Many people are familiar with the concept of entrapment from movies and television. This is what is referred to as an affirmative defense, which means that a person who uses the defense admits to the commission of a crime, but argues that the commission was legally justified, or should not be prosecuted. Entrapment is essentially a defense of “the cops tricked me into committing the crime”.
In Florida, there are two types of entrapment; objective and subjective. Objective entrapment focuses on the conduct of law enforcement and “operates as a bar to prosecution in those instances where the government’s conduct so offends decency or a sense of justice that it amounts to a denial of due process.” State v. Henderson, 955 So.2d 1193 (Fla. 4th DCA 2007). Examples of police conduct that have been held objective entrapment are undercover officers promising sex in exchange for drugs, or getting a defendant’s boss to threaten to fire the defendant if the defendant did not provide narcotics.
The defense of subjective entrapment falls under Florida Statute 777.201and focuses on the inducement of an accused based upon an apparent lack of predisposition to commit the offense. In determining whether subjective entrapment exists, the Courts look at whether law enforcement induced or encouraged the commission of the crime using methods of persuasion which create a substantial risk that a crime will be committed by someone other than a person ready to commit it; and whether the accused was predisposed to commit the crime. A defense of subjective entrapment can be raised in a motion to dismiss, but a Court may elect to allow a jury to decide whether or not a person was entrapped.
Issues of entrapment are commonly raised in law enforcement “sting”, or proactive, investigations regarrding drug trafficking and crimes involving criminal use of the internet. The most recent decision by Florida’s appellate courts finding that law enforcement had entrapped the defendant was in the case of Gennett v. State, 124 So.3d 273 (1st DCA 2013). In that case, law enforcement posted an on-line advertisemant that a pair of sisters were looking for a “hot night”, only later hinting that one of the sisters was under 18 years old. When the defendant appeared reluctant, law enforcement challenged his nerve and said he was “scared”. The Court decided that use of this type of pressure was overstepping, and upheld the trial court’s decision to dismiss the case.
Entrapment issues are constantly evolving in the state of Florida, and if you or a loved one feel that you have been entrapped by law enforcement it is important to find a lawyer who is willing and able to litigate the issue, and preserve the issue for appellate review should the trial court rule against you.