Imagine a scenario: A man has stolen several firearms during the burglary of an Old Town home. In an attempt to sell the guns, thereby making some money while simultaneously disposing of tangible evidence linking him to the theft, he posts a vague ad on a shady website, offering to sell some “high-powered and hard-to-get items” to the highest bidder.
Soon, he has received several text message responses to the ad. One seems particularly promising; the buyer offers to buy “everything for $5,000,” if the seller will confirm the “items” are, in reality, handguns.
Our burglar responds to the prospective recipient: “You’re not the
police, right?” Once the buyer confirms he is not law enforcement, the seller confirms his wares are guns and a rendezvous is scheduled. At the meeting, however, the burglar learns he was duped; the prospective buyer was, in fact, a detective and he soon finds himself in the local jail on burglary and gun-smuggling charges.
In his first call with his lawyer, the thief loudly proclaims: “I can beat this charge. The police lied to me – it’s entrapment!”
The word “entrapment” is frequently bandied about on television crime dramas, but my anecdotal review leads me to believe the screenwriters do not understand the word. As a legal doctrine, entrapment is difficult to establish, and it is therefore rarely seen as an effective defense in Virginia.
First, it may be useful to note what entrapment is not. Police officers may conduct undercover operations and utilize informants in an effort to investigate crime. In “Stamper v. Commonwealth”, the Virginia Supreme Court held: “There is nothing improper in the use, by police, of decoys, undercover agents, and informers to invite the exposure of willing criminals and to present an opportunity to one willing to commit a crime.”
Despite it being a trope of television shows, there is no legal obligation on an undercover detective to identify himself as such whenever asked. It follows that, in our scenario above, the simple fact the detective pretended to be a nefarious gun buyer and refused to identify himself as law enforcement are insufficient to constitute entrapment.
Instead, in Virginia’s approved jury instructions, entrapment is defined as “the origination and planning of an offense by an officer of the law and his procurement by one who would not have committed it except for the trickery, persuasion, or fraud of the officer. Where a person intends to commit a crime, the fact that officers of the law provided a favorable opportunity for, aided, or encouraged the commission of an offense is not entrapment.” In other words, the defense of entrapment is not supported where the evidence shows the willing acceptance of an opportunity created by police.
In the cases in which the defense has proposed entrapment as the defense, reviewing courts have focused on whether or not the citizen charged was “predisposed” to commit the offense. To some extent, determining predisposition is left to the collective judgment of the jury who has heard the evidence, but a review of decided cases proves it is difficult to establish entrapment.
Take for example the “Stamper” case quoted before. In that matter, detectives learned that a criminal defense attorney was apparently accepting narcotics as payment from several drug dealers he was representing.
Police used an informer who, while wearing a recording device, met with the lawyer and explicitly suggested the attorney would be paid in drugs for his services, a plan to which the lawyer readily acceded. The Virginia Supreme Court rejected the entrapment defense, noting the lawyer was more than happy to go along with the proposal and never evinced a single moment of reflection or reluctance.
In those cases where the entrapment defense was successful, it was often the suspect’s state- ments of reluctance to participate which carried the day. Where a suspect indicates to an undercover agent that he does not wish to participate and is thereafter subject to police attempts to cajole or talk him into participating, courts are far more likely to find police entrapment.
Factors considered by the court are the strenuousness with which the citizen denies his willingness to participate, the frequency with which he proclaims it and the quality and quantity of undercover police efforts to get him to change his mind.
When this analysis is applied to the firearms sale scenario presented at the beginning of the article, it is evident that the burglar was predisposed to sell his stolen firearms and the entrapment defense would not absolve him.
The writer is Commonwealth’s Attorney for Alexandria.