Entrapment

(Reprinted with the permission of the Alameda County District Attorneys Office.)

“I ate the apple because the serpent beguiled me.”
Eve.†

Entrapment is a complete defense to a crime. This means a defendant is entitled to an acquittal if he committed the crime under circumstances constituting police entrapment.1 It does not matter that the evidence against the defendant was overwhelming, or that his guilt was undisputed.2 If he was entrapped, he goes free.

Although the penalty is severe, the courts believe it is justified by the need to discourage officers from engaging in overzealous tactics.3 In the words of Justice Frankfurter, “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. Human nature is weak enough and sufficiently best by temptations without government adding to them and generating crime.”4

In addition, entrapment is viewed as “a type of lawless law enforcement,” “a substitute for skillful and scientific investigation,” and a tactic which is sometimes rationalized under the theory that “the end, when dealing with known criminals or the criminal classes, justifies the employment of illegal means.”5

In this article we will look at how the courts determine if a defendant was entrapped, and what types of police conduct will and will not be deemed entrapment. We will also discuss the related defense know as “outrageous police conduct.”

WHAT IS ENTRAPMENT?

Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a “normally law-abiding person” to commit the crime with which the defendant was charged.6

Because the existence of entrapment depends solely on the conduct of the investigating officers and their agents, the courts will not take into account the defendant’s conduct, character, intent, or criminal history.7 To give meaning to the officers’ conduct, however, the courts may consider various surrounding circumstances, such as “transactions preceding the offense, the suspect’s response to the inducement of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission.”8

Keep in mind that this hypothetical “law abiding” person is not a pillar of the community who would never break the law. Although he is normally law-abiding, he will commit a crime - even a felony - if sufficiently motivated.

Accordingly, the main issue in entrapment cases is whether officers provided such motivation. As the California Supreme Court explained, “What we do care about [in determining whether entrapment occurred] is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”9



Prohibited police actions:

The following actions by officers or their agents constitute entrapment:

PRESSURE: Entrapment occurs if the defendant committed the crime as the result of an officer’s threats or other pressure such as badgering, coaxing, cajoling, or importuning.10 For example, in People v. Barraza11 the California Supreme Court ruled the defendant was entitled to a jury instruction on entrapment because there was evidence that the defendant, a recovering heroin addict with a steady job, sold heroin to an undercover police agent only because, (1) the agent telephoned him repeatedly at work; (2) he was afraid he would lose his job if the agent kept calling, so he agreed to meet with her; and (3) during the meeting, which lasted more than an hour, the agent “importuned him relentlessly until his resistance was worn down and overcome.”

CREATING AN UNUSUAL MOTIVE: Entrapment also occurs if the conduct of the officers would have generated in the mind of a normally law-abiding person an unusual and compelling motive to commit the crime.12 For example, entrapment may result if an officer persuaded the defendant to commit the crime as an act of friendship or sympathy instead of a desire for personal gain or some other common criminal motive.13

Note, however, that entrapment will not result merely because an undercover officer befriended the defendant. For example, in People v. Lee14 the defendant contended she was entrapped because a police agent befriended her, and that her decision to sell drugs to the agent was motivated by feelings of friendship. Although it was true that the agent and defendant were acquainted, the court observed they were hardly close friends. Said the court, “Friendship ranges a spectrum of depth and emotions. People have ‘best friends,’ ‘dear friends,’ ‘close friends,’ ‘fair-weather friends’ … [Defendant] simply failed to establish the type of ‘friendship’ needing such protection.”

MAKING THE CRIME UNUSUALLY ATTRACTIVE:

Entrapment may result if officers engaged in conduct that would have made the commission of the crime unusually attractive to a normally law-abiding person.15 For example, it might be entrapment if officers asserted the crime would not be detected or that it was not illegal, or if the defendant was offered an excessive amount of money or other exorbitant consideration for committing the crime.16

On the other hand, merely taking steps to facilitate the commission of the crime will generally not constitute entrapment. For example, in People v. Holloway17 the court ruled that an undercover officer’s sale of drugs to the defendant at less than resale value did not constitute entrapment because the officer sold the drugs “only after trying to negotiate a higher price, which [the defendant] insisted he could not meet.” And, in what appears to be a close case, the court upheld a jury’s determination that the defendant in a warehouse burglary case was not entrapped as the result of an undercover officer’s assurances that he could get the defendant into the warehouse and, “It’ll just be a matter of walking in, loadin up and walkin out. No break in, no alarms or nothin.”18

Permissible police actions:

The following actions by officers or their agents will not constitute entrapment:

CREATING AN OPPORTUNITY TO COMMIT A CRIME:

Entrapment does not result merely because officers created a situation which made it possible for the defendant to commit the crime.19 This is because it is presumed that a normally law-abiding person would resist the temptation to commit a crime if officers did nothing more than give him an opportunity to do so.

Consequently, it is not entrapment to employ undercover officers or agents to pose as drug sellers, drug buyers, prostitutes, or johns.20 In the words of the California Supreme Court, “[T]he rule is clear that ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime”21

For example, in Provigo Corp. v. Alcoholic Beverage Control Appeals Board22 the court ruled that the use of underage decoys to attempt to purchase alcoholic beverages at retail outlets did not constitute entrapment even though the decoys were “mature looking.” Said the court, “Although the decoys involved in the present case were apparently somewhat mature and self-assured in appearance and demeanor, it is uncontradicted that no pressure or overbearing conduct occurred that might suggest an entrapment.”

Similarly, in Douglass v. Board of Medical Quality Assurance23 undercover agents posing as patients visited a physician named Douglass who was suspected of prescribing controlled drugs that were not medically indicated. In one instance, an agent was given prescriptions for Preludin and Seconal merely because she requested them. Another agent was given a prescription for Quaaludes because she liked the way they made her feel. In ruling such conduct did not constitute entrapment, the court observed, “Here, the agents’ conduct simply provided Douglass the opportunity to engage in unprofessional conduct for the ordinary criminal motive of pecuniary gain. Douglass does not argue the agents badgered or cajoled him into providing the drugs and there is no evidence they did.”

CRIMINAL PLAN ORIGINATED BY OFFICERS:

Entrapment does not result merely because an undercover officer or police agent generated or originated the plan to commit the crime with which the defendant was charged.24 In the words of the California Supreme Court, “[W]e are not concerned with who first conceived or who willingly, or reluctantly, acquiesced in a criminal project.”25

GAINING DEFENDANT’S CONFIDENCE:

Entrapment will not result merely because officers took reasonable steps to assure the defendant that he was not being “set up.”26 As the California Supreme Court stated in People v. Barraza,27 “There will be no entrapment when the official conduct is found to have gone no further than necessary to assure the suspect that he is not being ‘set up.’ The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called ‘victimless’ crimes, it would tend to limit convictions to only the most gullible offenders.”

“OUTRAGEOUS POLICE CONDUCT”

The defense known as “outrageous police conduct” is similar to the entrapment defense in that both are based on police misconduct and both will result in an acquittal if proven.28 Unlike entrapment, however, the “outrageous police conduct” defense is a very vague and broad defense with no strict requirements and no accepted definition.29

In California, the defense originated from this comment by the California Supreme Court in 1979: “Sufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of law.”30 Six years earlier, the United States Supreme Court made a similar observation. Said the Court, “[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”31

Nevertheless, to date neither the United States Supreme Court nor any appellate court in California has overturned a conviction on due process grounds based on outrageous conduct of police officers.32 For example, in Provigo Corp. v. Alcoholic Beverage Control Appeals Board33 the defendants argued that an officer’s act of employing underage decoys to attempt to purchase liquor in retail stores constituted outrageous police conduct. The court responded, “[I]t is doubtful the Constitution may be construed as forbidding the use of minor decoys. Assuming such a violation occurred, it was at most a technical one that could not be deemed so ‘outrageous’ as to afford a defense to prosecution.”

Entrapment occurs if the conduct of the investigating officers or their agents in dealing with the defendant would “likely” have induced a “normally law-abiding person” to commit the crime with which the defendant was charged.
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Keep in mind that this hypothetical “law abiding” person is not a pillar of the community who would never break the law. Although he is normally law-abiding, he will commit a crime - even a felony - if sufficiently motivated.