What is Entrapment in Florida? What to Know From An Expert in Criminal Defense Trial Work’s Perspective

June 26, 2024 Don Pumphrey, Jr. Criminal Defense Social Share

Entrapment is wrong. It’s a “hawk tuah” on democracy, and all over that thing called due process. However wrong entrapment may be, it is not necessarily intentional – or if intentional, can be the product of poor training or poor planning. Sometimes law enforcement – in trying to do the right thing – does so in the wrong way. Objective entrapment analysis puts the guardrails of due process on the actions of law enforcement officers and their agents. 

Sometimes law enforcement is just wrong. Many times, well-meaning and professional law enforcement officers can unknowingly ruin citizens’ lives by taking them off the road of democracy through entrapment – thrusting them through the guardrail of due process and into deep, dark, nasty ditch of tyranny. Call the ambulance of justice to try and salvage the carnage. Whether intentional or not, entrapment is wrong. 

I, Don Pumphrey, Jr. have been qualified, accepted as an expert, and testified as an expert in the area of Criminal Defense Trial Work (State v. David Lee Green, Case No: 00-CF-016798, Hillsborough County, January 5th, 2011, Tampa, Florida; Honorable Susan Lee Sexton, Circuit Judge). The specific area in which I testified in that case was entrapment.

What Is Entrapment?

Entrapment occurs when a citizen who has no predisposition – no intent, no thought, or interest in committing a crime – is induced by persuasion or encouragement by a law enforcement officer to commit a crime. In other words, the actions of the government create a substantial risk of causing a person not intending to commit a crime to commit one. The crime is the result of the acts, actions of the law enforcement or their agent(s), causing someone innocent to criminally act. It isn’t right. It’s not good. Causing people to do something they had no intent to do but for the actions of the government is bad. 

More formally, in Florida, we have a statute that attempts to codify entrapment in Florida. Entrapment is governed by Florida Statute Chapter 777.201, which states:

1. A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetuates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
2. A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

Before the Florida Legislature enacted the above statute for entrapment in Florida, this was commonly referred to as the “subjective test” for entrapment. Florida Statutes Chapter 777.201 was the legislative codification of that test. Nevertheless, in Florida, the defense of entrapment is bifurcated into objective and subjective variants:

There are two different theories of entrapment:

• Subjective entrapment, as codified in Florida Statutes Chapter 777.201 
• Objective entrapment, which focuses the conduct of law enforcement and “operates as a bar to prosecution in those instances where the government’s conduct ‘so offends decency or a sense of justice’ that it amounts to a denial of due process.” State v. Laing, 182 So. 3rd 812 (Fla. 4th DCA 2016)(citing Davis v. State, 937 So.2d 300, 302 (Fla. 4th DCA 2006))(quoting State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005)).

What Have Courts Said About Entrapment?

Courts perform a “substantial risk analysis” in order to determine whether entrapment occurred. In other words, courts assess whether “government conduct creat[ed] a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship” Farley v. State, 848 So.2d 393, 395 (Fla. 4th DCA 2003)(quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994)).

Inducement is just another way of saying that by situation, word, action or circumstance, the government or their agents did something to cause someone to do something illegal. In the case of entrapment, the illegal act is something that person just would not do but for the government creating the circumstances. The government creates something that just isn’t there.  

Creating crime or criminal conduct is absurd and not tolerable in a free society. Creating crime isn’t for the greater good but instead ruins innocent law-abiding citizens’ lives, families’ lives, livelihoods, future, education, and reputation. It also causes mental and psychological damage to not only the victim of entrapment but – like ripples from a pebble dropped in the water – it expands to affect everyone around that person who is the unfortunate victim of the entrapment. 

It isn’t the right thing to do, because it isn’t going about enforcing the law in the right way. Entrapment violates the Constitution, and more specifically the Due Process Clause of that sacred Constitution. Entrapment is wrong, and courts recognize this.

The question of what constitutes entrapment has been addressed by both courts in Florida and on the federal level, including the U.S. Supreme Court. Entrapment is governed by Florida Statutes Section 777.201. But while entrapment is determined on a case-by-case basis by judges, there are clear standards courts use to evaluate whether entrapment has occurred. A defendant may argue either “objective” and “subjective” entrapment. If proven, the trier of fact must acquit the defendant. 

Under Florida Statutes Section 777.201 and Munoz v. State (Fla. 1993), a defendant must prove by a preponderance of the evidence that he was induced to commit the charged offense. The accused must then prove by a preponderance of evidence that he wasn’t predisposed to commit the charged offense. If both of these are established, the burden shifts to the State to rebut the accused’s evidence beyond a reasonable doubt. 

“The first question to be addressed under the subjective test is whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence. If the first question is answered affirmatively, then a second question arises as to whether the accused was predisposed to commit the offense charged … However, as soon as the defendant produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence beyond a reasonable doubt.” Munoz v. State, 629 So.2d 90 (Fla. 1993).

Objective entrapment occurs when a law enforcement agency or the government uses is illegal or inappropriate. However, subjective entrapment revolves around whether the defendant was predisposed to commit the crime before the government acted. If a defendant argues subjective entrapment, they will have to establish beyond a preponderance of the evidence, in line with Munoz, that:

“A law enforcement officer … induce[d] or encourage[d] and, as a direct result, cause[d] another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.” Florida Statutes Section 777.201

Whether someone was “ready to commit” the crime is a question courts have answered in various cases. One of the most significant cases in developing the law surrounding entrapment was the U.S. Supreme Court’s Jacobson decision, which was decided in 1992. In a majority opinion for the Court, Justice Byron White wrote:

“Law enforcement officials go too far when they ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’ … When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.” Jacobson v. United States, 503 U.S. 540 (1992).

In line with Jacobson, courts in Florida concur that when it can be shown by a preponderance of the evidence that an individual had no predisposition to act criminally until law enforcement induced that person to act, entrapment has occurred. This is also reflected in Florida Statutes Section 777.201.

Even before the Supreme Court’s Jacobson decision, Florida courts echoed this principle in cases such as State v. Casper, 417 So.2d 263 (1st DCA 1982). The Casper court held: 

“Where there was no evidence of any prior conduct of defendant that would have shown predisposition, where there was no evidence that he was engaging in criminal activity before he took money from decoy, and where defendant’s acts demonstrated only that he succumbed to temptation, defendant was entrapped as matter of law.” State v. Casper, 417 So.2d 263 (1st DCA 1982).

Under United States v. Dion, 752 F.2d 1261 (8th Cir. 1985), considerations of whether someone was predisposed to commit a crime in evaluating whether they were entrapped include: 

• Whether the defendant readily responded to the inducement offered
• The circumstances surrounding the illegal conduct;
• The state of mind of a defendant before government agents make any suggestion that he shall commit a crime;
• Whether the defendant was engaged in an existing course of conduct similar to the crime for which he is charged; 
• Whether the defendant had already formed the “design” to commit the crime for which he is charged

Two categories of cases in which entrapment defenses are frequently raised include drug offenses, and offenses (such as unlawful use of a two-way communications device) relating to sexual conversations with minors who turn out to be undercover law enforcement officers. In Marreel v. State, 841 So.2d 600 (4th DCA 2003), a defendant was unable to prove entrapment after he remained undeterred by an alleged minor (an undercover law enforcement officer) with whom he was in contact with revealing her age. Instead, he promoted the idea of them having a sexual encounter. The court ruled:

“Upon learning ‘Kelly’s’ age, appellant was not deterred but continued to engage her in the idea of having an affair involving oral sex, touching, and possibly more. ‘Kelly’ merely created an opportunity for appellant to attempt to lure or entice a minor to participate in sexual activities. There were no coercive tactics or ‘arm-twisting’ on the part of law enforcement; appellant was already on the ‘iniquitous path.’” Marreel v. State, 841 So.2d 600 at 603.

By contrast, the First District Court of Appeal ruled in Gennette v. State that entrapment did occur when police exchanged dozens of emails with an individual who responded to an advertisement on Craigslist regarding a potential meet-up with a 19-year-old. The alleged 19-year-old (an undercover officer) mentioned to the defendant repeatedly that her 14-year-old younger sister was visiting. She also discussed the possibility of the defendant having a sexual encounter with both her and the younger sister in the event the defendant were to meet up with the 19-year-old. 

The defendant ultimately exchanged dozens of emails with the alleged 19-year-old without ever agreeing to or advocating sexual contact involving the 14-year-old. The court criticized the law enforcement officers for “coax[ing] and cajol[ing] Appellant for more details and challenged Appellant’s reluctance by impugning his nerve and suggesting he was ‘scared’” of meeting up with her and the 14-year-old sister. The court added: 

“Because the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer’s methods of persuasion induced or encouraged, and as a direct result caused Appellant’s unlawful communications, the legal definition of entrapment set out in section 777.201, Florida Statutes was met and the motion to dismiss should have been granted. The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.” Gennette v. State, 124 So.3d 373 (2013) at 279.

In line with Florida Statutes Section 777.201, Florida courts have held that entrapment occurs when illegal or inappropriate conduct on the part of government induces someone who otherwise had no predisposition to act illegally to do so. If you are concerned you’ve been the victim of entrapment, contact Pumphrey Law as soon as possible. (850) 681-7777

Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for almost 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. has been qualified, accepted as an expert, and testified as an expert in the area of Criminal Defense Trial Work in Florida (State v. David Lee Green, Case No: 00-CF-016798, Hillsborough County, January 5th, 2011, Tampa, Florida; Honorable Susan Lee Sexton, Circuit Judge). 

Find a Criminal Defense Lawyer in Tallahassee, FL

As a former prosecutor, former state police officer and a life member of the Florida Association of Criminal Defense Lawyers, I have observed that being arrested anywhere in Florida can be extremely stressful. Being charged and “formally charged” by information in Tallahassee or Leon County, Wakulla County, Jefferson County, Gadsden County, Quincy, Crawfordville, Florida State University, Florida State University Campus, Florida State University Student Code of Conduct, Tallahassee Community College, Florida A&M University, or facing first appearance in Leon County, can be life changing. Given the possibility of a lengthy jail or in some cases lengthy prison sentence and hefty financial penalties, it is important to contact an aggressive, trusted and experienced Tallahassee criminal defense attorney as soon as possible.

Don Pumphrey, Jr. and the attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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