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Police outrageous conduct — An elusive defense for criminal defendants

Fairfax criminal attorney on insufficient court protection against outrageous police conduct

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Do we as a society want to tolerate police engaging in oral sex and sexual intercourse with prostitutes in order to nab them, smoking crack with addicts to arrest them, and busting heads of rival gangs to arrest members of gangs to which the police pretend to belong? Do not hold your breath for courts to thwart such outrageous police conduct.

An example of outrageous police conduct (where the defendant did not allege outrageous conduct) is in Bakran v. Virginia, 57 Va.App. 197 (2010), where in the course of nabbing a john, an undercover officer posing as a prostitute agreed to his request to touch her clothed breast and for her to touch his groin. 

Minnesota’s Court of Appeals, for one, has put some teeth into the outrageous conduct doctrine, finding strong roots in such a case as Rochin v. California, 342 U.S. 165(1952), which applied the Fourteenth Amendment’s Due Process clause to reverse a drug conviction due to the conscious shocking police behavior in seizing Rochin’s unlawfully possessed drugs by vomit-forcing the drugs out of him with an emetic.

In Minnesota v. Burkland, 775 N.W.2d 372, 373 (Minn. App. 2009), a police officer initiated sexual contact with a masseuse by asking to touch her bare breast, for which he paid $30 extra to get exposed. That police initiation to fondle was enough for Minnesota’s Court of Appeals to overturn the masseuse’s conviction, even though she subsequently initiated a massage of the officer’s genitals, to which he responded with a request for a full “release,” which she agreed to, but she declined his request for intercourse. Burkand said:

“We conclude that when a police officer’s conduct in a prostitution investigation involves the initiation of sexual contact that is not required for the collection of evidence to establish the elements of the offense, this conduct, initiated by the investigating officer, is sufficiently outrageous to violate the ‘concept of fundamental fairness inherent’ in the guarantee of due process. Morris, 272 N.W.2d at 36. In light of our decision, we need not reach Burkland’s challenge to the sufficiency of the evidence.”

In 2013, Minnesota’s Court of Appeals rejected an outrageous conduct defense by a man convicted of drug dealing when he complained that his police informant purchaser enticed him with sex. The Court found it significant that the sexual relationship predated the drug purchasing, and that the police did not know that their undercover informant was using sex to close drug deals. Minnesota v. Christenson, 827 N.W.2d 436 (Minn. App. 2013).

In 2013, the Fourth Circuit was not nearly as sympathetic to the outrageous conduct doctrine as Minnesota v. Burkland, supra:

“After Hampton [v. U.S., 425 U.S. 484 (1976)], the “outrageous conduct” doctrine survives in theory, but is highly circumscribed. As we explained in United States v. Goodwin, 854 F.2d 33 (4th Cir.1988), a due process violation may only be found when the conduct at issue ‘is outrageous, not merely offensive.’ Id. at 37. And as the district court observed, this Court has never held in a specific case that the government has violated the defendant’s due process rights through outrageous conduct. In United States v. Osborne, 935 F.2d 32 (4th Cir.1991), this Court opined on the ‘high shock threshold’ of the appellate courts in the context of the ‘outrageous conduct’ due process violation, and the Court’s reluctance to vacate a conviction based on outrageous government conduct that does not otherwise violate a defendant’s rights. Id. at 36. The Osborne court cited with approval several cases, including United States v. Simpson, 813 F.2d 1462 (9th Cir.1987), wherein the Ninth Circuit upheld the conviction of a defendant who had provided heroin in exchange for sexual favors from a woman who had been manipulated into doing so by the FBI. 935 F.2d at 36. Thus, the Osborne court articulated what has become the test in this circuit for whether government conduct is so outrageous as to offend due process: the conduct must be ‘shocking,’ or ‘offensive to traditional notions of fundamental fairness.’ 935 F.2d at 37. In refining the standard for an ‘outrageous conduct’ due process claim, however, the court again concluded that the government conduct at issue failed to satisfy that threshold.”

U.S. v. Hasan, 718 F.3d 338, 342 (4th. Cir. 2013).