The Florida Second District Court of Appeals reversed the trial court’s ruling and said the defendant was entrapped by law enforcement.
SARASOTA — A Sarasota County Sheriff’s Office internet sting operation aimed at protecting children from online predators cajoled men on adult dating sites to commit unlawful sexual acts with children, according to appellate judges.
Operation Intercept has resulted in 133 arrests since it began in 2011.
The tactics undercover detectives used have been questioned by criminal defense attorneys who say some of their methods are unlawful.
“The law has stated for decades that the government cannot manufacture crime by suggesting to the citizens that they commit crimes,” said Sarasota attorney Andrea Mogensen, who represented one of the defendants, Jason Ross DeMare, arrested in Operation Intercept. “What they are supposed to be doing is detecting crime that already exists. The way it has been set up does not do that. There are substantial risks that citizens will be caught in a net who are not attempting to commit crimes already.”
DeMare, 40, was arrested during Operation Intercept V in 2018. He was charged with third-degree felony use of a computer to solicit a child to commit a sex act, and second-degree felonies traveling to solicit a child to commit sex acts and lewd and lascivious behavior involving a child under 16.
The Sheriff’s Office said he had prior arrests for battery, forgery, violation of probation and possession of marijuana and paraphernalia.
His charges arose when he made contact with a Sheriff’s detective who set up a fictitious profile of an 18-year-old woman named “Amber” on the dating site Meetme.com.
According to court documents, the detective pretending to be “Amber” chatted and flirted with DeMare online and by text message for four days as an adult before revealing on the fifth day that she was a minor.
Their flirting included some sexual innuendo and the detective sent DeMare a photo purporting to be of Amber. The conversation became more intimate as they planned to meet.
When their plans became concrete, Amber told DeMare she was only 14 years old.
DeMare tried to make friends with Amber and told her they could not have sex because it was illegal. Amber tried to convince him that a sexual relationship was possible despite her age, court documents state.
DeMare was reluctant but eventually responded to Amber’s suggestions with sexual comments about what he would do if she were 18. They exchanged “selfies” but DeMare asked her not to send nudes.
They agreed to speak on the phone and Amber said she was “really 14,” and he reminded her that he could get into legal trouble if they had sex.
Amber continued to press DeMare and he suggested they hang out and smoke marijuana. She continued to press DeMare to make sexual comments and told him how excited she was. She asked for specifics and if he had condoms, according to court documents.
When DeMare deflected, Amber used tactics to change his mind. She cajoled him, complained about his reluctance, accused him of being scared and assured him he could trust her.
When DeMare agreed to come over, he did not bring drugs or condoms, court documents state.
At an evidentiary hearing on the motion to dismiss the case, the trial court determined that DeMare had met his burden to establish lack of intent to commit a crime. However, the court ruled that the State established evidence of traveling to meet a minor, and DeMare’s entrapment defense failed.
He later pleaded no contest to traveling to meet a minor and his other two charges were dismissed. He was sentenced to 2 years, 7 months and 20 days in prison and sent to Moore Haven Correctional Facility in Glades County.
DeMare was also designated as a sexual offender with lifetime registration requirements.
But in an appeal, Florida Second District Court of Appeal Judge Morris Silberman reversed the ruling and remanded the case for discharge because law enforcement took the lead in suggesting a sexual relationship between DeMare and a minor.
In his opinion, Silberman said the detective “coaxed and cajoled” DeMare for more details and challenged his reluctance by impugning his nerve and suggesting he was scared.
The Sheriff’s Office’s persistence led DeMare to overcome his trepidation to even describe sexual acts with a minor, Silberban wrote.
Because the Sheriff’s Office induced him to commit the charged offenses, and the State could not rebut the defense, DeMare’s entrapment defense should have been decided as a matter of law, the judge found.
Accordingly, Silberman reversed the case.
Second District Court of Appeals Judges Daniel H. Sleet and Andrea Teves Smith agreed with Silberman’s opinion.
Sheriff’s Office spokeswoman Kaitlyn Perez responded to a request for comment from Sheriff Tom Knight with a brief statement.
“This is a fact-specific case and we are currently reviewing the techniques used in the case to determine whether we will make any changes to our procedures.”
Chief Assistant State Attorney Craig Schaeffer said, “We are committed to working with and providing legal updates and training to the Sarasota Sheriff’s Office or other enforcement agencies to help them investigate any adults that are willing to travel to meet minors for sex or who prey on our children.”
Michael Barfield, president of the American Civil Liberties Union said the case has garnered statewide interest, because Sheriff’s detectives used trickery to compel the crimes.
“The law enforcement officer was actively trying to get him to commit a crime,” DeMare said. “That should be offensive to anyone.”
Walt Zalisko, a retired police chief and police best-practices expert who owns Fort Myers-based Global Investigative Group, called the Sheriff’s Office’s method to pursue internet predators “totally illegal.”
Zalisko said, “The police cannot encourage someone to break the law for the sole purpose of making an arrest. When they have these testing operations they should be working with the state attorney so that anything said and done can withstand a judicial challenge.”
Mogensen said the attitude of Sheriff’s detectives that “if they come to the door they’re guilty” is inappropriate.
“They didn’t care what the Sheriff’s Office did to get (suspects) there,” she said. “The difference is really whether the government is detecting crimes that already exist or whether they are creating the crime by suggesting it and bringing all the instruments of crime. They are the ones who suggested the facts in the first case. They are the person who suggested bringing drugs, bringing condoms. All the time he steered away from the sex they steered him back.”