
    Argued June 30,
    reversed November 21, 1977
    STATE OF OREGON, Respondent, v. CHERYL LYNN SMITH, Appellant.
    
    (No. DA 130372, CA 8012)
    571 P2d 542
    John R. Urquhart, Portland, argued the cause and filed the brief for appellant.
    
      Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were James A. Redden, Attorney General, W. Michael Gillette, Solicitor General, and Karen H. Green, Certified Law Student, Salem.
    Before Schwab, Chief Judge, and Lee and Richardson, Judges.
    SCHWAB, C. J.
    Richardson, J., specially concurring opinion.
   SCHWAB, C. J.

Defendant appeals her conviction upon trial to the court for criminal drug promotion in violation of ORS 167.222, contending that ORS 167.222 is unconstitutionally vague and overbroad. Given that our first duty is to construe ORS 167.222 in a constitutional manner if possible, the constitutional argument also necessarily raises a statutory construction issue. We conclude that the correct interpretation of ORS 167.222 negates any need to reach the constitutional issue. The specially concurring judge would hold ORS 167.222 unconstitutional. Although we differ regarding whether the decision is more properly based on statutory or constitutional grounds, we are unanimous in reversing defendant’s conviction.

Although the facts of this case are not particularly germane to an analysis of the meaning or constitutionality of ORS 167.222, they do illustrate a contrary possible interpretation of the statute which we here reject. In December of 1976, defendant was visiting friends in Portland for the holidays. She became a casual acquaintance of one George Weninger, meeting him when he gave her a ride while hitchhiking. On December 21 she went to Weninger’s apartment to request a ride to the freeway so she could hitchhike to Tacoma, Washington to visit her brother. Weninger agreed to help defendant but stated there would be some delay because he was expecting a friend.

Later one Stephen Hanson arrived carrying a closed cardboard box. Hanson handed the box to Weninger who placed it under a table.

Police officers had Weninger’s apartment under surveillance because of a tip that a young man would be delivering marihuana. Having observed Hanson enter carrying the box, Officer Burger, who was working undercover, rang for Weninger’s apartment. Weninger answered the door. Burger stated he wanted to buy marihuana. Weninger agreed to sell. Burger followed Weninger into the apartment, entering within about five minutes of Hanson’s arrival. Weninger produced the box Hanson had brought, opened it and displayed the marihuana it contained to Burger. Weninger and Burger then exchanged marihuana for money.

Burger then left, joined with three other officers waiting outside, immediately went back to Weninger’s apartment and arrested all present.

Burger also testified that when he was in the apartment, Hanson appeared to be smoking marihuana which he deduced from the facts that Hanson was smoking something and there was the smell of marihuana smoke in the air. Burger further testified that when he returned and arrested all present, he seized marihuana seeds, stems and "roaches” from several locations in the apartment. He admitted that there was probably less than an ounce seized in the apartment.

Defendant testified that prior to the transaction between Weninger and Burger she was unaware of any marihuana being in the apartment. She admitted she learned the cardboard box Hanson had brought contained marihuana when Weninger opened it to show Burger. She agreed that there was a lot of smoke in the apartment but said she thought it was tobacco smoke. She explained that she remained in the apartment after she learned that marihuana was present because she was desperate for a ride to the freeway and Weninger was the only person she knew who would assist her. The trial court specifically found this explanation to be credible.

In sum, the evidence establishes that defendant visited Weninger’s apartment once, became aware that marihuana was present and being sold when Weninger and Burger made a deal, and "remained” in the apartment for the brief interval thereafter — a matter of minutes — until Burger returned and arrested her.

When defendant was arrested, ORS 167.222(1) provided:

"A person commits the offense of criminal drug promotion if he knowingly maintains, frequents, or remains at a place:
"(a) Resorted to by drug users for the purpose of unlawfully using narcotic or dangerous drugs; or
"(b) Which is used for the unlawful keeping or sale of narcotic or dangerous drugs.”

Our analysis of this statute focuses on the nature of the "place” in which a person must remain to be in violation.

This statute originated with Oregon Laws 1935, ch 121, § 13:

"Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance. No person shall keep or maintain such a common nuisance.”

This was subsequently codified as ORS 474.130.

ORS 474.130 was amended by Oregon Laws 1957, ch 587, § 4, to divide the statute into subsections (1) and (2) — basically an editorial change — and to add subsection (3) — the substantive change — so the statute then read:

"(1) Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance and shall be abated in the manner provided in ORS 471.630 to 471.655.
"(2) No person shall keep or maintain such a common nuisance.
"(3) No person shall frequent any place if he knows it to be a place of the type described in subsection (1) of this section.”

The Criminal Law Revision Commission proposed repealing ORS 474.130(2) and (3) and enacting instead what is now codified as ORS 167.222. The history indicates that the draftsmen did not intend any change of substance. Proposed Oregon Criminal Code 265, § 277, Commentary (1970). Specifically, the Commission would have defined the crime of criminal drug promotion as applying when a person "knowingly maintains or frequents” a certain kind of place. Proposed Oregon Criminal Code 265, § 277, Commentary (1970). In response to testimony about "enforcement problems,” a Senate committee changed the Commission’s proposal to include the current statutory language, "knowingly maintains, frequents or remains at a place.” Minutes, Senate Criminal Law and Procedure Committee, March 24, 1971, pp 2-4, and March 31, 1971, p 5. As so amended, the legislature enacted ORS 167.222.

This statutory evolution indicates that the legislature has made changes in the prohibited conduct, e.g., adding "remains” to "frequents” but has been consistent about the nature of the place in which such conduct is prohibited. It is not a crime to remain in any place, but only, as most clearly stated in former ORS 474.130(3) after the 1957 amendment, a certain "type” of place. Interpreted in light of its historical antecedents set out above, we conclude ORS 167.222 prohibits knowingly remaining in a place where a principal or substantial purpose is the commercial sale or use of illegal drugs. In other words, we interpret ORS 167.222 as a modem version of the statute involved in State v. Sam, 14 Or 347, 13 P 303 (1887), which prohibited frequenting "an opium den.”

The 1935 predecessor statute applied to places "resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of” narcotic drugs. Juxtaposed with the reference to drug addicts, the concept of places where drugs were kept or sold must have been intended to mean an ongoing course of conduct rather than a single isolated event. The current version of ORS 167.222 uses different language — replacing "drug addicts” with "drug users” — but, to repeat, was regarded by the draftsmen as the same in substance as the predecessor statute. Moreover, the most recent legislative revision — to prohibit remaining at certain places — makes the most sense if the place at which a person remains is an ongoing illegal drug operation, rather than a place where drugs are used once.

Under this analysis of ORS 167.222, evidence of a single occasion of use or sale of illegal drugs at a given place — all that is revealed by the record in this case — is insufficient as a matter of law to sustain a conviction for criminal drug promotion by knowingly remaining at that place.

Reversed.

RICHARDSON, J.,

specially concurring.

While I agree the conviction must be reversed, I disagree with the reasoning of the lead opinion. I conclude that the statute, insofar as it prohibits remaining in a place which is used for the unlawful keeping or sale of narcotic or dangerous drugs, is unconstitutional.

The lead opinion, without finding the statute to be ambiguous or unclear, resorts to extrinsic indicators of legislative intent to find the meaning of the words used. I do not think the statute is susceptible to the construction postulated in the lead opinion.

The legislature repealed ORS 474.130 in its entirety. Thus there is no longer a statute prohibiting the existence of a nuisance as previously described in ORS 474.130(1). This court now, however, finds the nuisance provision has survived in ORS 167.222. What is now required is that the state prove a nuisance exists and that the defendant remained at the location of the nuisance knowing the character of the place. This is a fair import of the lead opinion’s use of ORS 474.130 in defining "a place” and the statement that "ORS 167.222 prohibits knowingly remaining in a place where a principal or substantial purpose is the commercial sale or use of illegal drugs.” (31 Or App 755.) This seems to me to create a legal quagmire from which we will be continually extricating ourselves in future cases.

For example, would a dwelling house, whose principal or substantial purpose is as a residence, be considered "a place” under the statute if also used for the sale of narcotics on more than one occasion. Multiple sales may support an inference that one use of the dwelling is illegal drug activity. The opinion does not state how the priorities of use are to be allocated.

Would the definition of a place include "[a]ny store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever,” (ORS 474.130) where commercial sales or use of illicit drugs are carried on on more than one occasion? If so, there may be a store, a tavern, or a taxicab, the principal or substantial purpose of which is the sale of legal merchandise or commercial transportation, but where frequent sales of illegal drugs also occur. A fishing vessel where one of the employes continually stores or sells narcotics or dangerous drugs would perhaps fall under the definition of "a place” even though its primary purpose is catching fish. The imagination is the only limitation on finding examples of places where there are several activities carried on including illegal drug sale and use.

In 1974 the legislature amended ORS 167.222 by adding subsection (3):

"Notwithstanding subsection (2) of this section, if the conviction is for knowingly maintaining, frequenting or remaining at a place where less than one avoirdupois ounce of marijuana is found at the time of an arrest under this section, criminal drug promotion is a violation punishable by a fine of not more than $100.”

Whether a person remaining is guilty of a Class A misdemeanor or a violation depends not on the character of the place but upon the amount of marijuana found at the time of the arrest. If the evil sought to be prevented by ORS 167.222 is the promotion of the "opium den” it would be inconsistent to have the punishment depend on the character and amount of drugs found at a particular time. The "opium den” characteristic must, of necessity, be established by more than one sale or use. If, for example, the evidence established the place was continually used for heroin sales or storage and this was known to the person remaining it would appear the substance of the charge is remaining in the "heroin den.” If it were additionally proved that at the time of the arrest no heroin was found but only less than an ounce of marijuana, the charge is merely a violation. The punishment would not then reflect remaining in the "heroin den” but remaining in a place where less than an ounce of marijuana was found. If the legislature intended to prohibit remaining in a "heroin den” in order to abate this type of nuisance it would be inconsistent to allocate punishment on the basis of the drugs found at the time of arrest. I doubt that the legislature intended this result.

The interpretation given ORS 167.222 in the lead opinion is not warranted by the wording of the statute. I would construe the statute to mean exactly what it says. A person is guilty of criminal drug promotion if he knowingly remains at a place "[wjhich is used for the unlawful keeping or sale of narcotic or dangerous drugs.” The wording of the statute would include a single isolated sale or keeping of illegal drugs. The statute, as construed in the lead opinion would now read: which is primarily or substantially used for the sale or keeping of narcotic or dangerous drugs. I agree it is the obligation of courts to construe acts of the legislature in a constitutional manner if at all possible. Courts, however, are not free to amend a statute under the guise of judicial interpretation by adding additional elements or wrenching the meaning of words to make them sound constitutional.

The legislative purpose of this statute can be gleaned from its general tenor which is to prevent criminal drug promotion by removing the opportunities for drug use, keeping and sale. Additionally, it seeks to remove social encouragement and sanction of unlawful drug activities by prohibiting remaining where such activity is being carried on. This court now places an additional burden in the statute by requiring proof a drug nuisance or "opium den” exists before it can be abated by this method.

My construction of the statute leads to my conclusion it is overbroad. If by prohibiting remaining in a place used for unlawful drug activity the purpose is to discourage such activity, the statute sweeps too broadly. On its face the statute has three requirements for criminal responsibility. A person need only (1) remain in a place, (2) where drugs are unlawfully kept or sold, and (3) with knowledge such activity is occurring. An individual whose conduct satisfies these three requirements is by that fact guilty without any proof he intended to encourage, sanction or acquiesce in the unlawful drug activity. It is evident the statute is broad enough to encompass behavior which everyone would consider to be innocent. Persons may find themselves in situations such as parties, hotels, public gatherings, at private residences, in private automobiles or in their own homes where they discover some individuals are engaged in illegal drug activity. Under the statute, criminal liability would be imposed despite the fact they had no involvement in the conduct other than being present.

The imposition of criminal liability under these circumstances is not consistent with the purposes of the criminal code expressed in ORS 161.025(l)(d):

"To define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.”

Four other jurisdictions have wrestled with the problem of the constitutionality of similar statutory language. Three have rejected a constitutional challenge and one has declared a similar statute unconstitutionally overbroad.

In People v. Cressey, 2 Cal 3rd 836, 87 Cal Rptr 699, 471 P2d 19 (1970), the court upheld a statute which made it unlawful "* * * to visit or to be in any room or place where narcotics are being unlawfully smoked or used with knowledge that such activity is occurring.” Cal Health & Safety Code, § 11556. In sustaining the constitutionality of the statute the California Supreme Court stated:

"* * * 'If the defendant "did not act to aid, assist, or abet” the perpetration of the crime, he is guilty of no violation of law from the mere fact that he was present * * *’ and knew of its commission.* * *” 87 Cal Rptr at 708.

The court went on to note that Cressey controlled the premises where the marijuana was being used and did nothing to prevent the activity. The court held the statute as applied to Cressey was constitutional. The court thus added a requirement not discernible from a literal reading of the statute, i.e., that the defendant be in control of the premises or aid and abet the illegal drug activity.

The Cressey decision has come under criticism by the California Court of Appeal. In Re Elisabeth H, 20 Cal App 3d 323, 97 Cal Rptr 565 (1971).

"Thus it appears clear to us that before one constitutionally can be convicted of violating Health and Safety Code section 11556, the Cresseyca.se requires something more than mere voluntary presence and knowledge of the activity, although the court did not mark out the boundaries of the additional element or elements that may be required. They remain vague and obscure.
* * * *
«* * * Hopefully, we soon will be rescued from this legal quagmire * * *.” 20 Cal App 3d at 329.

Rescue came in the form of a legislative repeal of the statute in 1972.

A Jacksonville, Florida ordinance was reviewed in Jolley v. City of Jacksonville, 281 So2d 901 (Fla App 1973). The ordinance punished " '[v]isiting or being present in any room, vehicle, or other place where [narcotic drugs are being used] with knowledge that such activity is occurring.’ ” Citing People v. Cressey, supra, the court upheld the ordinance as applied to defendant Jolley. The court first noted a person is not guilty of the crime by the fact he is present with knowledge the activity is occurring. "Rather,” the court said, "it is the element of participation or acting in concert with or abetting by lending approbation to the violation by one’s presence that gives the ordinance its vitality.”

In Commonwealth v. Tirella, 356 Mass 271, 249 NE2d 573 (1969), the defendant was convicted of violating a statute which punished "* * * Vhoever is in the company of a person, knowing that said person is illegally in possession of a narcotic drug * * ” The court construed this language to require more than that the defendant was found in the same place with a person known by the defendant to possess narcotics. What was required, the court said, was proof of acquiescent association and absence of prompt and adequate objection to the narcotic activity. Thus construed the court held the statute was valid as applied to Tirella who was sitting in a car with a person found to be in possession of heroin.

In each of these cases the court found it necessary to add additional elements to the plain wording of the enactment in order to uphold it.

I agree with the reasoning of the Nebraska Supreme Court in State v. Adkins, 196 Neb 76, 241 NW2d 655 (1976). The statute declared unconstitutionally overbroad provided:

"* * * 'It shall be unlawful for any person: * * * To visit or be in any room, dwelling house, vehicle, or place where [a narcotic drug] is being used [unlawfully], if the person has knowledge that such activity is occurring ****** * » 196 Neb at 77, 241 NW2d at 656.

The court held the statute as written was overbroad in that it encompassed entirely innocent behavior. The court posed a series of rhetorical questions to illustrate the broad reach of the statute:

"Could a college student be convicted under the statute if he merely continued to reside with a roommate whom he knew illegally possessed marijuana? What action would a passenger in a car take when he learns that others in the car have drugs on their persons although they are not at that time using drugs? Must the passenger demand that the others dispose of anything illegal in their pockets? How about the status of relatives, priests, or doctors attempting to discourage continued violations? What if a person were engaged in a constitutionally protected activity, such as attending a public meeting or voting, when he inadvertently discovers that another person is in possession of a controlled substance? All the above situations would appear to be covered by the express language of the statute itself, and would result in the imposition of criminal liability upon a person merely because his or her presence with knowledge that such illegal activity was taking place. We do not believe the Legislature intended to make such innocent conduct criminal, and yet by virtue of the overbreadth of the language used, as commonly understood, criminal liability might well result.” 196 Neb at 79, 241 NW2d at 657.

Although the Nebraska statute used the terms "visiting” or "being in” a place where narcotics are used, while Oregon’s statute employs the term "remaining” there is little practical difference between these prohibitions. The term remaining in ORS 167.222 is not defined and should be given its ordinary meaning which is essentially the failure to leave. If we further amplify that term to mean a person remains after having a reasonable opportunity to leave following acquisition of the requisite knowledge the conduct punished is simply the presence of the individual where criminal drug activity is taking place.

If the purpose of the statute is to prevent criminal drug promotion by removing social encouragement and approbation for drug activity the method adopted does not bear a rational relationship to that purpose. An individual who is knowingly present may have no intent to encourage or approve of the illegal drug conduct or even may be present to discourage or disapprove. Since the statute makes no distinction in purposes for remaining it potentially ensnares innocent conduct. As the United States Supreme Court said in striking down a penalty statute as overbroad:

"* * * It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrong-doers also may be caught. * * *” Fairmont Co. v. Minnesota, 274 US 1, 10, 47 S Ct 506, 71 L Ed 893, 52 ALR 163 (1927).

If the statutory purpose is to restrict an individual’s access to drugs and remove him from temptation by prohibiting remaining in the proximity of drug activity it is too broad in its sweep. Such a purpose assumes a person who knowingly remains where drugs are kept or sold will buy or use the drugs. This may very well be the result but it is equally probable a person may elect to remain with no intention or purpose to participate in drug activities. The net effect would be to punish the otherwise innocent act of remaining on the assumption that a criminal act of drug abuse may result.

If the statute were to be read as requiring proof the individual remained in furtherance and aid of the unlawful drug activity, then the statute would be unnecessary. The individual would be a principal in the criminal drug activity by operation of ORS 161.155(2) (b) or (c). To construe the statute as requiring proof of intent to foster, encourage or aid the unlawful drug activities would impose additional requirements not encompassed in the words of the act and would be a judicial amendment.

I would hold the statute insofar as it prohibits knowingly remaining in a place where narcotic or dangerous drugs are unlawfully kept or sold is unconstitutionally overbroad and the demurrer should have been allowed. 
      
      At the time material to this case, ORS 167.222 provided:
      "(1) A person commits the offense of criminal drug promotion if he knowingly maintains, frequents, or remains at a place:
      "(a) Resorted to by drug users for the purpose of unlawfully using narcotic or dangerous drugs; or
      "(b) Which is used for the unlawful keeping or sale of narcotic or dangerous drugs.
      "(2) Criminal drug promotion is a Class A misdemeanor.
      "(3) Notwithstanding subsection (2) of this section, if the conviction is for knowingly maintaining, frequenting or remaining at a place where less than one avoirdupois ounce of marijuana is found at the time of an arrest under this section, criminal drug promotion is a violation punishable by a fine of not more than $100.”
      ORS 167.222 has since been amended by Oregon Laws 1977, ch 745, § 35. All references in this opinion to ORS 167.222 are to the version in effect before the 1977 amendment, and we express no view on the proper interpretation of the amended version.
     
      
       E.g., State v. Jackson, 224 Or 337, 356 P2d 495 (1960); Wright v. Blue Mt. Hospital Dist., 214 Or 141, 328 P2d 314 (1958).
     
      
       Recent analogous authority supports this approach. In Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977), all of the arguments before the Supreme Court were constitutional; but the court resolved one of the issues presented by way of statutory construction, thereby not reaching the constitutional issue.
     
      
      We do not reach the constitutional issues discussed in the specially concurring opinion. We only note that the term "remains” also appears throughout the burglary and criminal trespass statutes, ORS 164.205 to 164.255, and that the concurring opinion does not suggest any reason why "remains” should be struck down in one context but upheld in another.
     
      
      The legislative history is not as clear as the lead opinion suggests. During a discussion of criminal drug promotion by the Criminal Law Revision Commission the following occurred:
      "Mr. Clark [a Commission member] opposed section 5 [ORS 167.222]. He said that if a person went to a party where someone was using drugs in another room, the person could be found guilty of criminal drug promotion under this section. Mr. Paillette replied that section 5 used the strict liability term 'knowingly’ and a person could not be found guilty unless he knew drugs were in use.” Minutes, Criminal Law Revision Commission, March 18, 1970, p 14.
      The section was approved by the Commission after this discussion. The implication is the Commission understood the person would be guilty if he had knowledge the drug use was occurring in the other room. There was no discussion regarding a requirement that the dwelling’s primary or substantial purpose be drug activity.
     
      
      
         See also an analysis of the Cressey decision which is critical of the court’s reasoning. No Place for "Being in a Place”: The Vanishing of Health and Safety Code Section 11,556, 23 Stan L Rev 1009 (1971).
     