Both child pornography and solicitation to have sex with a minor cases are on the rise. Police departments have committed numerous resources to monitoring chat rooms and trying to lure people into attempting these crimes. A recent Florida case, State v. Martinez, illustrates just how far some law enforcement officers are willing to go. [(12th Cir, Manatee County (May 8, 2014)].
In Martinez police invented a fictitious profile page for "Becca" on a dating website for adults. Mr. Martinez was using the website to find women between ages 18 and 30 and he responded to Becca's profile page. Martinez chatted with Becca online, via text, and on the phone. "Becca" was in fact an Agent with Homeland Security.
Over the course of three days, the two communicated frequently but never discussed sex and, more importantly, Becca never revealed her age. After many hours of conversation, Becca revealed that she was only 14 years old; she also sent pictures of her partially undressed in a hotel room. The person in the pictures, however, was actually a sheriff's officer in her 20s. The police, as Becca, also repeatedly initiated contact and steered the conversation towards sex. It was only after 12 days, and multiple assurances by Becca, that Martinez agreed to meet and was arrested.
After his arrest, Mr. Martinez filed a motion to dismiss arguing he was the victim of police entrapment. The trial court agreed, concluding that the actions taken by law enforcement constituted entrapment as a matter of law. It, therefore, dismissed the charges against him. Inducement and predisposition are the major elements of entrapment. The court found that the police had induced Martinez into acting and used repeated coercion through developing a friendship and using excessive pressure. The police planted the idea of sex in Martinez's mind, by sending suggestive photos of an adult woman, and by repeatedly luring him into discussing sex. The court also found that Martinez was not predisposed to commit the crime of sex with a minor. It took twelve days of repeated pressure by Becca before Martinez agreed to meet her. For these reasons, the court dismissed the case.
People in chat rooms are often not who or what they claim to be. Martinez was the victim of an overreaching and excessive effort by law enforcement, but he found relief because the police conduct was egregious and he was not immediately interested in sex. If "Becca" had more quickly identified herself as a minor, and if Martinez had more readily sought sex, the result could have been very different.
Another critical factor in the court's analysis was Mr. Martinez's lack of "predisposition." There was no evidence in the record that, but for police enticement, Mr. Martinez would have sought out any minor to solicit for sexual activity. That is why it is critical, if questioned by law enforcement, to immediately invoke the constitutional right to counsel upon arrest. Do not allow an admission that you have previously "chatted" with underage minors to eliminate one of the most important defenses available to you: police entrapment.