Shrader v. State

• Decision Date: 24 September 1985
• Docket Number: No. 15123,15123
• Citation: 706 P.2d 834,101 Nev. 499
• Parties: , 54 USLW 2242 Jay Fred SHRADER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 834

706 P.2d 834

101 Nev. 499, 54 USLW 2242

Jay Fred SHRADER, Appellant, v. The STATE of Nevada, Respondent.

No. 15123.

Supreme Court of Nevada.

Sept. 24, 1985.

David C. Polley, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, A.D. Demetras, Dist. Atty. and Michael P. Golden, Deputy Dist. Atty., Tonopah, for respondent.

OPINION

YOUNG, Justice:

Appellant Jay Fred Shrader was arrested and charged with two counts of unlawful sale of marijuana (Counts I and II) and one count of maintaining a place for use or sale of marijuana (Count III). A jury convicted Shrader on all three counts. He was sentenced to two five-year consecutive sentences on Counts I and II and to ten years on Count III, running concurrently with the sentences on Counts I and II. Shrader had no record of arrests or convictions before this incident.

The two counts of unlawful sale were based upon transactions between Marcus Scott, a confidential police informant, and Shrader. Shrader met and befriended Scott in May, 1982 at the Joker Saloon in Tonopah, Nevada. Scott visited Shrader's apartment often to play pool and drink beer.

In July, 1982 Scott found himself incarcerated in the Nye County jail facing two felony counts of cheating at gaming. Scott decided to become a confidential informant and began negotiations with Nevada authorities. Under a plea agreement executed August 17, 1982, Scott pleaded guilty to a gross misdemeanor. Approximately one month later, Scott was sentenced to time served, eleven days. Probation was not imposed.

Scott, in his capacity as informant, approached Shrader on August 14, 1982 and asked Shrader where he could obtain marijuana. Scott testified that he asked Shrader about the availability of marijuana because he had seen drugs used at Shrader's apartment.

Shrader testified that although he initially told Scott he did not have any marijuana to sell, he relented after Scott told him he needed it to relax because of his recent stay in jail. On August 15, 1982 Shrader let Scott have a quarter ounce of marijuana for $45.00. This transaction was monitored by officers of the Sheriff's department who had hidden a tape recorder on Scott.

Scott and the officers set up a second buy in September, 1982. According to Shrader, Scott had been importuning him for marijuana for some time. On the afternoon of September 15, 1982 Shrader told Scott that he did not have anything to sell but could secure an ounce for $70.00 from someone else. Scott apparently told Shrader that he did not want to make the buy himself because he was already in trouble with the law.

Scott left Shrader's apartment and met with narcotics officers. He was fitted with a transmitter so that the officers could listen to the transaction. Scott returned to Shrader's apartment at approximately 11:30 p.m. that same night. Shrader informed him that the marijuana could not be obtained for $70.00 but would cost $100.00. Because the officers had supplied Scott with only $70.00 to make the buy, Scott told Shrader he would go home and get more money. Scott left the apartment and received additional funds from one of the officers. When Scott returned to the apartment, Shrader left with Scott's $100.00 to make the buy. Although the officers were listening to the conversation between Scott and Shrader, they did not attempt to follow Shrader in order to discover the source of the marijuana. Shrader returned with the marijuana and gave it to Scott. Shrader testified that he did not make any money on the sale. Shrader was arrested on November 2, 1982 and charged with the three counts enumerated above.

We first address Shrader's contention that he was entrapped as a matter of law into selling the marijuana to Scott. Entrapment as a matter of law exists where the uncontroverted evidence shows (1) that the state furnished an opportunity for criminal conduct (2) to a person without the requisite criminal intent. State v. Busscher, 81 Nev. 587, 407 P.2d 715 (1965).

The entrapment defense is made available to defendants not to excuse their criminal wrongdoing but as a prophylactic device designed to prevent police misconduct. "The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime." Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820, 2 L.Ed.2d 848 (1958). By permitting conviction of only those defendants predisposed to commit the offense, the defense focuses police attention on existing criminal ventures.

Although we recognize that undercover operations are often necessary to detect covert and consensual crimes, those operations must be conducted in a manner consistent with the policy of trapping only the unwary criminal, not the unwary innocent. See Sherman, 369 U.S. at 372, 78 S.Ct. at 820. Therefore, we hold that when the police target a specific individual for an undercover operation, they must have reasonable cause to believe that the individual is predisposed to commit the crime. ¹ See Smith v. State, 258 Ind. 415, 281 N.E.2d 803 (1972) (requiring probable cause that suspect engaged in type of criminal conduct for which trap laid). This rule is in accord with our intimations in Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961) and In re Wright, 69 Nev. 259, 248 P.2d 1080 (1952) that the state may resort to decoys only when it has reasonable cause to believe that the target is predisposed to commit the offense. An express holding to this effect was unnecessary in those cases because evidence of the defendants' predisposition precluded the application of the entrapment defense.

In Wright we rejected the defendant's claim of entrapment because there was "reasonable cause to believe not only that petitioner was a person disposed to commit the offense, but that he had already committed a similar offense on at least one occasion." 69 Nev. at 263, 248 P.2d 1080. We relied on this language in Wyatt where we held that the defendant could not raise the entrapment defense to a prosecution for performing illegal abortions because there was ample evidence that he had performed illegal abortions before a police decoy approached him. 77 Nev. at 495, 367 P.2d 104. In both cases we reiterated the widely accepted principle that the mere furnishing of an opportunity for criminal conduct does not constitute entrapment. See Wyatt, 77 Nev. at 493, 367 P.2d 104; Wright, 69 Nev. at 263, 248 P.2d 1080. See also Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932); Hill v. State, 95 Nev. 327, 332, 594 P.2d 699 (1979); W. LaFave & A. Scott, Handbook on Criminal Law § 48, at 369 (1972). That opportunity, however, must be presented to one with the requisite criminal intent. See State v. Busscher, 81 Nev. at 590, 407 P.2d 715.

In applying this rule to the facts of this case, we conclude that Shrader was entrapped as a matter of law. We are at a loss to discover, as was respondent's counsel during oral argument, any evidence in the record of Shrader's predisposition to sell marijuana before he was targeted for an undercover operation. Scott had no knowledge of previous sales of marijuana by Shrader, and testified that he had never asked Shrader about the availability of marijuana for sale until the day before the first transaction in August. On the day of the September sale, Scott testified that Shrader had marijuana at his apartment, but Shrader told him it was not for sale. Shrader, at Scott's request, had to make a special effort to obtain marijuana for Scott's use. Later that night, Shrader left the apartment with Scott's money to make the purchase.

We view this transaction with suspicion for two reasons. First, we are puzzled by the police officers' failure to follow Shrader to the source of the marijuana. Two officers in separate vehicles were monitoring the transaction via an electronic transmitter. Neither officer attempted to follow Shrader to the supplier. Secondly, Shrader testified that Scott had suggested Shrader purchase the ounce of marijuana from "Joe," Scott's supplier before his arrest on the gaming felonies. This, coupled with the officers' failure to follow Shrader to the source of the marijuana, leads us to question respondent's assertion that Shrader was ready and willing to make the sales.

When questioned by defense counsel as to why Scott targeted Shrader for an undercover operation, Scott testified that he knew marijuana was "available" because he had seen it used at parties at Shrader's apartment. Although an acknowledged user of marijuana, Shrader had no previous criminal record. Evidence of Shrader's previous possession of marijuana does not constitute reasonable cause to believe he was a seller.

We also view with alarm Scott's testimony regarding his perception of his duties as a confidential informant. Scott's misapprehension of the proper limits of his duties is perhaps best exemplified by the following testimony elicited on direct examination:

Q. Okay. Prior or during your affiliation with N.D.I. being Nevada Division of Investigation, did you receive any training or instruction?

A. Yes, I did.

Q. What did that involve?

A. It involved the approaching of a person that you thought might be dealing in narcotics or even if you didn't think so, you would ask the person: "Do you know where I could--where I can find any drugs or any smoke or marijuana," so forth and so on and then at that time they had the choice whether or not to say: "Yes, I do know where you can get some," or, "I have some."

(emphasis added.)

This testimony convinces us that the proper limits of government activity in undercover operations must be made clear to both the police and their agents. We adopt the rule articulated above to guide the police in future investigations and to prevent " 'the seduction of innocent people into a criminal career.' " Wyatt, 77 Nev. at 497, 367 P.2d 104 quoting from People v....