I am often told by prospective clients that they were entrapped because an undercover law enforcement officer never advised them that he or she was in fact a law enforcement officer at the time the crime was committed. In almost every instance, this discussion comes up when the person has been arrested and/or charged with selling or delivering controlled substances to an undercover narcotics detective or a confidential informant. This post provides an overview of entrapment in Florida and the circumstances under which it presents a viable defense.
Florida recognizes two types of entrapment: (1) subjective entrapment; and (2) objective entrapment. A subjective entrapment analysis focuses on the predisposition of the accused to commit the crime charged, whereas an objective entrapment analysis focuses on the conduct of the government and whether such conduct was so egregious that it amounts to a due process violation. Each type of entrapment is explained in greater detail below.
- Subjective Entrapment
The subjective entrapment test is codified in Florida Statutes section 777.201. In accord with its provisions, 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 entrapment if, for the purpose of obtaining evidence of the commission of a crime, induces, encourages, or causes another person to engage in criminal activity when that other person was not otherwise predisposed to engage in such conduct or criminal activity.
The person asserting the entrapment defense must establish, by a preponderance of the evidence, that he or she was induced or persuaded to commit a crime, by government agents, and that but for the inducement or persuasion, he or she would not have committed the crime. If the defendant makes this showing, the burden of proof shifts back to the state to establish, beyond a reasonable doubt, that the accused person was predisposed to commit the crime charged (i.e. that he or she was ready to commit the crime with or without government inducement). Whether a person was subjectively entrapped is a question for the jury to decide.
In most instances, an accused person's prior criminal history is inadmissible at trial. However, where the person raises the affirmative defense of subjective entrapment, the state will usually be permitted to present evidence of relevant prior criminal conduct to rebut the defendant's asserted lack of predisposition.
If the defense of entrapment is raised, and the State is unable to prove predisposition beyond a reasonable doubt, then the jury must find the defendant not guilty.
- Objective Entrapment
Objective Entrapment is raised where the conduct of law enforcement, in inducing or persuading an accused person to engage in criminal activity, is so outrageous or egregious that it violates the due process clause of the Florida constitution. The issue of predisposition does not factor in an objective entrapment analysis. Also, the issue is not one for the jury; where the conduct of law enforcement is so egregious that it violates constitutional principles, the appropriate remedy is a pre-trial motion to dismiss which is decided by the court.
An example of objective entrapment can be found in State v. Finno, 643 So.2d 1166 (Fla. 4th DCA 1994). In Finno, the defendant was believed to be involved in a plot to kill a local sheriff based on representations of two informants. When months of investigation failed to uncover any evidence of this, state agents essentially taught the defendant how to conduct a loan sharking operation and then arrested him once the operation began.
In Finno, the reviewing court found that the government supplied all of the instrumentalities of the crime, controlled all of its aspects, and taught the intended target how to commit the crime for the purpose of arresting him. Under these circumstances, the government's conduct rose to the level of a due process violation.
- The Bottom Line
Just because a law enforcement officer is involved in the commission of a crime, such as the sale or purchase of controlled substances, without disclosing his or her true identity, does not mean that the accused was entrapped. As a prosecutor, I saw the subjective entrapment defense raised on a couple of occasions during trial and it was not successful on either occasion. It is relatively infrequent that law enforcement conduct will rise to the level of a due process violation and, if the accused has engaged in similar acts prior to the commission of the charged offense, admission of this evidence during trial is often the kiss of death. Under the right circumstances, however, entrapment can be raised and can result in either a dismissal or an acquittal.