State v. Emerson

Citations: 517 P.2d 245; 10 Wash. App. 235Docket: 2052-1

Court: Court of Appeals of Washington; January 8, 1974; Washington; State Appellate Court

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Jean Emerson appeals a conviction for accepting the earnings of a common prostitute under RCW 9.79.060. The appeal raises two key issues: the sufficiency of evidence proving the earnings were from a "common prostitute" and the legality of evidence obtained by a police agent who engaged in acts of prostitution under the direction of the police. 

The conviction was primarily based on the testimony of Johnny Du, a police agent who, at the request of Seattle police, visited a residence where Emerson introduced him to several women. Du recounted that he paid one woman, identified as Wendy, $20 for sexual intercourse. After the act, Wendy handed two $10 bills to Emerson, which she accepted. The court classified Wendy as a common prostitute, determining that the money handed to Emerson constituted earnings from her illicit activities.

Emerson argues the evidence is insufficient to establish Wendy as a common prostitute, citing a precedent that suggests a woman must engage in indiscriminate sexual relations to be classified as such. However, the court clarified that the definition encompasses broader conduct, including solicitation and the manner in which a woman presents herself to the public. The jury was tasked with evaluating all evidence regarding Wendy's behavior to determine if she qualified as a common prostitute. The court ultimately upheld the conviction, finding sufficient evidence supporting that Emerson accepted earnings from a common prostitute.

Defendant argues that her conviction was based on evidence obtained through police methods that violate public policy, specifically citing an illegal agreement between police agent Du and Seattle officers to contravene a city ordinance against prostitution. Although she did not object to the evidence's admission during trial, her later objections during closing arguments raised the substantive issue of whether the evidence could serve as a defense due to public policy concerns. The court notes that while law enforcement techniques for crime detection are generally left to the discretion of law enforcement, they must still adhere to statutory and constitutional restrictions, including due process protections and the Fourth Amendment. 

The excerpt discusses established practices in crime detection, such as the use of informants and undercover agents, which are usually deemed legal. However, there is a tension between the need for effective law enforcement and the potential for police misconduct. Some cases have held that police officers should not be exonerated for crimes committed while detecting other crimes, reflecting the principle that one should not violate the law to uphold it. Conversely, other cases support the notion that police may be exempt from penalties when illegal actions are taken in the course of fulfilling their duties in crime detection.

Model Penal Code Section 3.02 comments that police officers may violate speed limits while pursuing suspected criminals, suggesting legislative intent for their exoneration during crime detection. The principle is supported by case law, including *Sherman v. United States*, *Nardone v. United States*, and *Sorrells v. United States*, which discuss the role of police conduct in entrapment defenses. The majority view indicates that police conduct is less significant unless it directly entraps an unwary defendant into committing a crime. If the defendant is predisposed to commit the crime, unethical police conduct does not constitute a valid entrapment defense, as noted in *United States v. Russell*.

Despite some lower court decisions suggesting otherwise, the entrapment doctrine is not intended to allow federal courts to override law enforcement actions deemed overly zealous. There are dissenting opinions advocating for a more lenient application of the entrapment defense. Additionally, police misconduct that leads to a conviction may still serve as a defense, as noted in *Greene v. United States*. 

The discussion emphasizes the need to balance public policy interests: the necessity of crime detection and punishment against the rights of defendants to fair treatment. While some deceitful practices may be acceptable for law enforcement, it is vital to reconcile competing public policies without undermining either principle. In *United States v. Russell*, the court highlighted that the government agent's involvement in a drug operation did not violate any law, underscoring that infiltrating criminal enterprises is sometimes an essential method for law enforcement to detect crime.

Infiltration is an acceptable investigative tactic, as agents must offer something of value to illegal entrepreneurs to gain their trust. Such tactics do not typically violate the principles of fundamental fairness or due process as outlined in the Fifth Amendment. The court acknowledged that while there may be extreme cases where law enforcement conduct could be deemed outrageous and violate due process, the current case does not meet that threshold. The applicable standard of fairness, which balances competing public policies, supports the use of undercover agents, informants, and even limited participation in illegal activities during investigations.

In this case, police agent Johnny Du did not entrap the defendant or violate her due process rights. Although his actions could have contravened local prostitution ordinances if not part of a crime detection effort, they did not breach the public policy established in the state statute concerning prostitution. The court affirmed the use of evidence obtained by Du in convicting the defendant, despite acknowledging the questionable morality of the methods used. Judge Williams, while concurring, expressed concern over the police providing funds for such operations but suggested that the issue should be addressed through administrative or legislative means rather than excluding the testimony based on police conduct.