Dinitz v. Christensen , 94 Nev. 230 ( 1978 )

OPINION

By the Court,

Manoukian, J.:

Petitioner offered for money to copulate orally a man in the parking lot of a Las Vegas hotel. She was convicted pursuant to the subsection of Nevada’s vagrancy statute making illegal the solicitation of any act of prostitution and fined $25. The district court affirmed her conviction and denied her challenge to the constitutionality of the vagrancy statute. She has brought this proceeding in certiorari to review that ruling. The proceeding is authorized. NRS 34.020(3); City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967).

Petitioner challenges the statute, NRS 207.030, on five different premises. She contends that the statute denies due process in that it makes status a crime; is vague requiring a person of ordinary intelligence to quess at its proscriptions; places unfettered discretion at the disposal of law-enforcement authorities; and is overbroad, including within its scope acts nonculpable as well as culpable. Finally, she maintains that her Fourth Amendment rights are denied by application of the statute. We answer each claim in the negative.

NRS 207.030 in relevant part provides: “1. Every person is a vagrant who: . . . (b) Solicits any act of prostitution ... 2. Every vagrant is guilty of a misdemeanor.”

Petitioner was convicted under subsection 1(b).

In a general constitutional challenge, petitioner, citing City of Reno, supra; Parker v. Municipal Judge, 83 Nev. 214, 427 P.2d 642 (1967), contends that NRS 207.030(l)(b) punishes status not behavior. In those cases, for example, simply being unemployed (Parker) or having an evil reputation (City of Reno) would subject an individual to possible punishment. Here, petitioner was convicted because she actively solicited prostitution. The distinction is indeed one of punishment for conduct as opposed to punishment for status and, as such, is fatal to petitioner’s challenge.

The fallacy of petitioner’s logic is her premise that vagrancy is unpunishable. There is no per se contitutional infirmity in punishing vagrants. The sole concern of the judiciary is to assure that the definition of vagrancy not include mere status. Absent liability premised upon status, cf. City of Reno, supra; Parker, supra; Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the legislature is free to exercise discretion in punishing vagrancy, defined in terms of culpable overt behavior.

Subordinately, the vagrancy statute is challenged on the premise that it is so vague and overbroad so as to violate due process. The primary authority upon which petitioner relies is Papachristou, supra. Petitioner quotes this case at length and offers it for support of her due process and overbreadth allegations. However, the Florida ordinance in Papachristou clearly made status a crime and is inapposite to the instant case.

Recently, the California Supreme court, in reviewing a statute that is virtually identical to the one in question, declared that this “solicitation provision ... is not so vague as to deny an .accused due process of law under the federal or California Constitutions.” People v. Superior Court of Alameda County, 562 P.2d 1315, 1317 (Cal. 1977). The words “every person . . . who solicits any act of prostitution” are clear and unambiguous. NRS 207.030(l)(b) clearly gives a person of ordinary intelligence fair notice that his contemplated conduct is proscribed by law. United States v. Harriss, 347 U.S. 612 (1954). The solicitation provision of the Nevada vagrancy statute is constitutional.

Nor do we perceive the law as encouraging arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S. 242 (1937). Our interpretation is consistent with the legislative object and policy underlying the statute. The legislative purpose in proscribing solicitation for prostitution is to eliminate this type crime. The crime requires overt solicitation for purposes of prostitution. The dangers of harassment and unfettered police discretion pointed out in City of Reno, supra, are not here present. Additionally, the justification for the proscription under review is within the legitimate reach of Nevada's police power. See, Fenster v. Leary, 229 N.E.2d 426 (N.Y. 1967).

Petitioner's Fourth Amendment claim is equally without merit. Law-enforcement officers may make arrests only on "probable cause," a Fourth and Fourteenth Amendment standard applicable to states, as well as the federal government. Mapp v. Ohio, 367 U.s. 643 (1961). Overt acts of solicitation for prostitution as a precondition to an arrest are required under NRS 207.030(1)(b), thereby meeting the "probable cause" requirement. Papachristou, supra; City of Reno, supra.

This proceeding is dismissed and the judgment below is affirmed.

BATJER, C. J., and MOWBRAY and THOMPSON, JJ., concur.