Written by attorney Anthony Biagio Rickman

Entrapment-When law enforcement creates a crime

A.Objective Entrapment

Florida Courts recognize two forms of entrapment. The first form of entrapment called “Objective Entrapment" focuses on the conduct of law enforcement and bars prosecution when the government’s conduct offends the decency and sense of justice that it amounts to a violation of the Defendant’s Due Process Rights afforded under Article 1 Section 9 of the Florida Constitution. Munoz v. State, 629 So. 2d 90 (Fla. 1993); State v. Blanco, 896 So. 2d 900 (Fla. 4th DCA 2005). Under the objective entrapment analysis the focus of the Court is not on the predisposition of the defendant or his state of mind, but on the conduct of law enforcement in conducting their investigation. Id. Therefore in the presence of egregious law enforcement conduct when a Court determines as a matter of law, that law enforcement violated a Defendant’s Due Process rights, dismissal of the charge is warranted. Id.

Florida Courts have held several circumstances amounting to egregious law enforcement conduct that have resulted in the dismissal of criminal charges on objective entrapment grounds. In Glosson v. State, 462 So. 2d 1082 (Fla. 1985), the Supreme Court held that objective entrapment existed when law enforcement entered into contingency contracts with informants for testimony and information. Similarly, in Williams v. State, 623 So. 2d 462 (Fla. 1993), the Court held that objective entrapment existed when law enforcement illegally manufactured cocaine for use in a reverse sting operation. Additionally, in Soohoo v. State, 737 So. 2d 1108 (Fla 4th DCA 1999) the Fourth DCA found objective entrapment where law enforcement developed a consignment arrangement for the sale of drugs. Finally, in Cruz v. State, 465 So. 2d 516 (Fla. 1985) the Court found a violation of due processes for egregious law enforcement conduct where the officer was in a high crime areas appearing to be drunk with money hanging out of his pocket. What was common between these cases is that the courts have consistently held that objective entrapment existed when law enforcement used means to manufacture as opposed to detect crimes. Id.

In Farley v. State, 848 So. 2d 393 (Fla. 4th DCA 2003), the Court found not only that the Defendant was subjectively entrapped, but also objectively entrapped in violation of the Defendants due process rights . The case against Farley originated when the defendants name, credit card, and personal information was found by Texas law enforcement in their investigation of an on-line child pornography business. Farley, 884 So. 2d at 394. In engaging the defendant in a “reverse sting operation" law enforcement sent Farley, an email advertising “potential suppliers" of adult related content with the inferences and assurances that there would be no government interference. Id at 395 In response to this advertisement, the defendant requested from law enforcement photographs of “teenage boys". Id. After receiving the request, law enforcement sent the defendant numerous emails asking him to detail what he was looking for and responded to the defendant’s request for an order form only after he provided explicit detail about his desires. Id. After submitting his request for videos of underage boys, a package of the videos was delivered to the defendant’s residence where he was arrested and charged with sexual performance by a child. Id.

In reversing the Circuit Court’s ruling denying the defendant’s motion to dismiss on objective entrapment/substantive due process grounds, the Fourth DCA found that the government’s conduct was so outrageous and prejudicial that dismissal of the charges were warranted. Farley, at 396 In citing the cases above, the Fourth DCA opined that where government supplies all the instrumentalities of the crime, controls all of its aspects, and teaches the defendant how to commit the crime for purposes of later arresting him, there would be no crime at all but for the governments’ involvement. Id. at 397. Ultimately no legitimately objective of government is accomplished by prosecuting a crime that is orchestrated or manufactured by the government; as such dismissal in these situations is warranted. Id. at 398

B.Subjective Entrapment

When the Governments’ quest for convictions leads to the apprehension of otherwise law-abiding-citizens, who if left to their own devices would likely have never violated the law, a Court should intervene. Farley, 848 So. 2d at 341, citing Jacobson v. U.S., 503 U.S. 540 (1992) Florida has codified the defense of “Subjective Entrapment" in subsection (1) of Fla. Stat. § 771.201 as follows:

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.

A defendant may raise the defense of subjective entrapment for consideration by the jury as the, or submit the issue to the Court to make a determination as a matter of law that the defendant was entrapped. Munoz v. State, 629 So. 2d 90 (Fla. 1993); Robichaud v. State, 658 So. 2d 166 (Fla. 2nd DCA 1995), Farley v. State, 848 So. 2d 393 (Fla, 4th DCA 2003).

To establish subjective entrapment three questions must be answered: (1) whether the Government Agent induced the Defendant to commit the crime (2) whether the defendant was predisposed to commit the crime (3) whether the entrapment defense should be evaluated by the jury. Id. The Defendant holds the initial burden of proving inducement by the preponderance of the evidence. Munoz 629 So. 2d at 31. Once the Defendant meets its initial burden of proving inducement on the part of law enforcement, the Defendant has burden to establish that he was not predisposition to commit the alleged offense. If the Defendant produces evidence that he was not predisposed to commit the crime, the burden of proof shifts back to the Government who must now prove beyond a reasonable doubt that the defendant was predisposed. Id.

Inducement is defined as “any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, and promises of reward or pleas bases on need, sympathy or friendship". Munoz, 692 So. 2d at 166-7, citing United States v. Davis, 36 F 3d 1424 (9th Cir. 1994); Beatie v. State, 636 So. 2d 744 (Fla. 2nd DCA 1993). Inducement refers to government conduct that persuades a person to turn from the righteous path to an iniquitous one. Mareel v. State, 841 So. 3d. 600 (Fla 4th DCA 2003). Inducement cannot be found by prompting or creating an opportunity; it involves some semblance of coercive tactics. Mareel v. State, 841 So. 2d 600 (Fla. 4th DCA 2003).

Predisposition is defined as “whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense." Farley, 848 So. 2d at 398, citing Munoz, 629 So, 2d at 99. A defendant is seen to lack predisposition to commit a crime when the defendant is not known for deviant behavior and/or has no prior criminal history related to the charged offense. Id. Thus in order to establish predisposition the state must prove that the defendant disposition to commit the alleged offense existed prior to Government contact with the defendant. Id. at 399 When the State produces no evidence of the past deviant behavior of the defendant or criminal activity on the part of the defendant the charge should be dismissed as a matter of law. Id. In sum, law enforcement cannot originate a criminal design, implant on an innocent person’s mind the disposition to commit the crime and then induce the commission of that crime so that the Government may prosecute. Munoz, 629 So. 2d at 99.

In determining the third prong of the subjective entrapment test the Court must determine if the matter should be submitted to a jury or ruled upon by the Judge in a pre trial motion. Courts have held that the subjective entrapment analysis is not always one for the jury. As such, when evidence is not conflicting and factual circumstances are not in dispute the issue of whether a defendant was entrapped is an issue that rests with the trial judge as a matter of law. Munoz, 629 So. 2d at 99. Thus when a defendant meets their initial burden of showing government inducement and the state is unable to demonstrate sufficient evidence of predisposition prior to and independent of the Government’s conduct dismissal of the charges against the defendant as a matter of law us warranted. Id.

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