State v. Blanco, 4D03-113.

• Decision Date: 02 March 2005
• Docket Number: No. 4D03-113.,4D03-113.
• Citation: 896 So.2d 900
• Parties: STATE of Florida, Appellant, v. Julio BLANCO, Appellee.
• Court: Florida District Court of Appeals

896 So.2d 900

STATE of Florida, Appellant, v. Julio BLANCO, Appellee.

No. 4D03-113.

District Court of Appeal of Florida, Fourth District.

March 2, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee and Frank J. Ingrassia, Douglas J. Glaid and Andrea D. England, Assistant Attorneys General, Fort Lauderdale, for appellant.

Kevin J. Kulik, Fort Lauderdale, for appellee.

ON MOTION FOR REHEARING EN BANC

MAY, J.

We grant the State's motion for rehearing en banc, withdraw our previous opinion, and substitute the following opinion in its place.

The State appeals an order dismissing charges against the defendant based upon entrapment. We reverse the order of dismissal and remand the case to the trial court for reinstatement of the charges. Law enforcement received information that drugs were being sold at a bar without any detailed information. Undercover officers went to the bar to attempt to find the dealers. Upon arrival, one of the officers approached the bar and sat next to the defendant. A conversation ensued. The officer indicated that he liked to "party," and explained to the defendant that he meant the use of cocaine.

The defendant left the bar at some point and went to the restroom. Upon his return, he told the officer no one was selling cocaine, but he found someone selling "Tina" or crystal meth for $60. The officer gave money to the defendant, who returned with the drugs. The officer bought the defendant a beer and talked for awhile. The officer exchanged numbers with the defendant and called him during the following days. The defendant was arrested two weeks later.

The defendant moved to dismiss the case on the grounds of entrapment. The court heard testimony from the defendant and the officer. They both testified to a conversation taking place and the use of the term "party." However, the defendant's interpretation of the word, and who said what, differed from that of the officer.

The trial court granted the defendant's motion to dismiss. The court explained:

I have to kind of disagree with [the State].... [T]his particular defendant was not a target of an investigation. He had not been previously noted as someone who dealt in drugs and that they were targeting him. This officer walks into knowingly — knowing it's a gay bar — and, as he testified, he approached this man who was sitting alone. He was the one that began the conversation. If it had been a woman sitting there I think she would have felt the same way. This was a man who was interested in her or him. The manner of procedure here and the talk that resulted would certainly seem to me objectionable, denied this man of his due process rights. And I am going to grant the motion to dismiss.

It is from this ruling that the State appeals.

Unlike subjective entrapment, which focuses on the issues of inducement and the defendant's predisposition, an objective analysis of entrapment on due process grounds focuses on the conduct of law enforcement. Munoz v. State, 629 So.2d 90 (Fla.1993).¹ The type of conduct held to violate due process is that which so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction. See, e.g., State v. Glosson, 462 So.2d 1082 (Fla.1985) (law enforcement entering into a contingency contract with informants to obtain convictions); Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985) (law enforcement officer appearing inebriated and hanging money from his pocket in high crime area); State v. Williams, 623 So.2d 462 (Fla.1993) (illegal manufacture of crack cocaine by law enforcement officials for use in reverse-sting operation); Soohoo v. State, 737 So.2d 1108 (Fla. 4th DCA 1999) (undercover agent's consignment arrangement for sale of drugs). When government conduct violates a defendant's due process rights, the remedy is dismissal. See Munoz, 629 So.2d 90. In this case, the defendant's version of the facts differed from that of the officer. But, even assuming the facts in the light most favorable to the defendant, law enforcement's conduct was not so outrageous that dismissal was warranted.

The trial court failed to limit its consideration to the conduct of law enforcement. Rather, it focused its attention on the effect of the officer's conduct on the defendant, the defendant's subjective perception of the situation, and his apparent lack of predisposition to commit the offense. Respectfully, those factors are irrelevant to a ruling when it is objectively analyzed on due process grounds.

Law enforcement was alerted that drugs were being sold at this bar. As it does on a daily basis, it engaged undercover officers to find the dealers at the suspected location. We conclude the officer's conduct did not rise to that level of "outrageous" as required under the case law to support a finding of entrapment on due process grounds.

Accordingly, we reverse the trial court's order of dismissal and remand the case for reinstatement of the charges. The factual dispute between the State and the defendant prevents the resolution of subjective entrapment on a motion to dismiss. A jury may very well find the defendant not guilty on the basis of subjective entrapment. That, however, is a decision for another day.

REVERSED AND REMANDED.

STONE, WARNER, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR, JJ., concur.

FARMER, C.J., dissents with opinion, in which GUNTHER and POLEN, JJ., concur.

HAZOURI, J., Recused.

FARMER, C.J., dissenting.

I see no need to repeat what we said in the panel opinion affirming the decision of the trial judge dismissing this case. I write instead to make the following points.

The rationale of the en banc majority's position is this. In considering dismissal under the objective test for entrapment a trial Judge may not engage in any fact-finding, that the statute requires the jury to resolve the facts underlying an entrapment defense. See § 777.201(2), Fla. Stat. (2004) ("The issue of entrapment shall be tried by the trier of fact."). And so, in the majority's view, a pretrial motion to dismiss on the grounds of entrapment must be decided solely on undisputed facts — i.e., only on those facts which the State will concede — because otherwise the court would be invading the function the statute gave to the jury. The majority reasons that when the underlying facts for entrapment are disputed "law enforcement's conduct was not so outrageous that dismissal was warranted." Op. at 902. One should carefully note that this reasoning is not followed by any citation of authority. Nor does the majority advance any explanation why its proposition might be sustainable.

Judge Lebow did not specify which test for entrapment she relied on in dismissing this case. This is significant because entrapment takes two forms in Florida. The first form is essentially an affirmative defense centered around the accused's alleged lack of any predisposition to commit the crime. The second form is not an affirmative defense. In this second form of entrapment, the conduct of the government operates as a legal bar to the entire prosecution. In this second form, predisposition is not a material consideration. The first form is called the subjective test; the second form is the objective test. Munoz v. State, 629 So.2d 90, 98-99 (Fla.1993); Cruz v. State, 465 So.2d 516, 520 (Fla.1985) ("The subjective view recognizes that innocent, unpredisposed, persons will sometimes be ensnared by otherwise permissible police behavior. However, there are times when police resort to impermissible techniques. In those cases, the subjective view allows conviction of predisposed defendants. The objective view requires that all persons so ensnared be released."); Soohoo v. State, 737 So.2d 1108, 1109 (Fla. 4th DCA 1999) ("Thus, as it stands today, Florida courts embrace both the subjective and objective standards of entrapment."). Under the objective test, the contention is that as a matter of due process courts should not tolerate the conduct of the government regardless of the predisposition of the accused.

I do not think the majority's proposition banning all judicial fact-finding in objective entrapment cases is a correct statement of Florida law. Although the Legislature has reshaped the subjective test on entrapment into a specific statute under which the jury has a leading role, the supreme court made clear in Munoz that the entrapment statute does not bar the trial Judge from evaluating police conduct under the Due Process Clause:

"Because the legislature cannot abrogate an accused's due process rights, section 777.201 is inapplicable whenever a judge determines as a matter of law that law enforcement personnel have violated an accused's due process rights."

Munoz, 629 So.2d at 98; see also Art. I, § 9, Fla. Const., and § 777.201(2), Fla. Stat. (2004). Accordingly, it is now established law in this state that the trial judge is authorized to dismiss a criminal case when the conduct of the government should not be tolerated. The majority's view thus raises the question just how the trial judge is to carry out judicial authority to assess police conduct under constitutional law without engaging in some fact finding to determine precisely what that conduct is.

Before Munoz, the supreme court had already made clear that while the subjective test is ordinarily (but not exclusively, as I shall presently show) for the jury, the objective test is for the court alone:

"The due process defense based upon governmental misconduct is an objective question of law for the trial court, as opposed to the subjective predisposition question submitted to the jury in the usual entrapment defense." [e.s.]

State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985). Munoz explained later that:

"section 777.201 neither prohibits the judiciary from objectively reviewing the issue of entrapment to the extent such a review involves the due process clause ... of the Florida

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