What is Entrapment in California?
Entrapment is conduct by the government that convinces a person to break the law. If the person would not have tried to brake the law except for the conduct of the government, entrapment is a defense to any crime that is charged.
The details of entrapment as a criminal defense starts with the United States Constitution and federal law. California has its own way of addressing entrapment and that is discussed here as well.
Federal Roots of Entrapment
Entrapment is based on federal constitutional principles, protecting people from government overreach. It’s a full defense to a criminal charge, built on the idea that police shouldn’t cook up a crime, plant it in an innocent person’s mind, and push them to do it just to make an arrest (Jacobson v. United States, 503 U.S. 540, 548 (1992)). In federal law, entrapment has two parts: (1) government pushing someone to commit a crime, and (2) the person not being inclined to do it on their own (Mathews v. United States, 485 U.S. 58, 63 (1988)). The bigger focus is on whether the person was predisposed.
Inducement in Federal Law
Inducement isn’t just offering someone a chance to break the law—that’s not enough (Sorrells v. United States, 287 U.S. 435, 451 (1932)). Tricks, undercover work, or deception don’t count either (Sorrells, at 441). For it to be inducement, the police need to persuade, pressure lightly, appeal to things like sympathy or friendship, or offer huge rewards that could tempt a regular person to ignore the law (United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991)). It only counts if the police’s actions make it likely someone who follows the law would commit the crime (United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989)).
Predisposition in Federal Law
Even if there’s inducement, the defense fails if the person was predisposed to commit the crime. The question is whether they were an “unwary innocent” or someone who eagerly took the opportunity (Mathews, 485 U.S. at 63). Predisposition isn’t the same as intent—you can intend to do a crime but still be entrapped. You don’t need a criminal record; just quickly jumping on an offer, like buying drugs from an undercover agent, can show predisposition (Jacobson, 503 U.S. at 550).
California’s Objective Test for Entrapment
In People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, California went its own way, adopting an objective test. Instead of looking at the defendant’s mindset, it asks: Would the police’s actions push a normally law-abiding person to commit the crime? The idea is that a law-abiding person wouldn’t break the law just because they had the chance. Things like decoy programs are okay, but police can’t use heavy-handed tactics like:
Badgering or nagging the suspect.
Constantly pushing them to commit the crime.
Other actions that pressure someone into breaking the law.
(Barraza, 23 Cal.3d at 689.)
When Police Go Too Far
Most people charged with crimes will see conduct by the police that they believe goes beyond what is fair or just. There are limits on police conduct and there are often many grey areas. California's objective test is designed to create a clear and consistent result across multiple cases.
The Barraza court laid out two ways police conduct can cross into entrapment and when you read these "ways" bear in mind the concept that we want as bright a line as possible so that officers can adjust their actions to stay within the rules.
Creating the Wrong Motive: If police get someone to commit a crime for reasons other than typical criminal goals (like money), it could be entrapment. For example, playing on someone’s loyalty or sympathy to get them to act.
Example: An officer convincing someone to break the law out of pity or friendship.
Making the Crime Too Tempting: If police make the crime so appealing that a law-abiding person might give in, that’s entrapment. Think promises that the act isn’t illegal, won’t be caught, or offers of huge rewards.
Example: Telling someone they’ll make a fortune for doing it.
Police can still take reasonable steps to gain a suspect’s trust, like assuring them it’s not a setup, as long as they don’t go overboard. (Barraza, 23 Cal.3d at 690, fn. 4.)
Context Is Key
Police conduct isn’t judged on its own but by how it would affect a law-abiding person in similar circumstances. Things that matter include:
What happened before the crime.
How the suspect reacted to the police’s tactics.
How serious the crime is.
How hard it is to catch that kind of crime.
In California, the suspect’s background, intent, or likelihood to commit the crime doesn’t matter. It’s all about whether the police acted properly. (Barraza, 23 Cal.3d at 690.)
Decoy Programs Are Usually Okay
Using stings, ruses, or decoys to catch illegal activity is fine as long as the police don’t pressure or push too hard. In Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal.4th 561, 568-570, 28 Cal.Rptr.2d 638, 869 P.2d 1163, the court said it was okay to use mature-looking underage decoys to catch stores selling alcohol to minors. The decoys didn’t nag or pressure anyone, and the stores could’ve avoided trouble by checking IDs.
But even someone who doesn’t know they’re working for the police can go too far. In Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1096-1098, the court said if an unwitting decoy nags or pressures enough, it could justify an entrapment defense, since the same rules apply whether it’s a cop or someone else.
Case Study: People v. Graves (2001)
In People v. Graves (2001) 93 Cal.App.4th 1171, 113 Cal.Rptr.2d 708, the defendant admitted to grand theft for using stolen credit cards to buy airline tickets. While waiting to turn himself in after sentencing, someone working with federal agents contacted him, saying they were stuck in Hawaii because their tickets, bought illegally, were canceled. They asked for help, and the defendant used another stolen credit card to buy more tickets.
The court said this wasn’t entrapment. A regular person wouldn’t have broken the law just because someone asked for help. The defendant could’ve used his own card, paid cash, or said no, but instead, he chose to repeat the same crime he’d already been convicted for. The police didn’t push too hard, so it was his choice. (Graves, 93 Cal.App.4th at 1177-1178.)
Other Key Cases
Department of Alcoholic Beverage Control v. Alcoholic Bev. Control App. Bd. (2002) 100 Cal.App.4th 1094, 122 Cal.Rptr.2d 854: An undercover officer asking an exotic dancer if her next dance would show “more skin” wasn’t entrapment when she later exposed herself. The officer didn’t pressure her under the Barraza rules.
People v. Fromuth (2016) 2 Cal.App.5th 91, 206 Cal.Rptr.3d 83: In a case where the defendant tried to arrange a sexual meeting with someone he thought was a minor, the court found no entrapment. The officer posing as a 15-year-old online didn’t do anything that would’ve convinced a law-abiding person to act after the “minor” revealed her age.
You Can Deny Guilt and Still Claim Entrapment
A defendant can say they’re not guilty and still argue entrapment, as clarified in People v. Perez (1965) 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934. You don’t have to admit to the crime to use this defense. For example, someone can deny parts of the crime but still say whatever they did was because the police pushed them into it. This gives defendants flexibility in their defense strategy. (Perez, 62 Cal.2d at 775-776.) It is common for even experienced lawyers to forget this fact. You can plead somewhat inconsistenly in this area of law.
Wrapping Up
Entrapment, rooted in federal constitutional protections, guards against government overreach while letting police use tactics like decoys to catch criminals. California’s objective test, set by Barraza, focuses on whether police actions would tempt a law-abiding person, unlike the federal test that hinges on predisposition. Cases like Jacobson, Mathews, Graves, Provigo Corp., and Perez show that entrapment doesn’t apply when someone chooses to break the law without improper pressure from police. In California, defendants can also deny guilt while claiming entrapment, giving them more ways to defend themselves.
