Commonwealth v. Sun Cha Chon 2009 PA Super 212 (11/05/2009)
Topic: Prostitution – Dismissal Due to Outrageous Government Conduct – Sex as an Investigative Weapon
Summary: When the government intentionally uses sex as an investigative weapon or “acquiesced in such conduct for its own purposes once it knew or should have known that such a relationship existed,” the conduct will be considered outrageous and grounds for dismissal. **Note that this is distinguishable from a case where the sexual activity is collateral to another investigation.**
Facts: A disgruntled customer of an alleged prostitute went to the police and volunteered his “services” as an informant. The police set up surveillance and gave the informant money on four separate occasions. The informant engaged in sexual acts with the defendant for money on each occasion while the police listened. The Superior Court adopted the criteria set forth in United States v. Cuervelo, 949 F.2d 559 (2d Cir. 1991) and United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998) to determine whether sexual activity has rendered a government’s actions outrageous. The Court concluded that the government intentionally used sex as an investigatory tool and found the government action to be improper because 1.) the sexual acts far exceeded the evidence needed to secure probable cause to arrest and 2.) the behavior the police engaged in by repeating the sex-for-pay and the unprofessional conduct engaged in by the police after the sexual acts were outrageous.