In Texas, entrapment is defined as when a defendant is induced to commit a crime by law enforcement using persuasion or other means likely to cause persons to commit the offense.[1] Entrapment is more than “being set up” by the cops; merely having the opportunity to commit a crime and getting caught is not entrapment.[2]
Entrapment During Undercover Stings
Police have significant leeway to conduct undercover operations where they actively create and/or participate in scenarios designed to get suspected criminals to commit a crime.[3] However, an undercover operation can rise to the level of entrapment if the persuasion used by police is such that it causes “a hypothetical person to commit [an] offense.”[4]
For example, an undercover officer asking a stranger if he or she would like to buy illegal drugs and is arrested when he or she attempts to purchase said drugs is not considered entrapment because it is simply an opportunity to commit a crime; there is very little persuasion involved.
If the officer verbally harassed this stranger everyday for five days to purchase drugs and he or she is later arrested for purchasing illegal substances, a court would probably find this to be entrapment because the “persuasion” used would likely cause an “ordinary law-abiding person of average resistance” to commit the charged offense. [5]
False or Illegitimate Entrapment Claims
However, an individual claiming entrapment as a defense cannot have the inclination to commit the charged offense.[6] This is an issue especially when a person is arrested as the result of an online sting operation. People who are caught doing illegal activity online usually do not have an entrapment defense. For instance, a man seeking sexual encounter with a minor in an internet chat room cannot claim entrapment because the minor he was chatting with was actually an undercover officer pretending to be a minor; he was already attempting to commit a crime and would have complete his criminal act if it wasn’t for getting caught by police.
Police have also been caught entrapping people outside the bounds of the internet. Jesse Miller, of Palm Beach, was arrested in 2016 on four counts of dealing heroin based on a confidential police informant.[7] The evidence against Mr. Miller was strong but his attorney doubted the charges because Miller had no history of drug use or dealing, but he did have a history with the local police and prosecutors. In 1999, a local fast food manager was brutally murdered and Mr. Miller, a former employee, was charged with killing the manager.
The charges were then dropped a year later after prosecutors said they couldn’t support an initial claim of a 100 percent DNA match to Miller from a ski mask discarded near a mall trash bin. But prosecutors were convinced of Miller’s involvement in the murder so they re-arrested him in 2007 after prosecutors allegedly found a note linking him to the crime. Miller went to trial on murder in 2009 but it ended with a hung jury. So he was tried again a year later and convicted but had his conviction overturned on appeal. The DAs office then charged and tried him for a third time and was acquitted of the murder.
In 2014, furious at their perceived loss, police began targeting Miller anew in 2014. Cops contacted a street informant who allegedly told them that Miller had become a heroin dealer. Undercover police attempted to buy heroin from Miller multiple times from 2014 through 2016 until Miller relented. He obtained heroin and resold it to the undercover cop who subsequently arrested him. Mr. Miller’s case is still pending but his situation is extremely similar to the seminal entrapment case of Sherman v. United States.[8] In that case a man was continuously harnessed by undercover police to sell them drugs and was arrested when he finally did. The Supreme Court ruled that such continual harassment amounted to entrapment.
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If you believe that you or a loved one have been the victim of entrapment or other prosecutorial misconduct, please contact the Paul Morgan Law Office for information on obtaining possible relief.
Paul Morgan is an experienced Texas criminal trial lawyer who is dedicated to defending individuals accused of crimes in Houston. If you need help, call 281-346-4351.