This is really just an excuse to use this picture of when I got this person to stick his head through a picture frame, but let’s start with a scenario. You are browsing the Internet and you decide to respond to something that could potentially be illegal. Let’s say it is an ad on Craigslist or a similar platform for an escort, or a request to purchase or sell a controlled substance, or perhaps an online transaction to purchase a controlled substance. Can the police respond to an ad you post? Yes. Can the police post their own ads and essentially “bait” people into responding? Yes. Is it entrapment? Probably not.
For the action to rise to the level of entrapment the police need to do some sort of “active encouragement” to get you to commit the crime. Merely making the opportunity available is not sufficient to claim entrapment. “Bait bikes” are a classic example of this. In large cities, police will often put GPS devices on unlocked bikes and wait for people to steal them. This is not, legally speaking, considered entrapment. Were it not for the police leaving the bicycle there, the crime would not be committed. That is not the test for entrapment, but many people think it is. Now if the officer followed someone around egging him on and eventually encouraged him to take the bike, that would likely be entrapment. (Assuming the officer testified reliably or you could prove the encouragement occurred.)
Entrapment also commonly comes up in cases of confidential informants. While my county’s esteemed elected prosecutor once stated to a local newspaper that confidential informants “are rarely the lynch pin. . . in a criminal case,” my caseload begs to differ. In cases of addictive drugs where people often choose to cooperate in exchange for perceived leniency in sentencing, it is common for confidential informants to play a role in arrests. Many of these informants have their own motives. The police will engineer the bust so that the target gets charged with purpose to deliver instead of actual delivery – which would constitute a crime being committed by the informant. Informants are often used to obtain probable cause or setup a meeting where contraband will be present. Once the contraband is present, the target is often raided. As an agent of the police, confidential informants have a large amount of leeway. It is often difficult, by virtue of their confidential status, to challenge the motives and validity of the informant’s actions. An intelligent detective can put together a very difficult case to combat with the proper use of an informant, and they (generally) keep it one step less than what the Supreme Court says consists of entrapment.
The point is: You shouldn’t do transactions for controlled substances or escorts or anything of the like under the law. Many things that you may think would be entrapment are, legally speaking, not. If you have a close situation you need to consider what was done BEYOND just the availability. Did the police or their agent entice you to commit the act? If so, you need to speak with a local attorney.
Last Myth: NO! A police officer does not have to tell you they are a police officer!