It is not whether someone made a bad decision; it is whether one was induced to commit a crime that he had no intent or desire to commit.
Each year, hundreds of Georgians are arrested in internet sting operations conducted by both the ICAC task force and local law enforcement agencies. Sometimes, these sting operations result in the arrest of predators actively seeking out minors. However, other times, they result in the arrest of innocent people who had no intention of ever meeting a minor online.
When defending someone arrested in one of these operations, there are several initial questions that must be explored.
Sometimes, sting operations are actually conducted on apps and websites that are mostly geared towards adults. The police used to post ads on personal ad sites, such as Craigslist Casual Encounters, but now focus their investigations on many common adult dating sites. We’ve had plenty of cases where officers went on regular adult dating sites like Plenty of Fish or apps like Grindr to try to lure people. The profile will typically appear to be an adult, sometimes even with a picture of an actual adult. Often times, the profile will state that the person is 18 or even much older.
Then, as expected, the profile will get tons of hits. During the ensuing conversations, the officer will then say that he or she is really only 14 years old. Most of these people will decide to move on to someone else while a handful will choose to stay in the conversation for a variety of reasons. This is a common bait-and-switch tactic and just because someone decides to keep communicating, doesn’t necessarily mean they are interested in children.
One thing to keep in mind is that the officer is not 14 years old, but actually an adult. Also, the police usually use pictures of people in their late teens or early 20’s for their profile pics. So, right off the bat, it’s a little confusing to someone when the officer says he/she is only 14 years old.
Also, adult police officers don’t typically communicate like 14-year-olds. Are they speaking in coded abbreviations and emojis, or complete sentences? That’s usually another confusing aspect for some people who just aren’t getting the feeling that this truly is a minor.
This is all very important for two reasons. First, it’s no secret that people online lie about almost everything. People on dating sites are expecting people to lie. So, if the person looks like an adult and talks like an adult, why should we believe them when they say they are only 14?
Second, in the prosecution of these cases, it must be proven beyond a reasonable doubt that the defendant believed he was communicating with a minor. So, whether or not this was even believable in the first place is a critical question. Also, examining how the defendant responded when the officer said he or she was 14 is a great indicator.
One of the first things we look at is the press release for the sting operation. Especially if it was the ICAC task force, the press release will normally list the names, ages, and occupations of those who were arrested.
How many of these people are under the age of 30? How many are under the age of 25? If those numbers are at least one-third of those arrested, that could be the first sign that there’s a problem with the tactics the police used.
Remember, especially with the ICAC task force, there is an incentive to arrest as many people as possible since those numbers are used to calculate their annual funding. So, while the officers may set out to arrest only real online predators, the motivation to maximize the number of arrests will (1) sometimes lead the police to use tactics that attract a broader segment of people, or (2) cause them to be less discriminating about who they arrest.
That may explain the prevalent use of the bait-and-switch tactic described above. It also makes one wonder whether the police intentionally use pictures of people over 18. The ICAC protocols specifically allow the police to use pictures of minors as long as the person depicted is now at least 18 and gives them consent. So, why don’t they do that more often? It seems that this would certainly help in confirming their underage persona. Maybe the police aren’t interested in being that convincing?
When we conduct focus groups in these cases, one of the most frequently asked questions is “What was on the defendant’s phone?” In almost every case, the defendant is arrested with at least his cell phone in his possession. In some cases, he may have other devices with him as well. The police will undoubtedly want to search these devices for evidence of child pornography or other communications with minors.
The defendant may be offered the choice of consenting to a search of his devices and his consent can often be an indicator that his devices will be free of any such evidence. Nevertheless, we want to make sure that these devices were, in fact, forensically examined by the police. Then, we will use this evidence to argue that, if our client was a predator searching for minors, why is there no evidence of this on his phone and other devices?
Keep in mind that in order to establish an entrapment defense, it will be necessary to show that the defendant was not predisposed to having sex with a minor. The evidence from his phone and other devices will be a crucial first step in proving this element.
These initial questions will undoubtedly trigger more questions, and more questions after that. The successful defense of an internet sting case goes well beyond the chat between the defendant and the officer. It goes well beyond the obvious. Yes, the defendant was told the person was 14. Yes, the defendant showed up to meet him or her.
The question is not whether the defendant made a bad decision, he likely did. The question is not whether he should’ve known better, or whether he knew what he was doing was wrong. The question is whether he was induced to commit a crime that he had no intent or desire to commit.
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