Florida’s Entrapment Defense

The most important defense for any crime involving an undercover officer or a confidential informant is the entrapment defense.

The entrapment defense is particularly important in a sell or trafficking drug case. It also applies to a wide variety of criminal cases including online or computer crimes, fraud, white collar crimes, and soliciting for prostitution or unlicensed contracting.

Under Florida Law, an individual is not guilty of the offense when:

  1. The individual was encouraged to participate in the crime charged in order for law enforcement to gain evidence that the defendant committed a criminal offense;
  2. The individual engaged in the criminal act as a direct result of the encouragement;
  3. And the person or people who encouraged the crime were law enforcement officers or confidential informants acting in cooperation with law enforcement;
  4. And the person or people who encouraged the crime used methods of persuasion which created a substantial risk that the criminal act would take place by the individual who was not otherwise ready to commit the crime; and
  5. The individual was not a person who was otherwise ready to commit the crime.

Attorney for an Entrapment Defense in Florida

If you have been arrested for any offense after law enforcement used undercover officers of a confidential informant, talk with a criminal defense attorney about the possibility of using the entrapment defense at trial or during pre-trial negotiations to gain a more favorable resolution of the case.

Discuss with your attorney how the undercover officer or confidential informant encouraged the criminal act.

The experienced criminal defense attorneys at the Sammis Law Firm are experienced in using the entrapment defense during trial and pre-trial motions.

Let us put our experience to work for you.

Call (813) 250-0500.

Predisposition in Entrapment Case

Entrapment does not exist if the individual was ready to commit the crime charged regardless of the encouragement and had that “predisposition” before any law enforcement officer or confidential informant started the encouragement to commit the crime.

In other words, the entrapment defense does not protect an individual willing or ready to commit the crime charged if the opportunity presented itself.

In order to assert the entrapment defense, the individual must prove to the jury by the greater weight of the evidence that the confidential informant or officer encouraged the crime charged.

Usually, this showing is easy to make in any entrapment case in which a confidential information or an undercover officer helped create or set up the crime.

Once that initial showing has been made, the burden of proof shifts to the prosecution who must prove beyond a reasonable doubt that the individual was “predisposed to commit the crime charged.”

The prosecutor must also prove beyond all reasonable doubt that the individual was predisposed prior to committing the crime independent of the encouragement by the confidential informant or officer.

If the jury has a reasonable doubt about whether the individual was entrapped, then the jury is instructed that it must return a verdict of “Not Guilty.”

Channeling Factors in Entrapment Cases

The key to winning a Florida entrapment case is showing everything the confidential informant did to gain the defendant’s trust. Often, the confidential informant performs a series of small acts to induce or encourage the defendant to commit the crime.

The serious of small acts are often called “channeling factors” because each step is intended to push the defendant to act in a certain manner.

After each failed attempt, the confidential informant may become more aggressive and creates greater incentives to commit the crime. In many of these entrapment cases, the confidential informant will prey on the defendant’s weaknesses.

For instance, if a pretty lady promises to have sex with the defendant if he will bring her drugs to enhance her sexual pleasure, then the confidential informant is preying on the defendant’s sexual urges and not his predisposition to sell drugs.

Many entrapment cases have hinged on the fact that the confidential informant promised some other benefit for committing the crime, and that additional benefit motivated the defendant to commit a crime he was not otherwise inclined to commit.

Since the defendant’s predisposition becomes an issue in any entrapment case, the prosecutor is given greater latitude to present any evidence that the defendant has committed a similar crime in the past.

In those cases in which the Defendant has no criminal record for similar crimes, the prosecution is often much more willing to resolve the case for reduced charges or other considerations when the entrapment defense is aggressively asserted.

Different Types of Entrapment Defenses

Florida law provides for two different types of entrapment defenses. The first type of entrapment defense under Florida law is “subjective entrapment.”

The subjective entrapment defense focuses on the subject which is the defendant, and his predisposition to commit the charged offense.

The second type of entrapment defense under Florida law and “objective entrapment.” The focus of the objective type of entrapment is the conduct of law enforcement, and whether that conduct is egregious under the due process provision of the Florida Constitution.

Section 777.201(1) provides the establishment of the subjective entrapment defense, which reads in part as follows:

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 perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a 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.

Three Prong Test for Subjective Entrapment

The Supreme Court of Florida has developed a three-pronged test for establishing subjective entrapment pursuant to Florida Statute 777.201(1).

The first prong is whether a law enforcement officer or an agent working with the law enforcement officer (like a confidential informant) induced the defendant to engage in the conduct that constituted the criminal offense charged.

The second prong of the subjective entrapment defense is whether the defendant waiting for a “propitious opportunity” or was “ready and willing, without persuasion” to engage in the criminal activity alleged.

Once the defendant shows some evidence that he was not predisposed to commit the crime, the burden shifts to the prosecutor to refute this evidence beyond all reasonable doubt.

In order to show beyond a reasonable doubt that the defendant was predisposed to commit the crime alleged, the prosecutor is allowed to make an appropriate and searching inquiry into the actions of the defendant, which would include evidence normally not allowed at trial such as evidence of a prior criminal record.

The third prong is whether the entrapment determination should be submitted to the jury or whether the trial court should rule as a matter of law that entrapment occurred under the particular facts of the case.

In a case in which the prosecutor can not produce evidence to establish beyond all reasonable doubt that the defendant was predisposed to commit the crime charged, then the defendant “not guilty” and entitled to a total dismissal of the charges.

Entrapment Defense in Computer or Cyber Crimes, On-Line Crimes

Crimes committed by using the internet continue to increase as law enforcement agencies across the State of Florida. Officers address this threat by conducting investigations targeting crimes committed on the internet. Internet crimes can include fraud and identity theft.

For any online sting operation, the issues for entrapment would focus on whether:

  • the defendant appeared reluctant to commit the crime;
  • the tactics used by the undercover operative in gaining evidence of the crime;
  • the length of time and nature of contact between the undercover agent and the defendant; and
  • the methods used to convince or encourage the criminal act.

Florida internet / on-line / computer crimes can include the following;

  1. Internet fraud;
  2. On-line theft;
  3. Internet blackmail;
  4. Forgery using a computer;
  5. Embezzlement schemes using computers or computer networks to accomplish criminal activities.

 This article was last updated on Thursday, May 30, 2019.