A common scenario: The public is concerned about drug sales or prostitution in a given area. The drug and prostitution trades work in the shadows, so it is difficult for law enforcement to infiltrate. People involved do not talk and neighbors often assume that it is best to just stay quiet and not “rock the boat.” To gain footing in the drug and prostitution businesses of that area, police conduct a “sting,” wherein the police offer to buy or sell drugs or to engage in prostitution. Through the sting, players in the business come out of the shadows and offer to conduct “business” with these “new” customers. Police take strategic positions at the point where the parties are set to conduct business. At the agreed-upon time, the parties meet and discuss business. They shake on the deal and get ready to trade wares. At that point, armed police emerge from their hiding spaces and arrest the alleged offenders.
At this point, the police will bring the accused to prison. The next day the prosecution will present their case at an arraignment. Likely, media coverage of the event will suggest that the accused are guilty. Because these are drug and prostitution charges, the potential penalties are harsh. Regardless, the accused have rights and should seek to protect those rights. One defense that may be available to defendants in such an instance is entrapment.
Entrapment under Texas law
The Texas Penal Code states that entrapment“is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” In other words, entrapment is not a defense merely because the police presented someone with an opportunity to commit a crime; rather, it is a defense if the police coerce a person to commit a crime.
Often, there is a fine line, based on the facts and circumstances of the case, between opportunity and coercion. To differentiate, Texas courts apply the “objective test.” This test focuses on law enforcement’s actions. Did law enforcement use vast sum of monies to induce the defendant to produce drugs or prostitutes? Were high-pressure salesman tactics used to compel the defendant to act? Did law enforcement play on the defendant’s emotional sensitivities by saying that he needs drugs to help counter the effects of chemotherapy? These are questions for a judge or jury. Each case will be fact specific.
As mentioned, this test looks to the acts of law enforcement. Therefore, even if the defendant has prior history of drug or prostitution involvement, such history would not be relevant. Instead, the determining issue would be law enforcement action.
If you are accused of a crime, know that you have rights. Often, people assume that you are guilty. However, there is a process before you are found guilty. To protect your rights, contact the law firm of Christopher Abel, an experienced criminal defense lawyer.