Civilian Informant’s Sexual Favors to Induce a Controlled Drug Deal, Unbeknownst to the Police, Does Not “Shock the Conscious.”

State v. Christenson, Minn.Ct.App., 11/26/2012.  Officer Marcotte, a Bemidji police officer assigned to the Paul Bunyan Drug Task Force – yes, Paul Bunyan – recruited a civilian to work as an informant.  She tricked any number of guys to perform controlled buys of drugs, for which the police paid her handsomely.  Mr. Christenson was one of the guys from whom she made a controlled buy.  It turned out, though, that in addition to paying for the drugs with the state’s buy fund money she was also swapping sex with Mr. Christenson to get him to sell her the drugs. 

Mr. Christenson moved to dismiss the drug charges that the state filed against him because of what he characterized as the “outrageous government conduct” of the informant.  The trial court held a hearing on this motion and determined that the state didn’t know that she had had to bribe Mr. Christenson with sex to convince him to sell her the narcotics.  The trial court denied the motion and Mr. Christenson appealed his conviction.

If the government behaves in sufficiently outrageous conduct either to induce an individual to commit a crime or during its participation with that individual to commit a crime that conduct will bar a conviction, even of someone predisposed to commit the crime.  Hampton v. United States, 425 U.S. 484 (1976).  Now, there are varying iterations of the test to apply to the conduct in question.  There’s a test when the conduct is sex, State v. Burkland,  775 N.W.2d 372 (Minn.Ct.App. 2009); and another test when the conduct is drugs, State v. James, 484 N.W.2d 799 (Minn.Ct.App. 1992).  The trial court ignored the sex and applied the drugs James test.  Mr. Christenson thought that this was error.  The court of appeals didn’t think either test was applicable, especially the sex test because here it was not an officer who was having the sex; moreover the officer didn’t know about it.  So, the court fell back to a generic test, asking the rather broad question whether the conduct “shocks the conscience” of the court.  It doesn’t:. 

The district court found that the CI “apparently” engaged in a sexual relationship with Christenson. However, any sex that occurred happened a few weeks before the CI informed Marcotte that Christenson was a potential target for a controlled buy. Marcotte did not encourage the CI to engage in sexual activity with Christenson, nor was Marcotte aware that sexual activity had occurred between the CI and Christenson. In fact, Marcotte explicitly told the CI to avoid arranging buys with close personal friends or family members—which reasonably would have included sexual partners. In summary, the police in this case have minimal culpability for the CI’s use of sexual conduct during the investigation. This case simply does not present government conduct that “shocks the conscience.”