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."