Category Archives: Prostitution

Backpage.com & Privacy

Bellingham Defense Attorney, Cell Phone, felony, Ineffective Assistance, Privacy, Prostitution, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online classified website Backpage.com takes down adult section amid government pressure | Fox 59

In In re Personal Restraint of Hopper, the WA Court of Appeals held that a defendant’s calls and text messages to the phone number listed in a Backpage.com advertisement were not private communications protected by the Washington Privacy Act.

BACKGROUND FACTS

In December 2012, Mr. Hopper searched Backpage.com with the intent of purchasing sex. Backpage operated an online classified advertising service, Its users created and posted their own ads, including ads in the adult category. This category included ads for prostitution activity, often under the guise of an adult escort or entertainment service. The ads often featured pictures of women identified by false names and ages, along with hourly rates.

Hopper saw an advertisement for a woman named “Whisper,” who he later learned was K.H. The ad stated that she was 19 years old. She was actually 16 years old. It listed a phone number that Hopper both called and contacted by text. When he contacted the number by text, he initially believed that he was communicating with K.H. But K.H.’s pimp, identified as Mr. Park, had listed his own number on the ad and was reading and responding to Hopper’s text messages.

In December 2012, police arrested Park and, with a warrant, searched his cell phone. K.H. told police that Hopper had paid to have sex with her and identified him from a photograph montage. The police located Hopper’s home address from the text messages stored on Park’s phone. The State charged Hopper with commercial sexual abuse of a minor. In March 2014, a jury convicted Hopper as charged.

Hopper appealed his conviction on arguments that his trial counsel gave ineffective
assistance by failing to move to suppress his text messages to K.H., which police found stored on Park’s cellular phone.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a privacy act violation occurs when “(1) a private communication transmitted by a device. . . was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication.” Hopper claims that his text messages to K.H. were “private communications” under the act because he intended them for her alone and they concerned illegal activity. Whether communications are private is a question of fact but may be decided as a question of law where, as here, the parties do not dispute the facts.

The Court of Appeals noted the Act does not define “private.” Instead, Washington courts have adopted the dictionary definition. Nevertheless, Washington courts will generally presume that each of the two parties participating in the conversation intends it to be private.

“Hopper’s subjective expectation of privacy was objectively unreasonable,” said the Court of Appeals. The Court explained that Hopper responded to an ad on Backpage.com, a website notorious for advertising prostitution activity. The ad was titled “any way you want it 19” and featured an unidentifiable woman with a fictitious name. A reasonable person would not expect that contacting a stranger by text through the phone number listed in this advertisement would provide a legitimate opportunity for a private conversation with a known person. Even Hopper admitted that “the picture wasn’t a good enough picture to clearly identify a specific person.”

“And regardless of whether Hopper was initially aware of K.H.’s pimp, it is common knowledge that prostitutes often have pimps. Thus, even though Hopper subjectively intended for his text messages to K.H. to be private, his communications were not private
because this expectation was unreasonable. Park did not violate the act when he recorded and stored Hopper’s messages to K.H. on his cell phone.”

The Court of Appeals concluded that because Hopper does not establish that these text messages were “private communications” under the act, he does not show that his counsel’s performance fell below an objectively reasonable standard of care. His claim failed. The Court of Appeals upheld Hopper’s conviction and found his attorney was not ineffective.

Please contact my office if you, a friend or family member face criminal charges involving searches of cell phones. Depending on the circumstances, the evidence might be suppressible. And for more information on search warrants, please read my Legal Guide on Search & Seizure.

Backpage.com Evidence Admitted at Trial as “Business Record.”

Bellingham Defense Attorney, Business Record, Evidence, Hearsay, Jury Trial, law enforcement, Promoting Prostitution, Prostitution, Search and Seizure, Skagit County Criminal Defense, Social Media, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Butler, the WA Court of Appeals decided a trial court rightfully admitted business records connecting showing the defendant used Backpage.com to facilitate the commercial sexual abuse of a minor because the State’s failure to provide the written notice of the evidence did not prejudice the defendant, who was given the business records months before trial.

BACKGROUND FACTS

N.C. was 14 years old when she first met 22-year-old defendant Ivory Butler. One day, N.C. skipped school and spent the day with Butler. N.C.’s mother found out she had skipped school and punished her. N.C. ran away from home, and Butler picked her up. He took her to a motel room and arranged for her to meet men at the motel for sex. She gave the money she received to Butler. N.C. continued selling sexual services and giving the money to Butler.

Detective Raymond Unsworth found Internet ads on Backpage.com for female escort services with Butler’s phone number listed as the contact number. The ads included photographs of the body, but not the face, of a young woman. The ads alluded to sexual services that would be provided, with the prices that would be charged.

An undercover detective responded to the Backpage ads by contacting Butler’s phone number. The detective, posing as a customer, arranged to obtain sexual services for $300 from a woman in room 201 of the New Horizon Motel. Police found N.C. in that room, together with a disposable cellphone under the mattress, condoms in a Crown Royal bag, and a knife in the bedside table drawer.

In Butler’s phone, the contact name assigned to the disposable phone found in the motel room was “Money Baby Money Baby.” Text messages between Butler’s phone and the disposable phone found in the motel room included details about providing sexual services for money. The messages also included instructions from Butler to N.C. to discard the phone in the toilet if the police came. Butler was arrested and charged under RCW 9.68A.101 with promoting commercial sexual abuse of a minor.

The Trial Exhibits

At trial, the State sought to admit three exhibits. Exhibits #3 and #4 relate to Backpage ads for escort services. Exhibit #5 was the certification from the Backpage records custodian. Detective Unsworth testified that he found the ads on Backpage’s public website. Each ad included photographs of a young woman, information about the sexual services that could be provided, the price, and Butler’s telephone number as the contact.

Exhibits #3 and #4 compiled the ads that were online, more photographs that Detective Unsworth had not seen online, the date each ad was posted, and the poster’s fictitious name, mailing address, and e-mail address. Backpage provided the certification from its records custodian in response to a search warrant for business records.

The State provided these exhibits to Butler months before trial as part of discovery. The trial court admitted the exhibits over Butler’s objection.

The jury found Butler guilty as charged. On Appeal, Butler argues the Exhibits #3, #4 and #5 were wrongfully admitted.

COURT’S ANALYSIS AND DECISION

Butler argues Exhibits #3, #4 and #5 were inadmissible because the State did not give proper notice under RCW 10.96.030(3). This statute contains an exception to the general rule requiring witness testimony to admit business records. To ensure the opposing party has a fair opportunity to challenge the business records and certification, the statute provides in part:

“A party intending to offer a record into evidence under this section must provide written notice of that intention to all adverse parties, and must make the record and affidavit, declaration, or certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”

The court reasoned that approaching these issues is similar to approaching the child hearsay rule: basically, cases addressing the child hearsay statute have upheld the admission of statements without prior notice “so long as the adverse party had or was offered an opportunity to prepare to challenge the statements.”

Here, Butler argued the State was required to provide a separate written notice to inform him that it intended to rely on RCW 10.96.030 for admission of the business records. But months before trial, the State provided the certification of the Backpage records custodian, together with the Backpage business records. Mid-trial, the State also offered to produce the custodian for live testimony and a defense interview. This allowed Butler ample opportunity to prepare to challenge the records. With that, the Court denied Butler’s arguments:

“Consistent with the cases addressing the child hearsay statute, we conclude the lack of written notice required by RCW 10.96.030 did not cause any prejudice to Butler. He had ample opportunity to prepare to challenge the business records when the State provided all of the proposed business records and the certification from the records custodian months prior to trial.”

Moreover, the Court reasoned that the State offered to call the records custodian as a witness and to allow Butler to interview the custodian. However, Butler declined to request a continuance to interview the witness.

Finally, the Court of appeals rejected arguments that the Backpage ads bolstered N.C.’s testimony tying Butler to the Backpage evidence. The Court reasoned that even without the admission of the Backpage ads, overwhelming evidence links Butler to his exploitation of N.C.:

“The physical evidence, text messages, jail phone calls, testimony from N.C., and successful undercover sting operation provide overwhelming evidence that Butler promoted the prostitution of N.C.”

Consequently, the Court concluded that the lack of written notice required by RCW 10.96.030 did not cause prejudice to Butler. Overwhelming evidence supported Butler’s guilt.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prostitution Evidence Admitted During Defendant’s Assault Trial

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In State v. Woods, the WA Court of Appeals held that evidence of prostitution was properly admitted in the defendant’s prosecution for assault in the second degree. The Court reasoned these prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS

The Defendant and alleged victim began their volatile relationship in 2009. Drug use, emotional abuse and physical abuse were allegedly involved.  Later, allegations arose the Defendant forced the alleged victim to engage in prostitution.

In April of 2012, the alleged victim’s mother drove her to the hospital in the aftermath of an alleged assault. The alleged victim disclosed other recent assaults during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL

The Defendant was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of an August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the alleged victim’s state of mind.  The trial court also noted that testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the alleged victim’s credibility.

The jury found the Defendant guilty. He timely appealed. The WA Court of Appeals granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals reasoned that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein were correct. The alleged victim’s testimony as to how the Defendant forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, the court found that the complainant’s professed shame and fear associated with forced prostitution was an important factor for the jury to consider.

Ineffective Assistance of Counsel

The Court illustrated how ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected the Defendant’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, the Defendant’s counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

The Defendant also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of defense counsel. With that, the Court of Appeals held that Woods was not prejudiced and upheld his conviction.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.