The Infamous Entrapment Defense

It is not uncommon for my clients charged with drug sales to have been “set up” by an undercover agent or someone working for law enforcement as part of a plea deal. Inevitably, I am asked, “Isn’t that entrapment?” The answer is generally no.

Entrapment is not about law enforcement waiting in the weeds for people to violate laws, hoping for a proverbial “gotcha” moment, or about law enforcement using people or tools to catch people doing something wrong.  Instead, it occurs when law enforcement officers entice a person to commit an act he or she would not have otherwise committed.

In Minnesota, entrapment is a complete defense to a crime.  The entrapment defense requires that the criminal design originate with a government agent, not the defendant, and that the defendant was by coercion, persuasion, deceitful representation, or inducement lured into committing an act he otherwise would not have committed and had no intention of committing.  The entrapment defense is not proven where a person is ready and willing to commit the crime, and the government agent simply provided a favorable opportunity.

The defendant must raise the defense for consideration by a fair preponderance of the evidence.  Then, the State must prove beyond a reasonable doubt that he was predisposed to commit the crime charged.  If the State fails, the defendant is not guilty.

So what about when an officer is running radar from a private driveway, mostly hidden from view, or when an officer is running radar on the side of the road with his headlights off?  Despite the urban legend, entrapment is not a defense (unless of course you can convince a judge or jury that you were somehow enticed by the officer to speed by the fact that you did not even know the officer was there in the first place.)

One famous entrapment case involved John DeLorean, maker of the vehicle featured in the Back to the Future films.  In 1982, DeLorean was arrested on charges of drug trafficking, allegedly committed in attempt to raise funds for his struggling company. After DeLorean argued that the FBI had enticed a convicted narcotics smuggler to get him to supply the money to buy the cocaine, a federal judge acquitted him of all charges based on entrapment.