The Basics of Entrapment

By San Diego Attorney on March 25, 2019

Enforcing the law, by definition, is what law enforcement officials are meant to do. It is their responsibility to investigate, not instigate criminal behavior. So, you might assume that if someone suggests you do something illegal, they cannot be law enforcement. That is not, in fact, the case. Officers may approach or invite you to engage in criminal behavior without hurting the case against you. But there are very specific and very strict guidelines for doing so, and if officers do not observe these you may be a victim of entrapment.

What Is Entrapment?

There are different definitions for entrapment, depending on which court is hearing your case. In California, there are three conditions that must be met in order for entrapment to be used as a defense. First, a law enforcement officer must communicate with you before the crime is committed. Second, the officer must induce you to commit the crime. And third, the officer must create a situation in which any “normally law-abiding person” would be moved to commit a crime. But, what does that look like in action? Let’s go through each part, one at a time.

The first part of the definition requires an officer to communicate with you before the crime is committed. That’s pretty straightforward. They can’t have trapped you if you committed the crime before they had a chance to tell you about it or talk you into doing it. But what if the officer got someone else to talk to you? In that case, the condition would still be met, as that person would be acting as an “agent” of law enforcement, whether they are aware of it or not.

The second part requires an officer to talk you into it. This can mean verbally convincing you, but it could also mean pressuring you in other ways, such as threatening or harassing you, or exploiting you by taking advantage of your circumstances in some way. This is a bit trickier than the first part, since it’s more subjective and therefore harder to prove or define. The third part is helpful, as it provides a standard by which to judge the situation.

The last condition requires the circumstances surrounding the crime to be such that any “normally law-abiding person” would most likely have done the same. This condition, just like the second, is fairly subjective. What it boils down to is a question of whether the officer created a scenario in which even an average person, who typically avoids and resists crime, would have been convinced to act unlawfully.

Law enforcement officers have a lot of leeway when it comes to what they can and cannot say and do while undercover. They do not need to disclose that they are officers of the law, and they can lie about who they are in order to gain your trust and confidence. They cannot, however, tell you that what they are asking you to do is not a crime.

When Is It Not Entrapment?

Don’t make the mistake of assuming simply because a law enforcement official suggested it or asked you to do it, that it’s automatically entrapment. According to the U.S. Supreme Court, presenting you with an opportunity to commit a crime does not “defeat the prosecution”. In simple terms, they’re saying that leaving a car unlocked with keys in the ignition isn’t a trap, because most law-abiding citizens wouldn’t automatically steal it. If an officer approaches you and tells you about an opportunity to commit a crime, or invites you to participate in illegal behavior, that doesn’t mean they are trapping you. Making it sound appealing isn’t necessarily entrapment either. If you do not object to the idea of committing a crime, an officer isn’t using enticement to overcome your resistance.

Similarly, if an undercover officer asks you to do or get something which isn’t itself illegal, but which may result in you doing something illegal in order to achieve or acquire it, that is not entrapment. For example, they may ask you to acquire an object which they are interested in buying from you and which you decide to steal rather than acquire through honest means. Because a law-abiding person wouldn’t consider illegal options in order to achieve the end-goal, that is not entrapment.

Leave the Law to a Lawyer

We’ve barely scratched the surface and already you can see how complex the concept of entrapment can get. Even for experts, it can be difficult to determine where to draw the line and how to assess each unique situation and case. But, when someone responsible for preventing crimes has gotten you to commit them, what can you do?

Luckily, Attorney James Dicks is an experienced San Diego defense lawyer and a former narcotics investigator with the LAPD. He has firsthand knowledge of the strategies used by law enforcement and how to defend against their tactics. Call jD LAW, P.C. today, at (760) 630-2000, and get the most successful defense possible.