IN RE: FRANK O. (1988)

Frank O. was adjudicated a minor coming within section 602 of the Welfare and Institutions Code in that he violated Penal Code section 466, possession of burglary tools, and the Long Beach curfew ordinance.   The adjudication followed denial of the minor's motion to suppress evidence of possession of the burglar tools as the fruit of an illegal arrest.

We find the Long Beach curfew ordinance void for vagueness.   We further find no matter how that ordinance is construed, the police lacked probable cause to arrest Frank O. and the suppression motion should have been granted.   Therefore, we reverse the juvenile court's order.

FACTS

The evidence at the hearing on the suppression motion was as follows.   At 2:30 a.m. on a Saturday, Long Beach police officers were patrolling in their vehicle when they saw Frank O. standing at the intersection of 52nd and Orange.   The officers had been patrolling the neighborhood for four hours before they saw Frank O.   They had passed through the intersection of 52nd and Orange eight to ten times that night including a pass as recent as fifteen minutes before they saw appellant at the intersection.

The arresting officer testified when he first saw Frank O., appellant was standing at the intersection.   There is a signal light, but the officer could not recall whether the light was red or green in the direction Frank O. was facing.   The officer observed Frank O. appeared 14 or 15 years of age and that he was alone on a public street at 2:30 in the morning.

The officer “immediately” pulled his car to the curb and asked Frank O. to come.   He complied.

The officer asked appellant his name, age, where he was from, and what he was doing.   Appellant responded his name was Frank O_, he was 17 years old, he was from South Gate and “he was doing nothing, just walking through.”   The officer testified on the basis of that response he “determined [Frank O.] was a minor and he didn't have any legal guardian there․   We didn't know ․ why he was out in the morning.   We took him into custody per the Long Beach curfew law.”

At the police station, the arresting officer inventoried Frank O.'s property and discovered the brown vinyl bag he was carrying contained bolt cutters, vice grips, a lug wrench, a screwdriver and a pry tool.   These items were admitted into evidence after the court denied a motion to suppress.

DISCUSSION

I. THE LONG BEACH CURFEW ORDINANCE IS VOID FOR VAGUENESS BECAUSE IT DOES NOT GIVE A MINOR NOTICE OF WHAT CONDUCT IS PROHIBITED AND IT DOES NOT CONTAIN ANY STANDARDS FOR POLICE ENFORCEMENT.

 The Long Beach curfew ordinance provides:  “No person under the age of eighteen years shall loiter about any public place, as defined in Section 9.02.090, between the hours of ten p.m. and the time of sunrise of the following day when not accompanied by his parent or legal guardian having legal custody and control of such person, or spouse of such person over twenty-one years of age.”  (Ord. C–5938 § 1, (1983).)

There are three possible interpretations of the Long Beach ordinance.   The first would prohibit the mere presence of a minor in any public place between 10 p.m. and sunrise unless accompanied by a parent, guardian or spouse over the age of 21 years.   The second would prohibit innocent, aimless lingering about unless with an adult idler of the requisite relationship.   The third would prohibit lingering about for the purpose of committing a crime as opportunity may be discovered unless accompanied by an adult of the requisite relationship similarly disposed to criminal activity.

 We reject the “mere presence” interpretation on several grounds.   Taken literally, the ordinance would subject to arrest minors coming home from library study, a movie, school activities or church functions or a 17–year–old wife taking a stroll with her 18–year–old husband or a 16–year–old grandson walking with his grandmother to the bus stop, to cite just a few examples.   Where there is a choice, courts do not give ordinances unreasonable or absurd constructions (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24, 157 Cal.Rptr. 706, 598 P.2d 866), or constructions that would render them unconstitutional.  (Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145, 109 Cal.Rptr. 897, 514 P.2d 697.)  “Mere presence” ordinances applied to juveniles have been held unconstitutional in this state as well as others because they constitute “an arbitrary invasion of ․ inherent personal rights” and lack “any real or substantial relationship to the primary purpose” of promoting the welfare of juveniles.  (Alves v. Justice Court (1957) 148 Cal.App.2d 419, 425, 306 P.2d 601;  and see In re Mosier (1978) 59 Ohio Misc. 83, 394 N.E.2d 368;  T.F. v. State (Fla.App.1983) 431 So.2d 342.)   Finally, whether the word “loiter” is given an innocent or sinister meaning, it connotes something more than mere presence.

 We also reject the construction of the ordinance as prohibiting a minor from lingering about waiting for the opportunity to commit a crime.   Although the ordinance might pass constitutional muster if given this interpretation, see discussion infra page 15, our problem is this is not the only constitutionally permissible type of curfew ordinance.   The ordinance could also constitutionally prohibit presence in public places after a certain hour if the prohibition contained reasonable exceptions such as for minors patronizing a theatre or restaurant or returning home from a dance or recreational activity.  (See In re Nancy C. (1972) 28 Cal.App.3d 747, 757, 105 Cal.Rptr. 113 discussed below.)   Although we have a duty to construe legislation in a way that preserves its constitutionality, we do not have the power to re-write the legislation to achieve this result.  (Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187, 185 Cal.Rptr. 260, 649 P.2d 902.)   If we were to chose from among several permissible curfew ordinances in the guise of “interpreting” the Long Beach ordinance we would be usurping the legislative power of the city council.   The task of adopting a constitutional curfew ordinance must be left to the Long Beach City Council.

We are left with the interpretation the ordinance prohibits innocent idling by minors after 10 p.m.   This was the interpretation the trial court gave the ordinance.   The court defined the ordinance as prohibiting “presence without any purpose.”   The People take a similar view, saying the ordinance prohibits a minor, at night, from engaging in “aimless idle stops and pauses and purposeless distraction.”

One problem with this interpretation of the ordinance is immediately apparent.   Aimless idle stops, pauses and purposeless distraction are constitutionally protected activities.  (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 164, 92 S.Ct. 839, 844, 31 L.Ed.2d 110.)   Nevertheless, they have been held deniable to children, at least in the nighttime, for their own protection and to reduce juvenile crime.  (People v. Walton (1945) 70 Cal.App.2d Supp. 862, 867–868, 161 P.2d 498;  In re Nancy C., supra, 28 Cal.App.3d at p. 754, 105 Cal.Rptr. 113.)   We need not decide whether these are valid state interests justifying juvenile curfew laws in general.  (But see Note, Assessing the Scope of Minors' Fundamental Rights:  Juvenile Curfews and the Constitution (1984) 97 Harv.L.Rev. 1163.)   The Long Beach ordinance is unconstitutional for other reasons.

 The Long Beach ordinance is void for vagueness because it fails to give the persons subject to it fair notice of what conduct is forbidden and because it allows arbitrary and erratic arrests and convictions.   Due process requires a law to be definite enough to provide a standard of conduct for those whose activities are proscribed and a standard for police enforcement and ascertainment of guilt.  (Papachristou v. City of Jacksonville, supra, 405 U.S. at p. 162, 92 S.Ct. at p. 843;  Kolender v. Lawson (1983) 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903;  Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.)

A law is constitutionally infirm if it “forbids ․ the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application․”  (Connally v. General Const. Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322.)   On this ground, the Supreme Court of Hawaii struck down a Honolulu curfew ordinance virtually identical to the Long Beach ordinance.  (In re Doe (1973) 54 Hawaii 647, 513 P.2d 1385, 1386–1388.)

In the case before us, the trial court and the prosecutor agree the Long Beach ordinance requires more than “mere presence” but what “more” is required is not clear.   The trial judge, for whose common intelligence we can vouch, believed the ordinance required “presence without any purpose.”   Presence without any purpose, may be a physical impossibility.   Leaving that problem aside, would presence for the purpose of idling, loafing or napping violate the ordinance?   Must the minor's presence be for a lawful purpose?   An unlawful purpose would still be a purpose.   Would presence “without any lawful purpose” be sufficiently definite to meet due process requirements?   The court in Papachristou thought not ¹ nor did the Oregon Supreme Court in City of Portland v. James (1968) 251 Or. 8, 444 P.2d 554, 555.²

The Attorney General, also a person of common intelligence, would construe the ordinance to prohibit “aimless idle stops and pauses and purposeless distraction.”   How long may a minor stop and rest when walking home before his conduct runs afoul of the ordinance?   How is a minor to know what may lawfully distract him?   How long may the distraction last before it becomes illegal?

The second aspect of the vagueness doctrine—the requirement for guidelines to govern law enforcement—is considered by the Supreme Court to be even more important than the notice requirement.  (Kolender v. Lawson, supra, 461 U.S. at p. 358, 103 S.Ct. at p. 1858.)   The Court's concern for minimal guidelines goes as far back as United States v. Reese (1876) 92 U.S. (2 Otto) 214, 221, 23 L.Ed. 563, in which the Court pointed out the danger in allowing a Legislature to give the police a net large enough to catch all possible offenders and leave it to the courts to determine who should be retained and who should be set free.  (See also Papachristou v. City of Jacksonville, supra, 405 U.S. at pp. 168–170, 92 S.Ct. at pp. 846–848;  Kolender v. Lawson, supra, 461 U.S. at pp. 358–360, 103 S.Ct. at pp. 1858–1860.)   As the Supreme Court and other courts have pointed out, the failure to provide guidelines encourages arbitrary and discriminatory enforcement, permitting “ ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ”  (Kolender v. Lawson, supra, 461 U.S. at p. 358, 103 S.Ct. at p. 1858, quoting Smith v. Goguen (1974) 415 U.S. 566, 575, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605;  and see City of Portland v. James, supra, 444 P.2d at p. 557;  City of Seattle v. Drew (1967) 70 Wash.2d 405, 423 P.2d 522, 525.)

Kolender vindicated the rights of Edward Lawson, a law-abiding Black citizen who wore his hair in dreadlocks and just happened to enjoy strolling through White neighborhoods in San Diego.   Lawson was detained or arrested approximately 15 times for failing to satisfactorily identify himself to police officers as required by California Penal Code section 647, subdivision (e).³  The court explained its reasons for striking down the statute's identification requirement ⁴ as follows:  “Section 647(e), as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a ‘credible and reliable’ identification.   As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest.   An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets ‘only at the whim of any police officer’ who happens to stop that individual under § 647(e).”  (461 U.S. at p. 358, 103 S.Ct. at p. 1858, italics added.)

Similarly, the Long Beach ordinance confers on the police “a virtually unrestrained power to arrest and charge persons with [its] violation.”   (Lewis v. City of New Orleans (1974) 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (Powell, J., conc.)   Despite the attempts of the trial court and the People to give some meaning to the ordinance, the record shows Frank O. was arrested and his arrest upheld despite the fact he had a purpose in being where he was and despite the absence of any evidence he was engaging in “idle stops and pauses and purposeless distraction[s].”

Taking the arresting officer's testimony at face value, Frank O. was taken into custody for the crime of being a minor on the street alone at 2:30 a.m. miles from home.   As we discussed above, “mere presence” cannot be a crime.   But it is also possible Frank O. was taken into custody because he was suspicious.   The Long Beach ordinance is designed in a way that permits arrests on suspicion.   It is this particular vice that courts have found most disturbing about vaguely written anti-loitering laws.  (Kolender, supra, 461 U.S. at p. 361, 103 S.Ct. at p. 1860;  Papachristou, supra, 405 U.S. at p. 169, 92 S.Ct. at p. 847;  City of Portland, supra, 444 P.2d at p. 557.)   Such laws allow the police to define the crime to fit the defendant's conduct.  (Kolender, supra, 461 U.S. at p. 360, 103 S.Ct. at p. 1859.)   They furnish “a convenient tool for ‘harsh and discriminatory enforcement ․ against particular groups․' ”  (Papachristou, supra, 405 U.S. at p. 170, 92 S.Ct. at p. 847, quoting from Thornhill v. Alabama (1940) 310 U.S. 88, 97–98, 60 S.Ct. 736, 742, 84 L.Ed. 1093;  and see Johnson, Race and the Decision to Detain a Suspect (1983) 93 Yale L.J. 214.)   And, they strip the arrestee of the protection of probable cause for arrest by making otherwise innocent behavior criminal and allowing the officer to determine probable cause through the power to define the crime.  (City of Portland, supra, 444 P.2d at p. 557;  cf. Remers v. Superior Court (1970) 2 Cal.3d 659, 664, 87 Cal.Rptr. 202, 470 P.2d 11.)

The ordinances approved in People v. Walton and In re Nancy C., supra, are distinguishable from the Long Beach ordinance.   In People v. Walton, the ordinance in question imposed criminal penalties on a parent who allowed a minor to “remain on” a public highway between the hours of 9 p.m. and 4 a.m.  The issue was whether the Board of Supervisors had the power to enact curfew laws for minors, not whether the language “remain on” was void for vagueness.  (70 Cal.App.2d Supp. at p. 866, 161 P.2d 498.)   In Nancy C., the ordinance specified not only that it was inapplicable to a minor accompanied by a parent or guardian but that it was inapplicable to a minor on an emergency errand for such adult or who was returning directly home from a meeting, entertainment, recreational activity or dance.   The court held in view of these exceptions the “ordinance in question [does] not leave it to the whim of a police officer to determine if a minor is on a street for lawful purpose.”  (28 Cal.App.3d at p. 757, 105 Cal.Rptr. 113.)

As the facts in this case demonstrate, the Long Beach ordinance allows officers to detain and question persons who appear to be under age 18 found in public places after 10 p.m. to determine their actual age and why they are out in public.   If the minor does not give the officer a satisfactory explanation of his conduct, the minor is subject to arrest.   What will qualify as a satisfactory explanation is left to the unfettered discretion of each individual police officer.  (Cf. Kolender v. Lawson, supra, 461 U.S. at p. 360, 103 S.Ct. at p. 1859.)   Frank O.'s explanation he was “just walking through” was not satisfactory to the arresting officer in this case.   To another officer, it may have been acceptable.⁵

 A direction by the Long Beach City Council to its police officers to arrest all “suspicious” minors or all minors who do not “satisfactorily” explain their presence would clearly be unconstitutional.  (Papachristou v. City of Jacksonville, supra, 405 U.S. at p. 169, 92 S.Ct. at p. 847;  City of Seattle v. Drew, supra, 423 P.2d at p. 525;  Powell v. Stone (9th Cir.1974) 507 F.2d 93, 95 rev'd on other grounds (1976) 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067);  Baker v. Bindner (W.D.Ky.1967) 274 F.Supp. 658, 664;  In re Nancy C., supra, 28 Cal.App.3d at p. 757, 105 Cal.Rptr. 113.)   The ordinance the council passed has just this effect.

II. UNDER ANY INTERPRETATION OF THE ORDINANCE THERE WAS NO PROBABLE CAUSE FOR THE MINOR'S ARREST AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED.

 The People contend even if the Long Beach curfew ordinance is unconstitutional, the officer's good faith enforcement entitles the People to use the evidence seized in the course of the arrest.  (Michigan v. DeFillippo (1979) 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343.)   The facts of the case before us present a situation just the opposite of the one presented in DeFillippo and require the evidence be suppressed.

As we explained above, the ordinance is susceptible of three interpretations:  (1) it prohibits the mere presence of a minor in public after 10 p.m.;  (2) it prohibits presence without a purpose or aimless idling;  (3) it prohibits lingering about waiting for the opportunity to commit a crime.

If the ordinance prohibited lingering about for the purpose of committing a crime as opportunity may be discovered, the ordinance might pass constitutional muster.  (See In re Cregler (1961) 56 Cal.2d 308, 312, 14 Cal.Rptr. 289, 363 P.2d 305;  In re Huddleson (1964) 229 Cal.App.2d 618, 622, 40 Cal.Rptr. 581.)   However, it is clear from the record the officer lacked probable cause to arrest under this interpretation of the ordinance.

The only witness at the suppression hearing, Officer Villanueva, testified he began his shift at 10:30 p.m.   He had driven through the intersection of 52nd and Orange at least eight to ten times that night and as recently as fifteen minutes before the time he first saw Frank O. at the intersection at 2:30 a.m.  The only thing Officer Villanueva noticed about Frank O. was that “he looked very youthful, very young, ․ maybe fourteen or fifteen [years] of age.”   “Immediately” upon seeing Frank O., the officer pulled his vehicle to the curb and asked him to come over.   The officer explained, “Seeing that it was this time of night and [he was] just standing out there on the corner, we thought we'd stop and investigate.”   On cross-examination, the officer admitted he spent no time observing Frank O. before approaching him.   He stated Frank O. was standing at the intersection but he could not recall whether the traffic light was red or green in the direction the minor was facing.

As to the grounds for arrest, the officer testified, “We determined that he was a minor and he didn't have any legal guardian there, anybody to take custody of him at this time in the morning․   We didn't know ․ why he was out in the morning.   We took him into custody per the Long Beach curfew law.”

There is not a hint anywhere in Officer Villanueva's testimony he believed Frank O. was lingering at the intersection much less that he was lingering for the purpose of committing a crime.   Nor did the officer testify to any facts that could reasonably support such a belief.   Thus, an arrest based on this interpretation lacks both of the elements necessary for probable cause, a subjective belief a crime was committed and an objectively reasonable belief the defendant committed it.  (People v. Miller (1972) 7 Cal.3d 219, 226, 101 Cal.Rptr. 860, 496 P.2d 1228;  In re Francis W. (1974) 42 Cal.App.3d 892, 900–901, 117 Cal.Rptr. 277.)

The People would apply Michigan v. DeFillippo to the other two possible interpretations of the ordinance—mere presence and presence without a purpose—which we have held would render the ordinance unconstitutional.   In DeFillippo, the defendant was arrested under a stop-and-identify ordinance later held unconstitutional.   In the course of his arrest, defendant was found to possess narcotics and was charged with the crime of possession.   He sought to suppress the evidence obtained in the search following his arrest, not on the ground the police lacked probable cause to arrest him under the stop-and-identify ordinance, but on the ground the arrest was invalid because the ordinance was invalid.  (443 U.S. at pp. 33–34, 36, 99 S.Ct. at pp. 2629–2630, 2631.)   The Supreme Court held the evidence was not subject to suppression merely because the search was incident to an arrest under a law subsequently held unconstitutional.  (Id. at p. 40, 99 S.Ct. at p. 2633.)

The Court explained its ruling as follows.   The police are charged to enforce laws until and unless they are declared unconstitutional by a court, not to take it upon themselves to determine which laws are and which laws are not constitutionally entitled to enforcement.   The purpose of the exclusionary rule is to deter unlawful police action.  “No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found on the person of the respondent, was the product of a lawful arrest and a lawful search.”  (Id. at p. 38, fn. 3, 99 S.Ct. at p. 2633, fn. 3, italics added.)   The Court emphasized the record showed “[w]hen the officer arrested respondent, he had abundant probable cause to believe that respondent's conduct violated the terms of the ordinance.”  (Id. at p. 36, 99 S.Ct. at p. 2631.)

In contrast to DeFillippo, there is no evidence to support the arrest of Frank O. under an interpretation of the ordinance prohibiting presence without a purpose or aimless idling about.

The burden is on the People to justify the arrest.  (In re Arthur J. (1987) 193 Cal.App.3d 781, 784, 238 Cal.Rptr. 523.)   The People's witness, Officer Villanueva, testified the minor had a purpose for being where he was.

“THE COURT:  What did he say about what he was doing out there, if anything.

“THE WITNESS:  He said he was doing nothing, just walking through.”

It is clear from the officer's testimony he had no opportunity to determine whether Frank O. was “engaged in aimless idle stops and pauses and purposeless distraction.”   He observed the minor for only a brief moment before approaching him.   The officer made no attempt to determine Frank O.'s purpose in being at the intersection beyond asking one question to which Frank O. replied he was “just walking through.”   If Officer Villanueva disbelieved this statement, he did not say so at the suppression hearing nor did he testify to any facts which would cause a reasonable person to disbelieve the minor's statement of purpose.  (Cf. Powell v. Stone, supra, 507 F.2d at pp. 95–96.)   Therefore, we conclude, there was no probable cause for Frank O.'s arrest for presence without a purpose or aimlessly idling about.

 There were facts on which to base the arrest if the ordinance is interpreted to prohibit the mere presence of a minor in public after 10 p.m.  Frank O. told the officer he was 17 years old;  it was 2:30 a.m.;   and Frank O. was standing on a public sidewalk.   However, as the court in DeFillippo recognized, there is the possibility “of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.”  (443 U.S. at p. 38, 99 S.Ct. at p. 2632.)   A well-established line of cases establishes a police officer is not immune from liability for false arrest if he “ ‘knew or reasonably should have known that the action he took ․ would violate the constitutional rights of the [plaintiff].’ ”  (Harlow v. Fitzgerald (1982) 457 U.S. 800, 815, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396, and see ibid. at fn. 25.)   For example, in Daye v. City of Albany, Ga. (M.D.Ga.1980) 496 F.Supp. 1227, 1233, the court held a police officer could not have held a good faith belief in the constitutionality of a police department directive authorizing the warrantless arrest of persons for misdemeanors committed outside the officer's presence and without the need to determine probable cause.

A police officer's interpretation of the Long Beach ordinance as permitting a minor's arrest for “mere presence” in a public place after 10:00 p.m. would fall within the exception to the DeFillippo good faith rule.   Our Supreme Court refused to find a police officer's mistake of law reasonable in circumstances very much like those of the case at bar.  (People v. Teresinski (1982) 30 Cal.3d 822, 832, 180 Cal.Rptr. 617, 640 P.2d 753.)   The court held a police officer could not entertain a reasonable belief a city curfew ordinance which made it unlawful for a minor “to loiter, idle, wander, stroll, or play in or upon the public streets” applied to a minor “merely driving along a street in a lawful manner․”  (Id. at p. 830, 180 Cal.Rptr. 617, 640 P.2d 753.)   The court gave two reasons for its holding.   The curfew ordinance did not present “an obscure or unfamiliar enactment” to the officer.   Moreover, several years before this detention occurred, the Court of Appeal in construing a similar ordinance explicitly held driving a car at a normal rate of speed down a public street did not violate the ordinance.  (Id. at p. 832, 180 Cal.Rptr. 617, 640 P.2d 753.)

In the case before us, Officer Villanueva testified he was familiar with the Long Beach curfew ordinance and had made other curfew arrests.⁶  In 1957, Alves v. Justice Court, supra, 148 Cal.App.2d at page 425, 306 P.2d 601, held an ordinance prohibiting “the mere presence of a minor on a street or in a public place between ․ designated hours ․ is unconstitutional.”   This holding has never been criticized or disapproved.⁷

Police officers cannot be expected to possess the legal acumen of a Justice Douglas or a Justice O'Connor but they are expected “to have a reasonable knowledge of what the law prohibits.”  (United States v. Leon (1984) 468 U.S. 897, 919, fn. 20, 104 S.Ct. 3405, 3419, fn. 20, 82 L.Ed.2d 677.)   It is not unreasonable to require an officer to know what the law is before he arrests someone for violating it.  (In re Arthur J., supra, 193 Cal.App.3d at p. 788, 238 Cal.Rptr. 532.)   If we were to excuse the officer's mistake of law in this case, “we would provide a strong incentive to police officers to remain ignorant of the language of the laws that they enforce and the teachings of judicial opinions whose principal function frequently is to construe such laws and to chart the proper limits of police conduct.”  (People v. Teresinski, supra, 30 Cal.3d at p. 832, 180 Cal.Rptr. 617, 640 P.2d 753.)

CONCLUSION

Our decision striking down the ordinance and, independently, the arrest, requires the juvenile court's order in this case be reversed.   This will have no impact on Frank O. because the order directed his confinement run concurrently with a previous community camp placement.   Thus, our decision should not be construed as returning a youthful offender to the street.   Nor should our decision be construed to mean the citizens of Long Beach are powerless to enact an ordinance in the interest of protecting minors and reducing the incidence of juvenile criminal activity.   If the city council deems the provisions of Penal Code section 647 inadequate to this task, there are numerous judicially approved ordinances which could serve as models.  (See, e.g., In re Nancy C., supra, 28 Cal.App.3d at pp. 752–753, 105 Cal.Rptr. 113;  Annot., Validity of Loitering Statutes and Ordinances (1969) 25 A.L.R.3d 836, 839, § 3, and later cases (1987 pocket supp.) pp. 57–59.)

DISPOSITION

The order appealed from is reversed.

FOOTNOTES

1.   The ordinance struck down in Papachristou prohibited “wandering or strolling around from place to place without any lawful purpose or object.”  (405 U.S. at p. 156, fn. 1, 92 S.Ct. at p. 840, fn. 1.)  The court believed “[t]he qualification ‘without any lawful purpose or object’ may be a trap for innocent acts.”  (405 U.S. at p. 164, 92 S.Ct. at p. 844.)

2.   In City of Portland, the court ruled the language “without having a lawful purpose” and its opposite “having an unlawful purpose” were too vague to satisfy due process.  (444 P.2d at p. 555.)

3.   Penal Code section 647, subdivision (e) provides a person is guilty of disorderly conduct:  “(e) Who loiters or wonders upon the street or from place to place without apparent reason or business and who refuses to identify himself or herself and to account for his or her presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable person that the public safety demands such identification.”

4.   The court did not address the statute's prohibition against loitering and wandering.

5.   An ordinance that requires a minor to explain his purpose for being out in public would seem to be inconsistent with the right not to answer police questions during an investigatory stop.  (Terry v. Ohio (1968) 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889.)   This issue was not addressed in Kolender.  (See 461 U.S. at p. 361, fn. 10, 103 S.Ct. at p. 1860, fn. 10, but see concurring opinion of Brennan, J., at pp. 365–367, 103 S.Ct. at pp. 1862–1863.)   We do not reach this issue in the case before us.

6.   The trial court refused to allow Officer Villanueva to testify as to his understanding of what conduct the ordinance prohibited.   We need not decide whether this ruling was correct.  (But see People v. Teresinski, supra, 30 Cal.3d at p. 831, fn. 5, 180 Cal.Rptr. 617, 640 P.2d 753;  In re Arthur J., supra, 193 Cal.App.3d at pp. 785–788, 238 Cal.Rptr. 532.)

7.   Although the Merced city ordinance involved in In re Francis W., supra, appears to prohibit mere presence, the opinion does not quote the ordinance in full because its constitutionality was not at issue in the case.  (42 Cal.App.3d at pp. 900–901, fn. 3, 117 Cal.Rptr. 277.)

JOHNSON, Associate Justice.

LILLIE, P.J., and REESE, J.*, concur.