For a detailed discussion of entrapment, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 10.
“The purpose of the entrapment doctrine is to deter unlawful government activities and to preclude the implication of judicial approval of impermissible government conduct.” People v Jade, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “[T]he entrapment defense is [utilized] to deter the corruptive use of governmental authority by invalidating convictions that result from law enforcement efforts that have as their effect the instigation or manufacture of a new crime by one who would not otherwise have been so disposed.” People v Juillet, 439 Mich 34, 52 (1991).
Test for entrapment. “‘[A] defendant is considered entrapped if either (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances or (2) the police engaged in conduct so reprehensible that it cannot be tolerated.’” People v Jade, ___ Mich App ___, ___ (2024), quoting People v Johnson, 466 Mich 491, 498 (2002). “It is the defendant’s burden to establish entrapment by a preponderance of the evidence.” Jade, ___ Mich App at ___.
“In Michigan, entrapment is defined by a ‘modified objective test.’” Id. at ___, quoting Johnson, 466 Mich at 508. Michigan’s test “focuses primarily on the investigative and evidence-gathering procedures used by the governmental agents” in order to “determine whether the police conduct in question has as its ‘probable and likely outcome the instigation rather than the detection of criminal activity.’” Juillet, 439 Mich at 53, 54 (1991) (citation omitted). The test for determining whether a defendant was entrapped is objective and should “focus[] on the propriety of the government’s conduct that resulted in the charges against the defendant rather than on the defendant’s predisposition to commit the crime.” People v Hampton, 237 Mich App 143, 156 (1999). A defendant cannot establish entrapment when the police simply presented the defendant with an opportunity to commit the offense for which he or she was convicted. Johnson, 466 Mich at 498.
Inducement. Courts consider the following factors when determining whether governmental activity would impermissibly induce criminal conduct: “‘(1) whether there existed appeals to the defendant’s sympathy as a friend, (2) whether the defendant had been known to commit the crime with which he was charged, (3) whether there were any long time lapses between the investigation and the arrest, (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen, (5) whether there were offers of excessive consideration or other enticement, (6) whether there was a guarantee that the acts alleged as crimes were not illegal, (7) whether, and to what extent, any government pressure existed, (8) whether there existed sexual favors, (9) whether there were any threats of arrest, (10) whether there existed any government procedures that tended to escalate the criminal culpability of the defendant, (11) whether there was police control over any informant, and (12) whether the investigation was targeted.’” People v Jade, ___ Mich App ___, ___ (2024), quoting People v Johnson, 466 Mich 491, 498-499 (2002).
Reprehensible Conduct. “Entrapment may also be found if the police engaged in conduct so reprehensible that it cannot be tolerated.” People v Jade, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “[T]here is certain conduct by government that a civilized society simply will not tolerate, and the basic fairness that due process requires precludes continuation of the prosecution where the police have gone beyond the limit of acceptable conduct in ensnaring the defendant, without regard to causation.” Id. at ___ (quotation marks and citation omitted). In this case, “defendant asserts that law enforcement officers were involved in reprehensible conduct that should not be tolerated as they specifically targeted individuals soliciting adult escorts and then ‘duped’ people like defendant into committing more serious crimes than intended.” Id. at ___. The trial court found that “[w]hile defendant hesitated somewhat when the officer indicated she was 15 years old, his subsequent texts and behavior demonstrate[d] he was willing to arrange for sex with a minor.” Id. at ___.The Court of Appeals agreed, noting that “[t]he conduct in question primarily involved presenting defendant with the opportunity to engage in the criminal acts for which [defendant] was convicted, and . . . the mere presentation of the opportunity to commit criminal acts in a non-targeted manner does not constitute reprehensible conduct amounting to entrapment.” Id. at ___. Accordingly, “[i]dentifying individuals willing to make plans to engage in sex with minors is a legitimate law enforcement goal that justifies the decision to see whether defendant’s conduct might expose him to heightened criminal liability.” Id. at ___ (quotation marks omitted); see also id. at ___) (further holding that the “purpose of the challenged police activity was the detection of crime, not its manufacture”) (quotation marks and citation omitted).
Reverse buy. Whether a police officer who “plac[es] controlled substances in the societal stream” as part of a reverse buy has engaged in reprehensible conduct for purposes of entrapment depends on the specific circumstances of the criminal investigation. People v Connolly, 232 Mich App 425, 430-431 (1998). In Connolly, police officers authorized under MCL 333.7304(4) to distribute controlled substances in an effort to detect criminal activity did not engage in reprehensible conduct by providing small samples of a controlled substance to persons who shopped the substance around in order to find a buyer for the substance in bulk. Connolly, 232 Mich App at 431-432. However, police conduct under circumstances in another case might constitute intolerably reprehensible conduct. According to the Court:
“Had the police engaged in the distribution of a substantial quantity of the marijuana intended as bait in the sting operation, we would be inclined to say the police intended ‘to commit certain criminal, dangerous, or immoral acts,’ which could not be tolerated.” Id., quoting People v Jamieson, 436 Mich 61, 95-96 (1990) (Cavanagh, J., concurring).
However, reverse buys do not constitute entrapment when the situation merely furnishes a defendant with the opportunity to commit a criminal offense, e.g., when a defendant purchases a controlled substance from a police officer. People v Butler, 444 Mich 965, 965-966 (1994).
Undercover at a Dispensary. Following the sale of marijuana to undercover officers in the parking lot of a marijuana dispensary, the defendant was convicted of delivery of marijuana in violation of MCL 333.7401(2)(d)(iii). People v Vansickle, 303 Mich App 111, 113 (2013). The trial court rejected the defendant’s entrapment defense, and the Court of Appeals affirmed. Id. at 115-116. The Court explained:
“The evidence established that defendant was not a target of the undercover investigation of the marijuana dispensary and that the officers were not familiar with defendant. Instead, the officers had contact with defendant by chance inside the marijuana dispensary’s waiting room. Defendant admitted that he was there to transfer his excess marijuana and obtain reimbursement for his expenses. Testimony indicated that before arriving at the marijuana dispensary, defendant had packaged the surplus marijuana that was at his home, placed it in his vehicle for transport to the marijuana dispensary, and traveled more than an hour with the specific intent of transferring the marijuana to the marijuana dispensary. While in the front waiting area, however, defendant discussed selling the officers some of his marijuana. When the officers indicated that they did not have enough money to purchase the quantity that defendant offered, he offered them a smaller amount. Although an officer ultimately suggested that they go outside to complete the transaction, defendant admitted that he felt uncomfortable discussing the transaction inside the marijuana dispensary ‘out of respect for the business.’ Once outside, defendant suggested that the men go to his truck, where defendant produced a digital scale and some marijuana and the transaction was completed.” Id. at 116.
The Court rejected the defendant’s claim that the officers induced him to sell them marijuana by engaging him in “friendly banter,” finding that the officers “did not appeal to the defendant’s sympathy, offer him any unusually attractive inducements or excessive consideration, or use any other means to pressure defendant to sell them marijuana.” Id. at 116-117. The Court further rejected the defendant’s claim that it was reprehensible for the officers to falsely pose as patients at the dispensary, noting that officials are permitted to use deceptive methods to obtain evidence of a crime and that the officers never showed the defendant their forged registry identification cards. Id. at 117.