When a criminal suspect is charged with a crime, all is not lost. The fight has just begun.

So many prostitution solicitation defendants are like deer caught in the headlights. They arrive out of sexual interest and instead get arrested by a cop. They come from across the socio-economic spectrum, and were hoping their visit to a purported masseuse, escort, or prostitute was going to be pleasurable and confidential. When suspects get caught in police headlights in such a fashion, they often spill the beans to the police rather than following my time-honored lesson of the power of “no” with police.

When a prosecutor rejects a defense lawyer’s negotiation offer, at least that means a chance to fight for a better result for the defendant than offered at the negotiating table.

In tandem with my recent article on winning a bawdy place trial, here I address ultimately winning my client’s prostitution solicitation case by appealing for a new trial in Virginia Circuit Court, convincing the judge to suppress his arrest, and ultimately convincing the prosecutor to dismiss the case.

The factual allegations against my client were commonplace. Police hired a civilian to pose as a prostitute advertising online for a sensual paid-for experience. My client showed up at the hotel room, he left money on the table, the “prostitute”/confidential informant started with small talk, and then the “prostitute” went for the kill saying that her services covered straight sex and oral sex, and that anal sex would cost extra. She then said she was going to the bathroom — which is a typical signal for the waiting police to storm the room — and that my client should make himself comfortable. She went into the bathroom. My client started removing his pants. The police takedown team then stormed the room and seized my client, and took him to the adjoining room where the arresting/charging officer was waiting.

At our General District Court bench trial, we lost, despite my argument that at best for the prosecutor, a crime was not proven. I argued that the prosecution had proven nothing beyond that payment was provided for time spent lawfully between consenting adults who were of course free thereafter to engage in consensual sexual activity.

Virginia’s prostitution solicitation statute requires the following three elements: [1] Offering “money or its equivalent to another [2] for the purpose of engaging in sexual acts as enumerated in subsection A and [3] thereafter [doing] any substantial act in furtherance thereof.” Va. Code § 18.2-346.

I argued that the videotaped incident and other evidence from the prosecutor did not satisfy the second element of prostitution solicitation, which is that the offered money be for the purpose of engaging in sexual acts rather than lawfully for paying for the woman’s time.  Remember, even if I know a woman is an escort, it is not unlawful for me to pay her simply to have lunch with me at a salad bar, to give me a shoulder massage, or to play a round of tennis with me.

Convicted for prostitution solicitation in District Court, my client appealed for a new trial in Circuit Court. We scheduled a jury trial and a pretrial hearing on our motion to suppress evidence.

At the Circuit suppression motion hearing, the arresting officer appeared as the only prosecution witness. Unlike at the District Court trial, the woman posing as a prostitute did not appear at my client’s Circuit Court suppression hearing.

At the Circuit Court suppression motion hearing, the prosecutor presented testimony by the arresting officer and, over my objection, offered into evidence the surreptitious videotape recording of the interactions between my client and the purported prostitute in the hotel room. The judge admitted the videotape into evidence.

Early on in cross examination, I asked the arresting police officer questions along the lines of:

Q: When was the first time you heard my client’s name?

A. When I arrested him.

Q. When did you arrest my client?

A. Soon after first seeing him, after the other officer gave me a synopsis of the situation.

Q. When did you first see my client?

A. When one of the officers took the defendant from the hotel room with the confidential informant to the adjoining hotel room where I was located.

Q. Before you arrested my client, did you ever hear his voice?

A. No.

Q. Before you arrested my client, had you ever seen his face or any other image of him?

A. No.

Q. Before you arrested my client, did you visually monitor his activities with the confidential informant [the purported prostitute]?

A. No.

Q. Before you arrested my client, did you listen to anything that the confidential informant was saying when she was with my client?

A. No.

I then proceeded to move to suppress the arrest of my client (the below is edited for clarity from the suppression hearing transcript), where my argument included:

MR. KATZ: “So here’s what we have pre-arrest: We don’t have anything. We have [arresting] Detective D___ having some unspoken person, some unnamed person telling Detective D ______ something that’s “consistent” with what’s in the [surreptitious] video but that’s like a circle within a circle. So we have a [surreptitious] video, that’s the big circle. And then you have another officer reporting about something that was consistent with what’s in the video. We don’t know what was told by the other officer to the arresting officer. [I illustrate my argument by drawing a Venn diagram.]

“So let’s say you have a video that has Paul McCartney, Elton John and Duke Ellington. And then you have a report to the [arresting] officer about Duke Ellington. The someone else telling Detective D____ about Duke Ellington playing the piano is consistent with what’s in the video but it doesn’t report the whole video.”

THE COURT: “Maybe it’s enough to know about Duke Ellington.”

MR. KATZ: “There we go. But we don’t know. In this instance with Detective D___’s testimony, we don’t know what the other police officer told Detective D____. We don’t know if the other law enforcement officer just said, ‘well, I just came back from room 804 of the hotel with the accused, I saw the confidential informant walk in there. I saw room service walk in there.’ We don’t know what was told to Detective D___. We don’t know, therefore, whether before my client  was arrested there was sufficient information in the hands of law enforcement to know that my client offered money — element number one — or its equivalent for purposes of the sexual activity stated in the prostitution solicitation statute.

“I had objected to the video coming into evidence because it should not come into evidence because Detective D___  didn’t watch the video on the day of the incident. So the video that Your Honor admitted into evidence is of no help. All we have is Detective D___’s words to try to show probable cause, meaning Detective D___’s knowledge pre-arrest. Pre-arrest of course was before Miranda was read. Detective D___ said from the witness stand that he relies on his testimony from today from what he saw in the video that he saw post-arrest, plus my client’s words post-arrest.”

THE COURT: “The testimony was he relied on what was told to him and it was consistent with what he  saw later in the video.”

MR. KATZ: “You already have my arguments about ‘consistent’. Using toothpaste is consistent with being both a murderer and a teacher because we expect that there are murderers who use toothpaste and teachers who use toothpaste. So it’s the same idea. If Detective D____  said that he was told about toothpaste as consistent with a murderer, so what? It doesn’t establish the elements of a murder because schoolteachers use toothpaste, too. We don’t know what Detective D___ was told pre-arrest. We don’t know if Detective D___ was told pre-arrest anything about money exchange. We don’t know  — and I’m relying on Code Section 18.2-246 — if Detective D____  pre-arrest was told anything about a discussion of sexual activity. We don’t know if Detective D___  was told pre-arrest about what the substantial act was.

“Next, Judge, we go to the purposes of paying money for engaging in sexual acts. Detective D___ can use this vague statement of ‘I received a consistent report’ once again, but we don’t know the extent to which that report from someone else told Detective D___ what these sexual acts were. Was it kissing? Was it masturbation for pay? Because there’s nothing in the law that prohibits being paid money for a woman to masturbate a man. We have no sufficient information about what the substantial act was. Although we see in the video that my client is taking off his pants before the arrest team comes in we don’t know what Detective D___  was  told. So for instance, Detective D___ could have just been told by this other person, “He gave money for a sexual act and did a substantial act.” That statement would be consistent with what’s in the video without giving sufficient information to Detective D____ to be able to have probable cause for Detective D___ to have arrested my client. So probable cause is lacking to arrest my client.”

The prosecutor argued in response. I briefly responded, and the judge took a brief recess.

The judge returned, and granted my motion to suppress due to the lack of sufficient evidence in the hands of the arresting officer at the time of his arresting my client, to constitute probable to arrest.

I then moved to dismiss the prosecution, “because but for the arrest we would expect my client would have just gone on his way, not been arrested. No one would have known his identity to even prosecute him in the first place.” The judge would not rule on the matter then and there, so I briefed the issue and scheduled a motion to dismiss the prosecution.

The prosecutor consented to dismiss the prosecution after I submitted my brief pointing out that under Virginia caselaw, a defendant’s identity must be suppressed as the fruit of an unlawful arrest where the “defendant’s identity and connection with unlawful activity were only first discovered through the illegal detention.” Zimmerman v. Virginia, 234 Va. 609 (1988). Here, I argued that my client’s name and address only were learned after his illegal arrest by Detective D___.

The judge signed the proposed consent dismissal order, and justice was finally served.