Cruz v. State

• Decision Date: 07 March 1985
• Docket Number: No. 63451,63451
• Citation: 10 Fla. L. Weekly 161,465 So.2d 516
• Parties: 10 Fla. L. Weekly 161 Pedro A. CRUZ, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 516

465 So.2d 516

10 Fla. L. Weekly 161

Pedro A. CRUZ, Petitioner, v. STATE of Florida, Respondent.

No. 63451.

Supreme Court of Florida.

March 7, 1985.

Jerry Hill, Public Defender; and Robert F. Moeller, Bartow, and Douglas S. Connor, Tampa, Asst. Public Defenders, Tenth Judicial Circuit, for petitioner.

Jim Smith, Atty. Gen. and M. Ann Garrison, Asst. Atty. Gen., Tampa, for respondent.

Louis O. Frost, Jr., Public Defender and James Miller, Asst. Public Defender, Fourth Judicial Circuit, Jacksonville, amicus curiae.

EHRLICH, Justice.

This case is before us on appeal from a decision of the Second District Court of Appeal, State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA 1983). The decision directly and expressly conflicts with State v. Casper, 417 So.2d 263 (Fla. 1st DCA), review denied, 418 So.2d 1280 (Fla.1982). We take jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. We disapprove the district court's decision.

Tampa police undertook a decoy operation in a high-crime area. An officer posed as an inebriated indigent, smelling of alcohol and pretending to drink wine from a bottle. The officer leaned against a building near an alleyway, his face to the wall. Plainly displayed from a rear pants pocket was $150 in currency, paper-clipped together. Defendant Cruz and a woman happened upon the scene as passersby some time after 10 P.M. Cruz approached the decoy officer, may have attempted to say something to him, then continued on his way. Ten to fifteen minutes later, the defendant and his companion returned to the scene and Cruz took the money from the decoy's pocket without harming him in any way. Officers then arrested Cruz as he walked from the scene. The decoy situation did not involve the same modus operandi as any of the unsolved crimes which had occurred in the area. Police were not seeking a particular individual, nor were they aware of any prior criminal acts by the defendant.

Cruz was charged by information with grand theft. Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), Cruz moved to dismiss the information, arguing that the arrest constituted entrapment as a matter of law. The trial court granted the motion to dismiss on the authority of State v. Casper, 417 So.2d 263 (Fla. 1st DCA), review denied, 418 So.2d 1280 (Fla.1982). On appeal, the Second District Court of Appeal reversed, acknowledging its decision was in conflict with Casper.

The entrapment defense arises from a recognition that sometimes police activity will induce an otherwise innocent individual to commit the criminal act the police activity seeks to produce. The United States Supreme Court has addressed the issue in four principal cases. Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The Third Circuit Court of Appeal offers a clear discussion of the historical development of the defense in the Supreme Court:

In Sorrells v. United States, where the Court first recognized the defense of entrapment, the Court held the defendant was entitled to have the jury consider whether his acts of possessing and selling one-half gallon of whiskey in violation of the National Prohibition Act were instigated by the prohibition agent who implanted in the "mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that [Government officials] may prosecute." 287 U.S. at 442, 53 S.Ct. at 212. The nature of the defense was outlined more fully when the Court next considered the defense a quarter of a century later in Sherman v. United States. Chief Justice Warren, writing for the majority of the Court, stated that "[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U.S. at 372, 78 S.Ct. at 820. In concluding that entrapment had been established as a matter of law, the Court determined from the undisputed testimony of the prosecution's witnesses that the defendant was induced to sell narcotics by the government informer and that he was not predisposed, i.e., that he engaged in conduct he would not otherwise have attempted. The Court noted, "Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials." Id. (emphasis in original).

In United States v. Russell, the Court expressly disapproved of the decisions of the lower federal courts which had expanded the entrapment defense beyond the Court's opinions in Sorrells and Sherman. Instead, the Court reiterated that the defense was not of constitutional dimension, and reaffirmed its prior opinions that established that entrapment is a "relatively limited defense", 411 U.S. at 435, 93 S.Ct. at 1644, which cannot be used by a predisposed defendant. Most recently, in Hampton v. United States, a majority of the Court, in two separate opinions, upheld defendant's conviction arising from his sales of heroin which had allegedly been procured from a government informant, reaffirming once again the unavailability of the entrapment defense to a predisposed defendant.

United States v. Jannotti, 673 F.2d 578, 596-97 (3d Cir.), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982).

The entrapment defense thus normally focuses on the predisposition of the defendant. We adopted this view in State v. Dickinson, 370 So.2d 762 (Fla.1979). The First District, in State v. Casper, 417 So.2d 263 (Fla. 1st DCA 1982), focused on predisposition when it found the "drunken bum" decoy at issue here to constitute entrapment as a matter of law. In Casper, Jacksonville police set up a decoy situation legally indistinguishable from the scenario in this case. The Casper court held that the state must prove the defendant was predisposed to steal from the decoy and that predisposition can be found under four circumstances: (1) the defendant has prior convictions for similar crimes; (2) the defendant has a reputation for committing similar crimes; (3) police have a reasonable suspicion the defendant was engaged in similar crimes; or (4) the defendant showed ready acquiescence to commit the crime suggested by police. Story v. State, 355 So.2d 1213 (Fla. 4th DCA), cert. denied, 364 So.2d 893 (1978). The Casper court found no evidence of the first two elements in that case. The third element is irrelevant in the type of random expedition at issue here. The question thus boiled down to whether Casper "readily acquiesced" to the criminal scenario. The Casper court found that an otherwise unpredisposed passerby who chose to take the money did not acquiesce, but "succumbed to temptation.... to the lure of the bait." 417 So.2d at 265. The Casper court therefore distinguished between "succumbing to temptation" and "readily acquiescing," and found that this is a question of law: where the trial judge finds the defendant succumbed to temptation, the matter shall not be put to a jury.

The Second District, in the case now before us, rejected this position. The Cruz court found that such a judgment is one for the jury to make. "[W]here, as here, a defendant's intent or state of mind (i.e., predisposition) is an issue, that issue should not be decided on a motion to dismiss...." 426 So.2d at 1310. Petitioner would have this court hold that where the only evidence of predisposition is the commission of the crime the police scenario was designed to elicit, there is an insufficient showing of predisposition, as a matter of law. We do not agree.

We agree with the Second District that the question of predisposition will always be a question of fact for the jury. However, we also believe that the First District's concern for entrapment scenarios in which the innocent will succumb to temptation is well founded. To protect against such abuse, we turn to another aspect of entrapment.

Entrapment is a potentially dangerous tool given to police to fight crime. "Society is at war with the criminal classes, and courts have uniformly held that in waging this warfare the forces of prevention and detection may use traps, decoys, and deception to obtain evidence of crime." Sorrells v. United States, 287 U.S. 435, 453-54, 53 S.Ct. 210, 216-17 (separate opinion of Roberts, J.). "The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, the fraudulent use of the mails, the illegal conspiracy, or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Id. at 441-42, 53 S.Ct. at 212-13 (opinion of the Court). "Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severist condemnation, but the question whether it precludes prosecution or affords a ground of defense, and, if so, upon what theory, has given rise to conflicting opinions." Id. at 441, 53 S.Ct. at 212. These words of the United State Supreme Court, in its seminal Sorrells decision, outline the basis on which the entrapment practices of police are seen as a necessary evil but an evil to be controlled. The Sorrells Court concluded that the defense of entrapment protected against such abuse. ¹

The entrapment defense adopted in Sorrells, focusing on the predisposition of the defendant, is termed the subjective view of entrapment. However, beginning with Justice Roberts' concurrence in...