Minnesota appeals court: Sex solicitation charges must be thrown out because police sting did not occur in public

A state appeals court upheld the dismissal of sex solicitation charges in western Minnesota against four men because the police sting operation resulting in their arrest was run strictly over the internet and in text messages, rather than in the open.

"A violation of the statute occurs only if a person engages in the prohibited solicitation while in a public place," the three-judge panel said in its ruling filed Monday. The decision affirms Kandiyohi County District Judge Rodney Hanson's decision in July to throw out the gross misdemeanor charges against the men.

"There are no facts in the record demonstrating that [the defendants] were in a public place when the solicitation occurred," the ruling continued. "Accordingly, the District Court properly determined that the criminal charges were not supported by probable cause."

County Attorney Shane Baker said his office intends to take the case to the state Supreme Court, while at the same time pointing out that the statute written many decades ago needs to reflect the advent of the internet and social media, where the sex trade continues to flourish.

"We are going to connect with representatives in the Legislature and with groups like MNCASA [Minnesota Coalition Against Sexual Assault] for changes" in the law, Baker said.

Baker realizes that lawmakers' attention to the coronavirus crisis means any push for a legislative fix won't happen this session, but added, "It can certainly take place next year."

The tech evolution was not lost on appellate jurists Francis Connolly, Carol Hooten and Denise Reilly. They pointed out in their decision that "the Legislature has not substantially changed the language or express intent of the statute in its 40-year history," long before the creation of the internet and phone-based text messaging.

"But [the prosecution] never offered me a misdemeanor resolution" in exchange for guilty pleas, Patock said. "If we had been offered that, I might have taken it."

On the whole, Patock said, the appeals court made "a great decision. … I don't think it exonerates this type of behavior, but [the County Attorney's Office] didn't satisfy the public place element."

From January to March 2019, law enforcement in Willmar advertised online that "Brittany" was available to provide sex for pay at locations of her choice. A phone number was included for the woman to be contacted by text message.

Three men from Willmar and one from Brookings, S.D., responded that they wanted to pay for sex. On separate days, each of the men followed the directions of "Brittany" to remember condoms, stop at a gas station to pick up an item and then meet at a Willmar hotel and pay $80 to $140 for what they thought would be a sexual encounter ranging from 30 minutes to an hour.

Three were arrested in the hotel parking lot, while the fourth got all the way to the hotel room door before his arrest.

"The District Court reasoned that although the sexual acts themselves were intended to take place in a hotel, which qualifies as a public place, there was no evidence that the solicitation of those sexual acts occurred in public," the appeals court panel said in its ruling.