Mello and “Loitering for Drugs” Ordinances

Can a municipality adopt an ordinance that criminalizes loitering for the purpose of drug activity? I’ve been asked that question several times, and in fact, a number of North Carolina municipalities have such ordinances. See, e.g., Charlotte Code of Ordinances § 15-23; Hickory Code of Ordinances § 29-22(d). The answer is generally yes, though such ordinances must be drafted very carefully.

Last week, the North Carolina Court of Appeals underscored the need for careful drafting when it decided State v. Mello. Gary Mello was charged with, inter alia, violating Winston-Salem Code of Ordinances § 38-29, which is captioned “[l]oitering for purpose of engaging in drug-related activity.” The court’s opinion doesn’t describe the facts underlying the charge, so I skimmed the parties’ briefs. Generally, it appears that Mello was parked on a street in a high-drug area of Winston-Salem, engaging in what appeared to be hand-to-hand drug transactions with pedestrians.

Mello moved to dismiss the charge, arguing that the ordinance was unconstitutional. The motion was denied by the trial judge, a jury convicted Mello, and he appealed. The court of appeals agreed with Mello, finding the ordinance overbroad and vague.

The ordinance reads as follows:

It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:
(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;
(2) Repeatedly stopping or attempting to stop motor vehicles;
(3) Repeatedly interfering with the free passage of other persons;
(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;
(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;
(6) Such person taking flight upon the approach or appearance of a police officer; or
(7) Such person being at a location frequented by persons who use, possess or sell drugs.

Mello’s indictment referred specifically to subsections (4) and (7) of the ordinance.

The court of appeals began its analysis by considering overbreadth, which is a First Amendment doctrine that invalidates regulations that prohibit a substantial amount of “protected” conduct, even if the regulations have some legitimate application. The court concluded that the Winston-Salem ordinance prohibits protected activity such as conducting a survey (which would violate (1) and/or (3)), handing out leaflets (which would violate (5)), and merely being present in an area where drug arrests have taken place (which would violate (7)).

Nor, according to the court, was the ordinance saved by the inclusion of the language, “under circumstances manifesting the purpose to engage in [a drug offense],” because under the ordinance, the listed circumstances by definition manifest the necessary intent. So here’s the first draftsmanship point: had the intent requirement said “the circumstances that may be considered in determining a person’s intent include the following” instead of “[s]uch circumstances are,” I suspect that the overbreadth analysis would have come out differently. Cf., e.g., State v. Evans, 73 N.C. App. 214 (1985) (upholding a loitering for prostitution ordinance that required the state to demonstrate that the defendant’s purpose was to violate the prostitution laws).

Next, the court considered whether the ordinance was void for vagueness. A law is unconstitutionally vague when citizens are left to guess and to speculate as to whether they are violating the law. The court concluded that subsection (4) of the ordinance is vague, because a citizen can’t be reasonably sure what conduct “raise[s] a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” Here’s the second draftsmanship point: the court was particularly critical of the inclusion of the term “reasonable suspicion” in the ordinance, insofar as it could be read to allow a defendant to be convicted on proof less than beyond a reasonable doubt. Absent that red flag, I’m not sure that the court would have ruled the same way; courts have long recognized that a person’s intent usually must be inferred from the circumstances, and that the relevant circumstances defy easy categorization.

Mello has received some national attention, and is a must read for lawyers and judges who regularly handle cases arising under this type of ordinance. Obviously, it should also catch the eye of municipal attorneys in jurisdictions that have, or may adopt, this type of ordinance. I should note, too, that we at the School of Government are happy to consult with jurisdictions that are considering adopting or revising ordinances like this.

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