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How do I know if I have been the victim of police entrapment?

Entrapment is an affirmative defense raised in a criminal case where the defendant was induced by a law enforcement agent to commit an offense that he or she would not have committed otherwise. In Florida, the defense of entrapment is most commonly used in cases that involve drug supply, drug trafficking, solicitation of prostitution, and internet crimes. So how do you know if you have been the victim of police entrapment?

Florida recognizes two different types of entrapment defenses: objective entrapment and subjective entrapment. Objective entrapment occurs when egregious law enforcement conduct amounts to a violation of the defendant's right to due process under Article I, Section 9, of the Florida Constitution. State v. Murphy, 124 So. 3d 323, 329 (Fla. 1st DCA 2013). Conduct rises to the level of egregious where there is no crime at all without the government involvement. Some examples include when government supplies all of the instrumentalities of a crime, controls all of its aspects, or teaches the intended target how to commit the crime for the purpose of arresting him or her.

Subjective entrapment focuses on whether the defendant was predisposed to commit the crime. Meaning, was the defendant a gullible innocent bystander, or was the defendant actually a careless criminal who willingly put themselves in the position to commit the crime? If the defendant was a gullible innocent bystander, they are going to have to show that their behavior was caused by the acts of the law enforcement agent's inducement or encouragement. Inducement in the context of entrapment defense has been defined as persuasion, fraudulent representations, threats, coercive tactics, harassment, or promises of reward. Gennette v. State, 124 So. 3d 273, 278 (Fla. 1st DCA 2013).

Whether or not one of the entrapment defenses is available to a defendant will depend entirely on the circumstances of their case. For example, let's say that Susan is walking down the street after leaving work one night and a young man approaches her. He pulls her aside and asks under his breath whether she knows of anyone that could find him cocaine. After a minute of hesitation, Susan reaches into her bag and pulls out a small baggie that contains a powdery white substance. Within minutes, Susan is in handcuffs and she learns that this young man was not her typical drug buyer and was actually an undercover police officer. Has Susan been entrapped either subjectively or objectively?

The answer is for the judge or the jury to decide. Once the defense presents any evidence suggesting entrapment, the question of whether the defendant was entrapped by a law enforcement agent is submitted to the jury. However, there are certain situations where the evidence is compelling and unopposed, and thereby gives the trial judge the authority to rule on the issue as a matter of law. Even though the entrapment defense can be difficult to prove, it should not stop a defendant from fighting for his rights.

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