State v. Faruqi

Citations: 344 S.W.3d 193; 2011 Mo. LEXIS 206; 2011 WL 3298881Docket: SC 91195

Court: Supreme Court of Missouri; August 2, 2011; Missouri; State Supreme Court

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Kasim Faruqi was convicted of attempted enticement of a child after engaging in online conversations with an undercover police officer posing as a 14-year-old girl. He initiated contact and expressed a desire to meet and engage in sexual acts, fully aware of the legal implications due to the supposed age of the girl. Faruqi appealed the conviction, arguing that the statute was unconstitutionally vague regarding the enticement of a child when no actual child was involved. He contended that the 'affirmative defense' language in the relevant statute created ambiguity that should protect him from conviction for attempted enticement. However, the court found that the attempt statute clearly states that it is no defense if the offense was factually impossible under the circumstances believed by the actor. Additionally, Faruqi's claims that his statements to police were involuntary and that evidence obtained during the investigation was a result of unlawful search and seizure were also rejected. The court affirmed the judgment, upholding the conviction. The factual background included details of the undercover operation and the procedures followed during the police interview after Faruqi's arrest, where he was read his Miranda rights and acknowledged his understanding of them.

Mr. Faruqi confessed to Detective Osterloh that he engaged in online chats with someone he believed to be a 14-year-old girl, Kaitlin, and inquired about sexual activities with her. He intended to meet her at a park. After providing an initial statement that omitted details, he submitted a more thorough version, acknowledging discussions about sex and a planned meeting. He consented to a search of his workplace computer, which yielded chat data consistent with his conversations with Kaitlin. Charged with attempted enticement of a child under section 566.151, Mr. Faruqi's motion to dismiss the indictment—claiming the statute was unconstitutionally vague—was denied. During his bench trial, he admitted to the chats but maintained that he believed Kaitlin was an adult, asserting the sexual discussions were purely fantasies and denying any intent to engage in sexual acts. He alleged his written statement was coerced by the detective, who manipulated his concerns about Kaitlin's parents. The trial court found him guilty and sentenced him to five years in prison. The appellate court has exclusive jurisdiction over the constitutional challenge, presuming statutes valid unless they clearly violate constitutional provisions. Mr. Faruqi's vagueness argument was deemed inapplicable as he faced charges of attempted enticement, which necessitate clarity in penal statutes under the Due Process Clause.

The void-for-vagueness doctrine requires penal statutes to clearly define offenses so that ordinary individuals understand what conduct is prohibited, thereby preventing arbitrary enforcement. While due process mandates clarity, it does not demand perfection in language. A statute's vagueness is assessed based on its application to specific facts without needing to explore hypothetical scenarios. If a statute is constitutionally applied to an individual, they cannot challenge it based on potential unconstitutional applications to others. In this context, Mr. Faruqi acknowledges established law but argues for a facial challenge to section 566.151, focusing on its subsections. Subsection 1 prohibits the enticement of a child under 15, which Mr. Faruqi concedes is clear. However, he contends that subsection 2 creates vagueness by suggesting that the victim's status as a minor is not an affirmative defense, potentially misplacing the burden of proof on the defendant. He claims this inconsistency fails to provide sufficient guidance for law enforcement and adequate notice to citizens, rendering the statute unconstitutionally vague. Citing *City of Chicago v. Morales*, which invalidated a loitering statute for vagueness, he asserts similar reasoning applies here. The court, however, rejects Mr. Faruqi's request for a facial challenge to the statute.

Subsection 1 of the statute clearly prohibits the sexual enticement of a child under 15, and previous rulings, such as in Pribble, affirm that subsection 3 is not vague. Mr. Faruqi challenges only subsection 2, claiming it is vague as applied when someone believes they are enticing a minor, but the individual turns out to be an undercover officer. He has not demonstrated that the statute is unconstitutionally vague overall. While the State acknowledges that the statute's use of "affirmative defense" is misleading, it maintains that the essence of subsection 2 is clear: being deceived about the victim’s identity does not constitute a defense. The Court notes that Mr. Faruqi was charged with attempted enticement, admitting he believed he was communicating with a 14-year-old and took substantial steps towards committing the offense, as defined in section 564.011. The argument that the victim being an officer complicates the application of the attempt statute is considered unconvincing.

Subsection 2 of the attempt statute clarifies that it is not a defense against a charge of attempted enticement of a child that the underlying offense was factually or legally impossible due to the true identity of the victim, such as when the victim is a police officer posing as a child. A defendant's belief that they were communicating with someone under 15 for sexual purposes suffices for criminal liability, regardless of the victim's actual age. The statute makes clear that individuals over 21 attempting to entice someone under 15 are committing a crime, irrespective of the victim's identity.

Mr. Faruqi argued that his oral and written statements to Detective Osterloh were involuntary and should be suppressed because they were obtained through false statements that constituted implied threats. The Due Process Clause prohibits the admission of coerced confessions at trial. The standard for determining the voluntariness of a confession involves assessing the totality of circumstances that could lead to physical or psychological coercion affecting the defendant's choice to respond. Key factors include the defendant's personal characteristics, understanding of their rights, duration of detention, and any coercive interrogation techniques used.

In Mr. Faruqi’s case, the factors did not suggest coercion. He was 33, well-educated, understood his Miranda rights, and voluntarily waived them. Although English was not his first language, he had no difficulty understanding the detective and wrote his statement in English. The interview conditions were non-coercive, lasting about two hours with Mr. Faruqi uncuffed. The trial court found sufficient evidence to conclude that his statements were not coerced. Mr. Faruqi's claims that Detective Osterloh's inquiries constituted implicit threats were deemed unpersuasive, particularly regarding false representations about a complaint from a 14-year-old's parents and questions about his country of origin.

Detective Osterloh did not threaten Mr. Faruqi with legal action from the parents of a fictitious 14-year-old girl or deportation if he did not confess. The record indicates no inquiry into Mr. Faruqi's immigration status; rather, he was questioned about his country of origin and his understanding of U.S. laws regarding adult-minor sexual interactions. Allegations of threats by Mr. Faruqi did not imply harm for refusing to confess but pertained to potential consequences of admitting guilt. Furthermore, Detective Osterloh's provision of false information regarding the investigation does not inherently invalidate Mr. Faruqi's confession, as deception is admissible unless it violates fairness or creates an unreliable confession. The detective's misleading claims about parental complaints did not constitute unfair subterfuge and did not likely lead to an untrustworthy confession.

Regarding Mr. Faruqi's Fourth Amendment claim, he lacks standing to contest the search of his work computer because he did not demonstrate a subjective expectation of privacy in it. The Fourth Amendment protects individuals from unreasonable searches and seizures, but as clarified in Rakas v. Illinois, to assert such a violation, a defendant must show both a subjective and a reasonable expectation of privacy in the searched property. The expectation must be grounded in personal rights rather than vicariously claimed; thus, Mr. Faruqi cannot challenge the search based on evidence obtained from a third party's property.

To invoke Fourth Amendment protections, a defendant must show a personal and reasonable expectation of privacy in the area searched. In this case, Mr. Faruqi consented to the search of his computer, indicating he had no personal expectation of privacy regarding its contents. Consequently, he cannot claim a violation of his Fourth Amendment rights based on the search. Although he argues he did not consent to the computer's seizure, he admits to lacking ownership rights or authority over it, thus conceding his lack of privacy expectation. Mr. Faruqi attempts to assert his employer's rights vicariously, which is not permissible. Therefore, the court does not need to determine whether any expectation of privacy regarding Mr. Faruqi's work computer is objectively reasonable. The judgment is affirmed, with all parties in agreement.