Entrapment in Florida
This guide will provide a quick summary of the two types of Entrapment in the State of Florida (i.e. Objective and Subjective Entrapment) and what must be shown under each type to prevail.
Objective EntrapmentUnder Florida law, there are two distinct entrapment defenses: subjective entrapment and objective entrapment. Objective entrapment arises "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).
An objective analysis of entrapment on due process grounds focuses on the conduct of law enforcement. Munoz v. State, 629 So.2d 90 (Fla.1993). The type of conduct held to violate due process is that which so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction. See, e.g., State v. Glosson, 462 So.2d 1082 (Fla.1985) (law enforcement entering into a contingency contract with informants to obtain convictions); Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985) (law enforcement officer appearing inebriated and hanging money from his pocket in high crime area); State v. Williams, 623 So.2d 462 (Fla.1993) (illegal manufacture of crack cocaine by law enforcement officials for use in reverse sting operation); Soohoo v. State, 737 So.2d 1108 (Fla. 4th DCA 1999) (undercover agent's consignment arrangement for sale of drugs). When government conduct violates a defendant's due process rights, the remedy is dismissal. See Munoz, 629 So.2d 90. Under the objective test, the contention is that as a matter of due process courts should not tolerate the conduct of the government regardless of the predisposition of the accused.
The actions of confidential informants, when working for law enforcement, are considered "police activity," and represent governmental conduct which will not be condoned if the actions violate a Defendant's due process rights. See, e.g., Soohoo v. State, 737 So.2d 1108 (Fla. 4th DCA 1999) (Confidential informant's consignment agreement used to convince defendant to purchase cocaine was governmental conduct which could not be condoned); State v. Hunter, 586 So. 2d 319 (Fla. 1991) (confidential informant's activity of creating crime to meet his quota rather than combating ongoing criminal activity was "police activity," which violated the defendant's due process rights); Bailey v. State, 994 So. 2d 1256 (Fla. 2d DCA 2008) (Defendant stated a valid claim of entrapment when he alleged that CI paid him to deliver a package which he did not know contained cocaine); Jiminez v. State, 993 So. 2d 553 (Fla. 2d DCA 2008) (Defendant stated a valid claim of entrapment when he alleged that the CI who was a friend induced him into conducting the transaction. Court held that inducement includes persuasion, fraudulent representations, threats, coercive tactics, harassment, promise of reward, or pleas based on need, sympathy, or friendship").
Subjective EntrapmentSubjective entrapment, on the other hand, focuses on the issues of inducement and the defendant's predisposition. The elements of the subjective entrapment defense have been codified in section 777.201(1), Florida Statutes, which states:
"A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it."
The Florida Supreme Court has adopted 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). The first question is whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof and must establish this factor by a preponderance of the evidence. The second question is whether the accused was awaiting a propitious opportunity or was ready and willing, without persuasion, to commit the offense. On the second question, the defendant initially has the burden to establish lack of predisposition. As soon as the defendant produces evidence of no predisposition, the burden shifts to the prosecution to rebut this evidence beyond a reasonable doubt. The third question is whether the entrapment evaluation should be submitted to a jury. Id. 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. See State v. Henderson, 955 So. 2d 1193, 1195 (Fla. 4th DCA 2007) ("'Inducement' includes persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy, or friendship." (quoting Farley v. State, 848 So. 2d 393, 395 (Fla. 4th DCA 2003)).