We granted leave in this case to consider "whether the trial court clearly erred in dismissing on the basis of entrapment the charges of unlawful delivery of controlled substances that were brought against defendants." 431 Mich. 906 (1988). We subsequently directed the parties to submit supplemental briefs with regard to whether we should abandon the objective entrapment test in preference to the subjective test. 433 Mich. 1226 (1989). We have concluded that there is not sufficient justification or need to change a well-settled principle of law in this state. On the basis of the objective test, we would reverse the decisions of the lower courts in this case and hold, as a matter of law, that defendants were not entrapped.
Defendants, all Wayne County Jail guards, were
Following discussions with the jail administrator and the Wayne County Prosecutor's Office, Sergeant Booth was allowed ten days "to work a scheme" that would unveil guards who were participating in the unlawful delivery of narcotics into the jail. After considering other alternatives, the operation was instituted. Varner offered to cooperate with the sheriff's department in exchange for a thirty-day reduction in his sentence.
Sergeant Booth obtained a supply of cocaine and money from the United States Government Drug Enforcement Administration. The drugs and money were delivered to an undercover police officer who would deliver these items to the particular guard who would in turn deliver the items to the juvenile inside the jail.
The trial judge found that, as a matter of law, defendants were entrapped and accordingly dismissed the charges against defendants stating:
The Court of Appeals, citing its own precedent, stated that there is no prohibition per se against the use of such operations. Nonetheless, it affirmed the trial court's holding, concluding that it was not clearly erroneous. In support, the panel pointed to the trial court's finding that it was particularly reprehensible for the police to allow "a teenage convicted felon the unfettered power to orchestrate the entire operation" and to the trial court's finding that "the police not only supplied the drugs which gave rise to the crime, but also, through [Varner, the inmate], directed the entire operation." 168 Mich.App. 332, 338-339; 423 N.W.2d 655 (1988).
In order to reexamine the viability of the objective test for determining entrapment, we will first examine the development of the doctrine of entrapment and its evolution into two principal tests.
Although the doctrine of entrapment has a popular following, even extending, in the minds of speeders, to the motorcycle policeman hiding behind a billboard, the precise parameters of this defense and the standards for its application have
Entrapment has been defined as the "conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persuasion, or fraud of the officer." Sorrells v United States, 287 U.S. 435, 454; 53 S.Ct. 210; 77 L Ed 413 (1932). To determine whether entrapment has been established, a distinction is made between a trap for the "unwary innocent" and a trap for the "unwary criminal." Sherman v United States, 356 U.S. 369, 372; 78 S.Ct. 819; 2 L Ed 2d 848 (1958). There is no entrapment if a policeman merely furnishes an opportunity for the commission of a crime by one ready and willing to commit the activity. The mere fact of deceit will not defeat prosecution. United States v Head, 353 F.2d 566 (CA 6, 1965). The purpose of the defense of entrapment is to at least prevent unlawful government activity in instigating criminal activity. "The function of law enforcement is the prevention of crime and the apprehension of criminals.... [T]hat function does not include the manufacturing of crime." Sherman v United States, supra at 372.
The United States Supreme Court's rationale for an entrapment defense is grounded in an implied exception to criminal statutes.
The United States Supreme Court first recognized and applied the defense of entrapment in Sorrells v United States, supra. In Sorrells, the Court held that the defendant, who had sold a half-gallon of whiskey to a United States government probation officer, was entitled to a defense of entrapment because of the "repeated and persistent solicitation" by the agent. The Court noted that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises," but that government may not "implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Id. at 441-442. The controlling question is "whether the defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials." Id. at 451 (emphasis added).
Sherman v United States, supra, involved the selling of narcotics to a government informer who was being treated for narcotics addiction. The informant gained the trust of Sherman by sharing mutual experiences and problems in their attempt to overcome the apparent drug addiction. Because the informant was not responding to treatment, he asked Sherman to supply him with narcotics. Sherman tried to avoid the issue, but after repeated requests and the presumed suffering by the informant
Again, the United States Supreme Court focused on the state of mind of the offender. "`A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.'" Id. at 372 (citations omitted).
In United States v Russell, 459 F.2d 671, 673 (CA 9, 1972), the United States Ninth Circuit reversed the defendant's conviction because the actions of the law enforcement officers constituted an "intolerable degree of government participation in the criminal enterprise." The United States Supreme Court reversed the circuit court decision, upheld the principles enunciated in Sorrells and Sherman, and reaffirmed that the crucial element in the defense of entrapment was the defendant's predisposition to commit the crime. United States v Russell, 411 U.S. 423; 93 S.Ct. 1637; 36 L Ed 2d 366 (1973). The Russell Court stated that in "drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and limited
The decisions of Sorrells, Sherman, and Russell were reaffirmed in Hampton v United States, 425 U.S. 484; 96 S.Ct. 1646; 48 L Ed 2d 113 (1976). In Hampton, the defendant was convicted of the sale of narcotics and two counts of distributing heroin. The Court held that the defendant was predisposed to commit the crime. The lower court had instructed the jury that in order to convict the defendant you must "find that the Government proved `that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.'" Id. at 487.
In each of these four cases, the dissenters advocated an objective approach which shifts its focus from the defendant's state of mind to the conduct of the law enforcement officers. The rationale behind this test is that since the purpose of an entrapment defense is to prohibit reprehensible governmental methods and practices in the obtaining of a conviction, it should do so directly rather than indirectly. A defense under the objective approach is grounded on "`whether the police conduct revealed in a particular case falls below the standards, to which the common feelings respond, for the proper use of governmental power.'" Russell, supra at 441, quoting Sherman v United States at 382.
The defense of entrapment and the public policy supporting the rule has long been recognized in Michigan jurisprudence. See Saunders v People, 38 Mich. 218 (1878), People v McIntyre, 218 Mich. 540; 188 NW 407 (1922), and People v Sinclair, 387 Mich. 91; 194 N.W.2d 878 (1972). However, in People v Turner, supra, this Court renounced the subjective test followed by the United States Supreme Court and a majority of states, reasoning that the objective test is preferable because:
The Turner Court held that the defendant was entrapped as a matter of law. It stated that the agent engaged in overreaching conduct by pursuing the defendant after the first investigation did not turn up any evidence. Turner was not a drug dealer, and the agent played upon Turner's sympathy as a friend. The law enforcement officer went beyond merely creating an opportunity for the commission of a crime.
A California case, People v Barraza, 23 Cal.3d 675; 153 Cal.Rptr. 459; 591 P.2d 947 (1979), also provides a rationale for adopting the objective approach instead of the subjective test. The Barraza court stated:
Further the Barraza court gives examples of impermissible police conduct which would constitute
As a matter of practicality, in many instances the application of the two theories overlap. When applying the subjective test, to determine if the accused is predisposed, the court must consider the official's conduct. Predisposition is linked to the amount of inducement and pressure offered by an agent as well as how long the agent persisted before commission of the illegal act. Similarly, courts applying the objective approach use the state of mind of the accused as a factor. When applying the objective test, consideration is given to the willingness of the accused to commit the act weighed against how a normally law-abiding person would react in similar circumstances. Under either approach, courts adhere to the fact that the function of law enforcement is to deter crime and not to manufacture it. This tendency of both approaches is stated in the concurring and minority opinions of the principal cases which expressly apply the subjective approach. In Accardi v United States, 257 F.2d 168 (CA 5, 1958), the court recognized
In Russell, the United States Supreme Court noted that it might "some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction...."
The dissent broadens the definition of entrapment stating that "it is unnecessary in this case to restrict our definition of entrapment to situations in which the police risk overcoming the will of otherwise law-abiding citizens." (Post, p 105, ARCHER, J., dissenting.) By looking to what constitutes "reprehensible conduct" as to each particular individual or investigation, the dissent has obviously designed a defense that will encompass all police conduct that can or will in the future, on the basis of the shock level of an individual jurist, be considered "reprehensible." This approach fails to focus on the purpose of the objective test, which is to prohibit police conduct that is, in an objective sense (not in individual cases), likely to encourage the commission of crime that would not otherwise have been committed.
The dissent further confuses the precise definition of the entrapment defense.
The dissent does not favor us with a description of what individual liberties have been sacrificed. It does not suggest that defendants who have been entrapped did not wilfully commit the elements of the crime, nor is there any suggestion in this case or in entrapment cases generally that constitutional or statutory rights of defendants or anyone else were violated. The dissent sets forth the inarguably correct and sage advice of Justice Thurgood Marshall that while "`the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great.'" (Post, p 104, ARCHER, J., dissenting.) While then disavowing that there is any unconstitutional excess in the case before us, the dissent analogizes to an exercise in vigilance "against excess in our criminal justice system." (Post, p 104, ARCHER, J., dissenting.) We respectfully suggest that our vigilance should also be against judicial excess which sees in the entrapment defense an opportunity to engage in far-reaching supervision of police investigative techniques and procedures unrelated to the driving force of the objective entrapment test which is whether such police conduct has as its probable and likely outcome the instigation rather than the detection of criminal activity. The dissent's view of the objective entrapment test has disregarded the fact that police work does not constitute entrapment merely because it is labeled reprehensible or utterly indefensible; rather, it is reprehensible and utterly indefensible when, in the words of Justice Potter Stewart, "the governmental agents have acted in such a way as is likely to instigate or create a criminal
Because the entrapment test by its nature does not invoke a determination of the guilt or innocence of the defendant, but rather the means by which the defendant's involvement was secured and its effect on the will of the offender, its precise theoretical underpinnings have been difficult to discern. Both tests have as their purpose the eradication of convictions that result more from law enforcement invention than from law enforcement detection. The extremes range from a need for the courts to supervise the activities of another branch of government to the need only to determine whether the offender was influenced by unsavory law enforcement techniques. The objective test looks for and condemns those police methods that are more likely to result in the motivation of criminal activity without regard to whether the offender at hand was predisposed to criminal activity, whereas the subjective test focuses on the offender to determine whether there was actual predisposition, regardless of the law enforcement measures employed.
In our view, each test has its flaws. The objective test has two. First, it encourages the courts to play a supervisory role over another branch of government, not to determine whether there has been illegal or unconstitutional practices engaged in by law enforcement, but, as will be seen in the case before us, whether the law enforcement technique was "reprehensible." This often requires the courts to second-guess investigative techniques and law enforcement alternatives for which they obviously
By the same token, the subjective test, in focusing on the predisposition of the defendant, suffers, theoretically at least, in going beyond the statutory requirement of guilt to find mitigating circumstances (not otherwise guilty) that logically speaking should not interfere with a finding of guilt. The subjective test also has the flaw of all subjective tests: attempting to determine the workings of the human mind in an individual situation.
We are encouraged by the aforementioned indications that there is some overlapping in application between the two tests and that the best of each can, to some extent, be utilized.
It is not necessary for us to announce today what we would do if we were operating on a clean slate, because we are not. Under the doctrine of stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction become precedent which should not be lightly departed.
We do not, however, find this Court's commitment to the objective test to be so undermined by time or circumstances that it should be discarded. We have been persuaded by the arguments on rehearing and by our own review of the law that stare decisis should carry the day.
We now turn to the application of the objective test to these cases.
When an accused claims entrapment, the trial court must conduct a separate evidentiary hearing to resolve the issue. The defendant bears the burden of proving by a preponderance of the evidence that law enforcement officials engaged in reprehensible behavior to obtain a conviction. The facts of each case must be examined to determine whether, under the circumstances, the governmental activity would induce a hypothetical person not ready and willing to commit the crime to engage in criminal activity. The trial judge's findings on the issue are subject to appellate review under the clearly erroneous standard. People v D'Angelo, 401 Mich. 167, 183; 257 N.W.2d 655 (1977).
In these cases the trial court found, as a matter
(2) the state considered no alternative plans;
The particular law enforcement strategy to be used in any given circumstance to detect crime should be left to the discretion of law enforcement officials. It is almost an impossible, if not inappropriate, task to define the appropriate professional standards over which a separate branch of government should operate. It is, however, the primary responsibility of courts to protect the integrity of the judicial system when, in furtherance of a conviction, conduct which rises to an outrageous and reprehensible level, as defined by the entrapment defense, is used.
We conclude that in these cases the lower court's findings merely serve to suggest that the
It is not for us to judge if the scheme or plan employed was the best or most effective way to detect criminal behavior. Thus, the fact that no alternative plans were considered prior to the implementation of the sales operation in this case is irrelevant when evaluating a defense of entrapment. The focus in cases involving entrapment has been on whether the specific police conduct under review was reprehensible, as defined by the entrapment defense, and not whether the police would have been wise to employ other tactics. The question of entrapment centers on whether the police conduct served to manufacture rather than investigate the crime in question — not whether alternative means might have produced a perfect investigation.
In practice, government undercover activity may be the only way to detect some criminal acts carried on in secret. An official may employ deceptive methods to obtain evidence of a crime as long as the activity does not result in the manufacturing of criminal behavior. In fact, "in drug-related
In these cases, the Wayne County Sheriff's Department was approached by an inmate who informed it of criminal activity at the jail involving prison guards. The evidence disclosed that the informant had witnessed ongoing criminal activity, observed contraband coming into the jail, and had been approached by some of the guards about delivery of drugs to him inside the jail. It was the informant who approached the sheriff's department, hoping for a reduction in his sentence — not the police who sought out informants for the purpose of developing criminal activity. The government did not, as the dissent suggests, "invent the crime." (Post, p 108, ARCHER, J., dissenting.) Rather, the sheriff's department merely decided to act upon information received from an inmate.
The defendants and the dissent assert that it was error to use an "adolescent" informant who
The transaction involved very limited contact and was a one-time occurrence resulting in the arrest of defendants. The informer was not called upon to repeatedly solicit the targets in order to complete the transaction.
In fact it was the police who secured the drugs, money, and outside contacts. The informant's only discretion and role was to inquire of his guards whether they would serve as couriers for his purported drug need. The defendants are all prison guards with control over inmates, not vice versa. If correctional officials play the role we all expect of them, then defendants were under no pressure to please inmates under their charge. On the record before us, the case simply cannot be made that this sixteen-year-old inmate preyed upon the weaknesses of his captors to the extent that they would be induced beyond a readiness to make contact
Some emphasis was placed on the fact that the juvenile informer was left unprotected and unsupervised. We know of no rule of law or prison administration which would require that the government provide protection or supervision for those who volunteer to act as informants for the government.
Defendant tries to distinguish this case from People v Roy, supra, on the ground that the sheriff herein used actual cocaine rather than a facsimile in the operation. Without the use of actual cocaine there would have been a missing element of the crime.
The dissent presents a very thorough evaluation of cases from other jurisdictions that have found similar drug transactions where the government furnishes an element of the offense as amounting to police overinvolvement in criminal activity. We note first that the authority relied on by the dissent is not binding on this Court and that evaluation of this type of drug sales operation is an issue of first impression for this Court. Further, the federal cases relied upon by the dissent extend its analysis beyond the entrapment defense to either unlawful or unconstitutional action. Neither unlawful nor unconstitutional governmental action requires the entrapment defense for its eradication.
Michigan has described itself as being "at the forefront in protecting persons from being convicted of a crime which was instigated, induced or manufactured by a government agent." People v White, 411 Mich. 366, 387; 308 N.W.2d 128 (1981). Since Turner, when the objective test was adopted, this Court has only ruled on its application in four cases. However, our Court of Appeals has had many occasions to rule on the issue, and, accordingly, a body of common law has developed in this state to define the standards and boundaries of the defense.
The cases relied upon by the dissent do not compare factually with the uniqueness of the facts of these cases. Although in each case cited by the dissent the government either acted on both sides of the criminal transaction or supplied contraband, the defendants did not have the same status as the prison guards in these cases. For example, we question whether the outcome in United States v Bueno, 447 F.2d 903 (CA 5, 1971), would have been the same if the defendant had been a customs official. The average individual would have a difficult, if not impossible task, unlike a guard, of transporting narcotics into a correctional facility. We find that reliance upon the common law of other jurisdictions, while persuasive, is unnecessary to reach a determination in this case.
An evaluation of police investigative techniques and procedures cannot be made without reference to the particular nature of the various categories of criminal infractions. The government's role in providing actual contraband is an example of an investigative technique that responds to the nature of this particular type of criminal violation.
It is questionable whether the judicial rhetoric over the years about "reprehensible law enforcement" could have flowed so easily in early opinions had the drug phenomenon existed a century ago. For instance, in Saunders v People, supra, our most distinguished predecessor bench described as "scandalous and reprehensible" certain law enforcement conduct that today would be considered
A review of the common law of this state shows that discretionary investigative enforcement measures extend beyond a tolerable level when by design the government uses continued pressure,
We conclude that the furnishing of contraband
Finally, the trial judge expressed concern over the fact that there was insufficient police control over the entire operation.
By way of example we distinguish this case from People v Duis, 81 Mich.App. 698; 265 N.W.2d 794 (1978), where the Court of Appeals found entrapment as a matter of law. Although the panel stated that the informant was not adequately supervised and was allowed to select the victim, a proper reading of the opinion suggests that the overreaching by the police was the result of the employment of the informant. The police contacted the informant because he was in a vulnerable position and they knew he could contact drug dealers. Further, the police had not focused on any specific drug dealers under investigation.
While this case presents heavy governmental involvement in supplying the drugs, the money, and the informant, it only differs in degree from the normal supply of either money or drugs in a more routine drug transaction.
The dissent suggests that had the officers in this case had reasonable suspicion regarding any of the particular targets, the scheme employed may have been less reprehensible. What the dissent is actually implying is that society is less likely to be offended by police conduct that entraps the predisposed individual. Such a position is exactly what the opponents of the objective test criticize it for and in fact argues in favor of the subjective test.
While the dissent criticizes our approach as too narrowly confining the defense, its application extends too broadly. The Turner Court clearly stated that a defendant's past criminal propensities were not to be considered under an objective evaluation. Thus, to even suggest that the police need reasonable suspicion before institution of a plan to detect and prevent crime is to take the objective test beyond its appropriate limits.
The targets were not unwary or vulnerable. To the contrary, they were trained in law enforcement, sworn to uphold the law, and spent their working days in a most controlled environment in which they were in charge. The plan to uncover the reported source of drugs in the jail did not prey on human weakness (it is hoped that transporting drugs into a jail by correction officers is not seen as a normal human weakness) or friendship or the use of authority to intimidate. Law enforcement corruption is not, and should not be, taken lightly when reported, and more often than not requires painstaking investigation to uncover. As has been noted by many courts and observers of the entrapment phenomenon, it is difficult to set forth precisely a definition of the kind of law enforcement measures that shock the sensibilities of the courts. But whatever it may be, this case does not present it.
We would hold that the trial court's finding of entrapment under the objective theory was clearly erroneous. The government conduct in this case does not violate any public policy of this state and did not amount to governmental manufacturing or inducement of criminal behavior. The police activity served only to provide an opportunity for defendants to engage in criminal activity.
CAVANAGH, J. (concurring).
I concur with the lead opinion because it comports with this Court's past interpretations of the objective test of entrapment. The lead opinion states that "[the test of entrapment is] whether, under the circumstances, the governmental activity would induce a hypothetical person not ready and willing to commit the crime to engage in criminal activity." Ante, p 80. Similar language appears in the Model Penal Code, § 2.13, p 405, and in Justice Stewart's dissent in United States v Russell, 411 U.S. 423, 445; 93 S.Ct. 1637; 36 L Ed 2d 366 (1973). The term "ready and willing to commit the crime," however, does not necessarily require that a court applying this objective test look to the state of mind of the accused. The Utah Supreme Court in State v Hansen, 588 P.2d 164, 166 (Utah, 1978), construed the same phrase from a statute based upon the Model Penal Code as "expressly recogniz[ing] both [the] concepts" of the objective test and the subjective tests. But Hansen misreads the language of the Model Penal Code as the Utah Supreme Court later held in State v Taylor, 599 P.2d 496 (Utah, 1979). The defense of entrapment, as formulated under the objective approach is available even to defendants who are ready and willing to commit the crime, so long as the "conduct of the government" fails to comport with "a fair and honorable administration of justice." Id. at 500.
The dispositive inquiry under the objective test of entrapment in Michigan is not whether the crime was caused by, or was the product of, the creative activity of law enforcement officials, but whether the crime was committed at the instigation of "reprehensible" police conduct.
Taylor illustrates the need to adopt a version of the objective test that does not define the reprehensibility of police conduct by reference to the personality traits of a hypothetical law-abiding citizen.
Turning to the question whether the actions of the police and their agents constitute entrapment in this case, I begin with the principle that affording a person an opportunity to commit an offense does not ordinarily constitute entrapment unless (1) the circumstances indicate that such an opportunity would not normally be presented or (2) the mere furnishing of the opportunity requires the
Thus, even if the police did not have probable cause to believe that Wayne County Jail guards were actively smuggling drugs to inmates, an undercover police officer could pose as a jail inmate and make offers to jail guards to buy drugs. Such an undercover operation would not constitute entrapment under the objective test. Our jails are filled with former drug addicts and dealers. While it is reasonable to assume that jail inmates are actively seeking to buy drugs from any available source, no similar assumption is justified with regard to citizens in the general population.
In a jail setting, however, I would permit a prosecution of guards trafficking in drugs, where the government supplies contraband to a jail or prison guard to be delivered to an inmate inside a correctional facility. See, e.g., People v Roy, 80 Mich.App. 714; 265 N.W.2d 20 (1978), and People v Duke, 87 Mich.App. 618; 274 N.W.2d 856 (1978). Even where a "take-back" sale of drugs to jail guards has been found to constitute entrapment, see, e.g., People v Stanley, 68 Mich.App. 559; 243 N.W.2d 684 (1976), the Court below refused to adopt a rule prohibiting all government transfers of drugs per se on entrapment grounds.
This case is different than Stanley because the "take-back" sale occurred in the jail as an effort to target jail guards who acted as "couriers" delivering
Normally, the fact that a minor, acting as a police agent, was given unsupervised power to select the targets of the "sting" operation would be a factor that would weigh in favor of a finding of entrapment under our objective test. The actions of the informant in this case, however, occurred in a jail setting where the police have the ability to closely monitor the situation to guard against dangers as they develop. Given the controlled setting in which the "take-back" sales took place, I conclude that the unsupervised activity of the informant does not present dangers that make the police action at issue here "reprehensible."
Thus, on these unique facts, I concur in the result reached in the lead opinion.
LEVIN, J. (concurring).
I concur in the adherence to the objective theory of entrapment and in the reversal. Having in mind that prisoners are not at liberty to communicate with authorities or persons in the "free world" without running the risk of detection, and that they are vulnerable to oppression by their overseers
GRIFFIN, J. (concurring in part and dissenting in part).
Although I concur in the result reached by the majority, I wish to register my disagreement with use of the so-called "objective" test as the basis for resolving claims of entrapment.
Unless police conduct in a given situation is so reprehensible as to violate constitutional standards imposed by the Due Process Clause,
ARCHER, J. (dissenting).
Defendants were charged with one count of delivery of less than fifty grams of cocaine, pursuant to MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). Detroit Recorder's Court Judge Michael F. Sapala dismissed the charges, finding that the defendants had been entrapped as a matter of law. The Court of Appeals affirmed. We granted leave to appeal to consider whether the trial court erred in finding that the defendants had established a defense of entrapment.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from a 1985 undercover operation undertaken in the Wayne County Jail. In the fall of 1985, Quinton Varner, then a sixteen-year-old inmate, informed Wayne County Jail officials that an unspecified number of deputy sheriffs assigned to guard duty at the jail were smuggling
The plan required Varner to approach jail guards of his own choosing with a request that they transport into the jail cocaine from a source outside the jail whom Varner would identify. Upon a guard's agreement to provide the narcotics, Varner typically would obtain a home phone number. He would later call the guard from the office of Wayne County Jail officials who monitored the conversation. Upon obtaining a supply of authentic cocaine from a third-party undercover officer posing as the supplier, the guards would then deliver the drugs to Varner in exchange for payment. After receiving the narcotics, Varner eventually delivered the cocaine to jail officials overseeing the undercover operation. Varner was not told
As a result of the undercover operation, the five defendants, Wayne County sheriff's deputies, were charged with one count of possession with intent to deliver cocaine. In return, Varner received the agreed-upon thirty-day reduction in his jail term.
The defendants' cases were consolidated to determine whether the undercover operation constituted entrapment as a matter of law. As a result of a lengthy evidentiary hearing, Judge Sapala, on March 27, 1986, issued a detailed opinion concluding that the undercover operation violated the objective standard of entrapment adopted by this Court in People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973). The trial court stated in relevant part:
In the cases before us:
(2) the state considered no alternative plans;
The prosecutor appealed, and the Court of Appeals affirmed.
I concur in the portion of the lead opinion which reaffirms this state's adherence to the objective theory of entrapment, though my reasons for leaving the law unchanged are broader than the stare decisis principles cited by the lead opinion. The principles which steered us in our affirmation of the objective test in People v Turner are equally, if not more, applicable today, because its primary purpose is the discouragement of law enforcement overreaching and "reprehensible" police conduct. In today's climate, the unchecked fury of a vital war on drugs creates many incentives for police to sacrifice individual liberty in an effort to catch criminals, particularly drug traffickers we can call predisposed. Now, more than ever, our courts need a mechanism by which they can assure that law enforcement conduct does not "fall below standards, to which common feelings respond, for the proper use of governmental power." Sherman v United States, 356 U.S. 369, 382; 78 S.Ct. 819; 2 L Ed 2d 848 (1958) (Frankfurter, J., concurring in the result).
The task of destroying illicit narcotics trade obviously requires not only artifice and police deception, but continuous law enforcement creativity. It is indisputable, however, that in a society
While the issue in this case does not involve "unconstitutional excess," it nevertheless calls on this Court to exercise vigilance against excess in our criminal justice system. I join in affirming this Court's adherence to the objective theory of entrapment because our courts cannot countenance reprehensible police conduct.
I agree with the lead opinion that the major thrust of the entrapment defense in Michigan is to discourage police misconduct which creates the risk that otherwise reasonable, law-abiding citizens will be enticed into violating the law. The government "may not provoke or create a crime and then punish the criminal, its creature." Casey v United States, 276 U.S. 413, 423; 48 S.Ct. 373; 72 L Ed 632 (1928) (Brandeis, J., dissenting).
It is under this definition of entrapment that I believe entrapment occurred in this case. By supplying the scheme, the means, the opportunity, and the controlled substance, the police manufactured
However, it is unnecessary in this case to restrict our definition of entrapment to situations in which the police risk overcoming the will of otherwise law-abiding citizens. In People v Turner, supra at 22, we stated that the "real concern" in entrapment cases is "whether the actions of the police [are] so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand." "Reprehensible" conduct need not be conduct that would induce a law-abiding reasonable person to commit crime. The definition of entrapment set out in Turner condemns any "reprehensible" police conduct which "public policy" requires a court to condemn.
My opinion that the undercover scheme employed here involved such government overinvolvement as to impermissibly manufacture crime is sufficient to affirm the lower courts. However, I also agree that other "reprehensible" elements of this scheme were appropriately found to violate public policy and lead to entrapment, such as the introduction of actual narcotics into the jail
In nothing that Michigan's entrapment defense is designed to protect our courts from the taint of any "reprehensible" police conduct, I do not, as the lead opinion suggests, "design" a new defense. Ante, p 76. This Court's first pronouncement of an entrapment defense in Saunders v People, 38 Mich. 218, 223 (1878), condemned the police conduct there involved as "scandalous and reprehensible," though it was clear that the police did nothing to risk the instigation or creation of a criminal offense by a hypothetical reasonable person.
Likewise, when this Court adopted the objective entrapment defense in Turner, we clearly did not limit its application as the lead opinion attempts to do today. Commentators interpreting Turner have specifically noted that this Court defined entrapment as both conduct likely to instigate criminal behavior from a "reasonable person" and conduct which, from a broader policy perspective, is otherwise "reprehensible." See 1976 Annual Survey of Michigan Law, Grano, Criminal Procedure, 23 Wayne L R 517, 555-556 (1977); note, The Michigan entrapment defense: Review and analysis, 61 J of Urban L 287, 295-296 (1984).
I agree that the standards defining entrapment often shift with the status of the defendant. For example, it would certainly constitute entrapment if undercover police officers tried to entice recovering addicts with narcotics at the entrance of a substance abuse clinic, while an attempt to sell drugs in a corporate office known to harbor narcotics activity would present a much closer question. The difference between those two scenarios has little, if anything, to do with the instigation of criminal activity by those "not ready and willing to commit it." In fact, recovering addicts might be the class of individuals most likely to commit a narcotics crime. Rather, the first scenario, far more than the second, involves a completely inappropriate attempt to prey on the weakness of a target. That element makes the scheme "reprehensible" because it "falls below standards, to which common feelings respond, for the proper use of governmental power." Sherman at 382. It is reprehensible because societal standards, or "common feelings" would regard such governmental activity as wholly inappropriate, not because it risks overcoming the will of a hypothetical reasonable person.
The task of defining which police conduct is
The most significant flaw in the lead opinion's analysis lies in its failure even to adequately distinguish the significant body of case law that has found undercover schemes both "reprehensible" and "outrageous" where the police supply contraband to an intermediary who is arrested after delivering the contraband back to a government agent. As Professor Paul Marcus notes in his volume on entrapment law, "[s]ome of the most strongly worded condemnations of police conduct are found in cases involving so-called `take-back' sales." Marcus, The Entrapment Defense, § 3.03, p 99.
Perhaps the most compelling condemnation of schemes in which the government supplies drugs and invents the crime appears in the dissenting opinion of Hampton v United States, 425 U.S. 484; 96 S.Ct. 1646; 48 L Ed 2d 113 (1976), the opinion of the Supreme Court which should carry the most
Hampton is practically indistinguishable from this case. In Hampton, as here, it was not only the government supplying the drugs that Justice Brennan found reprehensible, it was also the governmental instigation of the delivery that manufactured the crime. In this case, the government not only supplied the cocaine and placed it in the defendants' possession, but the government first approached the defendants, asked them to transport the drugs, told them when and where to receive the drugs, and told them how and to whom to deliver them. The lead opinion's claim that the government's actions here were "insufficient to induce or instigate the commission of a crime," ante, p 90, simply exceeds the bounds of reason. The only thing the government failed to do to instigate the delivery of cocaine was to chauffeur the defendants personally to the Wayne County Jail.
Applying the objective element of its "hybrid"
The Supreme Court of Mississippi quoted extensively from Talbot in Sylar v State, 340 So.2d 10 (Miss, 1976). In that case, an undercover agent convinced the defendant, after several requests, to take a package of marijuana from the first agent and deliver it to a second agent. "Sylar was made a mere conduit to hand marijuana supplied him by one state agent to another state agent...." 340 So.2d 11. The court ruled that Sylar was entrapped and reversed the conviction.
The Alaska Supreme Court, also applying the objective theory of entrapment, had a similar view:
In each of these cases, the courts focused on the reprehensibility of police supplying the contraband and the fact that the government was the architect of the illegal activity. None of the cases discussed the status of the defendants as the lead opinion does here. Rather, they focused on the nature of the government's conduct, as the objective test requires, and found no justification for law enforcement creation of new crimes. Whether the defendants were private citizens or law enforcement personnel, obviously, had nothing to do with whether the government created a crime where one would not have otherwise existed. Therefore, the primary basis offered by the lead opinion by which to distinguish this authority — the status of the defendants — does nothing to distinguish these cases.
After the Supreme Court ruled in Hampton that the subjective entrapment defense might permit a reversal of a predisposed individual's conviction only upon a showing of "outrageous" police conduct,
Even courts that apply the subjective theory of entrapment have reversed convictions of defendants who were snared as a result of undercover
In Bueno, the United States Court of Appeals for the Fifth Circuit overturned a conviction for delivery of drugs where the defendant was enticed by a government informer to participate with him in a
The court stated that a scheme in which the government buys heroin from itself "greatly exceeds the bounds of reason," id. at 905, and held that the defendant was entrapped.
The cases cited above represent a small number from other jurisdictions which have noted the existence of an entrapment or "governmental misconduct" defense where the government supplied both the scheme and the means by which crimes were committed. See also United States v Mahoney, 355 F.Supp. 418, 423, 426-427 (ED La, 1973); United States v Chisum, 312 F.Supp. 1307, 1312 (CD Ca, 1970); People v Strong, 21 Ill.2d 320, 325-326; 172 N.E.2d 765 (1961); State v Sainz, 84 N.M. 259, 261; 501 P.2d 1247 (1972); Lynn v State, 505 P.2d 1337, 1342 (Okla Crim App, 1973); United States v Oquendo, 490 F.2d 161, 161-162, 164 (CA 5, 1974); United States v Hayes, 477 F.2d 868, 872-873 (CA 10, 1973); United States v Rodriquez, 474 F.2d 587,
The overwhelming number of cases that have condemned police investigations in which the police supply the plans and means for the commission of a crime challenges the lead opinion's claim that "it is difficult to set forth precisely a definition of the kind of law enforcement measures that shock the sensibilities of the courts." Ante, p 93. These cases present us with just such a definition — when the police supply a plan and the means for the commission of a crime, they have engaged in conduct which courts will not countenance. These cases clearly illustrate "standards, to which common feelings respond, for the proper use of governmental power." Sherman at 382. They define the government action here as entrapment.
Our Court of Appeals, employing the objective theory, has also criticized undercover schemes in which the government is both the supplier and ultimate recipient of narcotics. Citing Bueno and West, the Court held that such a scheme constituted entrapment in People v Stanley, 68 Mich.App. 559, 564; 243 N.W.2d 684 (1976).
The Court ordered the case remanded for a hearing to allow the defendant a chance to prove his claim that the drugs he was convicted of selling to an informer were supplied to him by that same informer. As the lead opinion points out, however, another panel of the Court of Appeals in People v Roy, 80 Mich.App. 714; 265 N.W.2d 20 (1978), held that an undercover operation in which government agents operate on both ends of a supposed drug transaction is not entrapment per se. Whether such a scheme constitutes entrapment depends on the facts of each case.
The differences in the facts of Roy and Stanley illustrate the element of these types of undercover schemes that makes many such operations "reprehensible": Impermissible undercover schemes manufacture crime. In Stanley, the defendant alleged that law enforcement officials instigated the narcotics transactions for which he was convicted. In Roy, however, the Court found it significant that the investigation focused on an ongoing drug smuggling operation, and, further, that specific individuals had been identified as targets already involved in the drug trade before beginning the undercover operation.
Thus, while schemes in which the government is both the purchaser and seller of drugs do not constitute entrapment per se, they can lead to entrapment when they involve government manufacture or instigation of crime. An undercover scheme is permissible when it is used as a means to investigate ongoing crime, but "the Government
The lead opinion simply fails to distinguish the substantial body of authority from federal and state courts which has condemned as impermissible government manufacture of crime undercover operations in which the police provide both the contraband and the plan by which a defendant commits a crime. The bottom line in all these cases is the government manufacture of crime. This government manufacture of crime violates objective entrapment principles because it creates the substantial risk that persons uninvolved in criminal activity and otherwise unwilling to engage in criminal activity will be enticed into playing a role in a governmentally instigated crime. When Quinton Varner was turned loose in the Wayne County Jail, the government created the risk that sheriff's deputies who had never engaged in the jailhouse drug trade or contemplated doing so might be enticed to violate the law.
The lead opinion ignores the element of government instigation when it equates the undercover scheme in this case with an ordinary "drug transaction." Ante, p 91. In an ordinary drug transaction, an undercover officer purchases narcotics from a person who is already in illegal possession of the drugs or, in some instances, undercover officers might sell actual or facsimile narcotics to a
At the heart of this scheme was precisely the "intolerable conduct" condemned in West. "[I]t puts the law enforcement authorities in the position of creating new crime for the sake of bringing charges against a person they had persuaded to participate in wrongdoing." 511 F.2d 1085. Instead of investigating criminals and arresting them, the police here created criminals and arrested them. Their scheme did not merely create an opportunity for these defendants to involve themselves in wrongdoing, they hatched an illegal plot and provided the illegal substances. In the name of stemming the flow of narcotics into the jail, they created new avenues for the transportation of the substance in order to arrest the new conduits. Instead of taking the time and effort to discover the preexisting channels by which cocaine entered the jail, the police allowed a sixteen-year-old felon to create new channels that they could then arrest.
While I agree with the Court of Appeals in Roy that not all undercover schemes in which the government is both the supplier and recipient of contraband are entrapment per se, there are three elements to the scheme employed here which the
First, in the name of stemming the flow of narcotics into the Wayne County Jail, the police officers sent actual narcotics into the jail when a facsimile of the drug would have been sufficient. Allowing actual narcotics to travel into the jail and remain for a period of time in the possession of a sixteen-year-old inmate was a risk not justified, given the obvious reason for using actual drugs: The police wished to catch the guards committing the greater felony of delivery, rather than the lesser felony of attempt.
Second, and more important, it was unreasonable for the police officers in charge of this investigation to vest in Quinton Varner, a sixteen-year-old felon, the unfettered power to choose the targets of the operation. The lead opinion is correct in pointing out that the informers upon whom the police necessarily depend are seldom model citizens. However, in this undercover operation, Quinton Varner was far more than an informer.
In People v Duis, 81 Mich.App. 698, 702-703; 265 N.W.2d 794 (1978), the Court of Appeals ruled that allowing an informer unfettered discretion to select the targets of an undercover operation constituted reprehensible police conduct.
The circumstances of this case present facts more reprehensible than those in Duis. As an adolescent, Quinton Varner lacked the maturity that would justify giving him the ability to select which individuals he would try to subject to prosecution for a felony carrying a twenty-year penalty. Nor should he have been trusted to approach his targets in a manner mindful of the rights of those individuals.
It was particularly unreasonable to allow an inmate to select the targets of an undercover operation inside a penal institution. The society inside a jail or a prison is highly fractured; individuals within such institutions, particularly individuals engaged in illicit activities, often develop intense loyalties for those whom they consider friends, and strong distrust and dislike for those perceived as enemies. When the police officers allowed Quinton Varner to select the targets of the operation, they must have recognized the probability that Quinton Varner would be selective in his work. Rather than constructing an operation that would capture those guards already engaged in illicit drug trade and, it would be hoped, those at the center of that trade, the police officers created a situation in which Quinton Varner was allowed to subvert any individual he wished, without regard to that individual's previous involvement in the drug trade. Meanwhile, Quinton Varner was free to leave untouched those individuals whom he chose not to see arrested, regardless of whether those individuals were amongst those
Third, the trial court noted the unreasonableness of allowing Quinton Varner to approach particular guards of whom the police had no reasonable suspicion.
The question whether police officials require either reasonable suspicion or probable cause prior to the institution of an undercover operation has been considered on several occasions within this jurisdiction. In People v Wright (On Remand), 99 Mich.App. 801, 817; 298 N.W.2d 857 (1980), the Court of Appeals determined that police officials do not need probable cause prior to beginning an undercover investigation. See also People v Killian, 117 Mich.App. 220, 223; 323 N.W.2d 660 (1982).
I agree that under the subjective theory of entrapment, the issue of reasonable suspicion is irrelevant to a defendant's predisposition to commit a
It is not a necessary condition precedent, nor would it be a pragmatic requirement that law enforcement agencies establish reasonable suspicion regarding each and every suspect prior to commencing an undercover operation. However, in this case, the trial court was correct in ruling that among the factors making the police conduct reprehensible was the lack of reasonable suspicion with regard to any defendant.
The trial court's judgment in this case should be upheld unless it is clearly erroneous.
I am left with the "definite and firm conviction" that the lead opinion overlooks this standard of review. The trial court found that the defendants were entrapped in a scheme in which they were merely conduits for drugs supplied by and delivered to the government, in which the police introduced actual narcotics into the Wayne County Jail, and in which a sixteen-year-old felon was allowed to select the targets of the scheme regardless of the absence of any reasonable suspicion with regard to any particular defendant. In coming to its decision, the trial court relied upon binding precedent in this state, Turner, Stanley, Roy, and Duis, and its decision is firmly in line with the decisions of the courts of other jurisdictions. This decision was scarcely clearly erroneous; I believe it was clearly correct. I would affirm.
Beyond the fact that much of the above analysis examines the subjective predisposition of possible targets, selective enforcement is a criticism that is common to our entire system of criminal jurisprudence. As one commentator writes:
Short of these conclusory statements, the dissent has not made a single palatable argument that the conduct that was engaged in to uncover the crimes of which the defendants have been convicted amounted to conduct that, according to authority cited by the dissent would create a "risk that otherwise reasonable, law-abiding citizens will be enticed into violating the law." (Post, p 104, ARCHER, J., dissenting.)
Although a plurality in Hampton v United States, 425 U.S. 484; 96 S.Ct. 1646; 48 L Ed 2d 113 (1976), would have made the due process defense unavailable to a predisposed defendant, a majority of the justices expressly disagreed. Subsequently, lower federal courts have recognized the viability of the due process defense. See, e.g., United States v Bradley, 820 F.2d 3 (CA 1, 1987); United States v Dyman, 739 F.2d 762 (CA 2, 1984), cert den 469 U.S. 1193 (1983); United States v Twigg, 588 F.2d 373 (CA 3, 1978); United States v Hunt, 749 F.2d 1078 (CA 4, 1984), cert den 472 U.S. 1018 (1985); United States v Tobias, 662 F.2d 381 (CA 5, 1981); United States v Brown, 635 F.2d 1207 (CA 6, 1980); United States v Belzer, 743 F.2d 1213 (CA 7, 1984), cert den 469 U.S. 1110 (1985); United States v Mazzella, 768 F.2d 235 (CA 8, 1985), cert den 474 U.S. 1006 (1985); United States v Prairie, 572 F.2d 1316 (CA 9, 1978); United States v Spivey, 508 F.2d 146 (CA 10, 1975), cert den 421 U.S. 949 (1975); United States v Kelly, 228 US App DC 55; 707 F.2d 1460 (1983), cert den 464 U.S. 908 (1983).