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Flagstaff PD officers fully naked, fondled during massage investigation

Posted at 10:19 PM, Jul 08, 2022
and last updated 2022-08-03 19:45:15-04

FLAGSTAFF, AZ — *This story contains graphic details and may not be suitable for all readers*

Two Flagstaff police officers went undercover to massage parlors, took their pants off, and allowed themselves to be fondled at least five different times each.

Experts tell ABC15 that state law clearly outlines that as illegal. The operation, though, was approved by federal agents, Coconino County prosecutors and Flagstaff’s command staff.

Federal agents called it “Operation High Country Hydra.”

In 2019, a tip was called in about Flagstaff massage parlors accepting money for sex acts.

Homeland Security Investigations (HSI) and Flagstaff PD launched a joint months-long investigation to try and stop the suspected “human trafficking, sex trafficking and prostitution.”

When the investigation was complete, not a single trafficking victim had been identified.

Police arrested 13 people though, after two officers went undercover and got completely naked.

“I didn't know where to stop it.”

Officer Dustin Eberhardt remembers the 'confusion' from his first undercover massage.

I was like, ‘Well, do you want me to take them off?’ And so she was like, ‘Well, your comfort – if you want them off or you don't want oil on them.’ There was kind of some confusion on that, so I ended up taking them off because that's what I felt like the suggestion was from her,” recalled Eberhardt in a video deposition.

The Flagstaff officer went on to explain that he tried to minimize the amount of time the massage parlor employee was fondling his exposed genitals.

“As soon as I got aroused, that's when I immediately started asking about the money and how much. And like I said, I've never done one of these, so I was fairly nervous and I didn't know where to stop it. So I was trying to stop it quickly.”

Police reports reveal Officer Eberhardt allowed different women to touch him seven more times over the next 48 hours.

Roughly three months later, another Flagstaff police employee, Officer Hutchinson, went back into five of the same massage parlors and did the same thing. The reason for the second round of sexual contact was to see if the businesses would accept debit cards.

Both men documented every instance of sexual contact with a recording device, and in detailed reports.

Also, Officer Eberhardt’s initial ‘confusion’ about ‘where to stop’ may come as a surprise - since the operation had been in the works for months, and the ‘fondling’ was discussed and approved ahead of time by prosecutors, police department leaders and federal agents.

“You cannot exchange money for sex acts while on duty. It is a crime.”

Defense attorneys, trafficking experts and even other law enforcement tell ABC15 there are a litany of issues with how this operation was conducted.

For starters, state law clearly outlines that what the officers detailed in their reports is illegal.

Second, experts say the fondling was not necessary for police and prosecutors to pursue prostitution charges.

Third, investigators repeatedly said they were looking into ‘sex trafficking’ and then proceeded to pay for sex acts from potential victims.

“So the officer[s] in this case could be charged with trafficking and they are not,” said Brad Rideout, an Arizona defense attorney and former prosecutor, who has handled hundreds of prostitution cases in his career.

Rideout is not involved in any way with this case. He did represent a woman charged in a similar, 2018 HSI operation in neighboring Mohave County.

Agents called that investigation ‘Operation Asian Touch'.

The Howard Center for Investigative Journalism at ASU’s Cronkite School reported how those cases were dismissed by the county attorney, because HSI did not cooperate with the prosecution.

In Arizona, you cannot exchange money for sex acts while on duty. It is a crime,” said Rideout.

He is referring to state statute 13-1412:

“A peace officer commits unlawful sexual conduct by knowingly engaging in sexual contact…with any person who is in the officer's custody or…the subject of an investigation.”

Flagstaff Police Chief Dan Musselman told ABC15 his employee did not violate state law because the officer did not sexually touch the masseuse.

State law does not differentiate the touching. It just states ‘engaging in sexual contact’ is illegal.

“...Making him the victim…”

In an emailed response to questions, Chief Musselman also went a step further in the defense of his officer’s actions.

“Quite the opposite happened, the subject fondled Officer Eberhardt thereby making him the victim of Sexual Abuse under 13-1404.

The statute the chief references stipulates abuse only occurs ‘without consent.’

The officer, who the chief says is the victim, staked out the eight parlors, walked into each one with a recording device, paid cash, rolled over and took off his boxers.

Officer Eberhardt also said he helped initiate the process.

“So I had just put my hand on the back of her calf and then held it there and then she laughed about it. And then shortly after that, we did the rest of the stuff and then she had me roll over,” said Eberhardt in the deposition.

In his reports, Eberhardt repeatedly mentioned how when he “placed [his] hand on the back of the female’s calf…[it] appeared to let them know I was okay to solicit sexual favors.”

On July 15-16, 2019, Flagstaff PD and HSI sent Eberhardt into eight massage parlors. The evidence gathered led the Coconino County Attorney’s Office to indict 13 people. Prosecutors indicated to the grand jury that they focused on the owners or operators of the massage businesses. There was almost no mention of any lower-level employees who may have been ‘trafficked’ inside the parlors.

Defendants are charged with a mix of ‘conspiracy, money laundering, and operating a house of prostitution.’

“They should have known better.”

“I don't know how you can continue to prosecute a case in which you know that there's a strong possibility that this officer has committed some sort of crime,” said Jack Litwak.

Litwak is a Phoenix defense attorney representing one of the female defendants.

Like many lawyers involved in these cases, he was shocked Flagstaff PD and HSI used an investigative technique he says has been widely condemned.

“They do not need to do that…And frankly, they should have known better,” said Litwak. “There's a statute that specifically prohibits it. You are not allowed to re-victimize potential victims.”

Other attorneys agree the alleged criminal conduct could have been gathered without the officers engaging in sexual touching.

“There are cases where undercover officers will go to the point of getting there with contact, but stopping,” said Michael Wozniak, a Flagstaff defense attorney not involved in this case.

Like Rideout, Wozniak briefly represented a defendant arrested in HSI’s Mohave County sting.

I frankly think these cases can be made without going through the acts,” said Wozniak.

Many Valley departments have brought charges against illicit massage parlor employees and owners without any nudity or touching occurring.

In his response to written questions though, Chief Musselman said, “It was necessary for there to be direct fondling before to have proof sufficient to determine where sex acts were being officered [sic] for money.”

In Arizona, prostitution is defined as “...engaging in or agreeing or offering to engage in sexual conduct under a fee arrangement…”

ABC15 asked Chief Musselman: “Why was the negotiation (re: prices and services) not done before the officer rolled over, took off his boxers, and allowed himself to be sexually touched?”

He replied via email:

“When conducting undercover investigations it is vital to ensure that any offers to participate in prostitution originate from the person who is under investigation and not from the undercover officer. Therefore officers entered the establishments under the auspices to obtain a legitimate legal massage and waited to see if the individuals in this establishment would offer to participate in sex acts for money. There was an additional concern of potential language barriers that could prevent the officers from just asking for the sex acts for money without the fondling taking place.”

“A far overstep into abuse of power…”

Trafficking experts and victim advocates have expressed dismay and outrage when hearing about the operation.

“The sex act doesn't have to happen. So for me, this is a far overstep into abuse of power, and raises some really disturbing ethical issues,” said Jenna Panas, CEO of Arizona Coalition to End Sexual and Domestic Violence.

Panas, who has done extensive work with trafficked women, said law enforcement has an obligation to ensure people are not forced to continue performing sexual acts against their will.

“You don't ask victims to give you sexual pleasure. That is not appropriate,” said Panas. “These are folks who don't have power and control over their own lives, and do not have the ability to give consent…and our police solicited sex acts.”

Chief Musselman said when his officers are gathering evidence they “are in a position to engage in what would otherwise be considered illegal activity.”

He mentioned two examples of officers violating “speed limits to catch drivers who are possibly under the influence of drugs” and taking illegal drugs into their possession, which he said is “technically in violation of the law (Possession of Drugs).”

Panas and Rideout say that is the wrong viewpoint for law enforcement to take in these investigations.

“Women who work in massage parlors are not a commodity, there are people,” said Rideout. “They need to be treated like domestic violence victims, not drugs.”

“For the police department to go in expecting to see sex trafficking and pursuing in this way is surprising,” said Panas. “Because this operation looks like they’re just looking for a way to prosecute, as opposed to a way to help the victims.”

In documents, officers and agents repeatedly mention ‘human and sex trafficking’ as a primary focus of the investigation.

Law enforcement even contracted with victim advocates before they made the arrests.

In a report, one officer wrote that they knew “there would be a good likelihood that we would encounter someone who was at the parlor against their will.”

But in their reports, that concern for possible victims only appears after Officers Eberhardt and Hutchinson take off their clothes.

Investigators never determined ahead of time – are the women we are about to pay to touch city employees potentially trafficking victims?

“If you're engaging eight separate times and to try and have sex with victims, you are engaged in trafficking,” said Rideout. “So the officer[s] in this case could be charged with trafficking and they are not.”

Prosecutors and Federal Agents

ABC15 also sent detailed questions to the Coconino County Attorney’s Office, asking about their role in the investigation. The county attorney and four of his top prosecutors, involved in these cases, never responded.

Public court databases show at least two cases have already been dismissed.

On Thursday, July 7 attorneys representing three more defendants told ABC15 their cases were ‘dismissed with prejudice.’

At last check, online court records show three defendants are still being prosecuted.

Of the other 13 people initially indicted, it appears some of the women were never located or arrested, so there is no active prosecution.

ABC15 sent Homeland Security Investigations, a division of ICE, five specific questions regarding their involvement in this operation. They only sent the following statement:

“Every day, HSI special agents around the globe work to uncover, dismantle and disrupt human trafficking. HSI employs a victim-centered approach, where the greatest value is placed on the identification and stabilization of victims, as we pursue the investigation and prosecution of traffickers. Across the state, HSI stands proudly next to our local law enforcement partners to not only identify and assist victims, but to prosecute offenders and prevent additional trafficking.

Throughout Arizona, HSI has conducted hundreds of trainings and outreach presentations to educate the public, businesses and other law enforcement agencies in identifying human trafficking indicators and will continue to focus and prioritize the potential victims as we conduct human trafficking investigations in Arizona.

Due to operational security and officer considerations, the agency does not discuss investigative techniques or comment on internal deliberations related to cases.”

What’s Next

ABC15 is going to continue to report on this operation.

In the coming weeks we will have more stories:

  • Why experts believe there were trafficked women in these parlors
  • The history of Arizona massage investigations going awry
  • How other Arizona police departments have completely changed their approach to investigating illicit massage parlors
  • The lack of transparency from Homeland Security, despite being involved in multiple massage stings in our state, where law enforcement nudity took place.

For resources regarding Human and Sex Trafficking visit: https://goyff.az.gov/humantrafficking/resources

Or call the National Human Trafficking Hotline 1-888-373-7888