All About Entrapment in Florida

July 13, 2021 Don Pumphrey, Jr. Criminal Defense Social Share

A law review article on Psychology, Factfinding, and Entrapment addressed how the law acknowledges that, “criminal behavior is not always the result of a culpable mind, but it is sometimes the result of an interaction between the individual and his environment.”

When a person is persuaded to commit a crime that they wouldn’t usually commit, they may be able to claim entrapment defense if they face criminal charges. This defense has been used in cases focusing on sex crimes like prostitution, or undercover investigations for drug trafficking. Entrapment can easily be misconstrued, which is why it is important to familiarize yourself with its definition and legal applications.

Since entrapment is a form of defense, it is highly advisable that you speak with an experienced Entrapment Defense Attorney to review your case details and determine if the defense is applicable to your case.

What is Entrapment?

Entrapment is an affirmative defense to a criminal charge when the defendant committed the crime only because of the coercion of a government official and, without such coercion, the crime would not have been committed. Under Florida Statute Section 777.201, a defendant being prosecuted for a crime shall be acquitted if they can prove by a preponderance of evidence, or more likely than not, that their criminal conduct occurred as a result of entrapment.

Generally, an experienced defense will be able to recognize when an “ordinary, law-abiding citizen [has been] persuaded, cajoled, or intimidated into criminal activity that, he would never consider absent law-enforcement interference.”

When a defendant believes they have been coerced into committing a crime through entrapment, the appropriate application of the defense requires that the court accurately separate police conduct that is considered “offensively coercive” from conduct that merely convinces the defendant to commit a criminal offense here and now where they can be more easily caught.

The two methods for making the distinctions are subjective and objective entrapment.

Subjective Entrapment

Subjective entrapment focuses on the defendant’s predisposition to commit the charged offense. The first question posed in determining subjective entrapment is whether a government agent induced the defendant to commit the crime. If this question is answered in the affirmative, the second question is whether the accused was predisposed to commit the crime charged. In determining this, the defendant must establish a lack of predisposition and the prosecution must rebut that evidence beyond a reasonable doubt.

Once a defendant and their attorney have presented evidence that law enforcement did more than merely provide an opportunity to commit a crime, the prosecution then bears the burden to rebut the defense by proving beyond a reasonable doubt that the defendant was already inclined to commit a criminal offense, or that they were not induced by law enforcement.

Objective Entrapment

 Objective entrapment focuses on the conduct of law enforcement and whether that conduct was egregious enough under the Florida Constitution’s due process clause. In other words, the objective test merely questions whether law enforcement’s conduct posed a risk that a criminal offense would be committed by a person who otherwise would not have done so. Regardless of a defendant’s predisposition to commit a criminal defense, inappropriate government conduct requires dismissal of the criminal charges on the basis of entrapment.

Objective entrapment is best illustrated in State v. Finno, where law enforcement officials were told that an individual was making plans to kill a sheriff. After a lengthy surveillance operation, the officers found no evidence of this claim. Instead of accepting that they were given bad information, the officers showed the defendant how to run a loan shark operation. After the defendant committed that crime, the officers arrested him. The case was thrown out, however, because the court found that the defendant had provided sufficient evidence of objective entrapment, as the officers had completely orchestrated the crime. The court stated that:

“Where the government supplies all the instrumentalities of a crime, controls all of its aspects, and teaches the intended target how to commit the crime for the purpose of arresting him . . . there is no crime at all without the government involvement. No legitimate objective of government is accomplished by prosecuting a crime so totally and completely orchestrated by the government.” 

Proving Entrapment

A person prosecuted for a crime will be acquitted if he or she is able to prove by a preponderance of the evidence that their criminal conduct occurred because of entrapment. Generally, a defendant who denies committing a crime cannot claim entrapment as a defense.

According to Florida Statute Section 777.201, the issue of entrapment must be tried by the jury. If there is evidence that suggests proof of entrapment, the defendant has the right to have the jury instructed on the rules applicable to the defense. The accused must bring forward evidence in support of the defense unless the facts relied on cause a reasonable doubt of guilt to rise in the minds of the jury. Without such facts, the accused has the burden of establishing that the government induced them to commit a criminal offense that they lacked the predisposition to commit the offense on their own accord. The State is permitted to explore the defendant’s criminal history when relevant to the issue of predisposition.  

Examples of Entrapment

It is important to fully understand how entrapment works as a defense. First, you should not consider entrapment and opportunity as the same thing. What that means is that it is lawful for a law enforcement agent to provide a person with the opportunity to commit a criminal offense. It is only considered entrapment when law enforcement uses coercion and other forceful methods. The following provides examples of entrapment:

• Example 1: An undercover police officer attempts to buy prescription pills off a person who has a legal prescription. When the person refuses, the undercover officer continuously asks, until they claim they need the medicine due to a serious medical condition for the person to agree. Since the undercover agent was persistent and claimed they were gravely ill and in need of the drugs, the defendant may be able to apply the entrapment defense.
• Example 2: An undercover police officer poses as a sex worker and tells a person that they will be harmed by their employer if the person does not accept to pay for sexual activities. This is an example of entrapment, however if the undercover agent merely poses as a sex worker without any evidence of threats or coercion, then entrapment cannot be used as a defense for the defendant.

The Florida case, State v. Figuereo (2000), displayed how a sworn motion to dismiss drug trafficking charges on the grounds of entrapment was reversed.  The defendant was arrested for purchasing two kilos of cocaine from an undercover detective. The defendant claimed the detective used entrapment and filed a motion to dismiss the charges against him. Florida Criminal Procedure 3.190(c)(4) authorizes a dismissal where, “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilty against the defendant.”

The court dismissed the charges, finding that the defendant was entrapped as a matter of law. However, the State ended up appealing the case’s dismissal on the claim that the defendant’s motion to dismiss should have been denied with the factual issues left for determination at trial. They addressed the Florida Supreme Court’s explanation: “If a material fact is disputed, denial of the motion to dismiss is mandatory.”

In State v. Glosson it was held that “a trial court may properly dismiss criminal charges for constitutional due process violation in cases where an informant stands to gain a contingent fee conditioned on cooperation and testimony in the criminal prosecution when that testimony is critical to a successful prosecution.” The Third District Court of Appeals affirmed that the defendant did not outline a due process violation, resulting in the dismissal order being reversed. In other words, a case may be dismissed when an informant was entrapped or coerced into giving a specific testimony during a criminal trial.

The important aspect to take away is that police can create opportunities for people to commit crimes when they go undercover for cases such as prostitution and drug trafficking. However, if the police then use their influence or any method of coercion to persuade a person into committing a crime, then the defendant may be able to apply the entrapment defense to try and get the case dismissed.

Exceptions and Insufficient Acts to Constitute Entrapment

• The entrapment defense cannot be used when a middleman who is not a state agent entices a defendant to commit a crime.
• The entrapment defense is not available where an officer acts in good faith for the purpose of discovering or detecting a crime, and only furnishes the opportunity for the commission of the crime by one who already has the requisite criminal intent.
• Evidence that an agent merely did not discourage the defendant from committing the crime can be insufficient to raise an entrapment defense.
• Evidence of the government’s mere suggestion of a crime or initiation of contact is not sufficient to meet the defendant’s initial burden of proving government inducement.
• The fact that the government agent simply supplies contraband or makes it available is not sufficient for an entrapment defense.

Tallahassee Criminal Defense Lawyer

Don Pumphrey and the legal staff of Pumphrey Law more than two decades of combined legal experience with the Florida criminal justice system. Call (850) 681-7777 or send an online message today to discuss your rights during an open and free consultation with an attorney in our legal team.

Page updated on November 14, 2023

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