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I’ve heard the word entrapment spoken to or shouted at officers, including me, at least a thousand times over the years, especially when undercover ops came to a close and the bad guys discovered the true identity of a person, an undercover police officer, they’d admitted to their inner circle. That it was the undercover agent to whom they’d spilled their deepest secrets. And it was the sneaky cop to whom they’d trusted enough to sell mounds of illegal goods such as cocaine and/or guns. Those officers who, while during the course of their assignments, concealed their identities to infiltrate criminal enterprises.

And it doesn’t stop there, with undercover operations. No, not at all. I’ve had the word tossed at me during traffic stops and during investigations of murders, burglaries, white collar crimes, and even B&Es.

Entrapment is often a go-to word when a bad guy is caught with his hand in the cookie jar. It’s almost as if some people think it’s a “get out of jail free” card.

So what exactly is entrapment?

For starters, it’s more than simple trickery, such as when undercover cops grow long hair and beards, and wear jeans, t-shirts, and tennis shoes as part of a disguise so that they’ll fit in with a certain crowd. Or, when a female officer wears a tight, short skirt and 10-inch heels while parading along sidewalks pretending to be a hooker who’s fishing for “customers.”

A person is “entrapped” when he is persuaded by police, or their agents—someone acting on their behalf, such as an informant—to commit a crime that he had no previous intention of carrying out. In simpler terms, the officer or agent of the police convinced the person to commit a crime he otherwise would not have committed. Cops may not plant the “commit the crime seed” into the mind of an innocent person.

A defendant who is the victim of entrapment may not be convicted of the crime.

The DOJ – Entrapment

The Department of Justice details entrapment as …

“Entrapment is a complete defense to a criminal charge, on the theory that ‘Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.’ Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

Inducement is the threshold issue in the entrapment defense. Mere solicitation to commit a crime is not inducement. Sorrells v. United States, 287 U.S. 435, 451 (1932).”

Solicitation of a Crime is NOT Entrapment!

It’s perfectly legal for police officers to pretend to be someone they’re not in order to get to the bottom of a criminal case. For example, the undercover officer who pretends to be a an arms dealer who requests to purchase illegal firearms from a suspected criminal.

It is not entrapment when a person is ready and willing to commit a crime when approached by an officer, undercover or not.

The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion to commit a crime by the entrapping party.

Entrapment is a legitimate defense. However, the burden of proof is squarely on the shoulders of the defendant. To claim inducement, a defendant must prove that police conduct absolutely created a situation where a law-abiding citizen (the defendant) would commit an offense. The defendant must prove to the court that he was unjustly persuaded, coerced, threatened, and/or harassed into a situation where he committed the crime for which he was charged.

Again, an undercover officer who merely approaches someone to ask if they’d be willing to sell the officer a quantity of drugs, and they do, this is not entrapment. The officer in no way unjustly persuaded, coerced threatened, and/or harassed the subject. Instead, he asked for a product and the subject delivered the goods.

For example, the case of Officer Ima Agent and cocaine seller Willie Deal:

Officer Ima Agent, dressed in jeans, a Grateful Dead t-shirt, and scuffed, red Chuck Taylors, sees Willie Deal, a suspected drug runner, standing on a street corner. She sees Deal make several exchanges with people—cash for small, pebble-shaped pieces of aluminum foil. So she approaches Deal and their conversation goes something like this.

“What’s up?” says Agent.

Deal gives the female undercover cop a head to toe once over. “Just chillin’. Know what I’m sayin’, Shorty?”

“I’m in town for the weekend visiting my boyfriend. He’s in the county lockup and one of his friends, Joe Blow, said I might be able to hook up around here. He point me in the right direction?”

“Depends, Shorty. Whatcha’ looking for?”

“Just a rock or two. All I got is thirty bucks, though.”

Deal gives her another look. Thinks for a minute. Looks around. Another look. “Okay, Shorty. Let me see the thirty and see what I can do.”

Officer Agent shows Deal a crumpled ten and twenty (undercover cops always wrinkle “buy money.)” New bills are dead giveaways to bad guys, that they’re dealing with a rookie undercover cop.

Deal produces two small foil-wrapped packages. Agent opens one to inspect the goods and determines that it is indeed crack cocaine. Then she signals to her partners with a quick a scratch to the right side of her head, the sign to move in to make the bust.

The scenario between Agent and Deal is a legal arrest. No entrapment.

Deal was absolutely ready and willing to sell drugs. Agent in no way unjustly persuaded, coerced, or threatened Deal to sell her the drugs.

 

Have you ever had one of those bosses who knows everything about everything? You know the type, no matter what you say or do, they know best, did it better, faster, and more cost efficient, all while walking uphill during a snowstorm while barefoot.

Well, as bad as it is for you guys to work for one of these know-it-all’s, imagine doing so while working as a police officer where split-second decisions could mean the difference between someone living or dying.

Add to that, the boss decides he wants to come out and play cops and robbers during an important operation, unannounced, making those split-second decisions for you … over the course of an hour or so without knowing details, background, the names of the bad guys and whether they’re armed, or not. Not a freakin’ clue.

Well, I once had one of those bosses, and …

The bust promised to be a good one—cocaine, heroin, and a boat load (just an expression) of shrooms and pills. I’d worked on the case for a couple of months, spending lots of undercover time hanging out with this group of doofuses, and I’d reached the point where I was ready to get warrants for everyone, including search warrants for two properties.

One residence was the single-story modest home of a guy, Carey D. Weight, who held most of the group’s dope. He also did most of the packaging and transporting. The other search warrant was for the home of the top dog in the operation.

In this case, the top dog was a female—a young, somewhat attractive female, Betty Bigbutt, who lived with her elderly grandmother and her grandmother’s full-time healthcare worker. Oh, and I should mention that the female’s family was very much a high-profile family. Quite well-to-do with a very famous relative.

So, the plan was for one team to search the packager’s home, which was basically a dump, while the other team was set to paw through some extremely expensive items inside an elegant and ornate southern mansion. However, just before executing the warrants, an emergency developed and members of one of the search teams were forced to respond to assist troubled patrol officers.

Therefore, left with only one entry team, I had to change my plans, deciding to go for the top dog first, sending one officer over to guard Weight’s home in case he decided to suddenly depart. I had no idea that the chief of police and one of his captains were out, together, snooping around and playing Junior G-Men.

Our team was in position, ready to knock and announce at the front door when a faint voice crackled in my earpiece. I held up my hand, indicating I wanted everyone to stand down. Thinking something had gone wrong I backed away from the house. I heard the voice again, but couldn’t make out what the person had said. So I turned up the volume.

The barely-above-a-whisper voice of our chief of police came through, and he said, “The groceries have landed.”

I turned toward the officer standing next to me to make sure I’d heard what I thought I’d heard. He shrugged, also not knowing the meaning of our fearless leader’s words.

So I keyed my mic and softly said, “Repeat your traffic.”

And again, “The groceries have landed.”

Remember, an entire entry team, all dressed in black and armed to the max, were hanging out, attempting to hide in a yard in a prestigious neighborhood. Our vehicles were parked a couple of streets over. And here we were, trying to figure out what message our chief was trying to convey, on a radio frequency monitored by everyone in the country who owned a police scanner. He hadn’t bothered to use the tactical channel.

Finally, the colonel says, in a loud bass voice, “Capt. Ding Dong and I are parked across the street from Carey D. Weight’s house, watching it for you until you finish serving the search warrant at Betty Bigbutt’s place. Somebody just showed up with a package. We think it’s drugs. The. Groceries. Have. Landed!”

So much for the element of surprise. He couldn’t have done more harm by using a megaphone to announce the operation and, as a result, it would be only a few minutes before every media truck in town would be parked in front of Weight’s house, hoping for an action-packed breaking story.

Well, since the entire city, county, and state had just learned of our location and plans, I told the team to back off and keep the house under surveillance until I got back. Then I made a beeline for the chief. My hands had already formed a tight circle, one I’m sure would have fit nicely around my bosses neck.

When I turned onto the street where Weight lived, the first thing I saw was the chief’s sparkling white car backed into a large group of head-high hedges, directly across the street from our target’s home, standing out like a sore thumb. The nose of the unmarked car was a mere six or seven feet from the sidewalk, almost close enough that passersby could slap its hood with the palm of a hand. Blue lights in the grill and in the front of the rear-view mirror glowed hotly, reflecting the light from the streetlamp they’d parked under. Yep, Barney and Gomer were incognito, big time.

Needless to say, the bust didn’t take place that night. And I learned to never, ever, tell the chief of my plans. He could learn about them like everyone else … film at 11:00.

 

 

Confidential Informant – a person who provides information to police about criminal activity.

The FBI, of course, conducts undercover operations, as needed, and they do so when such operation appears to be an effective means of obtaining evidence. The same is true for local and state agencies.

However, the FBI, as with other federal agencies, are held to tighter control, rules, and regulations as related to UC assignments. Small and basic details, such as the use of a confidential informant requires adhering to the strict guidelines as required by the Attorney General’s Guidelines on Use of Informants and Confidential Sources. And, believe me, this document is detailed and lengthy.

Even their definition of a confidential informant is a bit wordy.

“ConfidentiaI lnformant” or “CI”‘ – any individual who provides useful and credible information  regarding felonious criminal activities, and from whom the JLEA (Justice Law Enforcement Agency) expects or intends to obtain additional useful and credible information regarding such activities in the future.”

Once a person is selected and approved (more on this below), agents may not reveal the CI’s identity at any time, unless they’re obligated to do so by law or Court order. The rule holds true even when the agent involved in the undercover operation leaves the department for whatever reason—transfer, retirement, etc. Keep in mind that law enforcement cannot guarantee that their name will not be divulged. They’ll do all they can to protect their confidentiality, but if ordered by the courts to reveal their names, they must abide.

According to the FBI, before their CI may be put to use, several factors must be examined, such as the informant’s “age, alien status, whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, are presentative or affiliate of the media, or a party to, or in a position to be a party to privileged communications, a member of the clergy, a physician, or a lawyer.”

In addition, the JLEA must examine “the extent to which the person would make use of his or her affiliations with legitimate organizations in order to provide information or assistance to the JLEA, and the ability of the JLEA to ensure that the person’s information or assistance is limited to criminal matters.”

Other factors of consideration include, “the extent to which the person’s information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such investigation or prosecution.”

Is Becoming a CI a “Get Out of Jail Free” card?

 

And, “the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution, including but not limited to a current or former spousal relationship or other family tie, and any current or former employment or financial relationship; the person’s motivation in providing information or assistance, including any consideration sought from the government for this assistance; the risk that the person might adversely affect a present or potential investigation or prosecution; the extent to which the person’s information or assistance can be corroborated; the person’s reliability and truthfulness; and the person’s prior record as a witness in any proceeding.”

Furthermore, it must be first determined as to “whether or not the person has a criminal history, is reasonably believed to be the subject or target of a pending criminal investigation, is under arrest, or has been charged in a pending prosecution; whether the person is reasonably believed to pose a danger to the public or other criminal threat, or is reasonably believed to pose a risk of flight; whether the person is a substance abuser or has a history of substance abuse; whether the person is a relative of an employee of any law enforcement agency” … and on and on and on it goes.

Other factors to consider when using CIs in your tales

When making the decision to use a confidential informant, officers must consider the risk of physical harm that could occur to the person or his or her immediate family and/or friends. Nothing is worth the risk of harm to a private citizen.

And …

  • What’s the CIs motive? Perhaps revenge for an act committed against them? If so, is it likely the CI may fabricate or plant evidence?
  • Is the CI a truthful person? Yes, even crooks tell the truth at times. Simply because they sell drugs doesn’t meant they’ll lie about it when asked. Hey, it happens.
  • Serving as a CI does not grant them the authority to engage in illegal activity.
  • They are not considered as employees of the government or local agency.

Finally, a word about entrapment.

Entrapment occurs when a law enforcement officer implants an idea into the mind of a person who would typically not otherwise commit the offense, and then encourage the commission of that offense in order to prosecute the individual.

*By the way, it’s Probable Cause, NOT Probably Cause. Yes, I see and hear this (probably cause) quite often.