We have all heard about sting operations; operations where the police set someone up to be caught committing a crime. When done correctly, the public can be proud of the proactive enforcement of the law. When done incorrectly, the public should be outraged that the police are preying on vulnerable individuals and manufacturing cases that otherwise would not have existed.
If the police get an anonymous tip that Jon Jones is selling cocaine on 5th Avenue and send an undercover police officer to purchase cocaine from Jon, when Jon sells cocaine to the undercover police officer he will be arrested. That is an example of the proper proactive enforcement of the law. However, that is not always how sting operations are performed.
Sometimes the police do more than send in an undercover officer to catch a criminal in the act. Continuing with the example above, imagine that after Jon Jones is arrested, he works out a deal to act as a Confidential Informant in order to get his charges dropped. Jon then, at the request of the police and while the police monitor him through the use of electronic devices, contacts one of his cocaine buyers, Bob Smith, who Jon knows has very little money and purchases small amounts of cocaine. Jon tells Bob that he has a lot of cocaine to unload quickly and will give him enough to last him a year at half the price Bob normally pays. Bob says he would love to buy the cocaine as he needs a fix but that he does not have any money to do so. Jon then tells Bob that one of his competitor cocaine sellers, Sam, is staying at Budget Inn in room 12 and that Sam often leaves cash in the hotel rooms that he rents. Jon also tells Bob that he knows Sam will be gone from the room between 10 and 11 am tomorrow morning because they are meeting their mutual cocaine supplier on the other side of town so if Bob wants to break in, he could steal Sam’s money. Bob tells Jon that he has never committed any crime other than using drugs but that since it is a drug dealer’s money, and Bob blames his addiction on drug dealers, that he will agree to use a credit card to jimmy the lock in order to enter the room to steal money from Sam so he can buy the cocaine from Jon. Sam does not actually exist though. Instead, Jon tells the police and the police then rent room 12, set the room up with hidden cameras and with money and cocaine scattered throughout. The police watch from the other side of the hotel and when they see Bob exiting the room, move in and arrest him for Burglary.
When considering whether someone has been entrapped, the first question is whether the accused was predisposed to commit the crime — that is, whether he would have committed the burglary without any persuasion from law enforcement or their agent. Here, Bob had never committed any crime other than using drugs so he was not predisposed to committing a burglary. The burglary was not even Bob’s idea.
The next, and more complicated question is whether the government induced the accused to commit the crime. Here Jon Jones was acting as an agent of the police so everything Jon did is treated exactly the same as if the police did it. Jon was the one who had the idea to commit a crime, who suggested that idea to Bob, who set up the time and place to commit the crime, and who dangled the cocaine that Jon knew Bob was addicted to in front of him in order to get Bob to enter the hotel room. The police supplied the instrumentality to commit the crime by renting the hotel room and by placing the money and drugs in the hotel room to be taken. Jon was intentionally trying to induce Bob to commit the crime by preying on his addiction and setting up the entire situation. The crime would not have existed at all without the involvement of the government’s agent.
Finally, the actual crime alleged has to be considered as well. Here, the alleged crime is burglary. The most common form of burglary is entering a dwelling without the occupant’s consent with the intent to commit a theft therein. A hotel room can certainly be considered a dwelling. However, did Bob enter the hotel room without the occupant’s consent? Voluntary consent can occur when the occupant or occupant’s agent suggests or actively urges the conduct of the accused. When Jon encourages Bob to enter the hotel room, is he not in effect giving consent for Bob to enter?
We all want a safer community to live in. However, when the police manufacture scenarios to create crimes that otherwise would never have existed, the community is not made any safer and they are exceeding their authority and purpose. There are more than enough real crimes the police could be spending their time and money investigating; they should not be setting up the vulnerable individuals who need help instead.
Has your attorney ever defended an entrapment case? The answer could be the difference between prison and a not guilty. Bryan Hoeller, Fort Worth defense lawyer, can be reached at 877-208-3382.
Fort Worth