Clients often claim entrapment when a police officer catches them red-handed in some unlawful act, especially when one of the participants is an undercover cop. It offends a sense of fair play to learn, suddenly, that the voice on the other end of a telephone line was actually a police officer pretending to be someone else. Isn’t police deception enough to prove entrapment?
The answer, sadly, is no. I’ve said it before and I will say it again: The police are entitled to use deception to solve crimes. What the police are not permitted to do is induce you to commit a crime.
So what is entrapment?
It is easier to say what it is not.
“A predisposition to commit the crime, which is triggered by circumstances created by, or under the control of, the police, does not set the stage for the defense of entrapment,” our Supreme Court ruled in 2010 in a case involving a man who claimed that he was set up by the police to make a lewd telephone call to a minor.
Put another way, a person can claim entrapment only if they can show: first, the government induced him to commit the crime; and, second, that he would not otherwise have committed the crime. In many years of defense work, I’ve only once presented an entrapment defense.
But consider the case of a young man in California whose parents, Doug and Catherine Snodgrass, recently sued the Temecula Valley United School District in California. Here’s their beef:
Their son, whose name is sealed in court records because he is a juvenile, suffers from Asperger’s syndrome and other disabilities. He attends the Cahaparral High School as a special needs student. A young man known in court records as “Daniel” also attends the school.
It turns out that Daniel is an undercover cop. That means he pretends to be something he is not for a living. In this case, he pretended to be a high school student while he was, in fact, a full-time employee of the Riverside County Sheriff’s Department.
Apparently, Daniel’s mission was to help stamp out the use of illegal narcotics among high school students, a laudable, if somewhat impossible mission. So Daniel sidled up to young Mr. Snodgrass.
"Gimme some of your prescription medication,” Daniel hissed. Young Mr. Snodgrass refused.
Daniel was determined. Soon he was sending the boy text messages at all hours of the day or night. When Daniel could not prevail upon the young man to hand over his prescriptions, he got creative. He offered to give the boy $20 to go out and buy him some marijuana. When the young man did so, he was arrested, together with 20 other high students, all of whom were portrayed as miniature drug lords by the local press.
It just might be, but, unfortunately, young Mr. Snodgrass decided to enter a plea in juvenile court rather than hold the state to its burden of proof at trial. He was admitted into what is known as a diversionary program, and must do 20 hours of community service to satisfy his obligation to the state.
Had he taken the case to trial, the state would have been required to show that the boy was predisposed to commit a crime, and that the police officer did no more than provide him, in effect, with an opportunity to something he would otherwise have done. It’s not clear to me from what I read about the case that this learning disabled boy did anything more than submit to the unrelenting pressure of an older, and seemingly more sophisticated “classmate,” in this case an undercover cop.
The Snodgrass family has filed a novel lawsuit against the school district. They sent their son to school to get an education, not to be duped by a cop into making a minor narcotic purchase. They are claiming that the school district breached its duty to provide a special needs student with the educational tools he needed to succeed. Instead of educating their son, the school permitted undercover cops to patrol the halls looking to score drugs.
“Sending police and informants to entrap high school students is sick,” says Tony Newman of the Drug Policy Alliance, a drug-law reform organization.
The use of police officers masquerading as something they are not is also common in sex crimes. There is actually a special unit of police officers in Connecticut skilled at pretending to be 14-year-old girls. Their task is to get men to commit to a licentious assignation, so that the men can be arrested for sex crimes. I can’t imagine how an officer so employed responds to his wife’s question upon arriving at home after a tough day behind the computer screen.
“How was your day, honey?”
What does the cop say, honestly?
Of course, the safest course is never to break the law. But just how serious an offense is it for a high school kid to buy $20 of marijuana?
Times have changed. I suspect that even former President Bill Clinton would now admit that he did more than inhale. Sadly, drug prosecutions in high schools and junior high schools around the country appear to target low-income schools. These schools are too often viewed as the entry point in a school-to-prison pipeline. When’s the last time you read about an undercover investigation of narcotics use and sales at an exclusive prep school, such as New Haven’s Hopkins School?
Entrapment remains a risky defense for someone accused of a crime. It rarely succeeds. I suspect most jurors enter a courtroom less concerned with the presumption of innocence than waiting to be shown what the arrested man or woman has done wrong. Police and prosecutors know this. Hence undercover cops in our schools persuading the learning disabled to engage in misconduct.
We get the government we deserve. Don’t we deserve better?