When do you use the defense of entrapment?

Is it a potential defense in your criminal case?  I’ve counseled many clients who are curious about whether entrapment could be a viable defense in their criminal cases.  The idea of an entrapment defense arises when the police are actively involved in the criminal conduct and most often arises in the context of drug distribution.  However, there is a very specific legal standard that must be met for a defense of entrapment to be successful.

What is entrapment?

“Entrapment is the conception of planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer…”.  Stamper v. Commonwealth, 228 Va. 707, 715 (1985) (citation omitted).

In other words, for an entrapment defense to be successful, the defendant must show sufficient evidence that, but for police encouragement/involvement/persuasion, he would not have otherwise committed the crime.  Entrapment is a defense that arises out of fundamental fairness and is consistent with the public policy that condemns the impropriety of this type of police conduct.

How can entrapment be used by law enforcement?

However, “[t]here is nothing improper in the use, by police, of decoys, undercover agents, and informers to invite the exposure of willing criminals and to present an opportunity to one willing to commit a crime.”  Id.

In Harrell v. Commonwealth, an undercover officer was pretending to be a drug dealer when he called out to the defendant.  2000 WL 1847649 (Va. Ct. App.) (unpublished).  When the defendant approached, he offered to sell the defendant drugs and the defendant accepted.

On appeal, the defendant argued that it was error for the trial court not to provide the jury with a jury instruction for his entrapment defense for their deliberations.  In response, the appellate court said that “there was no evidence that [the detective] coerced, cajoled, threatened or otherwise persuaded” him to buy the drugs.  Id. at 2.  Therefore, it would have been improper to give the entrapment instruction.

Dorchinoz v. Commonwealth

In Dorchinoz v. Commonwealth, the defendant was a sex worker at a hotel when an undercover police officers entered pretending to be  johns.  191 Va. 33 (1950). The defendant entered one of the rooms with an undercover officer and offered him a price for sexual intercourse. They negotiated and she removed her clothes.  Then, he arrested her.  The defendant argued that the trial court erred in not giving the jury an instruction for entrapment.  However, the court said,

“The officers did nothing to incite defendant to commit a crime. They simply indicated to the bell boy that they were willing to make an engagement with a woman for illicit sexual intercourse. They did not seek defendant. She voluntarily entered the room occupied by one of the officers and signified her willingness to commit the crime. The officers did not create in her mind the criminal intent. They simply gave her an opportunity to reveal her criminal purpose.”  Id. at 41

What does Virginia law say about entrapment?

In summary, under Virginia law, whether you have a viable defense for entrapment turns on the individual facts of your case regarding whether it was merely an opportunity that was taken or whether the police are responsible for planting the idea.

“A distinction is made between police conduct that merely affords an opportunity for the commission of an offense and ‘creative activity’ that implants in the mind of an otherwise innocent person the disposition to commit an offense and includes it commission in order to prosecute.  Where the police do no more than afford an opportunity for the commission of an offense a subsequent conviction will not be barred on the ground of entrapment.” Johnson v. Commonwealth, 211 Va. 815, 817-18 (1971).

Discuss an Entrapment Defense with one of Our Criminal Attorneys

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