In this case Detective Eric Egami apparently testified that Petitioner/Defendant-Appellant Kun Ok Cho (Petitioner) asked him if he knew what happened in a place like Kiku Relaxation Parlor, to which he replied, "I think so." At the hearing, Petitioner's counsel asked Detective Egami if at that point he felt it "was an opportunity . . . to try and get a violation there?" Detective Egami responded to Petitioner's counsel that he was "not gonna go and ask for it."
Detective Egami also testified that Petitioner stroked his penis for a brief time and asked if he wanted a "combination," a term Detective Egami explained during testimony that was "street vernacular for fellatio and sexual intercourse." Detective Egami further testified that Petitioner held up two fingers. Detective Egami stated that he asked Petitioner if she meant $200.00 and that Petitioner responded by saying "two hundred okay, yeah." According to Detective Egami's testimony, Petitioner also responded by saying "shish, be quiet."
In her motion to dismiss, Petitioner argues that Detective Egami's conduct of allowing himself to be massaged in the nude and in allegedly having the Petitioner stroke his penis in the course of the investigation, constituted "government conduct [that] violates fundamental fairness and 'shocks the conscience', and this violation of due process requires dismissal" of the case against Petitioner. Petitioner argued that the Honolulu Police Department's policy of allowing police officers to readily engage in sexual contact with a suspect in order to deter prostitution "allows the police officer to engage in a broad range of sexual activity under the guise of conducting an investigation" and "should not be condoned or encouraged."
In Tookes, this court held that a police agent "by actually engaging in sexual activity with the defendants," 67 Haw. at 611, 699 P.2d at 986, did not engage in conduct that was so "outrageous . . . [as to] bar the government from invoking judicial process to obtain a conviction[,]" id. (quoting United States v. Russell, 411 U.S. 423, 431-32 (1973)), and was "'conduct that shocks the conscience' sufficiently to trigger a defense bottomed on the due process clause[,]" id. (citation omitted). Tookes noted that "[the civilian volunteer's] conduct, if undertaken by a police officer, would have violated an internal Department rule against engaging in sex with a prostitute in order to obtain evidence . . . [but t]here was no showing . . . that such a rule was compelled by law or the constitution." Id. at 613, 699 P.2d at 987.
However, this
court recently decided a case long after Tookes in which the police
were able to obtain evidence of solicitation without resorting to
sexual
relations or contact. See
State v. Romano, 114
Hawai‘i 1, 14, 155 P.2d 1102, 1115 (2007) (affirming conviction under
HRS § 712-1200(1) where evidence of
prostitution was conversation between undercover police officer and
defendant agreeing to exchange sexual conduct for money, but where the
transaction was
not consummated). Moreover, in this case there was not a violation of a
policy but an affirmative official policy that sanctioned engaging in
"limited forms of
sexual contact, like[ ] with the hand[,] . . . in the process of acting
like a normal customer." Whether the change in policy stemmed from Tookes is not evident
from the record, but appears to be an extension of this court's ruling
in that case. I believe such an official policy poses serious questions
of a constitutional
nature and of the involvement of the courts in sanctioning use of the
resulting evidence in the courtroom, at least under the Hawai‘i
Constitution. Therefore,
granting certiorari is appropriate.