Entrapment

ENTRAPMENT (subjective entrapment)

There's a fine line between police conduct that detects crime, and police conduct that creates a crime.  When the police decide to abandon crime detection and enter crime creation, they may be crossing the line into entrapment territory.  The question becomes, how far can the police go in order to promote criminal conduct?  When the police's level of inducement is so high that it causes a citizen to commit a crime they were not otherwise willing to commit, we officially have an entrapment issue. (for more details on the issue of inducement, click on my article "Money for Nothing and Your Chicks for Free")  

Under Florida law, two distinct entrapment defenses exist: subjective entrapment and objective entrapment.  Objective entrapment occurs “in the presence of egregious law enforcement conduct” and “is to be evaluated under the due process provision of Article I, section 9, of the Florida Constitution.” Munoz v. State, 629 So.2d 90, 99 (Fla.1993). And, the foundation for subjective entrapment-unlike objective entrapment-requires a showing by the Defendant that he was not predisposed to commit the alleged offense. Id. The elements of the subjective entrapment defense-the version of the defense relevant here-have been codified in section 777.201(1), Florida Statutes (2001), listed below:

Entrapment, Section 777.201(1) of the Florida Statutes, basically states that the police commit entrapment when they cause or induce someone to commit a crime that they would not otherwise commit.  Simple concept, right?  Wrong.

Our Florida Supreme Court uses a three-part test to determine if subjective entrapment under section 777.201(1) has occurred. Beattie v. State, 636 So.2d 744, 746 (Fla. 2d DCA 1993) (citing Munoz ).

1) Whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof.  But what is "inducement?"   ‘Inducement’ includes persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas of an officer or confidential informant to the accused based on need, sympathy, or friendship.

2) Whether the accused was awaiting a propitious opportunity or was ready and willing, without persuasion, to commit the offense. On this second question, the accused initially has the burden to establish lack of predisposition. But as soon as the defendant produces evidence of no predisposition, the burden shifts to the prosecution to rebut this evidence beyond a reasonable doubt. In rebutting this evidence of lack of predisposition, the State prosecutor may make “an appropriate and searching inquiry” into conduct of the accused and present evidence of the accused's prior criminal history, even though such evidence normally is inadmissible.  The accused can prove that he had no predisposition to commit the crime by claiming that he has no prior criminal history and no history whatsoever of engaging in drug
distribution.

3) Whether the entrapment evaluation should be submitted to a jury.  Id.

The beauty of an entrapment defense is that if the State cannot produce evidence beyond a reasonable doubt that the defendant possessed a predisposition to commit the offense, a defendant is entitled to a dismissal of the charge. Id.  But just how far can the government go before crossing the line?  For more details on classic entrapment situations, read my article entitled "Can the Government Really Set People Up Like That?"

Entrapment is a complex, but interesting, issue.  Our brief analysis above is only the tip of the iceberg, so please give me a call, and we'll discuss your situation for free.  What do you have to lose?  Nothing.  Just knowledge to gain, and that's always a good thing.
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