Is It A Trap, Or Entrapment

In New York “entrapment” is a defense to a criminal charge. Criminal Defense lawyers love “defenses” because if you can find a valid one you win. I always thought entrapment was a red herring, something they teach you in criminal law training, but never really happens, until recently. In general entrapment means that law enforcement has convinced a person to committ a crime they would not have committed anyway. In the recent past i have dealt with three cases that may have been entrapment by the police.

Sometimes, in order to get a feel for how a jury might feel about my defense i run things past my friends and family members. I recently asked a family member if they have ever heard of entrapment. They said yes – that is when there is a bar located at the end of a road with only one way into town and one way out…and all the cops have to do is sit at the stop sign between 1 and 2 and they are going to get the drunks, like in Sodus Point. Sorry thats a TRAP not entrapment.

So what is entrapment. it is when the police induce someone to break the law, then arrest them for it. In law school it seems so easy – undercover cop tell a complete stranger at a bar to go steal something, which they do and then they are arrested. Turns out that never happens. In my experience a police officer suspects a person, possibly rightfully, is up to no good. They then suggest a type of activity that is arguably outside the scope of the misconduct they would commit, then arrest them. Like what you say?

I have a very clear cut answer, my recent case involving a DEC officer (DEC=law enforcement). He is called to a scene for a possible hunting violation. Upon arrival a licensed hunter has properly shot a deer with his bow and arrow. Officer checks the license as well as ID of the hunter. ID is a non-driver ID, indicating he cannot drive a car because of a prior DWI. Officer helps locate the Deer and tells hunter to take a car on the farm closer to the deer to retrieve it. Hunter not wanting to disobey officer follows instructions. He is prompty arrested for Driving with a suspended license. In my opinion, clearly entrapment.

Now, two closer cases. Defendant is a suspected drug dealer. Confidential Informant has purchased small amounts of cocaine from him in the past. Drug charges are based on the weight of the drugs. Confidential Informant works for the police (he counts as law enforcement). On the day defendant will be busted Informant calls him and says I need you to double the typical weight of cocaine (by cutting it with something other than cocaine) prior to selling it to me so i can make more money. What he has done is induced him into committing a more serious charge. The Rochester criminal defense attorney (me) says that is entrapment.

Similarly, defendant is a suspected drug dealer. Confidential informant sets up a “buy-bust”, where following a purchase of drugs the seller is arrested with the money just provided by the police. Confidential informant chooses the location for the transaction – near a school. In New York it is a more serious charge to sell drugs near a school. Defense Attorney (me) says he has been induced to commit the eleveated crime because the police (or their agent CI) chose the location.

It is still rare that entrapment is a defense at a crimnal trial in New York. The biggest trouble with an entrapment defense is that is generally allows the jury to hear some less than endearing things about the defendant. For example, the prior drug transaction must be admitted to. Trails are very risky for both sides. Perhaps the biggest advantage of understanding the defense is that a smart criminal defense lawyer can use it to place additional pressure or leverage on the prosecution to make a better plea offer. Anytime there is a risk of losing the prosecution is more likely to make a better offer.


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