) ch. 23 §2360(a) (Supp.

1966)  .............................  28
111. Stat. Ann. (Smith-Hurd) ch. 23 §2361a (Supp.

1966)     27
Ind. Stat. Ann. (Burns) §9-2803 (Repl. 1956) ......... 28
Ind. Stat. Ann. (Burns) §9-2804 (Repl. 1956) ..............  27
Iowa Code Ann. §233.1 (1949) ...........................................  27

PAGE



Kan. Stat. Ann. §38-830(a) (1964) .............................. 27
Ky. Bev. Stat. >§208.020(3) (a) (1958) .......................... 27

La. Bev. Stat. Ann. (West) Tit. 14 §92.1 (Snpp.
1966) ............................................................................... 27

La. Bev. Stat. Ann. (West) (Tit. 14 §92.1(A) (Supp. 
1966) .........   27,28

Me. Bev. Stat. Ann. Tit. 17 §859 (1964) ..................27, 29
Me. Bev. Stat. Ann. Tit. 17 §860 (1964) ..................28, 29
Md. Code Ann. Art. 26 §§52(e), 78(b) (Bepl. 1966) .... 28 
Md. Code Ann. Art. 26 §§53(c), 76(f), 79 (Bepl. 1966) 27
Mass. Ann. Laws cli. 119 §52 (Supp. 1965) ..................  28
Mass. Ann. Laws ch. 119 §63 (Supp. 1965) ..................  27
Mich. Stat. Ann. §28.340 (Bepl. 1962) ......................27, 28
Minn. Stat. Anno. §260.27 (1959) ................................  28
Minn. Stat. Ann. §260.315 (Supp. 1966) .....................  27
Mo. Stat. Ann. §559.360 (Supp. 1966) .......................... 27
Mont. Bev. Codes Ann. §10-617 (Supp. 1965) .......... 27,28

Neb. Bev. Stat. §28-477 (Supp. 1965) .........     27
Neb. Bev. Stat. §43-201 (Supp. 1965) .......................... 28
Nev. Bev. Stat. §201.110 (1965) ................................. 27,28
N.H. Bev. Stat. Ann. ch. 169 §32 (Supp. 1965) ......27,29
N.J. Stat. Ann. §2A:96-4 (1953) ................................  27
N.M. Stat. Ann. §40A-6-3 (Bepl. 1964) ............................ 27
N.Y. Penal Law §494 ........................................................  27
N.C. Gen. Stat. Ann. §110-39 (Bepl. 1966) ..................  27
N.D. Century Code Ann. §14-10-06 (Bepl. 1960) ...........  27
Ohio Bev. Code Ann. §2151.41 (1953) ......................... . 27
Okla. Stat. Ann. Tit. 21 §856 (1958) ........................ 27
Okla. Stat. Ann. Tit. 21 §857 (1958) ..............................  28
Ore. Bev. Stat. §167.210 (Bepl. 1965) .......................... 27

B.I. Gen. Laws §11-9-4 (1956) ......................................... 27

V ll

PAGE.



Y l l l

S.C. Code Aim. §16-555.1 (1962) ................................. 27, 28
S.D. Code §43.0301 (1939) .............................................  28
S.D. Code §43.0409 (1939) ......................................... 27,28

Term. Code Ann. §37-242 (Supp. 1966) ........................  28
Tenn. Code Ann. §37-270 (Supp. 1966) ... ....................  27
Tex. Penal Code (Yernon) Art. 534a (Supp. 1966) .... 27

Utah Code Ann. §55-10-80(1) (Supp. 1965) ..................  27

Yt. Stat. Ann. Tit. 13 §1301 (1958) .............................  27
Ya. Code Ann. §18.1-14 (Eepl. 1960) .............................. 27

Wash. Rev, Code Ann. §1304.010 (1962) ......................  28
Wash. Rev. Code Ann. §13.04.170 (1962) ......................  27
W. Va. Code Ann. §49-7-7 (1966) ................   27
W. Va. Code Ann. §49-7-8 (1966) .................................  28
Wis. Stat. Ann. §48.45(4) (a) (1957) .......................... 27
Wis. Stat. Ann. §48.45(5) (1957) .................................  28
Wyo. Stat. §§14-7, 14-23(a) (Repl. 1965) ..................  27

O th e r  A u thorities

Geis, Contributing to Delinquency, 8 St. Louis U.L.J.
59 (1963) .......................................................................  26

Gladstone, The Legal Responsibility of Parents for 
Juvenile Delinquency in New York, 21 Brooklyn 
L. Rev. 172 (1955) ........................................................  26

Ludwig, Delinquent Parents and the Criminal Law,
5 Vand. L. Rev. 719 (1952) ......................................... 26

Ludwig, Youth & the Law (1955) .................................  26

Meltsner, “ Southern Appellate Courts: A  Dead End” 
in Friedman (ed.), Southern Justice 152 (1965) .... 30

Model Penal Code §230.4 (P.O.D. 1962) ......................  26

PAGE



IX

PAGE

Note, 51 Calif. L. Rev. 1010 (1963) .............................  16

Rubin, Are Parents Responsible for Juvenile Delin­
quency? in Crime and Delinquency 35 (2d ed. 1961) 26

Rubin, Should Parents Re Held Responsible for 
Juvenile Delinquency?, 34 Focus 35 (March 1955) .... 26

Starrs, A Sense of Irony in Juvenile Courts, 1 Ilarv. 
Civil Rights—Civil Liberties L. Rev. 129 (1966) .... 30

The Challenge of Crime in a Free Society (1967) .... 31

The Standard Juvenile Court Act, 5 N.P.P.A.J. 323 
(1959) .............................................................................  26

U. S. Comm’n on Civil Rights Report, Law Enforce­
ment, 1965 .....................................................................  29

Weinstein, Local Responsibility for Improvement of 
Search and Seizure Practices, 34 Rocky Mt. L. Rev.
150 (1962) ............................................' ......................  17



I n  t h e

Ihtprem? (tart of %  Inl&fr BMm
O ctober T erm , 1966 

No.................

J o h n  H en ry  D okes and S ylvia  D okes,
Petitioners,

—v.—

S tate of A rk an sas .

PETITION FOE A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF ARKANSAS

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Arkansas entered 
in the above-entitled case on December 19, 1966, rehearing 
of which was denied January 30, 1967.

Citation to Decision Relow

The decision of the Supreme Court of Arkansas (R. 95-
99) is reported a t ------A rk .------—, 409 S.W.2d 827, and is
set forth in the appendix infra, p. la.

jurisdiction

The judgment of the Supreme Court of Arkansas af­
firming petitioners’ convictions was entered on December 
19, 1966 (R. 95-99). An order denying petition for rehear­
ing was entered by the Supreme Court of Arkansas Janu­
ary 30, 1967 (R. 104).

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. §1257(3), petitioners having asserted below, and



2

asserting here, deprivation of rights secured by the Con­
stitution of the United States.

Questions Presented

1. Whether the state met its burden of proving that a 
husband and wife consented to the nighttime search of 
their home, the scene of a peaceful and orderly interracial 
social gathering, and intentionally and knowingly waived 
their Fourth Amendment and Fourteenth Amendment 
rights.

2. Whether petitioners’ convictions upon a charge of 
contributing to delinquency denied them due process of 
law as guaranteed by the Fourteenth Amendment where 
the record fails to disclose any evidence that they caused, 
encouraged or contributed to delinquency within the mean­
ing of the rule of Thompson v. Louisville, 362 U.S. 199 
(1960).

3. Whether petitioners may be convicted consistently 
with the due process clause of the Fourteenth Amendment 
of violating a vague and indefinite contributory delin­
quency statute which is susceptible to unpredictable appli­
cation against innocent and unpopular persons.

Constitutional and Statutory Provisions Involved

1. This case involves the Fourth and Fourteenth Amend­
ments to the Constitution of the United States.

2. This case involves the following statutes of the State 
of Arkansas:

(a) Ark. Stats. Ann., §45-239 (1964 Replacement)

Any person who shall, by any act, cause, encour­
age or contribute to the dependency or delinquency of



3

a child, as these terms with reference to children are 
defined by this act, or who shall, for any cause, be 
responsible therefor, shall be guilty of a misdemeanor 
and may be tried by any court in this State having 
jurisdiction to try and determine misdemeanors and 
upon conviction therefor, shall be fined in a sum not 
to exceed five hundred dollars [$500.00], or imprison­
ment in the county jail for a period not exceeding one 
[1] year, or by both such fine and imprisonment. When 
the charge against any person under this act concerns 
the dependency of a child or children, the offense, for 
convenience, may be termed contributory dependency, 
and when it concerns the delinquency of a child or 
children, for convenience it may be termed contribu­
tory delinquency. Provided, however, that the court 
may suspend any sentence, stay or postpone the en­
forcement of execution or release from custody any 
person found guilty in any case under this act when, 
in the judgment of the court such suspension or post­
ponement may be for the welfare of any dependent, 
neglected or delinquent child as these terms are de­
fined by this act, such suspension or postponement 
to be entirely under the control of the court as to 
conditions and limitations.

(b) Ark. Stats. Ann., §45-204 (1964 Replacement)

The words “delinquent child” shall mean any 
child, whether married or single, who, while under 
the age of eighteen [18] years, violates a law of this 
State; or is incorrigible or knowingly associates with 
thieves, vicious or immoral persons; or without just 
cause and without the consent of its parents, guardian 
or custodian absents itself from its home or place of 
abode, or is growing up in idleness or crime; or know­
ingly frequently visits a house of ill-repute; or know­



4

ingly frequently visits any policy shop or place where 
any gaming device is operated; or patronizes, visits or 
frequents any saloon or dram shop where intoxicating 
liquors are sold; or patronizes or visits any public 
pool room where the game of pool or billiards is be­
ing carried on for pay or hire; or who wanders about 
the streets in the nighttime without being on any law­
ful business or lawful occupation; or habitually wan­
ders about any railroad yards or tracks or jumps or 
attempts to jump on any moving train, or enters any 
car or engine without lawful authority, or writes or 
uses vile, obscene, vulgar, profane or indecent lan­
guage or smokes cigarettes about any public place or 
about any schoolhouse, or is guilty of indecent, im­
moral or lascivious conduct; any child committing any 
of these acts shall be deemed a delinquent child. . . .

(c) Ark Stats. Ann., §48-903.1 (1964 Replacement)

It shall be unlawful for any person under the age of 
twenty-one [21] years to possess or purchase any in­
toxicating liquor, wine or beer. It shall also be un­
lawful for any adult to purchase on behalf of a person 
under the age of twenty-one [21] any intoxicating 
liquor, wine or beer. Any person violating this Act 
shall be deemed guilty of a misdemeanor and upon 
conviction thereof shall be subject to a fine of not 
less than ten dollars ($10.00) nor more than one hun­
dred dollars ($100.00).

Statement

On Saturday evening, January 30, 1965, at about 11 P.M., 
Officer Jim Harris (an off-duty Little Rock policeman who 
worked as a night watchman for the Little Rock Housing 
Authority) observed several automobiles carrying white



5

occupants enter the Booker Home Project (R. 24-25). He 
considered this “very unusual” (R. 25) because only Ne­
groes lived in the Booker Home Project (R. 31, 39-40). He 
did not consider it a violation of the law, but felt he should 
investigate (R. 32) even though he would not have made 
“as thorough an investigation” had only Negroes been in 
the cars (R. 35-36). No complaint of any disturbance had 
been made (R. 34-35). Officer Harris called the Vice Squad 
and two other officers came to the housing project (R. 27).

Petitioners are married and live in a two bedroom apart­
ment in the Booker Home Project (R. 61). At the time of 
his arrest, petitioner John Henry Hokes, a Negro, age 23, 
was employed at a local department store, along with 
James Charton and Paul Sehmolke, both white. Charton 
and Sehmolke asked Dokes if they could listen to a Negro 
singing group (which he was forming) rehearse at his 
apartment (R. 58-59). In addition to the singing group, 
Hokes expected only Charton and Sehmolke on January 30, 
but he admitted others whom they had in turn invited 
(R. 59). A total of twenty Negroes and whites, including 
the other members of the singing group, and Claude Taylor, 
a young man under contract to a recording company (R. 
87) came to the apartment (R. 64), Of these, there were 
seven adults and five persons under eighteen years of 
age (R. 15-16). James Charton, an adult, brought some 
beer and another adult brought a small bottle of rum to 
the apartment (R. 60). Mrs. Sylvia Hokes, a Negro, age 
22, made herself a drink with the rum (R. 70) but it is un­
contradicted that neither she (R. 70) nor her husband 
(R. 63) gave any beer or liquor to any of the minors 
(R. 82). Huring the course of the evening, Hokes re­
quested that his wife get a record player (R. 63, 68). She 
and Steve Charton and Kenny Gill (R. 71) two white males, 
left the apartment and encountered Officers Harris, Terry 
and Parsley outside (R. 31).



6

Officer Terry testified that at about 11:30 P.M. “we 
stopped them and took them back to the apartment” (R. 
40) and that after he had identified himself as a police of­
ficer outside the apartment Mrs. Dokes raised no objection 
to his entering (R. 41). Officer Harris stated “ it is pos­
sible” that he said “we are police officers, where is the 
party . . . Take me to the party” (R. 31). He also testi­
fied “ She made no objection to us coming in when we 
identified ourselves as police officers” (R. 27).

Petitioner Sylvia Dokes testified that one of the officers 
asked where the party was and told her to “ Take us back 
where you came from” (R. 71). She denied that she in­
vited the officers into her home (R. 71-72).

Inside the apartment, which the officers entered without 
a warrant, no one was loud or rowdy or using obscene 
language (R. 33, 35). The guests were spread through­
out the three rooms (R. 85). None of the officers saw 
beer or whiskey in the hands of any person under 
eighteen years of age, nor did they see petitioners give 
any beer or whiskey to anyone (R. 37, 46, 48, 56). There 
were beer cans in the apartment (R. 28) and a 19-year-old 
girl was holding Sylvia Dokes’ drink when the officers en­
tered the apartment with her (R. 42, 46). In questioning 
a person under eighteen years of age, one officer detected 
the odor of alcohol on her breath (R. 53). The officers then 
arrested all 22 persons in the apartment; the minors were 
charged with possessing alcoholic beverages and the adults, 
including petitioners, with contributing to the delinquency 
of minors pursuant to Ark. Stats. Ann §§45-239, 204 (R. 
43, 44).

Petitioners plead not guilty to oral charges, were tried 
in the Municipal Court of Little Rock, found guilty and 
fined $25.00 plus $10.50 costs each. A  de novo trial before 
the Circuit Court of Pulaski County, Arkansas on April 8,



7

1966 resulted in a jury verdict of guilty and an increase in 
the fines to $200.00 each. The circuit judge directed a 
verdict of acquittal for their two codefendants on the 
ground that “ it wasn’t their apartment” (R. 56, 80). At 
the trial petitioners’ counsel was denied the opportunity 
to examine jurors concerning a handbill circulated prior 
to trial by The Capital Citizens Council describing an 
“interracial rum and beer party” and listing the name, ad­
dress, age, sex and race of those arrested in petitioners’ 
apartment (R. 13, 15, 16).

On appeal, the Supreme Court of Arkansas affirmed the 
convictions on December 11, 1966 and denied petition for 
rehearing January 30, 1967.

How the Federal Questions Were Raised 
and Decided Below

Petitioners filed a motion to dismiss the charge of con­
tributory delinquency in the Circuit Court of Pulaski 
County, Arkansas (R. 18-19) alleging that they were ar­
rested “ solely because they permitted a peaceable inter­
racial gathering in their home,” and that they were thereby 
denied their federal constitutional rights to peaceably as­
semble, due process of law, equal protection of the laws, and 
to be free from unreasonable search and seizure, in viola­
tion of the Fourteenth Amendment to the Constitution. 
Petitioners also moved to suppress any evidence obtained 
from their apartment on January 30, 1965 on the ground, 
inter alia, that such evidence was obtained in violation of 
their rights under the Fourth and Fourteenth Amendments 
to the Constitution (R. 20).

The trial judge overruled both motions prior to trial 
and again at a hearing held May 23, 1966, subsequent to 
trial and conviction (R. 20-A, 23-24). During the course of



8

the trial, the court permitted the arresting officers to testify 
as to what they saw inside petitioners’ apartment before 
they arrested petitioners.1

Petitioners’ motion for new trial (R. 12-16) raised, among 
other questions, denial of their Fourteenth Amendment 
rights by unreasonable search, seizure, and arrest and chal­
lenged the verdict as contrary to law. The motion was 
denied (R. 17).

Petitioners appealed to the Supreme Court of Arkansas, 
arguing in their brief that the convictions violated the 
Fourteenth Amendment in that:

(1) There is no evidence in the record to support the 
convictions.

(2) The statute under which the state proceeded is vague 
and uncertain.

(3) The admission of testimony regarding observations 
by police officers inside a home entered without war­
rant or probable cause violates the Constitution.

(4) Convictions for contributing to the delinquency of a 
minor violate the Constitution because no delinquent 
minor was ever identified.

(5) The convictions are based upon an information and 
charge to the jury rendered inapplicable by statutory 
amendment prior to their trial.

(6) The arrest and conviction was motivated by racial 
considerations.

The Supreme Court held that there was “no merit in ap­
pellants’ contention that there was an unlawful search,”

1 The court refused, however, to permit the introduction of certain 
physical evidence seized in petitioners’ apartment, without explanation 
(E. 51).



9

for the reason that the constitutional immunity from un­
reasonable search could he waived and in its view of the 
record, petitioner Sylvia Dokes “waived the right to a 
search warrant” (E. 97).

The Court also considered petitioners’ constitutional 
claim that “the State failed to prove the necessary facts to 
sustain the conviction for contributory delinquency” (R. 97). 
It concerned itself first with the proper construction and 
scope of the statute challenged as vague, adopting the hold­
ing of an earlier decision “that a person may be found 
guilty of contributing to the delinquency of a minor, under 
our statute, by acts which directly tend to cause delinquency, 
whether that condition actually results or not” (R. 98). The 
Court then looked to the record to determine whether there 
was any evidence (expressly disclaiming any intention to 
weigh its sufficiency (E. 97)) to support the convictions 
and held they were “well supported by the evidence” be­
cause “it is only necessary for the State to prove a condition 
or circumstances existing that would tend to cause, encour­
age or contribute to the delinquency of a child” (R. 98).

The Court failed to pass on appellants’ remaining “points 
for reversal” on the ground that they “were not brought 
into the motion for a new trial and cannot be considered 
for the first time on appeal” (E. 98).

Petition for rehearing, reasserting petitioners’ federal 
constitutional claims, was denied (R. 100-04).



1 0

Reasons For Granting The Writ

I.

Arkansas Has Not Met Its Heavy Burden o f Showing 
a Waiver o f Fourth-Fourteenth Amendment Rights and 
That the Waiver Doctrine Was Properly Applied to 
Excuse the Warrantless and Unreasonable Nighttime 
Search o f Petitioners’ Apartment.

This is a case of shocking police misconduct which this 
Court should reverse because the official mischief shown 
falls so clearly within the scope of the Fourth Amendment. 
Acting solely because whites and Negroes of both sexes 
peacefully entered an all-Negro public housing project, offi­
cers of the Little Rock Vice Squad thrust themselves into a 
quiet and orderly social gathering without even a suspicion 
of unlawful conduct. Absent the presence of whites and 
Negroes at this gathering and, perhaps, its taking place in 
a low income public housing project, it is apparent that 
the police would not have invaded petitioners’ privacy much 
less disturbed it to the extent of arresting petitioners and 
their visitors on evidence which does not rise to the dignity 
of a criminal violation, see infra pp. 19-23, cf. Lankford v. 
Gelston, 364 F.2d 197, 204 (4th Cir. 1966) (Sobeloff, J.).

The only testimony introduced by the State to prove 
petitioners were guilty of contributing to delinquency was 
that of the police officers as to what they observed after 
they entered petitioners’ apartment. Convictions based on 
such testimony deny petitioners the protection of the Fourth 
and Fourteenth Amendments if the policemen’s observa­
tions were made only after an unconstitutional entry of 
their home as clearly as if the officers had seized every ob­
ject within their vision and such tangible evidence had 
been introduced at petitioners’ trial. Cf. Johnson v. United



l i

States, 333 U.S. 10 (1948); see also Wong Sun v. United 
States, 371 U.S. 471, 485-86 (1963). In this ease the police 
officers had neither a search (R. 35) nor an arrest warrant 
(R. 55). There was no reason to suspect that any crime had 
been committed (R. 35) let alone probable cause to make an 
arrest, prior to their entrance into the apartment. Warrant­
less search has occasionally been found reasonable where 
“ the surrounding facts brought it within one of the excep­
tions to the rule that a search must rest upon a search war­
rant,” Stoner v. California, 376 U.S. 483, 486 (1964) but 
none of these exceptions are remotely applicable here.2 
While arrests were made after the officers had entered 
petitioners’ apartment, the arrests even if lawful clearly 
do not avail to justify the prior warrantless entry.3 John­

2 No moving vehicle was the subject of search. Carroll v. United, 
States, 367 U.S. 132, 159 (1925) approves searches o f moving vehicles 
upon probable cause “ for belief that the contents of the automobile 
offend against the law.”  No question o f feared destruction o f contraband 
is involved or other emergency circumstances. Johnson v. United States, 
333 U.S. 10, 15 (1948) (dictum), suggests that searches may be justified 
by the necessity o f an emergency, such as the threatened destruction of 
evidence. Nor was this a search incident to a lawful arrest, United States 
v. Rabinowitz, 339 U.S. 56 (1950).

3 In Johnson, a Seattle police detective, accompanied by federal nar­
cotics agents, smelled burning opium and knocked at the door o f a hotel 
room from which the odor emanated. A t the same time, the men an­
nounced themselves as police officers. The door was opened, the only 
occupant in the room was placed under arrest, and a search was made 
which turned up incriminating opium and smoking apparatus which was 
still warm, apparently from recent use. The district court refused to 
suppress the evidence, the defendant was convicted and the conviction 
affirmed by the Circuit Court of Appeals. This Court reversed (333 U.S. 
at 15-17) :

The Government contends, however, that this search without war­
rant must be held valid because incident to an arrest. This alleged 
ground of validity requires examination of the facts to determine 
whether the arrest itself was lawful. Since it was without a warrant, 
it could be valid only if for a crime committed in the presence of the 
arresting officer or for a felony o f which he had reasonable cause to 
believe defendant guilty.

The Government, in effect, concedes that the arresting officer did 
not have probable cause to arrest petitioner until he had entered her



1 2

son v. United States, 333 U.8. 10 (1948). “It goes without 
saying that in determining the lawfulness of entry and the 
existence of probable cause we may concern ourselves only 
with what the officers had reason to believe at the time of 
their entry.”  Ker v. California, 374 U.S. 23 at 40 n. 11 
(1963) (emphasis in original). The officers had no warrant 
of arrest nor probable cause to believe a crime had been 
committed; under no circumstances could their entry be 
viewed as incident to efforts to make a lawful arrest.

The Arkansas Supreme Court did not deal with the rea­
sonableness of the search but affirmed petitioners’ convic­
tions on the ground that no matter how unreasonable, the 
search did not violate petitioners’ constitutional rights be­
cause Mrs. Dokes gave her consent to the officers’ entry. 
This record, however, does not show waiver of Fourth 
Amendment rights by Mrs. Dokes; much less that the state 
met its burden of proving knowing and intentional waiver 
of a constitutional right under the standards of Johnson 
v. Zerbst, 304 U.S. 458 (1938).

This Court looks to the facts to determine if a constitu­
tional waiver actually took place, BrooJchart v. Janis, 384

room and found her to be the sole occupant . . . Thus the Govern­
ment quite properly stakes the right to arrest, not on the informer’s tip 
and the smell the officers recognized before entry, but on the knowl­
edge that she was alone in the room, gained only after, and wholly 
by reason of, their entry o f her home. It was therefore their obser­
vations inside of her quarters, after they had obtained admission 
under color o f their police authority, on which they made their arrest.

Thus the Government is obliged to justify the arrest by the search 
and at the same time to justify the search by the arrest. This will 
not do. An officer gaining access to private living quarters under 
color o f his office and o f the law which he personifies must then have 
some valid basis in law for the intrusion. Any other rule would un­
dermine “ the right of the people to be secure in their persons, houses, 
papers and effects,” and would obliterate one o f the most funda­
mental distinctions between our form of government, where officers 
are under the law, and the police-state where they are the law.



13

U.S. 1, 4 (1966) and the facts here show that the police 
barged in without a thought to petitioners’ Fourth Amend­
ment right to privacy. Sylvia Dokes testified that, one of 
the officers told her to “ Take us back where you came from” 
(R. 71) and that she did not invite the officers to her apart­
ment (R. 71-72). Officer Terry corroborated Mrs. Dokes’ 
version because he acted as if Mrs. Dokes was in his cus­
tody. He stated that “we stopped them and took them back 
to the apartment” (R. 40) and that Mrs. Dokes raised no 
objection to his entering only after he had identified him­
self as a police officer outside the apartment (R. 41). Of­
ficer Harris said it was “possible” that he stated “We are 
police officers where is the party? . .. Take me to the party” 
to Mrs. Dokes (R. 31). He also testified that after iden­
tifying themselves as police officers they were “invited” 
into the apartment but later clarified what he meant by 
“ invited” :

“Q. And she then invited you in, or at least made 
no objection to your coming in? A. She made no ob­
jection to us coming in when we identified ourselves 
as police officers” (R. 27).

More than forty years ago the Court refused to accept 
this kind of “implied coercion” as waiver of Fourth Amend­
ment rights, Amos v. United States, 255 U.S. 313, 317 
(1924).

This evidence does not meet the state’s burden of show­
ing a voluntary and understanding waiver of constitu­
tional rights. Viewed in the light most favorable to the 
state it shows only ignorant acquiescence in unlawful po­
lice conduct because it is clear that petitioner Sylvia 
Dokes was not told that the officers needed a warrant to 
conduct a search or that the officers had no ground for 
lawful entry absent waiver. While this Court has never



14

had occasion to confront the question squarely, Johnson v. 
United States, 333 U.S. 10, 13 (1948) plainly takes the 
view that in order to be effective, a consent to search or 
seizure must be intentional relinquishment or abandon­
ment of a known right or privilege. Cf. United States v. 
Blalock, 255 F. Supp. 268 (E.D. Pa. 1966). This is the 
concept of waiver ordinarily applicable to fundamental 
guarantees and it has not been suggested the Fourth- 
Fourteenth Amendment rights are exceptions to the rule. 
See Johnson v. Zerhst, 304 U.S. 458, 464 (1938); Von 
Moltke v. Gillies, 332 U.S. 708 (1948); Fay v. Noia, 372 
U.S. 391, 439 (1963); Brookhart v. Janis, 384 U.S. 1, 5 
(1966). It is not enough that the individual acquiesces in 
a method of procedure against which the Constitution gives 
protection; he or she must know of the protection which 
the Constitution gives and intentionally abandon or re­
linquish it. Miranda v. Arizona, 384 U.S. 436 (1966).

Waiver of constitutional rights should not be found ex­
cept on a record in which the state spells out fully and 
convincingly the circumstances claimed to amount to the 
waiver. See Swenson v. Bosler, 35 U.S.L. Week 3320 
(March 13, 1967); Westbrook v. Arizona, 384 U.S. 150 
(1966); Carnley v. Cochran, 369 U.S. 506, 513-517 (1962). 
Petitioners submit that the only evidence of consent ap­
pearing in this record, the inconsistent, incomplete, and 
conclusory testimony of the arresting officers, fails to meet 
the state’s heavy burden of proof, Johnson v. Zerhst, 304 
U.S. 458 (1938) that a constitutional right has been waived.



15

II.

The Standards Under Which a State Meets its Burden 
o f Showing a Waiver o f Fourth-Fourteenth Amend­
ment Rights is a Question ©f Public Importance Which 
Merits the Exercise o f This Court’s Certiorari Juris­
diction,

A number of considerations make the question of waiver 
raised a matter for the Court’s utmost concern.

First, as searches and seizures validated by consent 
may proceed without a warrant or probable cause, or even 
a showing of reasonableness, a finding of consent totally 
precludes the operation of the Fourth Amendment. For 
this reason the courts have long experienced systematic 
abuse of the consent doctrine by unscrupulous police offi­
cers. See e.g. United States v. Arrington, 215 F.2d 630, 
637 (7th Cir. 1954); Lankford v. Schmidt, 240 F. Supp. 
550, 557, 558 (D. Md. 1965) rev’d on other grounds, sub. 
nom. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) 
(series of 300 armed searches sought to be justified by 
consent). The vigor of the Amendment depends on the 
adoption of careful standards governing determination of 
voluntary consent, Ker v. California, 374 U.S. 23, 33 (1963).

Secondly, the court has not decided a case involving the 
voluntariness of consent to search and seizure in twenty 
years and the few prior decisions do not address the 
questions arising in case after case today.4 The Court’s

4 Gouled v. United States, 255 U.S. 298 (1921), where consent was 
procured by misrepresentation, and Johnson v. United States, 333 U.S. 10 
(1948), where entry “ was granted in submission to authority,”  id. at 13, 
have been viewed as extreme eases. United States v. Mitchell, 322 U.S. 
65 (1944), considers only the effect o f the McNabb rule on consent to 
search. McDonald v. United States, 335 U.S. 451 (1948), does not dis­
tinctly address the question o f voluntariness of consent. But see Amos v. 
United States, 255 U.S. 313, 317 (1924).



16

most extended discussion of the consent principle came in 
the “public documents”  cases, Davis v. United States, 328 
U.S. 582 (1946); and Zap v. United States, 328 U.S. 624 
(1946); and notwithstanding the admonition that “ [w]here 
officers seek to inspect public documents at the place of 
business where they are required to be kept, permissible 
limits of persuasion are not so narrow as where private 
papers are sought,” 5 lower courts have relied on Davis 
and Zap in sustaining searches for entirely private items.6

Thirdly, concern with appropriate standards to ap­
praise waiver is reflected in the frequent litigation of the 
validity of consent to a warrantless search in the federal7 
as well as the state8 courts. The critical role played by

5 Davis v. United States, 328 U.S. 582, 593 (1946).
6 See, e.g., Bees v. Peyton, 341 F.2d 859 (4th Cir. 1965), relying on 

Zap.

7 In addition to the eases collected in the following pag'es, see these 
recent federal circuit court decisions, e.g., Massachusetts v. Painten, 368 
F.2d 142 (1st Cir. 1966); Bobbins v. MacKenzie, 364 F.2d 45 (1st Cir. 
1966); United States v. Gorman, 355 F.2d 151 (2d Cir. 1965); Bivers v. 
United States, 321 F.2d 704 (2d Cir. 1963); United States v. Smith, 
308 F.2d 657 (2d Cir. 1962); United States v. Horton, 328 F.2d 132 
(3d Cir. 1964); Beeves v. Warden, 346 F.2d 915 (4th Cir. 1965); Lands- 
down v. United States, 348 F.2d 405 (5th Cir. 1965); Bobinson v. United 
States, 325 F.2d 880 (5th Cir. 1964); Simmons v. Bomar, 349 F.2d 365 
(6th Cir. 1965); United States v. Torres, 354 F.2d 633 (7th Cir. 1966); 
United States v. Hilbrich, 341 F.2d 555 (7th Cir. 1965); Maxwell v. 
Stephens, 348 F.2d 325 (8th Cir. 1965); Chapman v. United States, 
346 F.2d 383 (9th Cir. 1965); Davis v. California, 341 F.2d 982 (9th 
Cir. 1965); Frye v. United States, 315 F.2d 491 (9th Cir. 1963); Seed 
v. Bhay, 323 F.2d 498 (9th Cir. 1963); Mosco v. United States, 301 F.2d 
180 (9th Cir. 1962); Bogers v. United States, 369 F.2d 944 (10th Cir. 
1966); Schultz v. United States, 351 F.2d 287 (10th Cir. 1965); McDonald 
v. United States, 307 F.2d 272 (10th Cir. 1962); Villano v. United States, 
310 F.2d 680 (10th Cir. 1962); Gatlin v. United States, 326 F,2d 666 
(D.C. Cir. 1963).

8 See, e.g., the California cases collected in Note, 51 Calif. L. Rev. 1010 
(1963); State v. Hanna, 150 Conn. 457, 191 A.2d 124 (1963); State v. 
Scrotsky, 39 N.J. 410, 189 A.2d 23 (1963); Commonwealth v. Wright, 
411 Pa. 81, 190 A.2d 709 (1963); Holt v. State, 17 Wis.2d 468, 117 
N.W.2d 626 (1962).



17

waiver determinations is emphasized by recent decisions 
of the Court stressing a defendant’s knowledge of his con­
stitutional rights.9 Yet the absence of clear federal law 
establishing standards for a finding of consent itself en­
ables the “consent search” to undercut the protection af­
forded individuals by the Fourth Amendment. See the 
Appendix to Weinstein, Local Responsibility for Improve­
ment of Search and Seizure Practices, 34 Rocky Mt. L. 
Rev. 150, 176-179 (1962).

Finally, the decisions of lower courts are in conflict.10 
All courts agree, of course, that consent must be “volun­
tary” to be effective but differing results reflect differing 
views on an unarticulated question of law: whether one 
who does not know and is not told that officers cannot make 
a search without a warrant should be held to -waive the 
warrant requirement by acquiescing in a request to search. 
We believe the invasion of privacy shown by this record 
presents an appropriate occasion for the Court to address 
itself to this critical question of federal law7.

9 E.g., Miranda v. Arizona, 384 U.S. 436 (1966).
10 Compare Pelear v. United States, 315 F.2d 319 (5th Cir. 1963), 

with United States v. Ziemer, 291 F.2d 100 (7th Cir. 1961). Compare 
Higgins v. United States, 209 F.2d 819 (D.C. Cir. 1954) with United 
States v. MacLeod, 207 F.2d 853 (7th Cir. 1953). Compare Peed v. 
fihay, 323 F.2d 498 (9th Cir. 1963) with United States v. Evans, 194 
F. Supp. 90 (D.D.C. 1961). Compare United States v. Haas, 106 F. 
Supp. 295, 109 F. Supp. 433 (W.D. Pa. 1952) with United States v. 
Minor, 117 F. Supp. 697 (E.D. Okla. 1953). Compare the inhospitality 
toward a finding of consent by the Court of Appeals for the District of 
Columbia Circuit, e.g., Judd v. United States, 190 F.2d 649, 651-652 
(D.C. Cir. 1951), with the hospitality toward such a finding by the Court 
o f Appeals for the Ninth Circuit, e.g., Martinez v. United States, 333 
F.2d 405, 407 (9th Cir. 1964).



18

III.

Petitioners’ Convictions Are Unsupported by Any 
Evidence in the Record.

Petitioners were convicted pursuant to Arkansas stat­
utes which punish “any person who shall, by any act, cause, 
encourage or contribute to” the delinquency of a child.11 
The delinquent child is defined by Ark. Stats. Ann. §§45-204 
as a person under eighteen years of age who:

(1) violates a law of this State;

(2) is incorrigible;

(3) knowingly associates with thieves;
(4) knowingly associates with vicious or immoral 

persons;

(5) without cause or parental consent absents him­
self from his home;

(6) is growing up in idleness or crime;

(7) knowingly frequents a house of ill-repute;

(8) knowingly frequents any policy shop;

(9) knowingly frequents any place where any gam­
ing device is operated;

(10) patronizes, visits or frequents any saloon or 
dram shop were intoxicating liquors are sold;

(11) patronizes or visits any public pool room where 
the game of pool or billiards is carried on for 
pay or hire;

(12) wanders about the streets in the nighttime with­
out being on any lawful business or occupation;

11 See supra, pp. 3, 4.



19

(13) habitually wanders about any railroad yards or 
tracks;

(14) jumps or attempts to jump on any moving* train;
(15) enters any car or engine without lawful author­

ity;
(16) smokes cigarettes about any public place or 

schoolhouse.
(17) is guilty of indecent, immoral or lascivious con­

duct.

There are thus three elements of a contributory delin­
quency charge: (1) an act by an adult, (2) whose effect is 
to cause, encourage or contribute to (3) any of the kinds 
of behavior which render a child under eighteen a delin­
quent.

Although the state apparently proceeded on the theory 
that petitioners contributed to the violation of Ark. Stats. 
Ann. §48-903.1, supra, p. 4 (1964) a “ state law” incor­
porated into the delinquency statutes by §§45-204 (1964), 
the trial judge, over objection, charged the jury with all 
17 kinds of delinquent behavior (R. 74, 75). Thus, we con­
sider whether there was evidence of guilt under any of the 
17 definitions.

Only clauses (1), (4), (5) and (17) are conceivably ap­
plicable to the factual setting of this case. If, therefore, 
the State failed to introduce any evidence that the peti­
tioners acted in a manner so as to cause, encourage or 
contribute to the performance of the acts enumerated in 
those clauses by a person under eighteen years of age, 
their convictions must be reversed, Thompson v. Louisville, 
362'U.S. 199 (1960).

There is no evidence that petitioners caused, encouraged 
or contributed to persons under eighteen behaving in an



2 0

“ indecent, immoral or lascivious” manner under clause 
(17). There is certainly no suggestion in this record that 
any of the occupants of petitioners’ apartment were be­
having indecently or lasciviously. To the contrary, the po­
lice officers testified that no one was rowdy or loud or 
cursed or used obscene language.

There is no evidence in the record that petitioners 
caused, encouraged or contributed to the absence from 
their homes of any persons under eighteen years of age, 
without the consent of their parents under clause (5). The 
question of parental consent to be away from homes is 
never raised by any of the testimony.

There is no evidence that petitioners caused, encouraged 
or contributed to the association of persons under the age 
of eighteen with “vicious or immoral persons” under 
clause (4). None of the guests were so characterized. 
Petitioners were responsible tenants of the Little Rock 
Housing Authority and the record shows that petitioner 
John Dokes and the other adults present were regularly 
and legitimately employed.

Finally, petitioners submit that there is no evidence in 
the record that they caused, encouraged or contributed to 
violation of state law by a person under eighteen years of 
age under clause (1). Although petitioners have never 
been informed of the specific law in question and a written 
charge has never been filed by the state, the theory upon 
which the state apparently proceeded was that petitioners 
were criminally responsible for a violation of Arkansas 
liquor laws allegedly committed by persons under eighteen 
who were uninvited guests in their apartment and to whom 
they did not give alcohol. Ark. Stats. Ann. §48-903.1, 
supra, p. 4, makes it a misdemeanor for any person un­



2 1

der 21 to possess intoxicating liquor, wine or beer.12 How­
ever, the evidence fails to reveal that the Hokes’ 
caused, encouraged or contributed to the possession of 
liquor, wine, or beer by any one under 18 (the age ceiling 
of the delinquency statute). There is, simply, evidence 
that there were beer cans and a few mixed drinks in peti­
tioners’ apartment on the night in question. The officers 
testified that while questioning some of the minors they 
noticed the odor of alcohol on their breaths, but only one 
of these minors was identified as being under eighteen 
years of age as required by the delinquency statute (Com­
pare E. 50 with E. 53) and the officers did not see the 
Hokes’ or anyone else give a minor a drink.13 Most signifi­
cantly, petitioners’ testimony that both the beer and liquor 
were brought to the apartment by adult guests, and that 
they, petitioners, gave no alcoholic beverage to any minor, 
was not contradicted or rebutted. Indeed, it was corrobo­
rated by a member of Hokes’ singing group (E. 82).

There is no evidence that petitioners caused, encouraged 
or contributed to the unlawful possession of alcoholic bev­
erages within their apartment; merely testimony that an ad­
mittedly uninvited guest under eighteen had an odor of al­
cohol on her breath. This was the trial court’s view of 
the case. Although the jury was charged that the State 
had the burden of proving petitioner’s guilt beyond a rea­
sonable doubt (E. 76), the court denied a motion to direct 
a verdict in favor of petitioners and stated: “I think they

12 It should be noted that §48-903.1 also makes purchasing alcoholic 
beverages for a minor a misdemeanor but this offense could not con­
ceivably be the basis o f petitioners’ conviction. They were charged 
with contributing to the violation o f a state law by a minor and the pur­
chasing offense cannot be committed by a minor.

13 There is likewise testimony that a minor possessed an aleoholic 
beverage but not that a person under eighteen (as required by the delin­
quency statute) performed this act.



2 2

have to make some explanation for the party, being it took 
place in their apartment. They were responsible for it.” 
And the court directed a verdict of acquittal in favor of 
two adult co-defendants because the party did not take 
place in their home (R. 57). Petitioners may not be found 
criminally responsible, however, for causing, encouraging 
or contributing to delinquency solely because the “delin­
quency” took place in their home.

This case is controlled by the reasoning of Schware v. 
Board of Bar Examiners, 353 U.S. 232 (1957), a case relied 
upon to support the holding in Thompson v. Louisville, 
supra. See 362 U.S. 206 n. 13 (1960). At issue was a find­
ing that petitioner did not have a good moral character. 
Although he introduced uncontradicted evidence of good 
character, the Bar Examiners relied upon the facts that 
(1) petitioner had in the past used aliases, (2) he had been 
arrested on at least two occasions, but never tried or con­
victed, (3) he had at one time been a member of the Com­
munist Party, to support its finding that Schware lacked 
the requisite character to become a member of the New 
Mexico bar. Mr. Justice Black, for the court, found that 
there was “no evidence in the record which rationally jus­
tifies a finding that Schware was morally unfit to practice 
law” (353 U.S. at 246-47). In a concurring opinion, Mr. 
Justice Frankfurter expanded upon the majority’s rationale 
(353 U.S. at 251):

This brings me to the inference that the [New Mexico] 
court drew . . .  To hold as the court did . . . is so 
dogmatic an inference as to be wholly unwarranted.
. . . But facts of history that we would be arbitrary in 
rejecting bar the presumption, let alone an irrebuttable 
presumption, that response to foolish, baseless hopes 
regarding the betterment of society made those who 
had entertained them but who later undoubtedly came



23

to their senses and their sense of responsibility “ques­
tionable characters.” Since the Supreme Court of 
New Mexico as a matter of law took a contrary view 
of such a situation in denying petitioner’s application, 
it denied him due process of law.

Here as in Schware, the “inference” is “unwarranted” . 
Because of a smell of alcohol on the breath of one person 
under eighteen in their apartment petitioners did not cause, 
encourage or contribute to the minor’s possession of alco­
hol, a violation of state law which amounts under this 
statute to juvenile delinquency.

IV.

Petitioners Were Convicted Under a Contributory 
Delinquency Statute So Sweeping and Vague as to Deny 
Them Due Process of Law Guaranteed by the Four­
teenth Amendment.

Petitioners’ conduct was criminal nnder the following- 
standard of §45-239 Ark. Stats Ann.:

Any person who shall, by any act, cause, encourage or 
contribute to the dependency or delinquency of a child 
as these terms with reference to children are defined 
by this act or who shall for any cause, be responsible 
therefor . . . (italics supplied).

The italicized terms denominate the degree of influence 
upon the conduct of a child under eighteen which an adult 
must exert in order to be guilty of contributory delin­
quency. The definition of delinquency incorporated in the 
statute refers to 17 forms of delinquency enumerated in 
§45-204, supra, p. 3, which define a delinquent child as one 
who is, inter alia, “growing up in idleness” , who “ smokes



24

cigarettes about any public place or about any school- 
house” , who “associates with vicious or immoral persons” , 
who is “guilty of . . . immoral . . . conduct” or who “violates 
a law of this State” .

The Supreme Court of Arkansas, in response to peti­
tioners’ claim that the record revealed no evidence of 
guilt, construed §45-239 expansively, holding that “it is 
only necessary for the state to prove a condition or cir­
cumstances existing that would tend to cause, encourage 
or contribute to the delinquency of a child” infra, p. 4a. 
In short, the indicia of delinquency incorporated in the 
contributory delinquency statute need not be shown to 
have actually occurred; merely conditions or circum­
stances tending to establish them are necessary. At the 
same time the Supreme Court of Arkansas did not define, 
but merely reasserted, the statutory words “cause, en­
courage or contribute to.”

Such statutes have potential for grave conflict with fed­
eral freedoms. This is because the First Amendment 
protects freedom of association, and the heart of any 
contributory-delinquency statute is regulation of the as­
sociation of adults and children. These statutes do not 
punish simply aiding-and-abetting criminal conduct by a 
child; they punish the sort of relationship between the 
adult and the child which is likely, in the State’s view, to 
have ill effects on the child. Arkansas’ focus on the 
maintenance of a “ condition” or “circumstances” high­
lights the problem. The “ condition” and “circumstances” 
spoken of here are incidents of an associative relationship. 
When the State seeks to regulate those incidents, and to 
prescribe the conditions and circumstances under which 
individuals will be permitted to associate, it touches very 
close to the core of the First Amendment. Here, the strict 
standards of permissible statutory vagueness apply.



25

NAACP v. Button, 371 IT.S. 415, 432 (1963); Ashton v. 
Kentucky, 384 IT.S. 195 (1966); DombrowsU v. Pfister, 
380 U.S. 479 (1965).

Because the Arkansas statutes are in many respects 
typical this case presents an appropriate occasion for 
consideration of whether catchall delinquency statutes are 
sufficiently certain to withstand the close scrutiny required 
by the Constitution, even though §§45-204, 239 themselves 
have been amended.14 Compare Spencer v. Texas, 385 TJ.S. 
554, 556, Note 2 (1967).

14 The statutes now read as follow s:
§45-239. Persons contributing to delinquency. Any person who shall 

cause, aid, or encourage any person under eighteen (18) years of age to 
do or perform any act which if done or performed would make such 
person under eighteen (18) years of age a “ delinquent child” as that 
term is defined herein, shall be guilty of a misdemeanor. Provided that 
when any person is charged by indictment or information with a viola­
tion of this Act, such indictment or information shall state the specific 
act with which the defendant is charged to have committed in violation 
of this Act. Any person convicted of a violation of this section shall be 
punished by imprisonment for not less than sixty (60) days nor more 
than one (1) year, and by a fine of not less than one hundred dollars 
($100.00) nor more than five hundred dollars ($500.00). Provided, the 
court may suspend or postpone enforcement of all or any part of the 
sentence or fine levied under this section if in the judgment of the court 
such suspension or postponement is in the best interest o f any dependent, 
neglected or delinquent child as these terms are defined in this act.

§45-204. Delinquent child. The term “ delinquent child”  shall mean and 
include any person under eighteen (18) years of age:

(a) Who does any act which, if done by a person eighteen (18) years 
o f age or older, would render such person subject to prosecution for a 
felony or a misdemeanor;

(b) Who has deserted his or her home without good or sufficient cause 
or who habitually absents himself or herself from his or her home without 
the consent o f his or her parent, step-parent, foster parent, guardian, or 
other lawful custodian;

(c) Who, being required by law to attend school, habitually absents 
himself or herself therefrom; or

(d) Who is habitually disobedient to the reasonable and lawful com­
mands of his or her parent, step-parent, foster parent, guardian or other 
lawful custodian.

Any reputable person may initiate proceedings against a person under 
eighteen (18) years of age under this Act by filing a petition therefor



2 6

These laws “condemn” an “extraordinarily wide range 
of adult behavior . . . ” Geis, Contributing to Delinquency, 
8 St. Louis U.L.J. 59, 75 (1963) and they have been 
sharply criticized.15 16 The delinquency statutes under which 
petitioners were convicted are representative of state 
criminal legislation in this area and the constitutional de­
fects from which they suffer are common to nearly all 
state laws on this subject. All fifty states and the District 
of Columbia have created the crime of contributory de­
linquency, the statutes typically include “any person” or 
“any other person” whom the court finds has contributed 
to the delinquency of a child, no matter how slight the 
contact between adult and minor. Nearly all States pro­
hibit acts which “ encourage or contribute to delinquency,” 
adding, variously, “aid,” “tend to cause,” “ cause,” “pro­
mote,” “produce,” etc.16 Thus, for example, the Colorado 
law provides:

with the juvenile court. All such proceedings shall be on behalf of the 
State and in the interest o f the child and the State and due regard shall 
be given to the rights and duties of parents and others, and any person 
so proceeded against shall be dealt with, protected or cared for by the 
county court as a ward o f the State in the manner hereinafter provided.

15 See Geis, ibid;  Ludwig, Delinquent Parents and the Criminal Law, 
5 Vand. L. Rev. 719 (1952); cf. Ludwig, Youth & the Law (1955); 
Gladstone, The Legal Responsibility of Parents for Juvenile Delinquency 
in New York, 21 Brooklyn L. Rev. 172, 180 (1955); Rubin, Are Parents 
Responsible for Juvenile Delinquencyf in Crime & Delinquency 35 (2d 
ed. 1961) ; Rubin, Should Parents Be Held Responsible for Juvenile 
Delinquency?, 34 Focus 35 (March 1955). The Standard Juvenile Court 
Act specifically omits any law of contributory delinquency, 5 N.P.P.A.J. 
323, 346 (1959); the Model Penal Code reserves its sanctions for parents 
alone, and then only for gross breaches of responsibility. Model Penal 
Code §230.4, p. 192 (P.O.D. 1962) commentary to §207-13, p. 183 (Tent, 
draft No. 9, 1959).

16 Ala. Code Ann. Tit. 13 §366 (Recomp. 1958); Alaska Stat. Ann. 
§11.40.130 (1962); Ariz. Rev. Stat. Ann. §13-822 (1956); Cal. Penal 
Code (West) §272 (Supp. 1966); Colo. Rev. Stat. §22-7-1 (1963); Conn. 
Gen. Stat. Ann. §53-254 (1958); D.C. Code Enc. §16-2314(b) (1966); 
Fla. Stat. Ann. §828.21 (1965); Ga. Code Ann. §§24-9904, 26-6802



27

Any person who shall encourage, cause or contrib­
ute to the dependency, neglect, or delinquency of a 
child or shall do any act to directly produce, promote 
or contribute to the conditions which render such a 
child a dependent, neglected or delinquent child. . . ,17

Although a very few contributory delinquency statutes 
are self-contained, and include a listing of the qualities 
which render a child delinquent (and thus subject an adult 
to punishment),18 the vast majority of statutes make im­
plicit or explicit reference to other state laws to provide 
the definition of “delinquent child” or “delinquency.” 
Parallels exist between the statutes under which peti-

(Repl. 1959); Hawaii Rev. Laws §330-6 (1955); Idaho Code §16-1817 
(Supp. 1965); 111. Stat. Ann. (Smith-Hurd) ch. 23 §2361a (Supp. 1966); 
Ind. Stat. Ann. (Bums) §9-2804 (Repl. 1956); Iowa Code Ann. §233.1 
(1949); Kan. Stat. Ann. §38-S30(a) (1964); Ky. Rev. Stat. §208.020 
(3) (a) (1958); La. Rev. Stat. Ann. (West) Tit. 14 §92.1(A) (Supp. 
1966); Me. Rev. Stat. Ann. Tit. 17 §859 (1964); Md. Code Ann. Art. 
26 §§53(c), 7 6 (f), 79 (Repl. 1966); Mass. Ann. Laws ch. 119 §63 (Supp. 
1965); Mich. Stat. Ann. §28.340 (Repl. 1962); Minn. Stat. Ann. §260.315 
(Supp. 1966); Mo. Stat. Ann. §559.360 (Supp. 1966); Mont. Rev. Codes 
Ann. §10-617 (Supp. 1965); Neb. Rev. Stat, §28-477 (Supp. 1965); 
Nev. Rev. Stat. §201.110 (1965); N.H. Rev. Stat. Ann. ch. 169 §32 
(Supp. 1965); N.J. Stat. Ann. §2A:96-4 (1953); N.M. Stat. Ann. 
§40A-6-3 (Repl. 1964); N.Y. Penal Law §494; N.C. Gen. Stat. Ann. 
§110-39 (Repl. 1966); N.D. Century Code Ann. §14-10-06 (Repl. 1960); 
Ohio Rev. Code Ann. §2151.41 (1953); Okla. Stat. Ann. Tit. 21 §856 
(1958); Ore. Rev. Stat. §167.210 (Repl. 1965); R.I. Gen. Laws §11-9-4 
(1956); S.C. Code Ann. §16-555.1 (1962); S.D. Code §43.0409 (1939); 
Tenn. Code Ann. §37-270 (Supp. 1966); Tex. Penal Code (Vernon) 
Art. 534a (Supp. 1966); Utah Code Ann. §55-10-80(1) (Supp. 1965); 
Vt. Stat. Ann. Tit. 13 §1301 (1958); Va. Code Ann, §18.1-14 (Repl. 
1960); Wash. Rev. Code Ann. §13.04.170 (1962); W. Va. Code Ann. 
§49-7-7 (1966); Wis. Stat. Ann. §48.45(4) (a) (1957); WTyo. Stat. §§14-7, 
14-23(a) (Repl. 1965).

17 Colo. Rev. Stat. §22-7-1 (1963).
l s E.g., Iowa Code Ann. §233.1 (1949); La. Rev. Stat. Ann. (West) 

Tit. 14 §92.1 (Supp. 1966); Mont. Rev. Codes Ann. §10-617 (Supp. 
1965); S.C. Code Ann. §16-555.1 (1962); Vt. Stat. Ann. Tit. 13 §1301 
(1958).



2 8

tioners were convicted and many other state definitional 
statutes.19 Especially prominent are the recurrent pro­
hibitions against association with “vicious or immoral per­
sons,” or “growing up in idleness or crime.” 20 21

Although not all legislatures have defined delinquency in 
such broad terms,31 most contributory delinquency laws 
share the vice of unclear denomination of the acts which 
are sought to be proscribed. Consistent with the view of 
the Arkansas Supreme Court most state laws do not re­
quire a minor to have been made a delinquent in order for 
an adult to have contributed to his delinquency.22 Such 
terms are employed as “ tends to cause,” Nev. Eev. Stat. 
§201.110 (1965); “encourages,” Minn. Stat. Anno. §260.27 
(1959); “contribute to the conditions,” Colo. Eev. Stat. 
§22-7-1 (1963); and “responsible for . . . conditions which

19 See, e.g., Alaska Stat. Ann. §11.40.150 (1962); Fla. Stat. Ann. 
§39.01(11) (1961); Ind. Stat. Ann. (Burns) §9-2803 (Eepl. 1956); Md. 
Code Ann. Art. 26 §§52(e), 78(b) (Eepl. 1966); Mont. Eev. Codes Ann. 
§10-617 (Supp. 1965); Okla. Stat. Ann. Tit. 21 §857 (1958); S.C. Code 
Ann. §16-555.1 (1962); S.D. Code §43.0301 (1939); Tenn. Code Ann. 
§37-242 (Supp. 1966).

20 Ibid.

21 Examples o f narrower definition include Del. Code Ann. Tit. 10 
§§901, 1101 (1953); 111. Stat. Ann. (Smith-Hurd) eh. 23 §2360(a) (Supp. 
1966); Mass. Ann. Laws eh. 119 §52 (Supp. 1965); Neb. Eev. Stat. 
§43-201 (Supp. 1965); Wash Eev. Code Ann. §1304.010 (1962).

22 E.g., Smithson v. State, 34 Ala. App. 343, 39 So.2d 678 (1950); 
Anderson v. State, Sup. Ct. Op. #156 (File 271); 384 P.2d 669 (Alaska 
1963); Ariz. Eev. Stat, §13-823 (1956), see State v. Locks, 94 Ariz. 134, 
382 P.2d 241 (1963); People v. Calkins, 48 Cal. App. 2d 33, 119 P.2d 142 
(1941); Del. Code Ann. Tit, 11 §431 (a) (3) (Supp. 1964); State v. 
Drury, 25 Idaho 787, 139 Pac. 1129 (1914); La. Eev. Stat. Ann. (West) 
Tit. 14 §92.1 (A ) (Supp. 1966); Me. Eev. Stat. Ann. Tit. 17 §860 (1964); 
Mich. Stat. Ann. §28.340 (Eepl. 1962); State v. Johnson, 145 S.W.2d 
468 (Mo. App. 1940); People v. Dritz, 259 App. Div. 210, 18 N.Y.S.2d 
455 (1940); State v. Griffin, 93 Ohio App. 299, 106 N.E.2d 668 (1952); 
TV allin v. State, 84 Okla. Cr. 194, 182 P.2d 788 (1947); Commonwealth 
v. Jordon, 136 Pa, Super. 242, 7 A.2d 523 (1939); S.D. Code §43.0409 
(1939); Lavvorn v. State, 389 S.W.2d 252 (Tenn. 1965); W. Va. Code 
Ann. §49-7-8 (1966); Wis. Stat. Ann. §48.45(5) (1957).



2 9

may cause,” Conn. Gen. Stat. Anno. §53-254 (1960). Fur­
thermore, under many state laws, including Ark. Stat, 
Ann. §45-239, a defendant may be convicted without having 
intended to affect the juvenile in any way.23

The Arkansas statutes do not as written, or as supple­
mented by the interpretations of the Supreme Court of 
Arkansas, provide an ascertainable standard of crim­
inality or guilt. The definition of the actions which may 
be punished is so broad that it is effectively relegated 
to the police, and ultimately to the courts, for ad hoc de­
termination after the fact in every case. As the facts of 
this case clearly demonstrate this vague statute is subject 
to “ sweeping* and improper application,” NAACP v. But­
ton, 371 U.S. 415, 433 (1963) by the police to harass the in­
nocent participants in an orderly, but unpopular, inter­
racial social gathering.24 Where, as here, a constitutional

23 While some statutes include modifiers such as “knowingly or wil­
fully,”  N.H. Rev. Stat. Ann. eh. 169 §32 (Supp. 1965), others, e.g'., Me. 
Rev. Stat. Ann. Tit. 17 §859 (1964) do not. In some instances, the re­
quirement o f scienter has been very specifically read out of the statute. 
See Anderson v. State, Sup. Ct. Op. #156 (File 271), 384 P.2d 669 
(Alaska 1963). It must be emphasized that juvenile and contributory 
delinquency are not common law crimes presumed to attain a certain 
specificity, but entirely the product o f statute. Of. Champlin Ref. Co. v. 
Corporation Comm’n, 286 U.S. 210, 242-43 (1942).

24 These statutes permit arbitrary disposition o f adults who are in­
volved along with young people in unpopular social movements. Juveniles, 
for example, have comprised a large proportion o f those who in the past 
decade have peacefully demonstrated for their civil rights and have been 
unlawfully arrested for asserting constitutionally protected rights. The 
treatment accorded these minor Negroes demonstrates the capacity to 
punish for reasons totally unrelated to individual welfare of the child. 
In one of the few studies of the subject, the United States Civil Rights 
Commission concluded that “  . . . local authorities used the broad defini­
tion afforded them by the absence o f safeguards [in juvenile proceedings] 
to impose excessively harsh treatment on juveniles.”  U. S. Comm’n on 
Civil Rights Report, Law Enforcement, 1965, pp. 80-83.

The place the Commission studied was Americus, Georgia where:
“Approximately 125 juveniles were arrested during the Americus 

demonstrations, and their cases disposed of in a unique manner. Some



3 0

right to privacy is involved, the principle that penal laws 
may not be vague must, if anything, be enforced even more 
stringently. Griswold v. Connecticut, 381 U.S. 479 (1965).

The court below held that “it is only necessary for the 
state to prove a condition or circumstance existing that 
would tend to cause, encourage or contribute to the delin­
quency of a child.” Thus the words “cause, encourage or 
contribute to” found in the statute are left unrestricted. 
The chance that “the ordinary person can intelligently

o f them were released from jail upon payment o f a jail fee o f $23.50, 
pins $2 per day for food. These fees were paid by parents who 
agreed to send their children to relatives living in the country. No 
court hearing was held in these cases; o f those juveniles who ap­
peared in court (approximately 75% o f those arrested) about 50 
were sentenced to the State Juvenile Detention Home and placed 
on probation on the condition that they would not associate with 
certain leaders of civil rights organizations in Americus.

“ Many juveniles arrested in Americus were detained for long 
periods o f time without bail or hearing. The juvenile court judge 
explained the reason for this in Federal court: ‘I f  one is bad enough 
to keep locked up, they’re not entitled to bail; and if they’re not 
bad enough, there’s no use to make them make bond’.”  Id. at pp. 
81-82.

See also Meltsner, “ Southern Appellate Courts: A  Dead End” in Fried­
man (ed.), Southern Justice 152 (1965).

Although the reported decisions are few, petitions to adjudge minors 
delinquent because of peaceful and lawful civil rights activity has been 
a common response in southern states. Ten minor Negroes were arrested 
in Montgomery, Alabama on April 15, 1965, as they were peacefully 
picketing a store in downtown Montgomery and objecting to its discrim­
inatory hiring practices. They were prosecuted under an ordinance which 
stated that “not more than six persons shall demonstrate at any one time 
before the same place o f business or public facility.”  Although their 
conduct was orderly in every respect attempts were made to declare the 
children delinquents. A  federal district judge found that they were 
merely exercising a constitutionally protected right o f free speech and 
assembly and dismissed the charges. In re Wright, 251 F. Supp. 880 
(M.D. Ala. 1965). See also Florence v. Meyers, 9 Race Rel. L. R. 44 
(M.D. Fla. 1964) (order to arrest juveniles on sight unlawful; injunc­
tion granted); Griffin v. Hay, 10 Race. Rel. L. Re. I l l  (E.D. Va. 1965) 
(order that juveniles refrain from protected activity unlawful; injunction 
granted). See generally Starrs, A  Sense o f Irony in Juvenile Courts, 
1 Harv. Civil Rights— Civil Liberties L. Rev. 129 (1966).



31

choose, in advance, what course it is lawful for him to 
pursue,” Connolly v. General Const. Co., 269 TT.S. 385, 
391 (1926), without running afoul of this law, is reduced 
to the vanishing point by reference to encouraging “a 
condition or circumstance” and to the entire corpus of 
state law in defining delinquency. And the numerous, 
open-ended, definitions of delinquency found in §45-204 
are conducive to “harsh and discriminatory enforcement 
. . . against particular groups,” Thornhill v. Alabama, 310 
U.S. 88, 97-98 (1941), for they make the boundary be­
tween lawful and unlawful conduct as vague and indefinite 
as possible.

This statute shares the typical vagueness of contribu­
tory delinquency statutes illustrated vividly by the com­
ment of an Ohio judge that “you could convict a drunk 
for staggering out of a saloon so that a passing child 
could see his condition and go imitate him,” State v. Crary, 
10 Ohio Op. 2d 36, 38, 155 N.E. 2d 262, 264 (1959). As 
the Report of the President’s Commission on Law En­
forcement and Administration of Justice emphasizes, this 
antiquated, standardless approach to the growing problem 
of delinquency is misguided and may in fact harm the 
very interests of the juvenile sought to be protected.26

85 The Challenge of Crime in a Free Society (1967) pp. 78-88.



3 2

CONCLUSION

W herefore , p e tition ers  p ra y  th at the p e tit ion  f o r  w r it  
o f  ce r t io ra r i be gran ted  and the ju d gm en t below reversed .

Respectfully submitted,

J ack  G reenberg

J am es  M. N abrit , III
M ic h ael  M eltsn er

10 Columbus Circle 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

J o h n  W . W alk er

1304-B Wright Avenue 
Little Rock, Arkansas

D elector T iller

2305 Ringo Street 
Little Rock, Arkansas

Attorneys for Petitioners



A P P E N D I X



la

APPENDIX

Opinion o f Supreme Court o f Arkansas

No. 5224

Opinion Delivered

A ppeal  F rom  P u lask i C ircu it  C ourt 

F irst  D ivision  

A eeirmed

J o h n  H en ry  D okes and  S ylvia  D okes,

Appellants,
— v . —

S tate of A rk an sas ,
Appellee.

H u g h  M. B lan d , Justice

H u g h  M. B lan d , J. The appellants are husband and 
wife and live in an apartment at 287 Granite Mountain 
Circle in the Booker Home Project.

On the night of January 30, 1965 at about 11 o’clock 
p.m., Officer Jim Harris of the Little Rock Police Depart­
ment, who was also employed as night watchman for the 
Little Rock Housing Authority, observed an unusual amount 
of traffic entering the Booker Home Project. Several of 
these automobiles first went to the liquor store across the 
street and the occupants made purchases. At his request, 
Officers Parsley and Terry came to the Project. As the 
three officers approached the apartment where all the cars 
had congregated, two men and a lady came from the apart­
ment. The officers identified themselves and Sylvia Dokes, 
one of these persons, invited them to the apartment. Upon



2a

entering the apartment, the officers observed several people 
in the living room, kitchen and storage room. In all three 
of these areas there were beer cans and mixed drinks. 
There were twenty-two people in the apartment, some 
were adults, some were minors, the youngest being a girl 
aged fourteen. Officer Parsley testified that this minor, 
aged fourteen, had the smell of liquor on her breath; Janet 
Kirspel, aged nineteen, had a mixed drink in her hand 
which was later claimed by Sylvia Dokes as her drink. 
Other adults in the party admitted to the officers that 
they had been drinking. The officers did not have a search 
warrant and did not have a warrant of arrest.

All twenty-two persons were taken to the Police Station 
and the adults were charged with Contributory Delin­
quency and the minors with possession of intoxicating bev­
erages.

Appellants, after pleading not guilty to the charges 
against them, were tried in the Municipal Court of Little 
Eock on May 4, 1965, found guilty and fined $25.00 plus 
$10.50 costs each. An appeal was perfected by appellants 
to the Circuit Court of Pulaski County where they filed a 
motion to dismiss the information and to suppress the evi­
dence. These motions were overruled by the Circuit Court. 
Trial was held on April 8, 1966 before a jury; both de­
fendants were found guilty and a fine fixed at $200.00 each. 
Appellants filed a motion for new trial which was over­
ruled and an appeal was perfected to this court.

An examination of the motion for new trial and the 
points relied upon for reversal reveals only two points that 
can be considered by this court: (1) The search was un­
reasonable and in violation of the Constitution of Arkansas, 
Art. 2, §15, and in violation of the Fourth and Fourteenth 
Amendments to the Constitution of the United States, 
(2) the State failed to prove the necessary facts to sustain 
the conviction for contributory delinquency.



3 a

The defendants did not challenge or put in issue the suf­
ficiency of the evidence.

Was the appellants’ constitutional protection against un­
reasonable search violated by the officers! The officers, 
after identifying themselves as officers, were invited into 
the apartment by Sylvia Dokes, one of the appellants 
herein. No demand was ever made by her on the officers 
for a search warrant but the evidence clearly disclosed 
that she waived the right to a search warrant. Williams 
v. State, 237 Ark. 569, 375 S.W. 2d 375 (1964), quotes from 
79 C.J.S. Searches and Seizures §62, p. 816 et seq. which 
contains a discussion of waiver and consent and the hold­
ings from the various jurisdictions, including the United 
States Supreme Court, are summarized as follows:

“ The constitutional immunity from unreasonable 
searches and seizures may be waived, as by a volun­
tary invitation or consent to a search or seizure. Thus 
individuals may waive their immunity to illegal 
searches of their persons, possessions, or dwelling 
houses, as well as to the illegal search of their prem­
ises, places of business, and searches and seizures of 
books, papers, or records. Hence, one who has thus 
consented to a search cannot thereafter complain of 
irregularities in the search warrant, or question its 
sufficiency or the manner of its issuance, since an in­
vitation or consent to the search dispenses with the 
necessity of a search warrant altogether.” [Also see 
47 Am. Jur., Searches and Seizures, p. 548, §71.]

We see no merit in appellants’ contention that there 
was an unlawful search.

As to appellants’ second contention, the State proved 
there was a congregation of adults and minors in appel­
lants’ apartment where intoxicating liquor was being



4a

served. The statute on contributory delinquency, Ark. 
Stat. Ann. §45-239 (Eepl. 1964) provides that:

“Any person who shall, by any act, cause, encourage or 
contribute to the dependency or delinquency of a 
child * * * or who shall, for any cause, be responsible 
therefor, shall be guilty of a misdemeanor * *

Appellants contend that it was necessary for the State 
to prove that the minors in question were, in fact, delin­
quents before appellants could be found guilty of con­
tributing to their delinquency. In Williams v. City of 
Malvern, 222 Ark. 432, 261 S.W.2d 6, we held that a per­
son may be found guilty of contributing to the delinquency 
of a minor, under our statute, by acts which directly tend 
to cause delinquency, whether that condition actually re­
sults or not. This follows the majority view as it was 
said in 4 Arkansas Law Review, p. 478:

“ * * * The essence of the majority view is that requir­
ing the child to have been a delinquent at the time the 
acts were committed or to be one as a consequence 
thereof would not be consonant with the beneficent 
purpose of the legislature, viz., to stamp out juvenile 
delinquency at its roots.”

We are committed to the rule that it is only necessary 
for the State to prove a condition or circumstances exist­
ing that would tend to cause, encourage or contribute to 
the delinquency of a child. The State met that burden and 
the conviction is well supported by the evidence.

All of the other points for reversal were not brought 
into the motion for a new trial and cannot be considered 
for the first time on appeal to this Court. Watkins v. 
State, 222 Ark. 444, 261 S.W.2d 274; Hardin v. State, 225 
Ark. 602, 284 S.W.2d 111.

Finding no error, the judgment of conviction is affirmed.



5a

Denial of Petition for Rehearing

I n  T h e  S u prem e  C ourt op A rkansas 

O ctober T erm  1966 

P roceedings op J an u ary  30, 1967

J o h n  H en r y  P okes, et al.,
Appellants,

— v .—

(Pul. 1st Div., William J. Kirby, J.)
S tate op A rk an sas ,

Appellee.-,

Petition for rehearing is denied.



MEILEN PRESS INC. — N. Y. C. 219