In this article, our Colorado criminal defense lawyers will address:
- 1. What is entrapment in Colorado?
- 2. What are the elements of entrapment?
- 3. Forms of Entrapment
- 4. Entrapment and Opportunity
If the police induce a normally law-abiding individual to commit a crime, the police may have committed entrapment. Entrapment occurs when an individual is induced to do something by law enforcement officials that constitutes an offense. If an individual would not have engaged in the criminal conduct but for the inducement of the law enforcement official, the individual may have been entrapped.
Entrapment generally occurs when a law enforcement officer or another person acting under the direction of law enforcement seeks to obtain evidence for the purpose of prosecution. If the methods used to collect evidence create a substantial risk that the acts would be committed by a person because of the inducement, it may be a defense to criminal prosecution.
“Merely affording a person an opportunity to commit an offense is not entrapment.” 1 Even if representations or inducements are made to overcome the offenders fear of detection, presenting an opportunity may not be entrapment.
In order to show that you were a victim of entrapment, you have to prove all elements of entrapment by a preponderance of the evidence. This is a lower standard than “beyond a reasonable doubt,” that is necessary to show you are guilty of a criminal offense. Generally, this requires showing that the police more likely than not committed entrapment.
In order to prove entrapment, the defendant must show that by a preponderance of the evidence:
- A law enforcement officer or other person acting under law enforcement direction;
- Used methods to create a substantial risk the criminal acts would be committed by a person; and
- The person would not have conceived of or engaged in the contact but for the inducement.
Entrapment is only a defense if it involves the police, law enforcement officers, or agents of the police. If a private citizen induces you to commit a crime, it is not considered entrapment. However, if the private citizen is acting at the direction of an undercover police officer, then you may be a victim of entrapment.
Entrapment may involve pressuring an individual to commit certain acts through harassment, threat, repeated pressure, or fraud. Entrapment through fraud may involve falsely telling a citizen that the conduct is not illegal.
A common misconception related to entrapment is that an undercover police officer has to tell you they are a cop if you ask. Undercover officers generally do not have to admit to being a police officer. If the undercover officer lies and says they are not a police officer, that alone does not mean you were entrapped.
Some of the most common criminal offenses that involve entrapment claims involve undercover police officers or sting operations.
For example, let’s say an undercover cop goes on an online chat room, pretending to be a 13-year-old girl, in an attempt to gather evidence for online sex crimes. In the chatroom, the cop initiates a conversation with a man and continually drops hints that the two should meet for sex in hopes that the man will agree.
When the man doesn’t take the bait and refuses, the police officer may continue to pressure the man to send a picture of himself or get him to ask for an inappropriate picture. The undercover cop threatens the man to tell his wife about the chat unless he agrees to send a nude picture, and the man eventually relents and sends a nude picture.
In the scenario above, entrapment may be an affirmative defense to the crime of online sexual exploitation of a child.2 The officer was excessively contributing the to the commission of the crime, pressuring the man through threats.
Use of an undercover cop or alias is permitted by law to offer a person an opportunity to break the law. Similarly, use of an agent to present the opportunity to commit an offense is permissible. The Colorado entrapment statute provides that “merely affording a person an opportunity to commit an offense is not entrapment.”3
Presenting an opportunity to participate in criminal activity is not subject to an entrapment defense. Similarly, police can offer money or rewards, companionship, or promises that no one will find out about the crime. There is an expectation of citizens to resist any “ordinary” temptation of committing a crime.
We’ll explore the difference between entrapment and opportunity using the following example:
- Doug has recently been charged with selling prescription drugs to an undercover cop. Doug testified at trial that he receives prescription drugs prescribed by his doctor due to a recent surgery he underwent. He then comes across a female undercover cop who had claimed her child was in excruciating pain and needed the exact same prescription drugs Doug was taking. She said she was willing to pay for the pills if need be. She confirmed she wasn’t a cop and told him she wasn’t setting him up. Doug gave the drugs to the cop and was arrested.
In the situation described above, entrapment would not likely be a successful defense. A court would most likely not find the undercover cop’s suggestion excessive or unordinary. Also, there is no legislation that states or merely suggests that police officers are prohibited from lying (when not under oath). So, whether a police officer uses a lie to advance the opportunity for the commission of a crime or not, is irrelevant in a court of law.
- However, let’s say Doug testifies that he decided to turn down the opportunity for a drug transaction and provided the mother with advice on how to go to a physician and legally obtain the prescription pills. He decides to give the undercover cop his number just in case she needs any more tips or suggestions. For the next week, the cop calls and texts Doug countless times pleading with him to sell the drugs for her sick child. After a few weeks of these calls, he finally breaks down and decides to set up a transaction for the sale of his prescription pills.
In this scenario, entrapment may be a possible defense. The undercover cop was continually and repeatedly trying to induce an unlawful response from Doug by calling and texting unwaveringly. Any interactions outside of the initial offer of the drug sale may be deemed excessive and unnecessary by a judge and a jury.
Call us for help…
If you are facing criminal charges because a law enforcement officer induced you to commit a crime, please contact us at Colorado Legal Defense Group. Our Colorado defense attorneys have many years of experience representing clients who have been unfairly charged with misdemeanor and felony criminal offenses.
See our related article on police misconduct.
- C.R.S. 18-1-709
- C.R.S. 18-3-306
- C.R.S. 18-1-709