Tag Archives: Board Certified Attorney

The Risks of an Entrapment Defense

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

A common defense (relatively speaking, that is) to charges of possession of controlled substances, dealing in controlled substances, and trafficking in controlled substances is that the person charged was entrapped by law enforcement into committing the crime. However, the defense is not without it’s risks.

How to Build an Entrapment Defense

There are two types of entrapment defenses. The first is objective entrapment. The second is subjective entrapment.

Florida Objective Entrapment

Objective entrapment is a defense based solely on the conduct of law enforcement. The defendant’s state of mind simply does not matter. Courts have held that objective entrapment occurs when law enforcement’s conduct is so egregious that the Due Process Clauses of the Florida and United States constitutions are violated. The defense is generally raised by a motion to dismiss filed and heard pretrial.

This type of entrapment is best explained by the use of examples. Objective entrapment can occur where law enforcement itself violates laws in order to get another person to break the law. This can occur, for example, when law enforcement uses drugs in an attempt to get another person to purchase and use the drugs in their presence. Another example that has been held to be objective entrapment is using a law enforcement officer to pose as a homeless individual passed out on the street. While supposedly passed out, they make it plainly visible that there are multiple hundreds of dollars in the person’s pocket. This induced someone to steal the money from the pocket.

This type of conduct should result in dismissal of the criminal charges.

Florida Subjective Entrapment

Subjective entrapment not only involves the conduct of law enforcement, but also involves the subjective state of mind of the defendant. In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Florida Supreme Court established that in asserting the defense of subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. If the defendant presents evidence of his lack of predisposition, the burden shifts to the State to rebut that evidence beyond a reasonable doubt.

In other words, the defendant must prove that the crime would not have occurred but for the conduct of law enforcement and that he was not otherwise inclined to commit such a crime. This is where the risk of the entrapment defense comes into play.

The Risk of the Entrapment Defense

In most criminal prosecutions, the State cannot introduce evidence of prior crimes. The most common exception occurs when the defendant testifies and the prior crime(s) was a crime of dishonesty and/or a felony. Actions that did not result in convictions do not come into evidence under this exception.

The other common exception is when Williams Rule evidence is introduced to prove (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absence of mistake. With this exception, the prior conduct did not have to result in a conviction. This evidence is inadmissible when it is introduced solely to prove a defendant’s propensity to commit criminal acts.

However, when an entrapment defense is used, the prior bad acts are introduced to prove propensity. The State is allowed to make a searching inquiry into prior acts to rebut the defense’s proof that they were not predisposed to commit such a crime. Depending on the defendant, this may not be a road they want to travel.

In Harris v. State, 44 Fla. L. Weekly D2155b, (Fla. 5th DCA 2019), Harris tried to prevent, by motion in limine, the State from introducing prior allegations of drug dealing in a trial for trafficking in hydrocodone and methamphetamine. He argued that the prior acts should not be admitted because those charges were ultimately dismissed by the court. The trial court disagreed and Harris was convicted after trial. He decided not to testify and, therefore, not to present an entrapment defense, because of the ruling, and took the issue up on appeal.

However, the Fifth District Court of Appeal agreed with the trial court and held that the prior acts would have been admissible should Harris have testified that he was not predisposed to commit the crimes. It stated “evidence of prior crimes to rebut an entrapment defense is not limited to events resulting in a conviction. The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Here, the State was prepared to present testimony of a witness who had allegedly witnessed Harris’ participation in illegal drug sales in 2009. This evidence would have been relevant to the issue of whether Harris was predisposed to commit the instant offenses.

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You Can Tell a Cop “No” (In Some Circumstances)

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

While it’s not always a smart move, legally speaking, you don’t always have to obey the commands of a law enforcement officer. Whether to exercise this right, as with many things, is a discretionary choice and, in most circumstances, it is wise to simply comply.

However, law enforcement sometimes will make unreasonable and illegal requests. In such circumstances, it is perfectly legal to simply walk away and to ignore those commands. Now, that may still get you arrested and you may still have to the best attorney you can to get you out of the pickle (we recommend the The Bantner Firm), but you should eventually be vindicated in your actions.

Resisting an Officer With Violence

Let’s get the easy one out of the way first; it is almost never legal to resist an officer with violence. If an officer is engaged in any legal duty at all, you cannot resist that command, order, arrest, etc. with violence. Even if the arrest is illegal and not based on probably cause, you cannot resist that arrest with violence. Fla. Stat. 843.01 makes resisting with violence a third-degree felony punishable by up to five years in prison. Additionally, it goes without saying that resistance with violence will greatly enhance your chance of getting injured or killed. Just don’t do it.

Resisting an Officer Without Violence

In order to convict a defendant of resisting, obstructing, or opposing an officer without violence pursuant to Fla. Stat. 843.02 the State must prove:

  • (1) The officer was engaged in the lawful execution of a legal duty; and
  • (2) The actions of the defendant resisted, obstructed, or opposed the officer in the performance of that legal duty.

“Legal duty”, as contained in the first element above, includes “(1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers’ undercover activities by acting as a ‘lookout’ during the commission of a criminal act.” There is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. McCollough v. State, FLWSUPP 2612MCCU, (Fla. 10th Cir. Ct. 2017) (internal citations omitted).

McCollough v. State

You may be asking yourself why a blog post on resisting an officer without violence has a picture of a cute kid on the shoulders of her father. Well, in McCollough, the defendant was arrested for resisting without violence for refusing to take his child off of his shoulders at the direction of law enforcement.

Again, this is one of those situation where it probably would have been better to simply take the child down but, the father was perfectly within his rights to refuse to do so. Here’s why:

McCollough was exercising his court-ordered supervised visitation. The supervisors suspected McCollough was about to walk-off with his child. The supervisors alerted law enforcement and they responded to investigate a possible child abduction. However, it was quickly ascertained that an abduction was not occurring or about to occur. At that point, any legal duty of investigation had been concluded.

However, tensions were still relatively high and McCollough was in an agitated state. The officers requested that McCollough put the child down out of fear that the child would fall off his shoulders; but there wasn’t any evidence that they child was in any sort of real danger of an injury occurring. McCollough refused to put the child down and the officers then forced him to do so and arrested McCollough. Only in Polk County.

The appellate court held that “[I]f the instructions (orders) occurred after the officers were aware that no criminal activity was taking place, then Appellant was not detainable and could walk away from the officers. In other words, once any reasonable suspicion of a crime had been eliminated, there was no valid reason to detain the Appellant. At that point, the officers were merely “on the job” and not “performing a legal duty””. As such, the court ruled that the trial court should have granted the motion for judgment of acquittal and dismissed the case. It reversed and remanded the case for the conviction to be set aside and a judgment of acquittal to be entered.

Polk County Criminal Defense Attorney

If you find yourself or a loved one on the wrong side of the law, give board certified criminal trial attorney Adam L. Bantner, II a call today. You can reach us at 813.397.3965 to set up your free consultation at either our Brandon or Tampa office.