Entrapment serves as an absolute legal defense to California criminal charges if you can prove that
- you broke the law only because the police’s overbearing conduct coerced you into doing so, and
- a “normally law-abiding person” in your position would have acted as you did.
Law enforcement is legally allowed to deceive you and use reasonable tactics to gain your trust. However, law enforcement is not allowed to trap you into criminal activity you would not have partaken in but for the police’s pressure.
Police officers who commit entrapment typically go undercover and trick you into violating the law through excessive
- harassment,
- threats, and/or
- fraud
If you can show the court “by a preponderance of the evidence” that the police entrapped you, then the criminal charges against you must be dismissed.
The following bubble graph shows the crimes for which entrapment is a common defense.
In order to better understand this defense and, more importantly, when and how it applies, our California criminal defense lawyers will provide a comprehensive guide to entrapment by addressing the following topics:
- 1. What is considered “entrapment” in California?
- 2. How do I prove that the police are guilty of entrapment?
- 3. Examples of California entrapment
- 4. What is the difference between entrapment and outrageous police conduct?
- Additional Resources
Entrapment applies to overbearing official conduct such as harassment, fraud, flattery, or threats.
1. What is considered “entrapment” in California?
Under California law, entrapment refers to a situation where a “normally law-abiding person” is induced by police to commit a crime that they otherwise would not have committed.1 Entrapment only applies to overbearing official conduct in the form of pressure, harassment, fraud, flattery, or threats.2
Entrapment will not serve as a defense if the officer merely offers you the opportunity to participate in an illegal activity.3 The courts believe that reasonable people presented with a simple opportunity to commit a crime will resist the temptation to do so.
Note that the entrapment defense applies only when you are being coerced by:
- law enforcement officers or
- agents of the police, who are people acting under the police’s direction. (It does not matter if the agent knows that the person they are taking direction from is an officer.)4
However, California entrapment laws will not protect you from being persuaded by a private citizen not acting as a police agent if you ultimately commit the suggested offense.5
In short, police are not allowed to unduly pressure you to break the law.6 Though police are allowed to present opportunities for you to break the law.7
Because California entrapment laws zero in on the officer’s conduct, your
- intent,
- criminal history, and/or
- character
are not relevant to whether you were, in fact, entrapped.8 That said, your actions in responding to the solicitation will be considered and compared to those of a normally law-abiding person.9
2. How do I prove that the police are guilty of entrapment?
In order to successfully claim entrapment in California, you must prove by a “preponderance of the evidence that the conduct of law enforcement (or their agents) would have likely induced a “normally law-abiding person” to commit the charged offense.
Preponderance of the evidence means “more likely than not.”10 This is a much lesser standard of proof than what prosecutors must meet in order to convict you of a crime, which is “beyond a reasonable doubt.”11
Examples of the types of conduct that might persuade a normally law-abiding person to succumb to criminal activity are:
- guarantees that the conduct is not illegal,
- promises that the offense will go undetected,
- offers of extraordinary rewards, and
- appeals to friendship or sympathy.12
Example: An undercover officer asks you for marijuana and claims he will commit suicide from depression if he cannot have any. You are not a marijuana dealer, but you sell him your marijuana to save his life. When you then get charged with possessing marijuana for sale, you can argue entrapment because you would not have broken the law but for the police’s pressure.13
Pleading innocent while raising California entrapment law
It may seem like you would have to concede your guilt in order to assert the entrapment defense, but that is not the case. You can maintain your innocence and argue that the officers are guilty of entrapment.
Example: If you are charged with possession of drugs for sale,14 you may concede that you possessed the drugs in question because an officer harassed you into buying them, but you can claim you never intended to sell them.15
Undercover drug busts are a major part of narcotics investigations and, as a result, invite entrapment allegations on a regular basis.
3. Examples of California entrapment
With respect to California drug crimes
California drug crimes notoriously involve claims of entrapment.
Example: Undercover officer “Sally” begs John dozens of times to sell her cocaine. John is not a dealer, but in order to end Sally’s harassment, he contacts a dealer to get her drugs. Here, Sally’s entrapment may be a defense to his ensuing possession for sale charge. Had Sally contacted John only one time and he agreed to give her drugs, he would not be successful in asserting an entrapment defense.
With respect to California sex crimes
California sex crimes are particularly susceptible to the entrapment defense, since they involve man’s primal instinct, which is easily seduced.
California Penal Code 647(a) lewd conduct in public
Example: Decoy officer Bob goes into a public restroom and cruises Bill, who ignores him and tries to leave. Bob blocks the door and claims there is nothing illegal about their conduct so long as it is in “private.” Bill finally agrees and begins touching himself before getting arrested for lewd conduct in public. Here, Bill was entrapped because he would not have broken the law but for Bob’s pressure.16
California Penal Code 647(b) prostitution
Example: Going undercover as a prostitute, Officer Maggie follows Mark for several blocks while pleading to “take care of him” for $50. Mark finally relents and hands her $50, prompting Maggie to break cover and arrest him for prostitution. Since Mark tried to resist and since Maggie unduly pressured him to be a “john,” the court will probably drop the charge due to entrapment.17
California Penal Code 311 child pornography
Example: Decoy officer Mike takes several weeks to cultivate a friendship with Steve in an adult-only chat room. Steve is finally persuaded by Mike’s relentless efforts to order some child porn magazines. Here, California entrapment law would likely protect Steve because of Mike’s undue pressure. Had Steve immediately agreed, then he could not claim entrapment.18
4. What is the difference between entrapment and outrageous police conduct?
Entrapment and outrageous police conduct are both bases upon which criminal charges could get dismissed, but they are otherwise different.
Entrapment is a question of fact for the jury to decide on. In contrast, outrageous police conduct is a question of law which only the judge can determine.19
Entrapment involves coercion, persuasion, and possibly even fraud. In contrast, outrageous police conduct involves acts that are so extreme that they not only induce you into committing a crime, but also are so unconscionable that they violate your constitutional rights.
The main issues to consider with outrageous police conduct include:
- whether the police manufactured a crime which otherwise would not likely have occurred,
- whether the police engaged in criminal or improper behavior repugnant to a sense of justice,
- whether your reluctance to commit the crime is overcome by coercion, and
- whether the police are simply out for a conviction, as opposed to preventing future criminal conduct or protecting the community.20
Example: California courts acquitted a man due to outrageous police conduct where the police needlessly beat him up for possession of a controlled substance.21 Once the police discovered that the substance was not a controlled one, they did not release him or even inform him of that fact. Instead, they coerced him into being an informant for the police by threatening to send him to prison.22
Additional resources
For more in-depth information, refer to the following scholarly articles:
- Rethinking Entrapment – American Criminal Law Review.
- The Law of Police Entrapment: Critical Evaluation and Policy Analysis – Criminal Law Forum.
- Clarifying Entrapment – International Commentary on Evidence.
- Entrapment and the Problem of Deterring Police Misconduct – Connecticut Law Review.
- Sting Operations, Undercover Agents, and Entrapment – Missouri Law Review.
Legal References:
- People v. Barraza, (1979) 23 Cal.3d 675, 689. (“For all the foregoing reasons we hold that the proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”). See also In re. Morales (Cal.App., 2016) E064500.
- People v. West, (1956) 139 Cal.App.2d Supp. 923, 924. (“Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”)
- California Jury Instructions — Criminal — CALJIC 4.61.5 — Entrapment-Permissible and Impermissible Conduct.
- People v. McIntire, (1979) 23 Cal.3d 742, 748. (“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator.”)
- People v. Gregg, (1970) 5 Cal.App.3d 502, 505. (“In our original opinion in this [California] case we stated: “The entrapment defense is designed to prevent the seduction of innocent people into criminality by officers of the law, and the suggestion of crime by a private citizen does not give rise to the defense.”)
- See endnote 2.
- See Barraza, endnote 1, above at 690. (“For the purposes of this test [that of, California entrapment], we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect – for example, a decoy program – is therefore permissible….There will be no entrapment, however, when the official conduct is found to have gone no further than necessary to assure the suspect that he is not being “set up.””) Also, see same at 688. (“[W]e are not concerned with who first conceived or who willingly, or reluctantly, acquiesced in a criminal project. What we do care about is how much and what manner of persuasion, pressure, and cajoling are brought to bear by law enforcement officials to induce persons to commit crimes.”).
- California Jury Instructions — Criminal — CALJIC 4.61 — Entrapment-Objective Test-Guidance. (“Matters such as the character of the defendant, [his] [her] predisposition to commit the crime, and [his] [her] subjective intent are not relevant to the determination of the question of whether entrapment occurred.”)
- See same. (“Finally, while the inquiry [of determining whether California entrapment laws have been violated] must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission.”)
- People v. Moran, (1970) 1 Cal.3d 755, 761. (“The Model Penal Code, section 2.13(2) (Proposed Official Draft 1962) also places the burden on defendant to prove entrapment by a preponderance of the evidence.”). California Jury Instructions — Criminal — CALJIC 2.50.2 — Definition of Preponderance of the Evidence. (“‘Preponderance of the evidence’ means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”). See also People v. Fromuth (Cal.App. 2016) .
- California Jury Instructions — Criminal — CALJIC 2.90 — Presumption of Innocence-Reasonable Doubt-Burden of Proof. (“Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”).
- See endnote 1. (“…affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.”). See also California Jury Instructions — Criminal — CALJIC 4.61 — Entrapment-Objective Test-Guidance. (“An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.”)
- California Health and Safety Code 11359 — Possessing marijuana for sale; punishment. (“Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment in the state prison.”).
- California Health and Safety Code 11351 — Possession or purchase for sale of designated controlled substances; punishment. (“Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment in the state prison for two, three, or four years.”)
- California Jury Instructions — Criminal — CALJIC 12.01 — Controlled Substance (Sched. I-V)-Illegal Possession or Purchase for Sale. (“In order to prove this crime, each of the following elements must be proved: [5] That [a] person [possessed] [or] [purchased] the controlled substance with the specific intent to sell the same.”
- California Penal Code 647 — Disorderly conduct – (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.”)
- California Penal Code 647(b) — Disorderly conduct. (“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.”
- California Penal Code Sections 311-311.11 describe the different offenses that are subject to California’s child pornography laws. Under California Penal Code 1524, a California search warrant will issue when the property or things to be seized consist of evidence relating to child pornography.
- People v. Peppars, (1983) 140 Cal.App.3d 677, 685 (“…while entrapment presents a question of fact, this defense presents a question of law.”)
- See same at 686. (“The New York court set forth four illustrative factors to be considered in determining whether due process principles had been violated: “(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity [citations]; (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice [citations]; (3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness [citations]; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.” (People v. Isaacson, supra., 378 N.E.2d at p. 83.)”)
- The facts used in this example are inspired from a New York case People v. Isaacson, (1978) 44 N.Y.2d 511 involving charges of possession of a controlled substance.
- See Peppars, endnote 19 at 686. (“The California Supreme Court in McIntire cites People v. Isaacson (1978) 44 N.Y.2d 511 [406 N.Y.S.2d 714, 378 N.E.2d 78], as an example of police conduct which triggers the due process clause. There, a third person was arrested for possession of a controlled substance and was physically abused by the New York police during interviewing. Later when the officers learned that the substance was not a controlled one, they did not tell him. Instead, he was left under the delusion that he was facing a substantial prison sentence if convicted. He thus agreed to be an informant for the police.”)