I jokingly posted on Facebook right after New Years the following: “I wonder how many calls I’ll get in the next few days from potential clients saying ‘Those DUI checkpoints are entrapment!'”
This led to many questions. Let’s see if can address some here.
Entrapment is when the police lure you into doing something you wouldn’t normally do, usually coercing or bribing you into committing a crime (usually with codefendants). It doesn’t happen that often.
If the police sit near a bar and then start following cars to pull them over when they show signs of intoxication, that’s not entrapment. The police officer did not coerce you to drink and drive.
If there is a sobriety check point, that is not entrapment. (It may be illegal for other reasons, such as the police did not get approval from a judge first, or they are not checking drivers in a random fashion but instead are targeting people). Once more, they didn’t coerce you into committing a crime; they just caught you at it when you didn’t expect them to.
If an undercover cop is posing as a prostitute and you engage her services and then she arrests you, that is not entrapment. You could have said no to her offer.
“Entrapment” requires the police getting you to do something you wouldn’t have done absent their involvement and encouragement. If you say no and the cop insists and insists and finally convinces you, then your case is stronger for entrapment.
Just putting a prostitute out there and having someone take advantage of it is no more entrapment than having a bank there. “They entrapped me into robbing the bank by having it just sitting there!”
Here’s an extreme example to show what entrapment is:
“Hey, would you do me a favor and go buy some drugs for me? Here’s $100, you can keep $50 of it.”
“No, I’m not going to do that.”
“Okay, here’s $200, you can keep $150 of it.”
“Okay, here’s $500, you can keep $450 of it.”
“Ooh, I could really use that money. Okay, just this once.”
“Caught you! You’re under arrest!”
Most cases where entrapment is used as a defense aren’t as obvious as that example but you can see the basic point. There is no bright line test. It’s up to a defendant to convince a judge or jury that he wouldn’t have done the act absent the cop coercing him to do it.