There’s quite a bit of confusion over the legal term “entrapment”.
In the public mind, it’s frequently used generically to describe any situation where a law enforcement officer poses as somebody they’re not (a coworker, a customer, etc.) for the purposes of observing a crime and (thus) making an arrest. And it’s resulted in a number of unfortunate myths, one of the most notable being “a police officer has to tell you they’re a cop if you ask.”
Like with many things you hear, there’s a lot more myth than truth. Let’s discuss what entrapment actually is, and what it isn’t.
Entrapment is what you call it when a police officer, typically acting in an undercover capacity, causes somebody to commit a crime that they otherwise would not commit. For a case to be entrapment, the person has to be able to convincingly argue that they would not have committed the crime apart from the police officer’s requests for them to do so.
It doesn’t, however, mean that a police officer asks somebody to commit a crime that the person would not commit had they known the officer’s true profession!
Let’s look at an example.
Let’s say that Officer Jones is undercover. Jones befriends John Smith, who takes pain medication for a bad back and is suspected of – but not known to be – selling some of his pain medication to neighborhood kids that want to get high. Unable to actually witness Smith selling drugs to any kids, Jones asks Smith to sell him some pills. Smith refuses. Jones asks repeatedly over the course of two weeks, and Smith continues to refuse. One day Jones tells Smith a story about how his wife is in horrible pain, but the doctors won’t help because they don’t have insurance – so Smith somewhat reluctantly sells Jones a couple of pills. This causes an arrest, and Smith lands in front of the judge.
Smith has a reasonable argument that Jones entrapped him, because he wasn’t wanting to sell the drugs to Jones. Jones kept pleading and cajoling, and only after weeks of effort did Smith eventually give in.
Contrast that with another case. Same starting scenario, but a different outcome.
Officer Jones is undercover. Jones befriends John Smith, who takes pain medication for a bad back and is suspected of – but not known to be – selling pain meds to neighborhood kids that want to get high. Jones tells Smith that his back has been hurting. He doesn’t have insurance, and his doctor can’t help. Smith asks, “you’re not a cop, are you?” Jones assures Smith he’s not a police officer. Smith offers to sell Jones half a dozen pain pills, and Jones agrees. When Smith goes and grabs the pills and sells them to Jones, Jones hauls him off to jail.
Now Smith’s “entrapment” argument falls apart. Jones didn’t exert any pressure on Smith to make him sell the pills. It was Smith’s idea to sell the pills, and the fact that Jones lied about being a police officer (and having a sore back) is irrelevant. Smith came up with the idea for the crime himself – Jones just followed Smith’s lead.
Police aren’t prohibited from stretching the truth – or even outright lying – during the course of an investigation. And believing that you’re safe from prosecution because you did your due diligence and asked the magic “are you a cop?” question is a good way to land in a lot of hot water!
Of course even though they’re allowed to stretch the truth, that doesn’t mean that they’re allowed to break the law. So even if you’ve been arrested due to some bad judgement, the word of the police officers isn’t final. You still have rights. They still have the burden of proof in a court of law. And your single best next action is to remain completely silent. Don’t hurl accusations, call the officers names, or (quite frankly) say anything at all. Just pick up the phone, and get an experienced criminal defense attorney – like me – to help you navigate the events that come next. You’ll be glad you did!