court may dismiss the charges against a defendant when the
State is found to have engaged in outrageous misconduct in
violation of a defendant's due process right to
fundamental fairness. We review such a determination by the
trial court for abuse of discretion.
matter, a law enforcement officer anonymously published an
advertisement on an online classifieds platform reserved for
those over the age of 18 and indicated that she was "a
young female" seeking an individual interested in a
casual sexual encounter. Joshua Solomon responded to the
advertisement. Thereafter, the police officer assumed the
guise of a fictional 14 year-old girl and sent Solomon nearly
100 messages laden with graphic, sexualized language and
innuendo and persistently solicited him to engage in a sexual
encounter with the fictional minor, notwithstanding that he
had rejected her solicitations seven times over the course of
trial court herein found that, in the totality, the actions
of the law enforcement officer constituted outrageous
misconduct in violation of Solomon's right to due process
and dismissed the charges against him.
trial court did not abuse its discretion by so ruling.
September 10, 2014, Detective Theresa Luvera of the Skagit
County Sheriffs Office anonymously published an advertisement
on Craigslist, an online classifieds platform, in a section
of the website in which individuals 18 years of age or older
could solicit casual sexual encounters. The
detective's advertisement was part of an undercover law
enforcement operation designed to locate and prosecute
individuals desiring to engage in unlawful sexual conduct
detective's advertisement set forth that the individual
seeking a casual sexual encounter was "a young female
looking for sex with either a man or woman." It did not
set forth the individual's name or age.
September 12, 29-year-old Solomon responded to the
advertisement, inquiring whether the individual who posted
the advertisement was "Only interested in
woman." Nearly four hours later, Solomon added,
"Must be I won't bug anymore."
days later, Detective Luvera replied to Solomon's
message. She identified herself as Taylor. Under the guise of
Taylor, Detective Luvera indicated that she was still
interested in having a sexual encounter. Solomon responded
and they began to exchange messages. They also exchanged
minutes after Detective Luvera initially responded to
Solomon's inquiry, she sent him a message discussing her
age for the first time. She indicated that she was
"almost 15 but waaay advanced." Her message also
reiterated that, notwithstanding her young age, she remained
very interested in having a sexual encounter with Solomon.
response, Solomon sent two messages, each of which expressly
rejected Detective Luvera's proposition on the basis that
she was a minor. The detective nonetheless replied, "Cum
on daddy? Age is only a number." Solomon rejected her
proposition for a third time.
the next two hours, the detective continued sending him
explicit messages expressing her eagerness to have a sexual
encounter with him. In response, Solomon sent two messages in
which he began to indicate a willingness to have intercourse
with "Taylor, " asking for pictures of her naked or
in her underwear. He then suddenly renewed his rejection,
stating, "I take everything back not interested at all
this is a setup by cops or a website good luck to you."
Detective Luvera nevertheless persisted, replying,
"yeah, I bet u a bj that u would jack off after seeing
me in a my bra and thong......lol ur too hot!" Solomon
yet again declined her advances, messaging,
"Hahahahahahahahahah what a set up."
Solomon's rejections, the detective continued
communicating with him and encouraging him to have sex with
her ("I'm very descrete Josh and my privacy means
everything to me too., I just think u are hot and
wouldn't mind fucking u, but if ur not into what I got,
response to another of the detective's messages nearly 30
minutes later, Solomon requested proof that
"Taylor" was not a police officer, including
requesting that Taylor "friend" him on Facebook,
asking her what school she graduated from, and where her cell
phone number was from. In response, Detective Luvera
responded to his questions calling him "handsome"
and "babe" and replying, "Do u quiz all ur
dates before u fuck em?"
next day, September 17, Detective Luvera renewed the
conversation and continued to proposition Solomon. In
response to the detective's prompting, Solomon e-mailed
the detective a photograph of his penis. Solomon then
requested that "Taylor" call him on his cellular
telephone. Detective Luvera agreed and they spoke over the
September 18, Detective Luvera sent messages to Solomon both
via e-mail and via the messaging interface on Facebook. In
her messages, she asked, "Can you cum see me
later?" and sent Solomon a photograph with the message,
"I have more....like whatya see so far? Lol" and
"hang on, I get ya a better one, just 4 u?"
September 19, Solomon renewed the conversation and he and
Detective Luvera continued messaging one another until
Solomon agreed to visit "Taylor" at her home later
that night. Shortly thereafter, Detective Luvera messaged
Solomon and asked him to purchase lingerie-"U gonna buy
me something to sexy to wear at VS?"-and
alcohol-"Gonna bring me a little something sweet to
drink baby? Like a wine cooler than I can lick off u? lol I
go crazy over strawberry wine coolers...lol." She also
demanded that Solomon pay her in exchange for a nude
photograph or in anticipation of their planned sexual
encounter-"Money....I mean either U pay for the pics or
U pay to fuck my sweet pussy.....I know u want both.").
messaging continued throughout the day with Detective Luvera
sending Solomon sexually suggestive and explicit messages,
including "Ur really r going to cum?, " "U can
take all u want of me after I get a piece of ur ass lol,
" "I'll meet u at the tennis crt bench with no
panties on....wearing my tennis skirt, " "now
I'm wet....Don't even think ur cumming over here and
teasing me, " "U know how long it takes me to blow
dry my hair? U can't cum in it either, "
"I'll have enough of u to drink up anyway, "
and "tellme baby what u want my mouth to do 2
evening, Solomon arrived in the neighborhood near the address
that Detective Luvera had given him and was approached by law
enforcement officers alerted to the detective's
operation. Solomon was arrested shortly thereafter. In a
search of his person and his pick-up truck, law enforcement
officers uncovered a sealed condom wrapper, $60 in cash,
store receipt from earlier that day itemizing the purchase of
a sex toy and lingerie, and a plastic bag containing the
purchases itemized in the receipt.
was charged with one count of communication with a minor for
immoral purposes, one count of commercial sex abuse of a
minor, and one count of attempted rape of a child in the
trial, Solomon moved to dismiss the charges against him,
arguing that the State had engaged in outrageous governmental
misconduct in violation of his due process right to
trial court granted Solomon's motion and ordered the
charges against him dismissed.
evaluating a trial court's determination that the State
engaged in outrageous misconduct in violation of a
defendant's due process right to fundamental fairness, we
initially turn to our Supreme Court's decision in
State v. Lively. 130 Wn.2d 1, 921 P.2d 1035 (1996).
Lively, our Supreme Court recognized that the due
process clause of the Fourteenth Amendment to the United
States Constitution protects against conduct by state actors
"'so outrageous that due process principles would
absolutely bar the government from invoking judicial
processes to obtain a conviction."' 130 Wn.2d at 19
(quoting United States v. Russell, 411 U.S. 423,
431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)); U.S. Const,
amend XIV. Such conduct "must be so shocking that it
violates fundamental fairness." Lively. 130
Wn.2d at 19-20 (citing State v. Myers. 102 Wn.2d
548, 551, 689 P.2d 38 (1984); State v. Smith. 93
Wn.2d 329, 351, 610 P.2d 869 (1980)); accord
Russell, 411 U.S. at 432.
the outrageousness of the State's misconduct, however,
requires more than a mere demonstration of flagrant police
conduct. Myers. 102 Wn.2d at 551. Public policy
allows for some deceitful conduct and violation of criminal
laws by the police in order to detect and eliminate criminal
activity. State v. Emerson. 10 Wn.App. 235, 242, 517
P.2d 245 (1973). Dismissal based on outrageous conduct is
reserved for only the most egregious circumstances.
"'It is not to be invoked each time the government
acts deceptively[.]'" United States v.
Sneed. 34 F.3d 1570, 1577 (10th Cir. 1994) (quoting
United States v. Mosley. 965 F.2d 906, 910 (10th
Cir. 1992)); see also State v. Pleasant. 38 Wn.App.
78, 83, 684 P.2d 761. review denied. 103 Wn.2d 1006
Lively. 130 Wn.2d at 20.
evaluating whether a defendant's due process right to
fundamental fairness was violated, our Supreme Court
instructed that "[a] violation of due process must be
determined as a matter of law and it is the trial court which
makes the findings of fact related to that decision."
Lively. 130 Wn.2d at 24. It "is ... not a
question for the jury." Lively. 130 Wn.2d at 19
(citing United States v. Dudden. 65 F.3d
1461, 1466-67 (9th Cir. 1995), State v. Hohensee.
650 S.W.2d 268, 272 (Mo. App. 1982)).
Lively court instructed that a trial court, in
considering a claim of outrageous governmental misconduct,
should evaluate the conduct based on the "totality of
the circumstances." United States v. Tobias.
662 F.2d 381, 387 (1981), cert, denied. 457 U.S.
1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982); State v.
Hohensee. 650 S.W.2d 268 (Mo. App. 1982). Each case must
be resolved on its own unique set of facts and each component
of the conduct must be submitted to scrutiny bearing in mind
"proper law enforcement objectives-the prevention of
crime and the apprehension of violators, rather than the
encouragement of and participation in sheer
lawlessness." People v. Isaacson. 44 N.Y.2d
511, 406 N.Y.S.2d 714, 378 N.E.2d 78, 83 (N.Y. 1978);
[United States v.] Bogart. 783 F.2d [1428,
] 1438 [(9th Cir. 1986)]. The government conduct may be so
extensive that even a predisposed defendant may not be
prosecuted based on "the ground of deprivation of due
process." Hohensee. 650 S.W.2d at 271 (quoting
United States v. Bagnariol. 665 F.2d 877 (9th Cir.
130 Wn.2d at 21-22.
of the totality of the circumstances evaluation, the
Lively court identified five factors to be
considered by a trial court:
[W]hether the police conduct instigated a crime or merely
infiltrated ongoing criminal activity, ([United States v.]
Harris. 997 F.2d [812, ] 816 [(10th Cir.
1993)]); whether the defendant's reluctance to commit a
crime was overcome by pleas of sympathy, promises of
excessive profits, or persistent solicitation,
(Isaacson, 378 N.E.2d at 83; [State v.
]Shannon. 892 S.W.2d [761, ]765 [(Mo. App. 1995)]);
whether the government controls the criminal activity or
simply allows for the criminal activity to occur (United
States v. Corcione. 592 F.2d 111, 115 (2nd Cir.),
cert, denied. 440 U.S. 975 and 440 U.S. 985
(1979)); whether the police motive was to prevent crime or
protect the public (Isaacson. 378 N.E.2d at 83;
Shannon. 892 S.W.2d at 765); and whether the
government conduct itself amounted to criminal activity or
conduct "repugnant to a sense of justice."
Isaacson. 378 N.E.2d at 83; United States v.
Jensen. 69 F.3d 906, 910-11 (8th Cir. 1995), cert,
denied. 116 S.Ct. 1571 (1996).
130 Wn.2d at 22.
in determining whether the State has engaged in outrageous
misconduct, a trial court must consider whether the
State's conduct was so shocking that it violated
fundamental fairness-a totality of the circumstances inquiry
that includes weighing the considerations outlined in
Lively. 130 Wn.2d at 19, 21-22, 24.
although the Lively court set forth the legal
standard applicable to a trial court's determination of
outrageous governmental misconduct, the court did not set
forth the standard of review applicable to such a
determination. This was so because Lively had "raised
this issue for the first time in her appellate brief, "
Lively. 130 Wn.2d at 18-19, and the trial ...