This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jenny Rae Thoreson,
Filed April 10, 2007
Dissenting, Randall, Judge
Hennepin County District Court
File No. 05-050296
Lori Swanson, Attorney General, 1800
Jay M. Heffern, Minneapolis City Attorney, Lisa M. Godon, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)
Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.
Appellant challenges her conviction of misdemeanor prostitution following a Lothenbach proceeding, arguing that the district court erred in denying her motion to dismiss on the basis that the police conduct was so outrageous as to constitute a violation of appellant’s due process rights. Because the district court properly applied the law and did not abuse its discretion, we affirm.
August 2005, an officer of the Minneapolis Police Department working an
undercover prostitution detail was driving an unmarked squad car equipped with
a hidden tape recorder near the intersection of
that she was trying to get to her home in
Q: [Officer]: Do you mind if we take some clothes off, or?
A: [Appellant]: That’s fine.
Appellant then placed her seat in the recline position and then removed her shorts and underpants. The officer then said:
Q: Sixty bucks? You got a problem? Shirt off, and I’ll . . . Nervous, huh?
The officer then placed the money on the console next to appellant’s left leg, and she replied:
A: Yeah, (inaudible) shirt off. That is really awesome, thanks.
Appellant then picked up the money and placed it on the dashboard and handed the officer a condom.
Appellant was then arrested and charged by complaint with gross misdemeanor prostitution, in violation of Minn. Stat. § 609.324, subd. 2. Subsequently, appellant moved to dismiss alleging that the police conduct was so outrageous that it constituted a violation of appellant’s due process rights.
In December 2005, the district court conducted an evidentiary hearing on appellant’s motion. The officer testified to the events that led up to appellant’s arrest, and that the reason he asked appellant to remove her clothing was to establish appellant’s intent to commit prostitution by eliciting a verbal assent. He testified that it was not until she took the $60 of pre-marked bills and stated, “That is really awesome, thanks,” that appellant indicated her assent to prostitution. And he stated that appellant was without her shirt for only a few moments.
The district court denied appellant’s motion to dismiss, finding that the officer believed the tape recorded responses were ambiguous and “it was for that reason that he continued on asking her to remove her clothes, hoping that this would trigger a verbal response which would provide evidence which he felt at that point was lacking.” The court further found that “[i]mmediately after the arrest, [appellant] was instructed to put her clothes back on,” and that the officer did not ask appellant to remove her clothes “for his own prurient interest.”
The court denied the motion to dismiss, and the state amended the charge against appellant from gross misdemeanor prostitution to misdemeanor prostitution, under Minn. Stat. § 609.324, subd. 3. Following a Lothenbach proceeding, the district court found appellant guilty and imposed a sentence of 90 days, of which 88 days were suspended for a period of one year, and suspended a $50 fine. This appeal follows.
D E C I S I O N
that the officer’s suggestion that she remove her top after she agreed to
perform sex for money was so outrageous as to constitute a violation of
appellant’s due process rights. This
court reviews de novo the district court’s determination of whether there was a
violation of due process of law. State v. Fitzpatrick, 690 N.W.2d 387,
To this end, for half
a century now we have spoken of the cognizable level of executive abuse of
power as that which shocks the conscience. We first put the test this way in Rochin v. California, where we found the
forced pumping of a suspect’s stomach enough to offend due process as conduct
“that shocks the conscience” and violates the “decencies of civilized conduct.”
In the intervening years we have repeatedly adhered to Rochin’s benchmark. See,
e.g., Breithaupt v. Abram, 352
Our supreme court has twice analyzed a similar
due process challenge in an appeal of a prostitution conviction. In State
v. Morris, defendant challenged her prostitution conviction, arguing that
the plainclothes officer’s conduct in exposing himself at defendant’s request
was outrageous. 272 N.W.2d 35 (
Although the Supreme Court has not
articulated any useful standards for application of the defense, it is clear
that there will be few cases in which the defense will succeed. As Mr. Justice Powell stated in his concurring
272 N.W.2d at 36. Similarly, in State v. Crist, the supreme court held
that a plainclothes police officer did not violate due process when, in order
to gain evidence sufficient to arrest the defendant for prostitution, he
exposed himself before the defendant would negotiate a price. 281 N.W.2d 657, 658 (
Minn. Stat. § 609.324, subd. 2 (2004) provides that “[w]hoever solicits or accepts a solicitation to engage for hire in sexual penetration or sexual contact while in a public place” is guilty of a gross misdemeanor.
On appeal, appellant does not argue entrapment and concedes she agreed to perform sex for money. But appellant does argue that the officer’s suggestion that she remove her top occurred after she had agreed to perform sex for money and was, therefore, outrageous. Respondent argues that it was not until after the officer asked appellant to remove her top that she indicated her assent, which occurred when she took the money, placed it on the dashboard, and gave the officer a condom. The district court found that the officer asked appellant to remove her top “to gather sufficient evidence to support an arrest,” and not “for his own prurient interest.” The findings of the district court are supported by the record.
provides that the due process defense is reserved to cases involving “only the
most egregious official conduct” in which the abusive conduct “shocks the
conscience.” Lewis, 523
Appellant maintains that Morris and Crist are factually distinguishable. We disagree. In short, we do not view the police officer’s conduct in agreeing to expose himself in Morris and Crist as materially different from the police officer suggesting thatappellant remove her top in this case. The relevant inquiry is whether the police behavior is “outrageous” or “shocks the conscience” in the constitutional sense. Morris, 272 N.W.2d at 36. Like the conduct of the police officers in Morris and Crist, the police officer’s conduct may have been morally objectionable. But it was not “outrageous.”
On this record, we reject appellant’s argument that the officer’s conduct was constitutionally outrageous. But we conclude that the officer’s conduct was questionable, and that other ways to obtain verbal assent may have been more appropriate.
argues that this court should interpret the Minnesota Constitution to provide
greater due process protection against outrageous police behavior than
currently provided by the United States Constitution. But appellant has provided no authority to
support her position. Our supreme court has
recently held that due process protection under the Minnesota Constitution is
the same as under the United States Constitution. McCollum v. State, 640 N.W.2d 610, 617-18 (
also argues that this court should use its inherent supervisory powers to
dismiss the complaint in the furtherance of justice. We disagree.
As an intermediate appellate court, we lack the authority to exercise
supervisory powers reserved to this state’s supreme court. State
v. Gilmartin, 535 N.W.2d 650, 653 (
RANDALL, Judge (dissenting).
I respectfully dissent. Although the case is close, I cannot find either black letter law or the human side, meaning equity, favoring the state. When two established criteria, which cannot be debated, are present, I suggest the only result that furthers the administration of justice is the vacation of this conviction and an outright dismissal. The two criteria are (1) the state has to prove every essential element of the crime by proof beyond a reasonable doubt and (2) penal statutes are construed strictly against the state and in favor of the defendant.
I am going to repeat some of the facts the majority used, and with some variation, both sides are in agreement on the relevant facts. After the preliminary contact and preliminary discussions between appellant and Wheeler, the arresting officer (the OIC – the officer in charge – he had secreted in the trunk of his squad car another officer monitoring the audiotape), by his own candid concession, stated that he did not have a case and thought of the strategy (appellant’s counsel called the “strategy” artifice, manipulation, entrapment, and egregious) of trying to talk appellant into stripping naked in front of him in the front seat. This disrobing, according to the OIC, was to elicit “some form of assent.”
After the OIC parked his car, relevant parts of the (secretly audiotaped) conversation between the OIC and appellant occurred:
Q: [OIC]: We’re adults.
A: [appellant]: That’s right. Consenting adults.
Do you want to go to your place in
A: Um, mmm, let me think.
Q: I just want to do something quick?
A: Probably quick.
Q: Do you give blow jobs?
A: Um hmm.
A: Um hmm.
Q: You do? I’d be interested in having sex with you.
Q: Can we do it in here, do we got enough room?
A: Um hmm. For sure.
A: Um hmm.
. . . .
Q: Do you mind if we take some clothes off, or?
A: That’s fine.
Q: Sixty bucks? You got a problem? Shirt off, and I’ll… Nervous, huh?
A: Yeah, (inaudible) shirt off. That is really awesome, thanks.
Q: My uncle Charles lives over here too.
A: Your uncle Charlie?
Minneapolis Police, you’re under arrest.
American Heritage Dictionary of the English language defines “um” and also
“umm” as “[u]sed to express doubt or
uncertainty or to fill a pause when hesitating in speaking.” The
American Heritage Dictionary of the English Langauge 1938 (3d ed. 1992)
(emphasis added). The same dictionary
includes the affirmative slang response of “uh-huh” as meaning “[u]sed to express agreement or an answer in
What responses appellant gave were “um,” never “uh-huh.” She did use the term “awesome.” With teenage and young adult slang, you could have any of the following exchanges:
Did you see the television stories of the bombing of the
Q: Did you watch the Vikings win the Superbowl?
A: Really awesome.
Q: Did you hear that the legislature raised the age of drinking alcohol from 21 to 35?
A: That’s awesome.
Q: Did you hear that the legislature reduced the age of alcohol consumption from 21 to 15?
A: That’s really awesome.
Next, although not all parts are in the transcript, the two sides agree on other basic facts: Wheeler asked appellant if they (he never did touch his own) could remove their clothes; appellant removed her shorts and underpants going naked from the waist down, but kept her shirt on. At this point, the OIC “gave her” $60 of prerecorded buy money. The majority states, “. . . she took the $60 of pre-marked bills . . . .” The testified-to facts are different. Respondent’s counsel, when questioned by the panel about the exact movements of the money exchange, stated that the officer put $60 on the seat between his leg and hers, but not touching her. Appellant picked up the cash and put it on the dashboard. She did not move it to her “other side,” away from the OIC, and she did not reach down and stuff it in her discarded clothes nor did she reach down and put it on top of her discarded clothes. She put it on the dashboard of the squad car (meaning “his” car) where it remained as easily within his dominion and control as hers. After he put the money on the seat and she moved it to the dashboard, by his own testimony, the OIC still thought he could not make the case for an act of prostitution, so he asked her to take off her last bit of clothing, her shirt. She did. Immediately, as she now sat there completely naked, he arrested her.
The majority accepts the district court’s analysis that there was no illegal act, no case, until the officer talked her into going completely naked. The majority states:
The district court denied appellant’s motion to dismiss, finding that Wheeler believed the tape recorded responses were ambiguous and “it was for that reason that he continued on asking her to remove her clothes, hoping that this would trigger a verbal response which would provide evidence which he felt at that point was lacking.”
have ambiguous/negative responses to an essential element to the act of
prostitution, meaning unequivocal assent.
You have to stretch every inference against the appellant and in favor
of the state to find even a weak agreement.
The law is otherwise. Penal
statutes are construed strictly against the state and in favor of the
defendant. State v. Serstock, 402 N.W.2d 514, 516 (
position is that it was okay for the OIC, on his own assumption that he did not
have enough evidence after the conversation, to talk appellant into stripping
naked and “hoping” this would trigger an affirmative verbal response which
would produce the evidence that he felt, until she was completely naked, was lacking. The district court found this line of logic
and argument credible – I do not. There
is nothing in the elements of
that states taking all of one’s clothes off is an element of a crime. See
The state misstates the law in its brief where it said, “[t]he act of prostitution involves some degree of undress on the part of the participants.” That is not just disingenuous; it is completely false (see above elements). And, by the way, the record that the OIC, the district court, and the state are relying on talked about money in exchange for oral sex. There is no undressing involved in oral sex, unless maybe the state is alleging that appellant was wearing a 3M antipollution mask over her mouth!
As appellant’s attorney correctly notes, the state made improper use in its brief of the post-arrest Scales interview at the police station. The state’s brief used that interview to bolster its contention that there was real assent on the street between the OIC and appellant. For my part, I oblige appellant’s counsel and strike that reference from respondent’s brief. The record is clear that following the denial of the motion to dismiss the pending gross misdemeanor prostitution charge, this case was tried to the district court on misdemeanor prostitution pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), with stipulated facts. Stipulated facts mean “stipulated facts.” It is impermissible for either side to go outside of the stipulated facts to convince either the trial court or an appellate court. The stipulated facts and evidence in this case, as set out by the district court’s findings of fact, conclusions of law, order, and memorandum are:
Evidence received at the trial consisted of an audio cassette of the alleged encounter between the police and the defendant (including a transcript of the tape), and two photographs of the defendant.
There is no mention of the post-arrest Scales tape. The order does state that testimony was taken from one live witness, Officer Wheeler of the Minneapolis Police Department, the arresting officer. His testimony did not go into the later post-arrest Scales interview at the police station.
The misleading statement by respondent that the act of prostitution involves some degree of undress and the misleading argument by respondent in the state’s brief using the Scales interview to bolster an element of the crime, appellant’s assent, is indicative of the weakness of this case. That is not surprising. The officer, in his trial testimony, admitted the weakness in his own mind when he testified that after the preliminary discussions he did not have a positive assent to sex for money and decided to go on and see if he could talk appellant into stripping naked, as he put it, hoping to trigger evidence which he felt at that point was lacking. The findings of fact, in part, stated:
He further testified that [appellant’s] verbal responses were ambiguous, and that he did not feel he had on tape the evidence he needed to support an arrest, and it was for that reason that he continued on asking her to remove her clothes, hoping that this would trigger a verbal response which would provide evidence which he felt at that point was lacking. He testified that it was not until she had removed her clothes that [appellant] accepted the money that had been set down beside her by the officer, and that it was only then that the arrest was made.
The district court agreed the state’s case was weak. In its memorandum of law accompanying its findings, the court stated verbatim:
While, as the defense properly points out, there was a lot of discussion between Officer Wheeler and [appellant] about having sex, the question of whether [appellant] was requiring payment of money for sex was quite vague on the tape. Officer Wheeler’s testimony that he was simply attempting to get a verbal response on tape from [appellant] which would justify the arrest appears credible on the tape, especially given [appellant’s] ultimate protests following the arrest that she didn’t do anything wrong and that she didn’t accept Officer Wheeler’s money.
Going back to the above-quoted officer’s testimony, he testified to a key element and said that appellant “accepted” the money that had been set down beside her. As I pointed out above, there is nowhere near clear-cut evidence that she “accepted” the money, even though the state continuously uses that term in its brief. The undisputed facts, by the state’s own admission, are that the officer did not give it to her but rather put it on the seat of the car close to her left leg and she picked it up and put it on the dashboard of the squad car. She made no attempt to secure it by moving it toward her own discarded clothing or in any way exercised domain over it.
After she put the money on the dashboard the officer asked her to remove her last bit of clothing, her shirt. She did. That triggered the formal arrest. Think about it. If you are sitting in a car half naked from the waist down, and you have at least touched the money to move it to the dashboard – if the officer does not have a case at that point, why does a case develop after she removes her shirt and is now completely naked?
counsel correctly points out that the district court cited with approval two
Minnesota Supreme Court cases, and one unpublished Minnesota Court of Appeals
case. As appellant points out, all three
have nothing to do with this case. The
district court cited (incorrectly) what it called similar claims involving
undercover prostitution investigations.
The district court cited State v.
Morris, 272 N.W.2d 35 (
The defense in these three cases was that the police conduct was so egregious that the charge should be dismissed under the due process argument. Those cases all denied relief on the same logical point. If a prostitute asks an undercover cop to do something, and he does it (trying to protect his cover), it can hardly be argued that what he did in response to her question was now so egregious that the case should be dismissed outright. Those three cases were real cases and they led to legitimate busts. This case is nothing like those. Appellant did not ask the OIC to take his clothes off before she would proceed. He asked her to take hers off. The analysis and the logic in Morris, Crist, and Artishon do not apply here. Respondent did not produce one case in which this officer’s conduct was cited in this state or a foreign jurisdiction with approval as either acceptable police tactics or at least a questionable tactic not so egregious that it violated due process.
Appellant’s counsel made it clear in her brief and in her oral argument that entrapment was not an issue. Thus, my analysis does not rise or fall on entrapment, except that I do note that under State v. Grilli, 304 Minn. 80, 230 N.W.2d 445 (1975), at least some of the arguments for the defense of entrapment are present.
appellant urges as the sole controlling issue is such a lack of due process
based on “outrageous” and “shocks the conscience” actions by law enforcement. The seminal case appellant relies on is a
United States Supreme Court case, Rochin
v. Calif., 342 U.S. 165, 172-74, 72 S. Ct. 205, 209-10 (1952), which
appellant cites for the proposition that an egregious improper acquisition of
essential evidence violates the due process clause of the Fourteenth
Amendment. Essentially, in Rochin, the police who were
investigating possible narcotics sales by respondent broke into his house,
forced open the door to his bedroom and forcibly attempted to extract capsules
they saw him swallow.
due deference to appellant’s vigorous argument that the police actions here
were outrageous and shocked the conscience and should lead to an outright
dismissal; I cannot find this case totally controlled by Rochin. Rochin is instructive, but I do not find the conduct here extremely outrageous and extremely
egregious. But, having said that, I find
it somewhat egregious when a police officer, by his own admission, does not
have a case and then asks a woman to take off all of her clothing and strip
naked in front of him to “make a case.”
I suggest somewhat egregious police conduct should be reserved for at
least “somewhat egregious crimes” and criminals. There is no allegation here that appellant
was part of the Minneapolis-Moussaoui-911 conspiracy, and since she was sitting
naked in a squad car, it is unlikely she was on her way to smuggle atomic
Respondent argues that asking a strange woman to take off all her clothes and go naked in front of a strange man is a “legitimate” police tactic. Respondent argues this is so because “good girls won’t do that but bad girls will.” Looking back, at my age, perhaps I did miss part of the 1950s, 1960s, and 1970s. Maybe there never was a senior prom where, after the midnight close of the official school gym dance, the party continued until the wee hours of the morning at some neighboring park by a lake where drinking and swimming, bathing suits optional, were varsity sports du jour. Maybe nobody was ever 19, went to college, went to fraternity and sorority parties, and in a large group both male and coed, ceremoniously “mooned” their school’s arch rival football team as it drove into the parking lot or, for that matter, tried to moon their arch rival’s entire student body until the college president sent security in. Funny how the memory is affected. Funny how life imitates art. Did Joseph Wambaugh, a respected member of the Los Angeles Police Department from 1960 through 1974 and a published author of note with both a bachelor and a masters of arts degree, ever write “The Choir Boys,” which was turned into quite an entertaining movie?
Omar Khayyam, the celebrated Persian poet of the tenth and eleventh centuries, was a respected student of human nature. Among his literary collection of essays, song and verse, is “The Rubaiyat.” If you look long enough, you can find a stanza:
Drunkards and whores are doomed to hell, so men declare,
Believe it not, ‘tis but a foolish care;
If drunkards and lovers are for hell,
Anon, heaven will be empty.
happened here except a little pathetic slice of life from the streets of
Now on to the appellate court level. The case involved a full-blown appeal, with a three-judge panel, oral arguments by two attorneys (both on the taxpayers’ payroll), briefing by both sides, and the chambers’ support staff of three appellate judges. Again I would guess the prorated cost would be another several hundred to a few thousand dollars. What was gained? If appellant is a prostitute, after her $50 fine, she is back on the streets telling her friends to be careful of Minneapolis Vice, “they have a new ‘trick’ up their sleeve; they will try to get you to go naked in front of them.” If this case never happened and half the money spent went back to the taxpayers, they would be happy. If the other half of the money went to appellant for as many months at a technical school or a local college that the money would cover, she would be better off. If the case never happened, I suspect the arresting officer would not feel bad about that. Put another way – “I wonder what I did to get my boss mad at me. There must be some real police work I can do, rather than sit in my squad car with a woman and when I don’t have a case for prostitution, try to convince her to strip completely naked in front of me so now I can make an arrest!”
When the discussion between the two, replete with the OIC’s leading questions was over, and appellant sat half naked from the waist down, and had picked up the buy money from the seat and put it on the dashboard, if the OIC did not have a case at that point, he could have said, in place of asking appellant to take off her last remaining piece of clothing, her shirt, “Jenny, this isn’t your day. Go on home and get a good night’s sleep. Just tell me what bus stop to drive you to and I will, and if you are truly broke, I can spot you a couple of bucks for bus fare. Now listen to me, I have got about four hours left on my shift, and if I see you again hustling on the street corners, then I will have to run you in.” That did not happen, and legally it did not have to happen. But it would not have been too bad if it did.
recent Sunday Minneapolis Star Tribune had a feature article on former St. Paul
Police Sgt. Jerry Vick. In his many
years on the streets, Sgt. Vick earned a well-deserved reputation for helping
working girls and being genuinely concerned for their welfare. He was instrumental in the organization of
“Breaking Free,” a nonprofit group with safe houses in
Sgt. Vick was
gunned down near an east side bar in
Everyone on this case, law enforcement, public defender’s office, Hennepin County Attorney’s Office, and the judiciary are part of the government. We are all, to some degree, bureaucrats. But we are still allowed to define ourselves. Sgt. Vick did.
Bottom line: if the arresting officer and the state’s attorney did not have a case for prostitution after the conversation, after appellant stripped half naked and after appellant picked up the $60 and put it on the dashboard (as I repeat again, that is the state’s point of view), they did not have a case when appellant finally removed her shirt, her last item of clothing.
Appellant is somebody’s daughter. I have a daughter. If the police are going to arrest a suspected prostitute, go ahead and make the arrest – but do not sport with her. That is all that happened here. No one can take seriously the argument that stripping half naked from the waist down is not enough of a “response,” but going completely naked is!
From time to time, there is a politically-correct uproar urging that “the johns,” meaning the “tricks,” be prosecuted also. That means sending female undercover officers into the street as “decoys.” I have never come across any case, in any state, where, after the give and take of the preliminary negotiations, and the passing or attempted passing of the “buy money,” the female undercover officer ever felt she had to get the man to strip completely naked in front of her before she had enough evidence to make an arrest!
respectfully dissent and would reverse and vacate this conviction outright
under the judiciary’s inherent power to dismiss a case in the furtherance of
 Thus, much of the dissent’s argument that appellant did not assent to perform sex for money is irrelevant—appellant has conceded that she did.
 The elements of misdemeanor prostitution are
that “the defendant, while in a public place, intentionally solicited or
accepted a solicitation to engage for hire in sexual penetration or sexual
 The sentence imposed by the district court is also an indication the district court thought the case was weak. Appellant was sentenced to 90 days in jail with 88 days stayed and she was given credit for the two days she spent in jail before going to court, so she walked out of the courtroom. The only other penalty was a modest $50 fine, which the court also suspended.