In Florida, there are two distinct entrapment defenses: subjective entrapment and objective entrapment. The defense of objective entrapment arises in the presence of egregious law enforcement conduct, and is to be evaluated under the due process provision of the State Constitution. To establish the defense of subjective entrapment, unlike objective entrapment, defendant must show that he was not predisposed to commit the alleged offense. The general rule, subject to limited exceptions, is that a defendant who denies committing the crime cannot claim entrapment as a defense.
The subjective entrapment analysis in Florida begins with a case called Munoz v. State, 629 So.2d 90 (Fla. 1993). There, the Supreme Court of Florida developed a three-pronged analysis to determine whether or not the Defendant was entrapped as a matter of law due to the fact that he was not predisposed to commit the crime.
The three prongs are as follows: First, whether a government agent induced the defendant to commit the crime charged. Second, whether the defendant was predisposed to commit the crime charged. Third, whether the entrapment defense should be evaluated by a jury.
Farley v. State, 848 So. 2d 393 (4th DCA 2003) is an example of a case that explores both the objective and subjective entrapment defenses. In
Farley, the Defendant was
subjectively entrapped as a matter of law into committing sexual performance by a minor in so far as law enforcement officers issued a "spam" email through a taskforce offering "taboo" sexual material, which escalated into the police asking the defendant for more explicit details, sending an order form, etc. Furthermore, there was no evidence that the defendant had ever purchased or possessed child porn prior to the order, or that he had any arrest history.
In evaluating the first prong of the test, the Farley Court first looked to
FloridaStatute 777.201, which governs Entrapment. There, "inducement" is defined as any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy, or friendship.
Id. The Court held that Farley was induced to commit the crime charged as he was subjected to "various acts of inducement." Additionally, Farley was "confronted with an advertisement disseminated by the government" to which he was "not willingly exposed to." Farley "indicated interest . . . and was then confronted with an exchange of correspondence." The Court further held that "the progression began with a spam email and escalated to the point where lurid personal details were elicited in eventual exchange for an order form. What began as a plan to possibly undercover an offender . . . became a concerted effort to lure Farley into committing a crime. Therefore, inducement is present in Farley's case."
In its evaluation of the first prong, the Farley Court also turned to
Beattie v. State, 636 So.2d 744 (Fla. 2nd DCA 1993). There, inducement was found based on "events stemming from a newspaper advertisement." US Customs placed an ad for materials featuring "miniature & young love" in a free circular. Beattie responded and expressed an interest in some films. After an exchange of ten (10) letters, Customs arranged a meeting to sell him a video. As such, the defendant was induced into committing the crime and the first prong of the
Munoz test was satisfied.
In moving to the second prong, the Farley Court turned back to
Munoz for the definition of predisposition, which reads "whether the accused was awaiting and propitious opportunity or was ready and willing, without persuasion, to commit the offense." The Court found that there was no evidence that Farley was predisposed to possess child pornography, no evidence that Farley had ever purchased such pornographic materials in the past, and no evidence that Farley had ever been arrested for anything in his life, "let alone a child pornography offense." The State argued that the fact Farley ordered the videos alone showed his predisposition; however the Court stated that that view "overlooks even the common connotation of the word
pre disposition" and that "the prefix pre- indicates that the disposition must exist before the first contact with the government." Therefore, Farley was not predisposed to commit the offense.
The third prong of the Munoz test questions whether or not the defense of entrapment should be submitted to a jury. In
Munoz, the Court explained that if "factual circumstances . . . are not in dispute, accused establishes that government induced accused to commit offense charged, and state is unable to demonstrate sufficient evidence of predisposition prior to and independent of government conduct at issue, then trial judge has authority to rule on issue of predisposition as a matter of law, in relation to statutory defense of entrapment, because no factual question of predisposition is at issue."
When making this determination, the Farley Court (again) turned to
Beattie v. State, 636 So.2d 744 (Fla. 2nd DCA 1993). There, Beattie satisfied his burden by establishing inducement and also establishing lack of predisposition. Because the facts and law clearly established entrapment rather than crime, the Court held it was error to deny Beattie's motion to dismiss. In doing so, the Court found it unnecessary to answer the final prong of
Munoz; "however, in essence, the Court concluded that as a matter of law, entrapment existed, and therefore the jury had nothing to consider."
The Court went on to hold that "[i]n Farley's case, inducement and lack of predisposition were clear upon the facts. The State presented no evidence of past deviant behavior or criminal activity on Farley's part. Therefore, entrapment rather than crime was at hand, and as a matter of law, the trial court should have granted Farley's motion to dismiss." In justifying its' decision, the Court went on to quote Jacobson v. United States¸ 503 US 540 (1992):
"When the Government's quest for convictions leads to the apprehension of an otherwise law abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene."
Additionally, Farley explored the concept of
objective entrapment by the government. The defense of objective entrapment arises in the presence of egregious law enforcement conduct, and is to be evaluated under the due process provision of the State Constitution. The test for objective entrapment was eliminated by Florida's shift to statutory subjective entrapment, but the courts may still review entrapment objectively under the due process clause of the Florida Constitution. In
Farley, the Defendant contended that law enforcement engaged in and propagated an illegal industry and targeted its efforts at Farley without any prior evidence of his interest in child porn. The State claimed that the conduct did not rise to the level of offending due process; however the Court cited
State v. Finno, 643 So.2d 1166 (4th DCA 1994): "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 purposes of arresting him . . . there is no crime at all without government involvement. No legitimate objective of government is accomplished by prosecuting a crime so totally and completely orchestrated by the government."
If you have questions regarding entrapment or any other possible defense, call a criminal defense lawyer at Taracks Gomez & Rickman. We have four defense lawyers on staff who will provide you with a free consultation and case evaluation. Call us now at 813-281-2897. We serve all counties in Florida and are licensed in Federal court as well. Taracks Gomez & Rickman - The Advocate For You.