“The overall purpose of the entrapment defense is to deter the corruptive use of governmental authority by invalidating convictions that result from law enforcement efforts that have as their effect the instigation or manufacture of a new crime by one who would not otherwise have been so disposed.” People v Juillet, 439 Mich 34, 52 (1991) (opinion by Brickley, J.). “The challenge focuses exclusively upon the nature of the police conduct which, if improper, will not be mitigated, justified or excused in any fashion by the disposition of the accused.” People v D’Angelo, 401 Mich 167, 182 (1977).
“[E]ntrapment is not a defense that negates an essential element of the charged crime.” Juillet, 439 Mich at 52. “Instead, it presents facts that are collateral to the crime that justify barring the defendant’s prosecution.” Id. Unlike some other defenses, such as insanity, a defendant’s claim of entrapment does not require an assessment of the defendant’s guilt or innocence of the crime charged. People v White, 411 Mich 366, 387 (1981).
When the defendant raises the issue of entrapment, whether before or during trial, the trial court must conduct an evidentiary hearing outside the presence of the jury. D’Angelo, 401 Mich at 177-178. Both the prosecution and the defendant may present evidence, and the defendant has the burden of proving the claim of entrapment by a preponderance of the evidence. Id. at 178, 183. The trial court must make findings of fact. Juillet, 439 Mich at 61. If the trial court concludes that the defendant was entrapped, the case must be dismissed and the defendant must be discharged. D’Angelo, 401 Mich at 184.
A defendant is considered entrapped if either (1) the police engaged in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. People v Johnson, 466 Mich 491, 498 (2002); People v Fyda, 288 Mich App 446, 456 (2010). A defendant may prove police entrapment solely through reprehensible conduct; police instigation is not a prerequisite to a claim of entrapment. People v Akhmedov, 297 Mich App 745, 754 (2012); Fyda, 288 Mich App at 456.
The test for entrapment used in Michigan is an objective test that “focuses primarily on the investigative and evidence-gathering procedures used by the governmental agents[]” in order to “determine whether the police conduct in question has as its ‘probable and likely outcome the instigation rather than the detection of criminal activity.’” Juillet, 439 Mich at 53-54 (citation omitted). “[A]lthough the objective test is mainly concerned with the existence of reprehensible police conduct, consideration must be given to ‘the willingness of the accused to commit the act weighed against how a normally law-abiding person would react in similar circumstances.’” Id. at 54 (citation omitted). Thus, “not all generally offensive police conduct will necessarily support a claim of entrapment.” Id.
“When examining whether governmental activity would impermissibly induce criminal conduct, several factors are considered: (1) whether there existed appeals to the defendant’s sympathy as a friend, (2) whether the defendant had been known to commit the crime with which he [or she] was charged, (3) whether there were any long time lapses between the investigation and the arrest, (4) whether there existed any inducements that would make commission of the crime unusually attractive to a hypothetical law-abiding citizen, (5) whether there were offers of excessive consideration or other enticement, (6) whether there was a guarantee that the acts alleged as crimes were not illegal, (7) whether, and to what extent, any government pressure existed, (8) whether there existed sexual favors, (9) whether there were any threats of arrest, (10) whether there existed any government procedures that tended to escalate the criminal culpability of the defendant, (11) whether there was police control over any informant, and (12) whether the investigation was targeted.” Johnson (Jessie), 466 Mich at 498-499; see also Fyda, 288 Mich App at 457.
That the police “‘present[ed] the defendant with the opportunity to commit the crime of which he [or she] was convicted[]’ . . . is insufficient to support a finding of entrapment.” Fyda, 288 Mich App at 460 (citation omitted). For example, the fact that undercover officers engaged in “‘friendly banter’ . . . that induced [the defendant] to sell them” drugs “[did] not establish ‘impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances[.]’” People v Vansickle, 303 Mich App 111, 116 (2013), quoting Fyda, 288 Mich App at 456.
“‘An official may employ deceptive methods to obtain evidence of a crime as long as the activity does not result in the manufacturing of criminal behavior.’” Vansickle, 303 Mich App at 117 (citation omitted). In Vansickle, 303 Mich App at 113-114, 117, the trial court properly denied the defendant’s motion to dismiss based on entrapment where the defendant, “a registered qualifying patient under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq.,” sold marijuana to undercover police officers who were posing as legitimate patients at a medical marijuana dispensary. “[The] defendant was not a target of the undercover investigation of the marijuana dispensary[,] . . . the officers were not familiar with [the] defendant[,]” and “the officers did not appeal to [the] defendant’s sympathy, offer him any unusually attractive inducements or excessive consideration, or use any other means to pressure [him] to sell them marijuana[;]” rather, they “merely provided [him] with an opportunity to commit the crime, which is insufficient to establish entrapment.” Vansickle, 303 Mich App at 116-117.
“Reprehensible conduct by an informant may be attributed to the police if a sufficient agency relationship exists between the informant and the police.” Akhmedov, 297 Mich App at 754. “However, police do not commit entrapment when they do not become involved with the informant until after the criminal transaction is complete.” Id. at 754-756 (holding that no entrapment occurred during three separate drug transactions because an agency relationship did not exist between the police and an informant during the period when the informant groomed the defendant in the weeks leading up to the series of drug deals, the police only became involved with the informant on the day of the first transaction, and the police and informant “had no further contact after the first transaction[]”).
Entrapment by estoppel applies “[w]hen a citizen reasonably and in good faith relies on a government agent’s representation that the conduct in question is legal, under circumstances where there is nothing to alert a reasonable citizen that the agent’s statement is erroneous[.]” People v Woods (Robert), 241 Mich App 545, 548 (2000). The due process principle underlying the doctrine of entrapment by estoppel is fairness to a well-intentioned citizen who unwittingly breaks the law while relying on government agents’ statements under circumstances where reliance is reasonable. Id. at 548. “However, when a citizen who should know better unreasonably relies on the agent’s erroneous statement, or when the ‘statement’ is not truly erroneous, but just vague or contradictory, the defense is not applicable.” Id. at 548-549.
“‘[T]he entrapment by estoppel defense applies where the defendant establishes by a preponderance of the evidence that (1) a government official (2) told the defendant that certain criminal conduct was legal, (3) the defendant actually relied on the government official’s statements, (4) and the defendant’s reliance was in good faith and reasonable in light of the identity of the government official, the point of law represented, and the substance of the official’s statement.’” Woods (Robert), 241 Mich App at 558 (citation omitted; alteration in original).
An assertion of entrapment by estoppel as a defense to a specific intent offense must be “reasonable” or “justified.” People v Zitka, 325 Mich App 38, 52 (2018) (it was unreasonable to rely on a city attorney’s statement in a stipulated agreement in a civil action involving a local zoning ordinance for purposes of a criminal case brought under criminal state law; in addition, the local civil case only involved only one of the three businesses included in the present criminal case). Further, a defendant’s belief that he or she is operating in compliance with the law is immaterial to whether he or she committed a general intent offense because a defendant need not intend to violate the law to be culpable for a general intent offense. Id.
Whether the police entrapped a defendant is reviewed de novo as a matter of law, “but the trial court’s specific findings of fact are reviewed for clear error.” Vansickle, 303 Mich App at 114, citing Fyda, 288 Mich App at 456. See also Johnson (Jessie), 466 Mich at 497 (“[a] trial court’s finding of entrapment is reviewed for clear error[]”). “Findings of fact are clearly erroneous if [the reviewing court is] left with a firm conviction that the trial court made a mistake.” Vansickle, 303 Mich App at 115, citing Fyda, 288 Mich App at 456.