Officer Initiated Sexual Contacts Not Required For Collection of Evidence of Prostitution Violates Due Process.

State v. Burkland, Minn.Ct.App., 11/24/2009.  The due process rights guaranteed by both the federal and state constitutions prevent conviction of a defendant, even a predisposed one, if the government agent’s behavior in participating in or inducing the commission of the crime is “sufficiently outrageous.”  Hampton v. United States, 425 U.S. 484 (1976).  Twice in the late 1970’s, the Minnesota Supreme Court said it was okay for a police officer to engage in certain sexual activities with a prostitute in order to bust her for engaging in prostitution.  In State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978), and in State v. Crist, 281 N.W.2d 657 (Minn. 1979) the cop exposed himself to the target of the investigation in order get her to negotiate a price for sex.  Both times the court said that such behavior was not sufficiently outrageous to violate the defendant’s due process rights.

The third time’s not a charm; it’s outrageous.  As the officer lay naked on his back he inquired of the soon-to-be defendant if he could touch her breasts now.  Ms. Burkland said yes, whereupon the officer began to massage her bare breasts while she rubbed the officer’s penis with oil. 

The appellate court said that this request was unnecessary to gain evidence sufficient to arrest Ms. Burkland for prostitution.  Here’s why:

First, there is no evidence in the record, nor did the officer contend, that Burkland’s conduct was necessary to dispel a suspicion that he was a police officer. Second, Burkland made no demands of the officer to detect whether he was a police officer. Third, there is no evidence that the officer considered it necessary for the collection of evidence to initiate sexual contact by asking to touch Burkland’s breasts or permitting her to rub his penis in order to gain her confidence. Police investigation is important in prosecuting and reducing the incidence of prostitution. But the officer could have successfully sought the necessary agreement to engage in sexual contact for hire by inquiring about the charge for the “release” at almost any point throughout the almost hour-long massage without ever initiating sexual contact by touching Burkland’s breast. Thus, unlike the facts of Morris and Crist, the officer’s initiation of sexual contact and assent to the escalation of that contact was unnecessary to any reasonable investigation and offensive to due process.

The appellate court reversed the conviction.