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‘Criminal frequenting’ is a trap door that should be sealed shut

‘Criminal frequenting’ is a trap door that should be sealed shut

Geoffrey Talmon
October 24, 2014
October 24, 2014

One crime that has held my ire is “criminal frequenting.” Most traditional crimes in the Idaho Code are appropriately contained in Title 18, under the heading “Crimes and Punishments.” “Criminal frequenting,” however, is found in Title 37, Chapter 27, along with many other crimes, under “Uniform Controlled Substances.” According to I.C. 37-2732(d):

“It shall be unlawful for any person to be present at or on premises of any place where he knows illegal controlled substances are being manufactured or cultivated, or are being held for distribution, transportation, delivery, administration, use, or to be given away. A violation of this section shall deem those persons guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than three hundred dollars ($300) and not more than ninety (90) days in the county jail, or both.”

This statute makes it a crime to simply go someplace where illegal drugs are being held for use, delivery, transportation, etc. It requires no intent to buy, sell, possess or use them yourself. As a result, it applies to such a broad range of legitimate activities that it could be enforced against almost anyone at one time or another. If the state could charge a person with possession, distribution or some other drug crime, it would do so.

But when a person is charged with frequenting, it is essentially an admission that the state could not prove one of the more serious charges directly related to illegal drugs. Indeed, one can be convicted of frequenting without ever having come into contact with illegal drugs in any form at all. Simply being present while knowing of their existence on the premises is deemed to be a criminal act.

Just how far does this principle extend? Have you ever been to a concert where you can smell that somewhere among the thousands of people someone is smoking pot? Frequenting. If you go to Thanksgiving dinner at the house of your brother, whom you know smokes pot from time to time. Frequenting. Have you ever been to a police station with an evidence locker? Technically, you were probably frequenting since any drugs held there are to be “transported or delivered” to a courtroom or to a lab for use as evidence. The list could go on and on.

The sheer number of innocent people who could be charged with criminal frequenting makes it a statute that is unconstitutionally overbroad and one that should be stricken from the books.

Idaho is a state that incarcerates people more frequently and for longer periods of time than most other states. At the very least we can make sure that the statutes that we enforce actually involve people imposing some kind of harm on the public.

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