Entrapment serves as an absolute legal defense…if you can prove that you only committed your charged offense because the police lured you into doing so. This means that if you successfully establish that you were entrapped, the criminal charges against you must be dismissed.
Although this defense can be difficult to prove, it is possible…especially when presented by a California criminal defense lawyer who has mastered entrapment law.
In order to better understand this defense and, more importantly, when and how it applies, our defense attorneys will provide a comprehensive guide to entrapment by addressing the following topics:
- 1. What is Considered “Entrapment” in California?
- 2. How Do I Prove that the Police are Guilty of Entrapment?
- 3. Examples of California Entrapment
- 4. What is the Difference between Entrapment and Outrageous Police Conduct?
1. What is Considered “Entrapment” in California?
Under California law, entrapment refers to a situation where a “normally law abiding person” is induced to commit a crime that he/she otherwise would not have committed.1 Entrapment only applies to overbearing official conduct, seen in the form of pressure, harassment, fraud, flattery, or threats.2
Entrapment will not serve as a defense if the officer merely offers you the opportunity to participate in an illegal activity.3 The courts believe that reasonable people presented with a simple opportunity to commit a crime will resist the temptation to do so.
Official conduct that constitutes entrapment under California law4--
- pressure (examples include appealing to your sense of friendship/compassion or offering an enormous amount of compensation for committing the crime)
- harassment or threats (repeated and unwavering solicitation of the activity)
- fraud (promises that the suggested conduct is legal)
Official permissible conduct not subject to California entrapment law5--
- presenting an opportunity to participate in criminal activity
- initiating the criminal activity
- undercover operations
- reasonable assurances that you’re not being “set up”
Because California entrapment laws zero in on the officer’s conduct, your intent, criminal history, and/or character are not relevant to whether you were, in fact, entrapped.6 That said, your actions in responding to the solicitation will be considered and compared to those of a normally law-abiding person.7
Keep in mind, “normally law-abiding” person doesn’t mean a person of the highest integrity whose reputation is impeccable…it means just what it says…an average person who normally obeys the laws of his/her society.
2. How Do I Prove that the Police are Guilty
In order to convict you of a crime, the prosecutor must prove that you are guilty “beyond a reasonable doubt”. This is the highest legal standard of proof, and it basically means that the evidence against you is so strong that there is no other logical explanation other than the fact that you committed the charged offense.8
If you are alleging California entrapment as your defense, it is you who bears the burden of proving that the officer is guilty…but only by a preponderance of the evidence.9 “Preponderance of the evidence” is a lesser standard of proof and essentially means “more likely than not”.10
Agents of the police
It must be noted that this legal defense only applies to law enforcement officers and those who act under their direction (otherwise known as “agents” of the police). California entrapment laws will not protect you from being persuaded by a private citizen (who was not acting as a police agent) if you ultimately commit the suggested offense.11
On that note, the agent doesn’t even need to know that he is acting as an agent or know that the person who he is taking direction from is an officer.12
Example: Your younger brother, a high school student, begins asking you for marijuana so that he can sell it to a new friend (who, unbeknownst to either of you is a “narc”). You are not a marijuana user or dealer, nor do you use or sell any other drugs. You tell him no.
Your brother persists in asking you for marijuana, as the undercover officer continues pressuring him to get some. Finally, out of sympathy for your brother (who is having difficulty making friends at school), you agree to try to get some and are ultimately able to do so.
When charged with California Health and Safety Code 11359 HS possessing marijuana for sale, you are justified in raising California entrapment as a defense.13 Even though your brother was unaware that he was working as an agent for the police, the conduct of both the officer and your troubled brother were such that you committed a crime you had no intention of otherwise committing, motivated solely by sympathy.
In order for you to prove that you were entrapped, you must prove that it is more likely than not that the conduct of the officers (or their agents) would have likely induced a “normally law-abiding person” to commit the charged offense.
It must be noted that California entrapment law does not protect you if the only “inducement” you can prove is that you received an assurance that you weren’t being “set up”.14 Officers are permitted to use reasonable tactics to gain your trust, they just can’t make false promises that the proposed conduct isn’t illegal.
- Guarantees that the conduct is not illegal,
- promises that the offense will go undetected,
- offers of extraordinary rewards, and
- appeals to friendship or sympathy (as illustrated in the example above),
are all examples of the types of conduct that might persuade a normally law-abiding person to succumb to criminal activity.15
Pleading innocent and raising California entrapment law — a contradiction?
Although it seems like you would have to concede your guilt in order to assert this defense, that’s not the case. You can maintain your innocence and argue that the officers are guilty of California entrapment.
Example: Let’s say you are charged with Health and Safety Code 11351 HS possession of drugs for sale.16 You may concede that you possessed the drugs in question (you obtained them because you were harassed into doing so by an officer) but may still maintain your innocence of the charge because you didn’t subsequently intend to sell them (but rather intended to dispose of them).
Since you didn’t intend to sell drugs (a fact that the prosecutor must prove in order to convict you of Health and Safety Code 11351 possession of drugs for sale)17, it would be perfectly proper for you to plead not guilty and assert an entrapment defense.
3. Examples of California Entrapment
Let’s take a look at some examples to illustrate exactly when California entrapment law does and does not apply.
With respect to California drug crimes…
California drug crimes notoriously involve claims of entrapment. Undercover drug busts are a major part of narcotics investigations and, as a result, invite entrapment allegations on a regular basis.
Example: Suppose John is a well-known recovering cocaine addict who has been sober for several years. He lives in Los Angeles where he has a family and holds a steady job. As part of his commitment to maintain a drug-free life, he steers clear of places where drugs are readily accessible.
“Sally”, a decoy officer for the Los Angeles Police Department, relentlessly and overzealously begs John to sell her cocaine. She repeatedly calls him at work and home and finally convinces him to meet with her.
When John meets with Sally, he is reluctant to get involved, tells her he doesn’t want to lose his job (which he might if she doesn’t stop calling), doesn’t want his family to think he is relapsing, and doesn’t want to go back to prison. In order put an end to Sally’s harassment, he contacts an old dealer, sells her the drugs, and is arrested for possession for sale.
Under these circumstances, John should be able to benefit successfully from California’s entrapment laws. But…
If, however, Officer Sally contacted John only one time and asked him to sell her cocaine…even though John hadn’t expressed an interest in selling drugs…and he agreed, he would not be successful in asserting an entrapment defense.
With respect to California sex crimes…
Defense attorneys will undoubtedly address California entrapment law in almost all undercover operations…especially when they are performed in connection with a sex crime. California sex crimes are particularly susceptible to the entrapment defense, since they involve man’s primal instinct, which is easily seduced.
California Penal Code 647(a) lewd conduct in public
Undercover operations that result in California Penal Code 647(a) PC lewd conduct in public allegations almost instantly trigger an entrapment defense.18 One of the most common examples of this takes place when decoy officers pose as gay men, trying to solicit other gay men to perform “lewd” sexual acts in public (most notoriously in public bathrooms).
Example: Suppose Bill goes into the bathroom at a San Francisco park. Bob, a decoy officer, follows him in, cruises him, and makes a motion as though he’s masturbating himself over his pants. Bill ignores the behavior and tries to leave the restroom.
Bob begins chatting with and complimenting Bill, promising him that he’ll block the door, that no one else will come in, and that there’s nothing illegal about their conduct, so long as it’s in “private”. At that point, Bill agrees, begins touching himself, and is arrested….and was clearly entrapped.
Had Bill immediately and voluntarily responded to Bob’s provocative behavior, he would not be entitled to use entrapment as a defense. However, in the above scenario, he only participated in the behavior, based on the promise that it wasn’t illegal since it was just the two of them.
California Penal Code 647(b) prostitution
As you can imagine, undercover sting operations run rampant with respect to prostitution. California Penal Code 647(b) PC prohibits (1) soliciting, (2) agreeing to participate in, and/or (3) actually engaging in prostitution.19 The decoy officer may pose as a prostitute or as a “john” in an attempt to lure you into agreeing to engage in sexual activities in exchange for money or other compensation.
Example: Maggie, an undercover officer posing as a prostitute on Sunset Boulevard, approaches Mark, who is walking by himself down the street. Maggie asks Mark if he is “looking for a good time”. Mark ignores the question, and continues walking. Maggie follows, telling Mark how good looking he is, how she really wants to “show him a good time”, how she’s “the best in L.A.”…. Mark, who is still walking away, doesn’t engage Maggie in the conversation.
Maggie follows Mark for a couple of blocks, where Maggie finally wears him down. Maggie continues flirting, telling Mark how sexy he is. Mark confides that he is lonely and could use some fun. Maggie assures him that for $50 she will “take care of him”. Mark hands over the $50 and is arrested for agreeing to engage in prostitution under Penal Code 647(b).
Had Mark initially responded to Maggie’s question with “yes, how much?”, there would be no entrapment defense. However, looking at the facts, Mark was not out looking for a prostitute and even ignored Maggie’s efforts for quite a while. After being coaxed and flattered (where Maggie tapped into Mark’s loneliness), he finally gave in…and was entrapped into doing so.
California Penal Code 311 child pornography
Undercover officers play a huge role in arresting people who are allegedly involved in activities relating to California Penal Code 311 PC child pornography.20
Example: Steve, who was in an adult-only chat room, was engaged in a conversation by Mike, a decoy officer. After several exchanges, Mike began asking Steve if he ever fantasized about teenagers and about how our country’s censorships laws are so strict compared to other places around the world.
The two men continue to “chat” for a period of weeks, where Steve is finally persuaded by Mike’s relentless efforts to order some child porn magazines that can be obtained from Belgium so that they won’t be on our country’s radar.
Upon receipt of the magazine, Steve is arrested. The only evidence of child porn that is discovered when Mike’s California search warrant is executed is the one magazine he agreed to order.21 California entrapment law would likely protect Steve in this situation. But…
If, in that first exchange, Steve responded to Mike’s questions about fantasizing about teenagers by asking if he knew where Steve could buy some magazines depicting child pornography, he would not be entitled to raise entrapment as a valid legal defense.
Independently inquiring about (and then ordering such a magazine at the first opportunity) fails to establish the inducement necessary under California entrapment laws. Remember, in order to plead entrapment, the officer’s conduct must be so overbearing that you are coaxed or harassed into the proposed criminal activity.
Which begs the question…
4. What is the Difference between Entrapment and Outrageous Police Conduct?
Both are bases upon which criminal charges could get dismissed.
Entrapment is a question of fact for the jury to consider — that means that it is up to the jury to decide whether a defendant has, in fact, been entrapped. Outrageous police conduct, by comparison, is a question of law which means that it is up to the judge to determine whether an officer’s conduct rises to this level.22
Another major difference between California entrapment law and outrageous police conduct lies in the level of the alleged inappropriate official conduct. Entrapment involves coercion, persuasion, and possibly even fraud.
Outrageous police conduct involves acts that are so extreme that they not only induce you into committing a crime, but are so unconscionable that they violate your constitutional rights. Because the standard is so high, courts are reluctant to dismiss cases based on this claim.
The main issues to consider with outrageous police conduct include:
- whether the police manufactured a crime which otherwise would not likely have occurred,
- whether the police engaged in criminal or improper behavior repugnant to a sense of justice,
- whether your reluctance to commit the crime is overcome by coercion, and
- whether the police are simply out for a conviction, as opposed to preventing future criminal conduct or protecting the community.23
Example: California courts acquitted a man due to outrageous police conduct where the police needlessly beat up a defendant after he was arrested for possession of a controlled substance.24 Once the police discovered that the substance wasn’t a controlled one, they didn’t release the man (or for that matter, even inform him) of that fact. Instead, they coerced him into being an informant for the police, by telling him that if he refused, he’d face a substantial prison sentence.25
Call us for help
If you or a loved one is charged with entrapment laws and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
- People v. Barraza, (1979) 23 Cal.3d 675, 689. (“For all the foregoing reasons we hold that the proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”)
- People v. West, (1956) 139 Cal.App.2d Supp. 923, 924. (“Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”)
- California Jury Instructions — Criminal — CALJIC 4.61.5 — Entrapment-Permissible and Impermissible Conduct.
(“It is permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to provide opportunity for the commission of a crime including reasonable, though restrained, steps to gain the confidence of suspects.”)
- See endnote 2, above.
- See Barraza, endnote 1, above at 690. (“For the purposes of this test [that of, California entrapment], we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect – for example, a decoy program – is therefore permissible….There will be no entrapment, however, when the official conduct is found to have gone no further than necessary to assure the suspect that he is not being “set up.””) Also, see same at 688. (“[W]e are not concerned with who first conceived or who willingly, or reluctantly, acquiesced in a criminal project. What we do care about is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”)
- California Jury Instructions — Criminal — CALJIC 4.61 — Entrapment-Objective Test-Guidance. (“Matters such as the character of the defendant, [his] [her] predisposition to commit the crime, and [his] [her] subjective intent are not relevant to the determination of the question of whether entrapment occurred.”)
- See same. (“Finally, while the inquiry [of determining whether California entrapment laws have been violated] must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission.”)
- California Jury Instructions — Criminal — CALJIC 2.90 — Presumption of Innocence-Reasonable Doubt-Burden of Proof. (“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”)
- People v. Moran, (1970) 1 Cal.3d 755, 761. (“The Model Penal Code, section 2.13(2) (Proposed Official Draft 1962) also places the burden on defendant to prove entrapment by a preponderance of the evidence.”)
- California Jury Instructions — Criminal — CALJIC 2.50.2 — Definition of Preponderance of the Evidence. (“‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”)
- People v. Gregg, (1970) 5 Cal.App.3d 502, 505. (“In our original opinion in this [California] case we stated: “The entrapment defense is designed to prevent the seduction of innocent people into criminality by officers of the law, and the suggestion of crime by a private citizen does not give rise to the defense.”)
- People v. McIntire, (1979) 23 Cal.3d 742, 748. (“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator.”)
- California Health and Safety Code 11359 — Possessing marijuana for sale; punishment. (“Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison.”)
- See Barraza, endnote 1 at 690. (“FN4 There will be no entrapment, however, when the official conduct is found to have gone no further than necessary to assure the suspect that he is not being “set up.” The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called “victimless” crimes, it would tend to limit convictions to only the most gullible offenders.”)
- See same. (“…affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.”)See also California Jury Instructions — Criminal — CALJIC 4.61 — Entrapment-Objective Test-Guidance. (“An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.”)
- California Health and Safety Code 11351 — Possession or purchase for sale of designated controlled substances; punishment. (“Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years.”)
- California Jury Instructions — Criminal — CALJIC 12.01 — Controlled Substance (Sched. I-V)-Illegal Possession or Purchase for Sale. (“In order to prove this crime, each of the following elements must be proved:  That [a] person [possessed] [or] [purchased] the controlled substance with the specific intent to sell the same.”)
- California Penal Code 647 — Disorderly conduct – (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”)
- California Penal Code 647(b) — Disorderly conduct. (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.”)
- California Penal Code Sections 311-311.11 describe the different offenses that are subject to California’s child pornography laws.
- Under California Penal Code 1524, a California search warrant will issue when the property or things to be seized consist of evidence relating to child pornography.
- People v. Peppars, (1983) 140 Cal.App.3d 677, 685 (“…while entrapment presents a question of fact, this defense presents a question of law.”)
- See same at 686. (“The New York court set forth four illustrative factors to be considered in determining whether due process principles had been violated: “(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity [citations]; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice [citations]; (3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness [citations]; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.” (People v. Isaacson, supra., 378 N.E.2d at p. 83.)”)
- The facts used in this example are taken from a New York case People v. Isaacson, (1978) 44 N.Y.2d 511 involving charges of possession of a controlled substance.
- See Peppars, endnote 19 at 686. (“The California Supreme Court in McIntire cites People v. Isaacson (1978) 44 N.Y.2d 511 [406 N.Y.S.2d 714, 378 N.E.2d 78], as an example of police conduct which triggers the due process clause. There, a third person was arrested for possession of a controlled substance and was physically abused by the New York police during interviewing. Later when the officers learned that the substance was not a controlled one, they did not tell him. Instead, he was left under the delusion that he was facing a substantial prison sentence if convicted. He thus agreed to be an informant for the police.”)