Tyson Johnson was arrested for a violation of Athens-Clarke County Municipal Ordinance § 3-5-23, Loitering or Prowling.1 The arresting officer had observed Johnson at the same intersection four previous times over a two-day period, having told Johnson to move along twice the previous day and twice the day of the arrest, the last time 45 minutes before the arrest. Johnson departed each time as directed, but returned and was sitting on a wall at the intersection when the officer approached the fifth time. Asked whether he was visiting anyone, Johnson said he was not, and admitted he lived a mile away. When asked why he was there, Johnson asked why the officer was harassing him, whereupon he was arrested. The officer testified in municipal court that the location of the arrest was a known drug area and that he believed Johnson was involved in illegal drug activity because he came back to the same location, behavior the officer testified was characteristic of illegal drug activity. No evidence of drug-related activity was found. Johnson was found guilty and filed a petition for certiorari to superior court. After a hearing, the superior court affirmed the sentence imposed by the municipal court. Johnson contends on appeal, as he did below, that Athens-Clarke County Municipal Ordinance § 3-5-23 is unconstitutional for, among other reasons, vagueness.
1. Athens-Clarke County contends that this case is controlled by State v. Burch, 264 Ga. 231 443 SE2d 483 1994, and Bell v. State, 252 Ga. 267 313 S.E.2d 678 1984, in both of which OCGA § 16-11-36, Georgia’s loitering statute was upheld against vagueness challenges. Although the ordinance in question is almost identical to the statute, the difference between the two is crucial in the context of this case. In the ordinance, subsection a is extended by addition of the final clause, “. . . or under circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful drug activity.” The difference is crucial because “a constitutional attack to a statute on a vagueness ground that does not involve a First Amendment challenge must be decided on the particular facts of each case.” State v. Boyer, 270 Ga. 701 1 512 SE2d 605 1999. Under the particular facts of this case, it was the additional portion of the ordinance upon which Johnson was arrested, charged, and convicted. Thus, our consideration is appropriately directed at that additional language of the ordinance, rendering Burch and Bell inapposite.
