Are “Stings” Set Up By Law Enforcement Considered Entrapment?

Interviewer: For some people wouldn’t they consider that entrapment or is that the wrong way to think about it?

Amir: That’s actually exactly what comes to mind when we think of these scenarios. This is not somebody that was participating in some sort of chat room, trying to communicate with minors and lure minors. It’s actually law-enforcement that is setting the trap and trying to see what they can do to reel somebody in. Entrapment is the first thing that comes to mind. So far at least, the courts here have not allowed for an entrapment defense to be presented.

Entrapment Cannot be Used as a Defense for Underage Interaction

There have been a variety of efforts made, but as of right now, I’m not aware of any courts that have handled these cases that are allowing entrapment. They are just not permitting that as a defense. We’re stuck with looking to what does the statute specify that must be proven, and then what are the facts of the cases that we have? How do we see them either aligning or not aligning with those allegations?

Interviewer: When you say that the state won’t allow that defense, does that mean that if you raise it in court they say, “No, sir, we aren’t going to hear about that,” or do you make the defense and they just discount it? What do you mean by that?

Amir: It’s not the state that is not allowing the defense. It’s the judge that is not allowing the defense. The judge is making a finding that he or she does not find that the entrapment defense applies to this scenario, and therefore is not allowing it to be argued. I don’t know that people understand fully what entrapment involves, but it can be a tricky process.

Why Entrapment Cannot be Used as a Defense

In order to argue entrapment you are effectively saying to a jury, “Look, this conduct that the state is alleging occurred did occur, but it only occurred because a governmental entity, be it law enforcement agent or what have you, did something that caused our client to conduct themselves in a manner that was wholly inconsistent with what they would have otherwise done but for this inducement, or enticement, or manipulation by law enforcement.”

You are effectively conceding the occurrence of the event, but saying that it only occurred because of the government’s conduct causing it to occur. So that can be difficult to argue.

Interviewer: So, it’s actually a real person that is doing the solicitation. They are falsely representing who they are, and they are enticing someone to engage in illegal behavior. I guess you could look at it as they are committing a whole slew of crimes, but they’re not subject to them because they are law enforcement.

Amir: Well, that is actually one of the biggest issues that we have with this conduct. They are creating a crime and then prosecuting people for participating in it once they have created it. From a purely logical standpoint it seems that it would be the perfect entrapment argument. It’s rather frustrating that they are not permitting it.

You are absolutely right, they are going out and creating a circumstance that is a crime that in and of itself didn’t exist except for their conduct. We end up with these cases where when you look back at the verbiage and the people who are being arrested have made comments to law enforcement about the fact that they don’t agree with that age.

They say that it’s too young. There may be a photograph set and they say that this person doesn’t look like they’re 15, they look like they are clearly an adult. There are some potential defenses there because of the nature of how the investigation unfolded.

Interviewer: Well, also that person is not even a real person. There is no actual person who was the victim a crime, is that correct?

Amir: Unfortunately, you’re right. Unfortunately, the statutes don’t distinguish that. It’s more a matter of whether there is a perception of a person than an existence of a person. The one area where it does make a difference is that because there is no true, or actual minor involved, anyone that is convicted of these charges does not have to be put on sex offender probation and doesn’t have to comply with all the various, rather stringent, requirements of sex offender probation.

Author: Amir Ladan
A former assistant state attorney for Orange/Osceola Counties, Amir has handled thousands of cases and dozens of trials, ranging from DUI and traffic offenses to murder, in both adult and juvenile court.

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