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 [...]
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