Definition of Entrapment

There are two types of entrapment under Florida law: (1) “subjective entrapment,” and (2) “objective entrapment.”

Subjective entrapment focuses on whether a defendant was predisposed to commit an offense. To establish subjective entrapment, a defendant must show by a preponderance of the evidence that a government agent induced him or her to commit the offense and that the defendant was not predisposed to do so. Munoz v. State, 629 So. 2d 90, 99 (Fla. 1993); See also Nadeau v. State, 683 So. 2d 504 (Fla. 4th DCA 1995). The burden then shifts to the state to prove beyond a reasonable doubt that the defendant was in fact predisposed to commit the offense. Munoz, 629 So. 2d at 99. The subjective test for entrapment is applied in cases where law enforcement conduct is not so egregious that it violates basic principles of due process. Sallomi v. State, 629 So. 2d 969 (Fla. Dist. Ct. App. 5th Dist. 1993).

The specific test for subjective entrapment is set forth in Section 777.201, Florida Statutes. Under the statute, an accused must establish the following elements by the greater weight (preponderance) of the evidence:

  1. the accused was induced or encouraged by law enforcement or a law enforcement agent (such as a confidential informant) to engage in criminal conduct in order for law enforcement to obtain evidence of the commission of a crime;
  2. the accused engaged in such criminal conduct as a direct result of law enforcement inducement or encouragement;
  3. the person who induced or encouraged the accused was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer;
  4. the person who induced or encouraged the accused employed methods of persuasion or inducement so as to create a substantial risk that the crime would be committed by a person other than the one who was ready to commit it; and
  5. the accused was not a person ready to commit the crime.

Again, once the accused makes this initial showing by the greater weight of the evidence, the burden of proof then shifts to the prosecution to prove beyond a reasonable doubt that: (1) the accused was “predisposed” to commit the alleged crime, and (2) the accused’s predisposition to commit the crime existed prior to and independent of the inducement or encouragement by law enforcement. If both prongs are not proven beyond a reasonable doubt, then the accused must be found “Not Guilty.”

In addition to “subjective” entrapment, Florida courts also recognize so-called “objective entrapment.” Objective entrapment is applied in cases involving egregious law enforcement conduct and is evaluated under the due process provision of the Florida Constitution. The defense of objective entrapment requires reviewing the totality of the circumstances in order to ascertain whether police conduct offends canons of decency and fairness. Bist v. State, 35 So. 3d 936 (Fla. 5th DCA 2010). Where police misconduct is sufficiently egregious, the remedy for an accused is dismissal of the charges.  State v. Blanco, 896 So. 2d 900 (Fla. 4th DCA 2005).

Objective entrapment is best illustrated through the prominent Florida case decisions on the subject. In State v. Finno, 643 So. 2d 1166 (Fla. 4th DCA 1994), a defendant was charged with “loan sharking.” The investigation began as a result of two informants alleging that the defendant had plans to kill a local sheriff. In response, the Florida Department of Law Enforcement conducted an investigation using videotape over a period of months with the assistance of government informants. The results of the investigation did not produce any evidence of ongoing criminal activity. Having failed to obtain any evidence of the plot to kill the sheriff, government informants began showing the defendant how to conduct a “loan sharking” operation. Once law enforcement succeeded in inducing the defendant to commit the crime, an arrest was made and the prosecution commenced.

On these facts, the Fourth District Court of Appeal found that the defendant had shown sufficient evidence of objective entrapment so as to warrant a dismissal of the charges. The court stated that “where the government supplies all of 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, as the trial court found here, 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. We conclude that this activity violates due process.” Id. at 1169.

Purpose of the Entrapment Defense

In Florida, the entrapment defense was created by the courts to secure justice by precluding the government from convicting a defendant of a crime where government action itself is responsible for the defendant’s conduct. Dial v. State, 799 So. 2d 407, 408 (Fla. 4th DCA 2001). The defense is based on the idea that is it is fundamentally unjust for law enforcement or other government agents to originate a criminal design, implant in an innocent person’s mind the disposition to carry out that criminal design, and then induce commission of the crime so that a prosecution may take place. State v. Perez, 438 So. 2d 436, 438 (Fla. 3d DCA 1983).

In essence, entrapment is a prohibition on police investigative techniques that are calculated to “create” criminals rather than to apprehend those individuals who are already of a criminal mindset.  If successfully raised, an entrapment defense can excuse an otherwise criminal act or, in some cases, result in a dismissal of criminal charges.