594 N.E.2d 208

CITY OF AKRON v. DIXON.

No. 92 CRB 1115.Municipal Court, Akron.
Decided April 16, 1992.

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Kim Amponsah, Assistant City Prosecutor, for the city.

Susan Ragsdale, for defendant.

ELINORE MARSH STORMER, Judge.

This case came on for trial on April 8, 1992. Defendant, Carl Dixon, was charged with “Loitering for the Purpose of Engaging in Drug-Related Activity,” in violation of Section 138.26 of the Akron Codified Ordinances (“Section 138.26”). The facts are not in dispute in any material matter.

On February 4, 1992, Akron Police Officers Roger Erwin and William Forester were parked near the front of a particular house on Seventh Street. They were present that day as part of a continuing stakeout of this house which was believed to be a drug house. The officers were aware of two previous arrests from the house, one involving crack cocaine.

The officers testified that they saw a car approach and stop. The defendant got out of the car in front of the house, walked up the driveway, knocked on

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the side door, waited a short while, walked back down the driveway, walked up the sidewalk and got into the car which had pulled around the corner. At that time, the officers pulled in front of the car, detained the occupants and arrested defendant and the driver.

The officers testified that this area is known for unlawful drug use and trafficking. The house under surveillance is reported to have many people coming and going in and out of the side door. The officers did not agree on whether defendant went into the house; however, this is not pertinent.

Carl Dixon testified on his own behalf. He stated that he lives four blocks from the house, and that he walked to the house from his own home in order to ask “Tony,” an occupant of the house, to help him fix his van. He saw the police officers parked in front of the house, walked to the side door, knocked, and when he got no answer, he left. He saw a friend in a car and asked for a ride back to his house. He was arrested before the car pulled away.

Section 138.26 has been under considerable scrutiny. On April 8, 1992, its constitutionality was upheld by the Ninth District Court of Appeals. Section 138.26(A) states, in relevant part:

“No person shall loiter in or near any * * * public or private place in a manner and under circumstances manifesting the purpose to engage in drug-related activity contrary to any of the provisions of Chapter 2925 of the Ohio Revised Code.”

Section 138.26(B) lists eleven types of circumstances which may be considered in determining whether a drug-related activity purpose exists. Case law from this jurisdiction holds that:

“[I]n addition to a criminal purpose, a person must commit an overt act or a circumstance must be present before the crime is complete. This interpretation requires that a person loiter in a defined place, with the purpose of engaging in a prohibited drug-related activity, and that the person’s actions satisfy one of the circumstances under Section 138.26(B) or some other overt act or circumstance be present manifesting such purpose. * * *” (Emphasis sic.) Akron v. Holley (1989), 53 Ohio Misc.2d 4, 8, 557 N.E.2d 861, 865.

The Court of Appeals for Summit County recently summarized these elements by nothing that “one of the crucial elements of this ordinance is that of specific intent to engage in drug-related activity.” Akron v. Rowland (Apr. 8, 1992), Summit App. No. 15307, unreported, at 4, 1992 WL 74200.

The Rowland opinion noted, “Moreover, someone could not be convicted because of any of the listed overt acts unless the requisite intent was also present.” As a whole, this reasoning is somewhat tautological, requiring an

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illegal purpose plus an overt act while the overt act is held to manifest the purpose.

The facts in this case do not fall within the purview of ten of the eleven examples of Section 138.26(B). Number 9 provides that the purpose to engage in drug-related activity may be manifest if the area involved is known to be an area of unlawful drug use and trafficking. Defendant noted in his direct examination that this entire neighborhood is known as a drug area. The prosecution agreed.

Thus, under the reasoning discussed above, “loitering” in one’s neighborhood, if it is a “known drug area,” exhibits a purpose to engage in drug-related activity and would be unlawful. The definition of loitering therefore becomes significant; however, loitering is not defined in the ordinance. Loitering has not been judicially interpreted; the Holley opinion stated only that “loitering” is a word that “has a meaning that is clear to most people.” Holley, 53 Ohio Misc.2d at 7, 557 N.E.2d at 864.

Section 132.14 of the Akron Codified Ordinances defines “loitering” as “remaining idle in essentially one place and includes the concepts of spending time idly, loafing or walking about aimlessly.” Section 132.14 addresses the crime of loitering with the purpose of engaging in prostitution and is somewhat analogous to Section 138.26. For purposes of this case, the court adopts this definition of loitering.

Even if merely being present in a known drug area provides sufficient intent to engage in drug-related activity, the court cannot find that Dixon was loitering. The city’s officers indicated that the defendant’s behavior was purposeful: he got out of the car, walked to the house and returned shortly. There was no testimony that defendant was idle in one place or appeared aimless. To the contrary, he seemed to be carrying out some specific mission.

Even if defendant’s purpose was to buy drugs at the house, he was not “loitering.” He may have been more properly charged under Section 138.10.1 of the Akron Codified Ordinances, effective January 13, 1992, which prohibits the attempt to obtain a controlled substance.

The court recognizes the serious drug problem present in the city of Akron. Daily, we witness the ravages of crack cocaine. In the absence of previous interpretations of the definition of “loitering,” the court believes that the officers had probable cause to arrest the defendant.

Nevertheless, based upon the court’s belief that the city did not prove that defendant was “loitering,” the city has failed to meet its burden of proof.

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The defendant is found not guilty of “Loitering for the Purpose of Engaging in Drug-Related Activity.”

Defendant found not guilty and discharged.

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