“The purpose of the entrapment doctrine is to deter unlawful government activities and to preclude the implication of judicial approval of impermissible government conduct.” People v Jade, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). Put differently, “the entrapment defense [deters] 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. People v D’Angelo, 401 Mich 167, 177-178 (1977). Both the prosecution and the defendant may present evidence. Id. at 178, 183. The trial court must make findings of fact. People v Juillet, 439 Mich 34, 61 (1991). “It is the defendant’s burden to establish entrapment by a preponderance of the evidence.” People v Jade, ___ Mich App ___, ___ (2024). 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 a 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 Jade, ___ Mich App ___, ___ (2024), quoting People v Johnson, 466 Mich 491, 508 (2002). “It is the defendant’s burden to establish entrapment by a preponderance of the evidence.” Jade, ___ Mich App at ___.
“In Michigan, entrapment is defined by a ‘modified objective test.’” Jade, ___ Mich App at ___, quoting Johnson, 466 Mich at 508. Michigan’s objective test “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.’” People v Juillet, 439 Mich 34, 53, 54 (1991) (citation omitted). ”Under a proper approach, factors of both the subjective and objective tests can be considered and utilized to determine if entrapment occurred.” Id. at 53. The subjective test “focuses on the defendant’s predisposition or motivation to commit a new crime.” Id. Thus, “not all generally offensive police conduct will necessarily support a claim of entrapment.” Id. at 54.
Courts consider several factors when determining whether governmental activity would impermissibly induce criminal conduct:
“(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 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 the commission of a 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.’” Jade, ___ Mich App at ___, quoting Johnson, 466 Mich at 498-499.
Inducement. “Entrapment may be found if the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances.” Id. at ___ (quotation marks and citation omitted). Accordingly, “there is no entrapment if law enforcement officials present nothing more than an opportunity to commit the crime.” Jade, ___ Mich App at ___ (quotation marks and citation omitted).
“Merely presenting an opportunity to commit a crime is not entrapment.” Id. at ___. In Jade, “[l]aw enforcement posed as a 15-year-old who was offering sexual acts in exchange for money, posted an advertisement on an adult-oriented website, and initially claimed to be old enough to post on the site.” Id. at ___. “After defendant responded to the advertisement, defendant was informed in clear and certain terms that the decoy was actually 15 years old.” Id. at ___ (“Defendant was thereby presented with an opportunity to either proceed with committing the relevant criminal acts or decline.”). Despite his actions, the defendant asserted that he was impermissibly induced into committing the crime which “involved a significant escalation of the situation, transitioning from the solicitation of an adult escort to the commission of the serious felonious act of soliciting a child.” Id. at ___. However, “while it is necessary to consider government escalation of the defendant’s criminal culpability as a significant factor, it is not determinative in the issue of entrapment.” Id. at ____. The trial court concluded that only factors 2 and 10 weighed in favor of finding entrapment. Id. at ___. “[T]he second factor weighed in favor of finding entrapment because there was no evidence that defendant was known to commit the charged crimes, and . . . the tenth factor weighed in favor of finding entrapment because there was evidence that law enforcement officers took steps to escalate the seriousness of defendant’s criminal actions.” Id. at ___. But, “taking all the circumstances into account, the weight of evidence was against the idea that these two isolated factors could be seen as proof that the defendant was impermissibly induced to engage in criminal conduct.” Id. at ___ (“finding that the police merely provided the opportunity for defendant to commit criminal acts involving arranging to meet a 15-year-old minor for paid sexual activity and defendant willingly seized that opportunity”).
The Jade Court concurred “with the trial court findings that law enforcement officers simply presented defendant with the opportunity to engage in criminal activity.” Id. at ___. “This distinction is vital because it underscores the fact that defendant’s actions were not coerced or manipulated by law enforcement.” Id. at ___. “Rather, it highlights defendant’s voluntary choice to commit the crime for which he was convicted.” Id. at ___. “The trial court . . . did not clearly err in finding that law enforcement . . . did not engage in impermissible conduct that would have induced a law-abiding person to commit the criminal acts in similar circumstances.” Id. at ___.
Reprehensible conduct. “Entrapment may also be found if the police engaged in conduct so reprehensible that it cannot be tolerated.” Jade, ___ Mich App at ___ (quotation marks and citation omitted). Indeed, “there is certain conduct by government that a civilized society simply will not tolerate, and the basic fairness that due process requires precludes continuation of the prosecution where the police have gone beyond the limit of acceptable conduct in ensnaring the defendant, without regard to causation.” Id. at ___ (quotation marks and citation omitted). However, “the mere presentation of the opportunity to commit criminal acts in a non-targeted manner does not constitute reprehensible conduct amounting to entrapment,” such as where “[t]he conduct in question primarily involve[s] presenting defendant with the opportunity to engage in the criminal acts for which he was convicted.” Id. at ___. “Identifying individuals willing to make plans to engage in sex with minors is a legitimate law enforcement goal that justifies the decision to see whether defendant’s conduct might expose him to heightened criminal liability.” Id. at ___ (quotation marks and citation omitted). The Jade Court concluded that “the “purpose of the challenged police activity was the detection of crime, not its manufacture.” Id. at ___ (cleaned up).
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); People v Fyda, 288 Mich App 446, 456 (2010). 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, 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, 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.
“[T]he question whether entrapment occurred is a highly fact-intensive question, requiring the trial judge to conduct an evidentiary hearing on the issue and to make specific findings of fact.” People v Jade, ___ Mich App ___, ___ (2024). “[T]he test that Michigan courts must apply to determine whether the particular facts of a case constitute entrapment, and the ultimate decision whether entrapment occurred, also involve principles of law that are expressed in a body of common law developed in this state’s jurisprudence defining the standards and boundaries of the entrapment defense.” Id. at ___. “The trial judge’s factual findings will be reviewed on appeal under the clear error standard.” Id. at ___. “[A]n appellate court reviewing a trial court’s entrapment ruling must review the trial court’s findings of fact for clear error and review de novo questions of law such as the application of the common-law entrapment standards to those facts.” Id. at ___.