“THE COPS SET ME UP!” IS THIS A CRIMINAL DEFENSE?

Have you ever heard someone in the movies say: “Are you a cop? Cause if you’re a cop, you’ve got to tell me.” Don’t listen to movie characters or some idiot at the bar for legal advice. There’s a reason they’re not criminal defense experts. If an undercover cop does not tell you he is a cop or lies about being a cop, that is 100% legal.

The cops can lie to you, they can trick you, they can “set you up.” But they can’t entrap you. Entrapment is one of the many defenses available to a defendant at trial. Realistically, however, winning your case with this criminal defense is anything but easy. This is a complex area of criminal law. To be successful, you need a skilled attorney to determine if the entrapment defense is available for your case.

In Illinois, “[a] person is not guilty of an offense if his or her conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person. However, this Section is inapplicable if the person was pre-disposed to commit the offense and the public officer or employee, or agent of either, merely affords to that person the opportunity or facility for committing an offense.”^[1]

Two key concepts emerge from this statute: inducement and predisposition.^[2] To mount a successful entrapment criminal defense both of these concepts must be challenged effectively. Therefore, it is crucial to examine both carefully.

INDUCEMENT

Under Illinois law, you are induced “when the course of criminal conduct for which the defendant as convicted originated in the mind of the government agent who arbitrarily engaged in a relationship with the defendant and purposely encouraged its growth.”^[3] Older cases often describe inducement as inciting, inspiring, persuading, or luring the defendant to commit a crime which he otherwise had no intention of perpetrating.^[4]

While all entrapment cases are analyzed on their own facts, whether the government improperly induced an individual often revolves around these common issues:

• Who initiated first contact/what was the original purpose of the contact?
  • However, just because the government approaches you, doesn’t mean you are entrapped. But it is a piece of the puzzle. Did the government arbitrarily engage in a relationship with the defendant and purposely encourage its growth?^[5] Where the government approaches people engaging in a normal course of business and injects the illegal activity, courts have found inducement.^[6]

• Government Persistence-Repeatedly contacting a defendant for drugs and repeated refusals by defendant;
  • There is no magic number, though many of the cases involve a CI or undercover officer contacting the defendant and the defendant refusing 10-20 times.^[7] However, as little as 3 requests and refusals has been found sufficient,^[8]

• Use of romantic or sexual relationship in inducement;
  • Perhaps the only situation where literally haha screwing the defendant helps his case. Unsurprisingly, the courts frown upon CI’s using sexual favors to convince defendants to act illegally.^[9] And it doesn’t even have to go as far as sex, even one date can romantically entrap the defendant if illegal activity is encouraged during the date.^[10]

PREDISPOSITION

The key to a successful entrapment defense is showing the court that you are not “pre-disposed” to commit the crime. This bit of legalese effectively shatters most clients’ chances of pursuing this criminal defense. Why? The majority of entrapment situations involve theft rings, drugs, guns, and prostitution. Many individuals targeted in these investigations have prior, and often recent, arrests for similar offenses.

So, whether or not you have an entrapment defense hinges on how Illinois law establishes predisposition. If someone is “willing and able to commit the offense without persuasion before his initial exposure to government agents,” that’s predisposition according to Illinois law.^[11] In drug cases, the court considers additional factors to assess predisposition, such as:

• the defendant’s initial reluctance or willingness to commit the crime;
• his familiarity with drugs;
• his willingness to accommodate the needs of drugs users;
• his current or prior drug use;
• his ready access to a supply of drugs;^[12]
• the defendant’s engagement in a course of conduct involving similar offenses;
• the defendant’s subsequent activities.^[13]
  

The court will then break down these factors into questions such as: (1). Whether the defendant made a profit; (2). Whether he was present when the drugs were cut, tested, and packaged; (3). How easy it was for the defendant to get the drugs/how much time did it take him.^[14]

Notice, even if you don’t have a prior conviction, if the State can prove the above factors: you’re predisposed. This then boils down to a de facto legal loophole for the government. If you are “pre-disposed” then the government only “merely affords” you the “opportunity” rather than sets you up.

You must be “innocent” before the government exposure. If you do have a prior drug (or theft, gun, vice, etc) conviction, then courts often find predisposition, however the age & nature (felony/misdemeanor) of the conviction could be a factor in favor of the defendant.^[15] If you are an addict, the considerations basically describe your daily life.  That being said, even predisposed people can be entrapped where there is “unrelenting coercion” by the government.^[16]

Keep in mind, that like all affirmative defenses, you have to admit to engaging in the illegal activity in order to use this criminal defense at trial.^[17] Plus, simply saying you wouldn’t have done it if you knew the other person was a cop or a CI isn’t going to work.^[18]

CI’S & ENTRAPPED CO-DEFENDANT’S

And what about confidential informants, or CI’s? How does their role function in an entrapment situation? Normally, informants, whether confidential or not, either introduce the defendant to the undercover cop or are also involved in the illegal transaction. In many of the successful entrapment cases involving an informant, the informant does not testify at trial. The defendant’s version of his interaction with the informant therefore goes “unrebutted.” When a defendant is allowed to introduce evidence of entrapment, the State is forced to rebut this evidence beyond a reasonable doubt.^[19] The absence, rather than the actions, of the informant can provide ample support for a criminal entrapment defense at trial.^[20]

What about if you are charged because your co-defendant sets up a drug deal without knowing the buyer is a cop and brings you in on deal? Are you entrapped? Nope. Remember, entrapment requires inducement, “by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person.”^[21] In order for entrapment to apply in this situation, your friend would have to be actually working for the cops to build a case against you. Thus, there is no such thing as vicarious entrapment.^[22]

CONCLUSION

As you can see, entrapment is a very complicated criminal defense. It is never as simple as “the cops set me up.” In fact, the law doesn’t care whether the cops set you up, only how they set you up. Even then, the law focuses heavily on your own personal character & history. As Illinois Chief Justice Charles H. Davis wrote in his 1958 opinion People v. Outten, “[t]he law frowns upon the seduction of an otherwise innocent person into a criminal career but tolerates the use of decoys and various other artifices to catch the criminal.”^[23] Law enforcement can and does set people up for crimes. When they do, only an experienced law firm can successfully guide you through an entrapment defense. At Robert Callahan and Associates, we know the law so we can set you up . . . to win your case.

^[1] 720 ILCS 5/7-12. *Prior to 1996, the entrapment statute did not the term “pre-disposed.” At that time, the law required the State to prove that the criminal purpose originated with the defendant (though predisposition was a factor in this).  The addition of predisposition eliminated this requirement. People v. Criss, 307 Ill.App.3d 888 (1^st Dist. 1999).

^[2] People v. Placek, 184 Ill.2d 370, 380-81 (IL.S.CT. 1998).  To receive the defense, the Defendant must present evidence that: 1. the State induced or incited them to commit the crimes; and 2. they lacked the predisposition to commit the crimes. People v. Placek, 184 Ill.2d 370, 380-81 (IL.S.CT. 1998)

^[3] People v. Bonner, 385 Ill.App.3d 141 (1^st Dist. 2008).

^[4] People v. Outten, 13 Ill.2d 21, 34 (1958); People v. Shannon, 15 Ill.2d 494, 498 (1959).

^[5]  People v. Poulos, 196 Ill.App.3d 653 (1st Dist. 1990).

^[6] Id. (CI sold D a video game room after he responded to ad in paper. After sale, CI persistently attempts to involve D in cocaine. D finally agrees to sell and does to undercover cop. “Defendant was running a legitimate business when, for no apparent reason, he was approached by Budaj and induced to commit a crime. In our view, this was a State-generated crime.” at 660. See also People v. Boalbey, 143 Ill. App.3d 362 (3rd Dist. 1986). (UC nags D to allow him to buy items at D’s garage sale with foodstamps = no entrapment).

^[7] Id. (CI requested and D refused cocaine sales at least 20 times).

^[8] People v. Fisher, 74 Ill. App.3d 330 (3rd Dist. 1979).

^[9] People v. Bonner, 385 Ill. App.3d 141 (2008 IL SCT) (“He agreed only after Vedros offered sexual favors, a tactic of known efficacy”) at 145; People v. Estrada, 91 Ill. App. 3d 228, 234 (3rd Dist. 1980) (entrapment instruction was necessary because evidence showed that defendant transacted in drugs at informant’s suggestion after she initiated a sexual relationship with him)

^[10] People v. Day, 279 Ill. App.3d 606 (3rd Dist. 1996).

^[11] People v. Sanchez, 388 Ill.App.3d 467, 474 (1st Dist. 2009).

^[12] People v. Glenn, 363 Ill. App. 3d 170, 173 (2nd Dist. 2006).

^[13] Bonner at 146; Placek at 381. 

^[14] People v. Norks 137 Ill. App.3d 1078 (1985)(trial court properly found defendant had not established the defense of entrapment when defendant admitted he engaged in a drug transaction to make money).

^[15] Bonner, at 147. (D had an old controlled substance conviction)

^[16] People v. Martin, 124 Ill. App.3d 590, 593 (3rd Dist. 1983). (D became cocaine addict through pressure/dealings with paid CI, then went to rehab to escape, came back and CI persisted in contacting him until D relapsed, then agreed to engage in sale of cocaine to undercover).

^[17] People v. Gillespie, 136 Ill.2d 496, 501 (IL SCT. 1990).

^[18] Supra, pg. 1.

^[19]  People v. Tipton, 78 Ill.2d 477, 487 (1980). (Once a defendant presents some evidence to support an entrapment defense, the State bears the burden to rebut the entrapment defense beyond a reasonable doubt, in addition to proving all other elements of the crime. The question of whether the defendant was entrapped is to be resolved by the trier of fact.).

^[20] People v. Cross, 77 Ill.2d 396 (1979) People v. Strong, 21 Ill.2d 320 (1961).

^[21] 720 ILCS 5/7-12.

^[22] People v. Wielgos, 142 Ill.2d 133, 138-139 (1991).

^[23] People v. Outten, 13 Ill.2d 21, 24 (1958)