A trial court in Mt. Vernon, Skagit County, found a well-respected detective went way over the line from “normal” undercover activity. While undercover, “public policy allows for some deceitful conduct and violation of criminal laws by the police in order to detect and eliminate criminal activity.” Seems to be a lot of leeway in there already. So what happened that resulted in criminal charges being dismissed in the sex sting?
Apparently, it was due to “outrageous misconduct” by the police involving the “most egregious” of circumstances.
Mr. Joshua Solomon was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree. Solomon moved to dismiss all charges against him after he obtained the mountain of text messages between himself and “Taylor” (the undercover officer). Solomon rightly argued the State violated his constitutional due process right to fundamental fairness.
The undercover detective posted her “casual encounters” ad on Craigslist. The Craigslist site ‘requires’ all users to be at least 18. Solomon responded to the ad by clearly indicating he was seeking a legal casual encounter: free sex with a consenting adult female. When “Taylor” claimed she was “almost 15 but waaay advanced”, Solomon responded “Wow 15 not the best idea sorry I am not willing to get in trouble… maybe hit me up in 3 years if you’re still around girl”.
The detective should have stopped after Solomon didn’t take the underage bait. She didn’t. She relentlessly texted Solomon, who eventually succumbed to forbidden fruit. The trial judge colorfully described the detective’s actions as “should I continue to let the line out a little bit and see if I can hook this guy in a little deeper”. There was a mountain of texts going back and forth; more than 200, the majority from the detective using salacious chat.
The trial judge stated, “I find [the detective’s conduct] outrageous and over-the-top.” He welcomed review of his decision. “I hope this goes to the Court of Appeals,” because “we need to have a line about how far is too far.”
The Court of Appeals agreed: The State went too far.The WA Court of Appeals relied on an older case when reviewing the “totality of the circumstances”. State v. Lively, 130 Wn 201 19 (1996):
- Whether the police conduct instigated a crime,
- Whether the defendant’s reluctance was overcome by pleas of sympathy,
- Whether the government controlled the criminal activities; and
- Whether the government conduct itself amounted to criminal conduct repugnant to a sense of justice.
The State struck out on all these factors, thereby violating Solomon’s right of due process. The appeals court found that “Solomon’s reluctance to commit the crime was magnified by his repeated– seven times –attempts to discontinue the conversation.” Despite his attempts to disengage from the detective, she continued to solicit him. Not only that, but the “majority of the over 200 messages exchanged” were sent by the undercover officer to Solomon.
In other words, the State’s detective controlled the criminal conduct. The crime was a result of the the detective’s constant manipulation of Solomon and by “stringing him along over the course of four days of exchanges.” The conduct of the detective was counter to any sense of justice. She was not uncovering criminal behavior, she was encouraging and initiating it.
The last point was illustrated by the trial judge’s use of a single text, which he stated he could not “believe the detective would want to go to trial on this and subject this language to citizens”:
“OMG u r so f’ing hung baby!!! WTF… I’m so amped up after seeing this. I have wait for my sister to leave and I am gonna video tape me finger banging me to your pic! Can’t u cum and see me now!!!”
The trial judge states “there is no other way to describe it. Its outrageous. That is repugnant. Its egregious.” The Appellate Court agreed and found the trial judge did not abuse his discretion to dismiss on a pretrial motion.
Many sex stings have been conducted along these lines. Many of my clients were engaged in similar dialogs where days of pushy texts overcame stated misgivings. While Craigslist shut down its “personals” section, the police now use Backpage.com and Skipthegames.com for dummy ads, in order to bust seekers of services for patronizing a prostitute. Children being exploited by use of the internet is a legitimate law enforcement priority. However, adults seeking a consenting adult does not seem to be such a priority. There are many cases like Solomon’s, who seek such forums for consensual connections. Is this the best use of law enforcement resource