The appeal is dismissed for want of a properly presented federal
question.
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr.
Justice MARSHALL join, dissenting.
The Court dismisses this appeal for want of a properly presented
federal question. That disposition is utterly indefensible on the
record of this case.
Page 419 U.S.
1081 , 1082
Appellant was arrested for violating Florida Stat. 847.05, which
provides:
'Any person who shall publicly use or
utter any indecent or obscene language shall be guilty of a
misdemeanor of the second degree. . . .'
After the arrest, appellant was searched and marihuana was found
in his possession. Appellant was then charged with using indecent
or obscene language, resisting arrest, and possession of marihuana.
Prior to trial, he moved to dismiss the information on the ground
that on its face Florida Stat. 847.05 violates the First and
Fourteenth Amendments and therefore the arrest pursuant to 847.05
was unlawful and the ensuing search and seizure of the marihuana
invalid. The motion was denied. At trial by jury, the marihuana was
admitted in evidence and appellant was convicted solely on the
charge of possession of marihuana. The conviction was appealed to
the Florida Supreme Court pursuant to Art. V, 3(b)(1) of the Floria
Constitution, which directs the Florida Supreme Court to 'hear
appeals . . . from orders of trial courts . . . passing on the
validity of a state statute. . . .' The Florida Supreme Court
upheld the constitutionality of 847.05, finding that the statutory
language itself was 'sufficient to convey to a person of common
understanding its prohibition.'
293 So. 2d 33,
34. In view of that holding, the Florida Supreme Court found it
unnecessary to decide whether the marihuana conviction could stand
if 847.05 were unconstitutional and the initial arrest therefore
unlawful.
Section 847.05 punishes only spoken words and, as construed by
the Florida Supreme Court, is facially unconstitutional because not
limited in application 'to punish only unprotected speech' but is
'susceptible of application to protected expression.' Gooding v.
Wilson,
Page 419 U.S.
1081 , 1083
405 U.S.
518, 522 (1972). See also Lewis v. City of New Orleans,
415 U.S.
130, 134 (1974 ); Cohen v. California,
403 U.S.
15, 20 ( 1971). In that circumstance, it is irrelevant that the
statute might constitutionally reach appellant's conduct, for
"[a]lthough a statute may be neither vague, overbroad, nor
otherwise invalid as applied to the conduct charged against a
particular defendant, he is permitted to raise its vagueness or
unconstitutional over-breadth as applied to others. And if the law
is found deficient in one of these respects, it may not be applied
to him either, until and unless a satisfactory limiting
construction is placed on the statute. The statute, in effect, is
striken down on its face. . . ." Gooding v. Wilson, supra, 405 U.S.
at 521, 92 S. Ct. 1103.
Gooding obviously compels reversal of the judgment of the
Florida Supreme Court. The Court, however, dismisses this appeal
for want of a properly presented federal question. But a dismissal
on that ground would be appropriate only if the federal claim had
not been raised in a proper and timely manner in the state courts.
See, e. g., Bailey v. Anderson,
326 U.S. 203, 206-207
(1945); Street v. New York,
394 U.S. 576, 581-585
(1969). That cannot possibly be said of this case. The
unconstitutionality of 847.05 was the basic claim asserted by
appellant and he urged it at every level in the state proceedings.
And even were there doubt of this, and there can be none on this
record, our jurisdiction still obtains since the Florida Supreme
Court's sole ground of decision was based upon resolution of the
federal question. 'There can be no question as to the proper
presentation of a federal claim when the highest state court passes
on it.' Raley v. Ohio,
360 U.S.
423, 436 (1959).
Certainly it cannot be said that there is lack of a properly
presented federal question because appellant was not con-
Page 419 U.S.
1081 , 1084
victed for violating 847.05 but on the marihuana charge. His
claim is that the marihuana seized from him and admitted in
evidence against him was 'fruit of the poisonous tree' because his
initial arrest was pursuant to the unconstitutional 847.05. It may
be that on remand his 'fruits' claim will be rejected and the
marihuana conviction reinstated. But the Florida Supreme Court did
not speak to that question in light of its determination, based on
holding 847.05 constitutional, that the initial arrest was valid.
Appellant has properly presented the federal question decided by
the Florida Supreme Court and our plain duty is to reverse that
Court and remand for further proceedings not inconsistent with this
opinion.
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