California Health and Safety Code Section 11532
Health and Safety Code section 11532 provides in full:
"(a) It is unlawful for any person to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit an offense specified in Chapter 6 (commencing with Section 11350) and Chapter 6.5 (commencing with section 11400).
(b) Among circumstances that may be considered in determining whether a person has the requisite intent to engage in drug-related activity are that the person:
(1) Acts as a 'look-out.'
(2) Transfers small objects or packages for currency in a furtive fashion.
(3) Tries to conceal himself or herself or any object that reasonably could be involved in an unlawful drug-related activity.
(4) Uses signals or language indicative of summoning purchasers of illegal drugs.
(5) Repeatedly beckons to, stops, attempts to stop, or engages in conversations with passersby, whether on foot or in a motor vehicle, indicative of summoning purchasers of illegal drugs.
(6) Repeatedly passes to or receives from passersby, whether on foot or in a motor vehicle, money or small objects.
(7) Is under the influence of a controlled substance or possesses narcotic or drug paraphernalia. For the purposes of this paragraph, 'narcotic or drug paraphernalia' means any device, contrivance, instrument, or apparatus designed or marketed for the use of smoking, injecting, ingesting, or consuming marijuana, hashish, PCP, or any controlled substance, including, but not limited to, roach clips, cigarette papers, and rollers designed or marketed for use in smoking a controlled substance.
(8) Has been convicted in any court within this state, within five years prior to the arrest under this chapter, of any violation involving the use, possession, or sale of any of the substances referred to in Chapter 6 (commencing with section 11350) or Chapter 6.5 (commencing with section 11400), or has been convicted of any violation of those provisions or substantially similar laws of any political subdivision of this state or of any other state.
(9) Is currently subject to any order prohibiting his or her presence in any high drug activity geographic area. (10) Has engaged, within six months prior to the date of arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (8), or in any other behavior indicative of illegal drug-related activity.
(c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for unlawful drug use and trafficking, or if they occur on or in premises that have been reported to law enforcement as a place suspected of unlawful drug activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case."
In People v. Ellison (1998) 68 Cal.App.4th 203, the court held Health and Safety Code section 11532 is not unconstitutionally vague because the narrowly defined specific intent provides sufficient notice to a reasonable person of the proscribed conduct. (Id. at pp. 209-210.)
The court rejected the argument that section 11532 permits police officers to arrest with less than probable cause and that the listing of conduct in subdivision (b), which provides guidance for probable cause, undermines the constitutionality of the statute.
The court observed:
"Although such conduct may be innocuous in itself, people are not arrested solely for engaging in such conduct. Section 11532 does not criminalize the actions listed in subdivision (b). The crime is committed by loitering with the intent to commit a specified drug offense." (Id. at p. 210.)
The court held that section 11532 is not overbroad because while "the penalized conduct may peripherally involve speech, association, or travel," it "does not prohibit a substantial amount of constitutionally protected conduct." (Id. at pp. 210-211.)
Finally, the court concluded that section 11532 does not violate separation of powers because it does not vest police officers with the "power to determine on an ad hoc basis what types of behavior constitute a crime" but rather "any discretion possessed by a police officer to determine whether a crime had occurred was merely a question of probable cause to arrest." (Id. at p. 211.)