Because state law requires two-party consent to record audio, more than half the cases against men arrested in a big August prostitution sting have been dismissed.

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Misdemeanor charges filed against more than half of the 110 men arrested during a prostitution sting operation in Bellevue last summer were recently tossed out after it was discovered that police had unintentionally recorded audio between the would-be sex buyers and undercover female officers.

According to the city of Bellevue, detectives used hidden cameras to document elements of the crime of patronizing a prostitute. “Unfortunately, audio conversations were unintentionally captured between the suspect and the undercover officers in 61 of the 110 cases,” the city wrote in a news release.

State law requires two-party consent to record audio conversations.

Bellevue Police Chief Steve Mylett said Friday that his officers are working to figure out exactly what happened, but there’s a good chance there was a mechanical glitch with the camera equipment used in the August operation. He noted that audio was captured during a particular time frame of the weeklong operation, but not during arrests outside that period.

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“Nobody was wired for sound and there were no microphones” set up in the room where undercover officers greeted men who had answered online ads and communicated with the officers by text or phone, Mylett said.

“We can’t use audio and everybody knew it. There was no way in the world that any of the officers were going to jeopardize this operation,” he said.

Hidden cameras were set up both to capture men allegedly patronizing a prostitute and for officer-safety reasons to ensure “immediate backup” for the undercover female officers, who were alone with suspects before an arrest team moved in, the chief said.

“It could be the machine was malfunctioning … We don’t know if it’s operational error or mechanical error, but we will find out,” he said, noting the cameras had been set up to capture video only.

The mistake was caught as Bellevue city attorneys reviewed evidence as they prepared to go to trial in one of the cases. That discovery led police to review the video evidence in all 110 arrests, Mylett said.

“I understand it, I respect it and I defer to his judgment,” the chief said of the city prosecutor who dismissed the 61 cases.

The recording glitch does not affect cases already prosecuted, including that of Mitch Levy, the former morning-show host on KJR 950 AM. He entered an Alford plea on a misdemeanor charge of patronizing a prostitute. In an Alford plea, defendants do not admit guilt but acknowledge there is sufficient evidence for a conviction.

 

The August sting was a joint operation between the Bellevue Police Department and the King County Sheriff’s Office, and took place in a condo just north of downtown Bellevue.

Scores of unsuspecting sex buyers answered online ads posted by undercover detectives, then exchanged often-explicit text messages describing the sex acts they expected to buy. They were arrested after showing up at the condo and agreeing to exchange money for sex.

Mylett said his officers will continue to combat human trafficking, sex slavery and the demand side of prostitution-related crimes.

Police are allowed to intercept and record conversations with nonconsenting parties for a specified length of time provided they get prior authorization from a judge and can show there is probable cause to believe the person being recorded has committed, is committing or is about to commit a felony, according to state law.

In another joint operation between Bellevue police and the Sheriff’s Office, detectives obtained warrants to video- and audio-record members of a group of men known as ”The League of Extraordinary Gentlemen,” whose members were later charged with promoting prostitution, which is a felony.

As for police body cameras, the state Legislature has directed that police agencies using the devices must establish policies for their use, including when and how to inform someone that he or she is being recorded.

While Bellevue police don’t use body cameras, the Seattle Police Department does and has posted its policy, which went into effect in July, about use of in-car cameras and body cameras online.

According to the Seattle police policy, officers using in-car and body cameras must be in uniform and are to notify people as soon as is practical that they are being recorded, and the notification must be on the recording.

“Employees will make reasonable efforts to communicate to non-English speakers, those with limited English proficiency, deaf persons, or persons hard of hearing that they are being recorded,” the policy says.

In private homes or areas not open to the public, officers must ask for consent to record with a body camera unless there is a crime in progress or there are other circumstances in which the officer’s presence is lawful without a warrant, according to the policy.

A person with legal standing can deny permission and an officer is to stop recording with a body camera while in a private area, but can continue to record audio with their in-car camera. Officers still must notify the person that the audio recording is continuing, the policy says.