Newsflash: UC lies to Suspect

If I had a dime for everytime I heard

"Yeah, but I asked him if he was a cop, and he said no!"

I could retire. And be a pro bono dog walker.

But actually, tonight, that prostitution story got me thinking about undercover officers. How far can they (and should they) go to make an arrest?

My impression, after reading both the affidavit of probable cause and this news story, is that the officers' interaction with the accused prostitutes was limited to masturbation to avoid the risks associated with bodily fluid transmission.

So, for example, there's an accusation in the affidavit that the defendant leaned forward as though she was going to perform oral sex on the undercover. The UC stopped her, asking "How much is this going to cost me?" He denied having that amount of money (I think it was $60), and instead only got the "handy handy" for $20. But what if she had then said, "Okay, $20 for a blowjob." Would he have accepted? Would she have been suspicious if he didn't?

Sometimes my clients come up with "tests" to see whether or not another individual is an undercover. Here's how this test works: My client asks the suspected UC, "You're not a cop, are you?" If the answer is "No," then they can be confident that the actor is not a cop. Amazing, isn't it?

Except that my client is behind bars telling me this story. So, that test failed because it was based on the assumption that an undercover officer either wouldn't or couldn't lie.

I have heard (although not personally or from any of my clients), that prostitutes will sometimes ask a potential customer for a kiss on the lips before making the deal, based on the assumption that an officer wouldn't do that. And I'm not sure if a UC would do it - it might venture into that exchange-of-bodily-fluids-and-risking-herpes-or-worse territory. So, that might be a valid test. I have also heard that a prostitute might ask a potential john to "Whip out your business and show it to me right here before we make a deal" (presumably this takes place on an otherwise deserted street, not on a busy block). I think this may also be a valid test because I wouldn't think an UC would show their stuff - but apparently in Snohomish County they would.

On one hand, I don't think "Well, he kissed me first!" would be a great defense to a prostitution charge. I guess it might help to negate that any later agreement to perform a sex act was based solely on money (and not on the love she felt in his kiss). And while "He violated police procedure" might help to prove that the officer made other mistakes (identity?) or is lying if he denies the kiss, I don't know if it would be enough to overcome any facts that the defendant offered sex for money.

On the other hand, maybe the fact that I've never yet had a client say "he kissed me first" might mean that prostitutes smart enough to engage that tactic aren't getting arrested.

And, finally, could this approach be used to avoid being arrested by an undercover for other types of crimes?

I can see it now:

"Hey man, could I cop some dope?"

"Well, before I discuss that with you, I'd like to see you inject yourself with this needle of free sample heroin."


  1. How about a big bag of various pills? Completely legal stuff, like aspirin, Tylenol, Motrin, Claritin, Breath Mints, Candy, etc. The front man could grab one at random out of the bag and offer it to the buyer before discussing anything else.

    I don't think a cop would swallow an unknown pill he got from a drug dealer. A drug user, on the other hand, intends to do exactly that or worse, so no big deal.

    Of course if it were that easy, somebody would be doing it by now. Besides, this wouldn't work so well with informants, and it wouldn't work at all on an observation bust.

  2. There's a huge gulf between a test that's legally sufficient and a test that is practically sufficient. As you suggest, the mere fact that the undercover officer had his genitals touched does not negate any of the elements of the offense.

    The only legally sufficient test is to force the undercover officer into entrapment. That is, if the officer is the one that first mentions both the sex and the money, and does so without any leading or other indicia of predisposition on the part of the would-be prostitute, such that he's enticing her to commit the crime, then she has an affirmative defense.

    This is not very practical advice.

    From a practical standpoint, offering a quick instance of oral sex before discussing any money is probably a valid practical test. While it's of no legal significance, it's unlikely for an officer to risk disease or the ire of a spouse by submitting to that. And as long as she's offering gratis, the worst she can get popped for is public lewdness or sodomy/crimes against nature... and I suspect those latter charges are all garbage law now in light of Lawrence v. Texas.

    I suspect most practioners of this trade wouldn't have the patience to apply this test rigorous... time is money, and losing all the time to get from pick-up to secluded destination only to discover after the "test" is complete that your client doesn't have enough money for you is probably not appealing. And while taking that hit for the long-term benefit of avoiding an arrest record seems like a wise choice for the long run, most women in that business are not exactly noted for their ability to make wise choices based on the long-run view of things.

  3. I like the idea of a bag of mixed pills.

    But once word gets out that the drug dealers and prostitutes are giving out freebie samples...

    They're either going to have a lot of customers, or they're going to have a lot of enemies from the other prostitutes and dealers.

    And, do you think there would be guys who would go around collecting the "free samples" from the prostitutes, rather than pay for one whole deal? You know, like people who eat enough samples at the grocery store so that they don't have to buy dinner. Or enough perfume samples that they never have to buy a bottle?

    But once you know a customer, you wouldn't have to go through all of this again.

    And, the anonymous commenter is right - all of this is out the window when it comes to observation busts. And probably when it comes to informants too - although at trial, UCs are inherently more reliable than the informant who actually went through with sex or a blowjob from a prostitute.

  4. I used to smoke weed regularly, and buying it was pretty much like that. Go to the guy's house, he weighs out a bag, and a pipe is filled out of equal amounts of what is in the bag and what is in the guy's other stash that the bag was originally weighed out from. This bowl is smoked by everyone present. Only then is a deal made.

    Does it work? I don't know. Probably better than nothing. Probably if there was a trial, the informant could be requested to take a drug test - and if he/she refuses the test, this could be mentioned to a jury. But how often do small-time pot busts go in front of a jury? I never see an account of such a trial on any of these criminal law blogs. Honestly, I think a LOT of people would like to hear about that sort of trial. But they're rare, right? I mean, who wants to risk the REAL sentence? It's draconiriffic!

    Even though I am not a regular smoker anymore, I will always take a courtesy hit when people I don't know are smoking in order to set everyone's minds at ease.

  5. Good point, Banana Junior.

    I think that definitely happens with marijuana, and certainly more with they suburban dealer. Even in the city, I would think it's more wealthy people who have the luxury of going to a dealer who actually deals from his or her home.

    Unfortunately, many of my clients engage in street buys - not as safe, and certainly made unsafer if you try to smoke some together before making the deal.