Entrapment

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Entrapment refers to the actions of a law enforcement official that persuade or encourage a person to engage in an illegal act, which he would otherwise have been unlikely to commit. A person charged with a crime he believes a police officer, or other law enforcement official, convinced him to commit, may claim he was “entrapped,” or caught in a trap baited by the police. To explore this concept, consider the following entrapment definition.

Definition of Entrapment

Noun

  1. The act of a law enforcement official luring a person into committing a crime, so that the person can be prosecuted.

Origin

1525-1530       Middle French   entreper    (to trap or snare)

What is Entrapment

The term entrapment was first used in a legal sense in a U.S. federal court in 1899, though the concept remained blanketed in confusion for decades to come. Entrapment may be an effective defense, if an accused person can show that a law enforcement official instigated the idea of engaging in the illegal act. While someone may claim to have been entrapped when induced to committing a crime by a law enforcement officer, or by someone who is acting as an agent of law enforcement, being induced to engage in an illegal act by a friend or other lay person is no defense.

For example:

Amelia’s friend, Stephanie, talks her into taking a bag of marijuana to the park for Robert, who will pay her $40. Amelia is to return the money to Stephanie. Someone learns of Amelia’s intention to sell drugs to Robert in Stephanie’s place, and informs the police.

At the park, a police officer, claiming to be Robert, exchanges $40 for the bag of drugs in Amelia’s possession, and she is immediately arrested. In this example, entrapment did not occur, as Amelia was not talked into selling drugs by the police officer, he merely intercepted the sale.

Entrapment Test

The principle of entrapment has been developed over the years through case law, rather than through legislation. The courts have developed two different tests to determine whether entrapment has taken place in any given case, the “subjective,” and “objective” tests.

  • Subjective test – this traditional test requires that a law enforcement official created the intent to engage in the illegal act in the mind of the defendant, and that the defendant was not inclined to commit the crime, or to commit crimes of the same type, before being lured into it by the police officer. This test is considered subjective because it depends on what actually persuaded the defendant to commit the crime.
  • Objective test – this more modern interpretation of the principle considers the law enforcement official’s conduct, and whether it would cause a normally law-abiding person to commit a crime.

The Courts’ View of Entrapment

The reason behind allowing a defense of entrapment is to discourage law enforcement officials from taking actions to induce someone not normally disposed to commit a crime, to engage in a criminal act. Claims of entrapment are most commonly used as a defense to what some consider to be “victimless crimes,” such as gambling and prostitution, committed against willing victims.

In its earliest use as a defense, the courts took a dim view of entrapment claims, expressing their opinion that no good could come of indemnifying a person who committed a crime, and that the courts should not hesitate to punish the crime that was actually committed by the accused. In 1958, the U.S. Supreme Court held that, “To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” [emphasis added]

Entrapment Example in DEA Sting

In 1974, a Drug Enforcement Administration (“DEA”) informant known as “Hutton” was playing pool when his opponent, known as “Hampton,” noticed that he had track marks on his arms. Hampton told the informant that he needed money, and that he could get hold of some heroin to sell, if Hutton could find a buyer. Hutton, fulfilling his role as informant, called his handler, DEA agent Sawyer, to advise him of the potential sale.

The following day, Agent Sawyer and another DEA agent met with both Hampton and Hutton in a park. Hampton handed over a tiny packet of heroin, which the agent tested, and said it was “Ok,” before he negotiated and paid a price of $145. Hampton told the undercover officers that he could get more drugs, so another deal was arranged. During that deal, Hampton produced another small tinfoil packet, which Agent Sawyer field tested, before agreeing to a price of $500. The agent then got out of the car under the pretense of getting the money from the trunk, then other agents moved in and arrested Hampton.

At trial, Hampton told a different story, claiming that it had been Hutton’s idea to sell, not real heroin, but a counterfeit substance made by a pharmacist friend. He said the substance was a non-narcotic drug that would produce the same effect as heroin. He said that he and Hutton had previously sold the fake to another buyer, and that he thought he was selling a perfectly legal substance. He said he sold the fake substance to the DEA agents to make more money by the same ruse. In doing so, Hampton admitted to having solicited a buyer, and carrying out the sale of the substance.

Hampton then testified that all of the substances he sold had been supplied to him by Hutton, and claimed he had been entrapped by the DEA, as Hutton was acting on their behalf. In order to deliver a guilty verdict, the jury must have believed that Hampton knowingly engaged in an illegal act, with intent to violate the law. In this example of entrapment claim, the jury convicted Hampton, in spite of his claim that he was persuaded to sell the substance to the undercover DEA officer.

Entrapment and Legal Deception

Although law enforcement officials cannot lure a person into committing a crime he would not have otherwise committed, the courts agree that it is permissible for them to use deception, in some circumstances, in their efforts to obtain evidence. Just what types of deception should be allowed is a bit unsettled, however.

Law enforcement officials are charged with stopping crime, identifying and arresting criminals, and providing prosecutors with the information needed to convict them. They do this by responding to calls for help, collecting and analyzing evidence, questioning victims and witnesses, and interrogating suspects. Interrogation is an art form that requires officers to be specially trained in coaxing information that suspects may not ordinarily provide.

The courts agree that a confession must be made voluntarily, which means that it cannot be coerced by police through physical or psychological manipulation. There are accepted ways in which police commonly use strategic deception to gain information when questioning a suspect. These include:

  • Expressing false sympathy or understanding
  • Playing down the suspect’s blame, or minimizing the seriousness of the crime
  • Lying about the existence of forensic evidence, or of eyewitness testimony
  • Falsely stating that a co-conspirator’s testimony implicates the suspect, or that a victim’s testimony identifies the suspect

Example of Entrapment vs. Legal Use of Deception

In 1977, a woman called police, saying she had been mugged, and robbed of her pocketbook by a teenage young man, giving police a description. Shortly after the reported robbery, police came upon a taxicab in which a young male passenger was slumped down in the back seat.

As the cab cruised the neighborhood, police stopped it, and the driver informed them that his passenger did not know the address of the home to which he wanted to be delivered. The passenger fit the description of the robber, so, as the cab continued its cruising, the officers followed.

The officers stopped the cab again, asking the passenger for his identification, and began telling him a series of lies. First, they said they had seen him in the area earlier, to which he replied he had been jogging. They then told him they were investigating a robbery, and asked if he would accompany them to the victim’s home so that she could see if she recognized him. He went voluntarily.

Once there, they had to wait over an hour for the victim to return home from the hospital, where she was treated for her injuries. During that time, the officers and suspect waited outside her home, chatting about sports. The suspect was not under arrest, and was told he was free to go at any time.

When the victim’s handbag was found and brought to her home, the officers asked the suspect to put his hands on the hood of the car, so they could take his fingerprints. They then lied, telling him his fingerprints matched a print taken from the victim’s handbag. At that point, the officers read the young man his Miranda rights.

When the victim returned home, she was unable to positively identify the young man as her attacker, but the officers misled him, saying “Guess what?” which led to the suspect saying “Yeah, I know, she identified me.” A few more misrepresentations about what the victim told the officers finally resulted in a confession that the suspect had indeed committed the robbery.

The suspect’s attorney attempted to have his confession thrown out, claiming that the police had tricked him. The court ruled, in this example of entrapment vs. allowable deception, that the deceptions of the police officers did not take away the young man’s free will. In fact, he had a history of five previous arrests, and yet he accompanied the officers willingly to the victim’s home, where he waited voluntarily. The court noted that the suspect had been trying to “outsmart” the police, who were trying to “outsmart” him.

Related Legal Terms and Issues

  • Coercion – The act of using force or intimidation to ensure compliance.
  • Confession – A written or spoken statement that one is guilty of a crime.
  • Deception – The act of deceiving someone.
  • Interrogation – The act of questioning someone for the purpose of gaining information.
  • Miranda Rights – The Miranda rights is a set of instructions that are required to be given to a person taken into custody on suspicion of having committed a criminal act, before he can be questioned by police.