This appeal concerns the defense of entrapment.
On November 25, 1975, Gordon Pascu sold one half ounce of heroin to Phillip Geiger and James Blair. Geiger and Blair were police agents.
Following his indictment, Pascu's attorney sought a pre-trial hearing on his claim of entrapment.
On appeal, Pascu first contends that Justice Rabinowitz erred in denying his claim of entrapment. We agree and reverse his conviction on that ground.
In Grossman v. State, 457 P.2d 226, 227 (Alaska 1969), we noted that "the underlying basis of [the defense of] entrapment is found in public policy," quoting Judge Learned Hand's remarks in United States v. Becker, 62 F.2d 1007, 1009 (2d Cir.1933), "The whole doctrine derives from a spontaneous moral revulsion against using the powers of government to beguile innocent, though ductile, persons into lapses which they might otherwise resist." Adopting an "objective test," we held, in Grossman, that permissible inducements on the part of law enforcement officials "should be limited to those measures which, objectively considered, are likely to provoke to the commission of crime only those persons, and not others, who are ready and willing to commit a criminal offense." 457 P.2d at 229. We described the objective test as follows:
Id. (footnote omitted).
Since announcing our decision in Grossman we have come to realize that
With these basic principles in mind we turn to the facts in the instant case.
Pascu, a heroin addict, testified that he had known Blair for four or five years, and that they were good friends. On November 25, 1975, Blair contacted him and asked Pascu to buy heroin for him. According to Pascu, Blair "said that he was sick and that he needed a fix."
According to Pascu, Blair continued with his efforts to persuade Pascu to obtain heroin for him, doing so "a number of times"; he reminded Pascu that they had been friends for a long time and that he had done similar favors for Pascu in the past when Pascu had been "sick."
Blair also offered Pascu a share of the heroin, sufficient to alleviate Pascu's own withdrawal pains:
Eventually, Pascu yielded and entered into the transaction leading to his indictment and conviction.
We hold that the evidence presented was sufficient to establish the defense of entrapment, and that Justice Rabinowitz erred in ruling to the contrary. We believe such evidence, viewed objectively, shows a degree of inducement going well beyond the limits of permissible police conduct described in Grossman v. State, supra. Thus, Pascu's conviction must be reversed.
It is quite clear from the record before us that Blair played heavily on his close personal friendship with Pascu, making repeated appeals to Pascu's sense of obligation and sympathy. In addition, Blair took advantage of Pascu's own addiction and withdrawal pains by offering to give him enough heroin to "make him well."
We are firmly convinced that law enforcement officials can, and often must, employ deceptive measures in order to detect and apprehend those engaged in criminal conduct, particularly in the area of narcotics. Thus, it is quite proper for the police to provide the opportunity for one engaged in criminal activities to ply his trade. See, e.g., McKay v. State, supra note 10. However, we also subscribe to the view that officials cannot "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." Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413, 417 (1932).
In order to allow the state an opportunity to present its evidence on the issue of entrapment, this matter is remanded to the superior court. After hearing such evidence as may be presented, the superior court shall resolve any factual conflicts that may arise as a result of that evidence, and thereafter redetermine the issue of entrapment.
We do not reach Pascu's second contention on appeal, namely, that his sentence was excessive.
REVERSED and REMANDED.
MATTHEWS, Justice, concurring.
I agree with the majority that the average man standard of Grossman v. State, 457 P.2d 226 (Alaska 1969) requires modification and that what is sought to be prevented by the defense of entrapment is unreasonable or unconscionable police conduct. I would particularize this somewhat by adding that in drug sales it is neither unconscionable nor unreasonable for a police agent to behave as an ordinary buyer. The police should be allowed to provide stimuli to induce a drug sale which are like those which a seller normally encounters. It may not be unusual for a buyer of illegal drugs to claim, or for a seller to require a buyer to claim, dire physical need for drugs. If that is the case a police agent ought to be able to feign a drug need. In such cases the inquiry should be whether the persuasion employed by the police is significantly greater than that generally encountered for similar transactions. This approach has been employed in a number of California cases;
In this case there was but one short conversation which lead to the sale. The trial judge had the opportunity to judge the demeanor of the witnesses and he was not required to believe all that he heard. For these reasons I am not persuaded that we are justified in ruling as a matter of law that the defense of entrapment was made out. However, in light of the modified standard expressed in this opinion, I would remand to the superior court for a rehearing.
DIMOND, Justice Pro Tem, concurring.
I agree with the majority in holding that the evidence presented was sufficient to establish the defense of entrapment. But I am hesitant to accept the court's statement that "We are firmly convinced that law enforcement officials can, and often must, employ deceptive measures in order to detect and apprehend those engaged in criminal conduct, particularly in the area of narcotics."
In the course of pursuing those engaged in traffic in drugs, it is a wide-spread and almost standard procedure for the police to utilize the services of one against whom criminal charges may be brought or are pending. In exchange for immunity against prosecution, and at times with some monetary inducement, such a person buys drugs from those who are able to procure and sell them and then informs against those persons in subsequent criminal prosecutions.
This procedure may be of value in obtaining convictions for drug related offenses. But the means of achieving this is of dubious justification. The difficulty I have with this type of law enforcement is that it is based almost wholly on lies and deceit.
I believe it is essential to have objective morality and ethics in law, because this is essential to the "civilized justice" that the majority refers to. If I am correct, then it is repugnant to that concept to justify the apprehension of criminals on the basis that the end justifies the means — i.e., that it is proper to utilize the tools of lies and deceit to effect criminal justice. In my opinion,