State v. Harper

• Citation: 254 So.3d 479
• Decision Date: 05 September 2018
• Docket Number: No. 4D17-1251,4D17-1251
• Parties: STATE of Florida, Appellant, v. Jerod HARPER, Appellee.
• Court: Court of Appeal of Florida (US)

254 So.3d 479

STATE of Florida, Appellant,

v.Jerod HARPER, Appellee.

No. 4D17-1251

District Court of Appeal of Florida, Fourth District.

[September 5, 2018]

Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellant.

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon and Joseph Kimok, Assistant Regional Counsels, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.

Levine, J.

In this case, we confront the contours of objective entrapment, which exists when governmental conduct is so "outrageous" as to violate established concepts of due process. We also examine subjective entrapment, which centers on whether the defendant was induced to commit the crime and whether the defendant had a lack of predisposition to commit the offense. We find no objective entrapment because law enforcement did not engage in such "outrageous" conduct to offend "decency or a sense of justice." We further find no subjective entrapment as a matter of law. Rather, the issue of subjective entrapment presented a question of fact that is properly for the jury. Therefore, we reverse the order dismissing charges against the defendant based on entrapment and remand for the trial court to reinstate the charges.

The Violent Intervention Proactive Enforcement Response unit ("Unit") of the Broward Sheriff's Office ("BSO") created the "Hotel Scenario" as part of a reverse sting operation. The Hotel Scenario involved the use of a confidential informant ("CI") to identify people who were actively committing crimes. Once the Unit approved the subject of the investigation, the CI would tell the subject that she has a friend who cleans hotel rooms. The CI would then explain that, while cleaning a room that appeared to be occupied by drug dealers, the friend saw money, jewelry, and drugs, including a kilo of cocaine, in the safe. Next, the friend would offer to provide the room key for someone to commit a burglary, but did not want to be involved herself because she was known at the hotel. If the subject agreed to the burglary, the CI would inform the subject that the friend would drive them and show them the room.

The CI used in this case had a substantial assistance agreement with BSO. The defendant and the CI had known each other since middle school but had not seen each other in several years. The defendant found the CI on Facebook and initiated communications with her via text message.

The CI identified the defendant as a potential target and told the Unit that he had been actively committing burglaries. The Unit reviewed the defendant's criminal history. At the time the CI identified the defendant as a potential target, the defendant had recently been released from prison and was on probation for burglary of a dwelling, dealing in stolen property, and grand theft. The defendant also had a lengthy juvenile record involving burglary, narcotics, and theft.

After the Unit approved the defendant as a subject of this investigation, the CI presented the "Hotel Scenario" to the defendant through an exchange of text messages. The CI asked the defendant if he wanted to make a "kum up" with her, indicating that she wanted to commit a crime. The defendant asked what they had to do and how they were going to make the money. The CI responded that her friend who works in a motel found items in a safe. The defendant asked why the CI needed him, and she responded that she needed someone to lift the safe. The defendant asked what was in it for him. The CI responded a "[h]alf split" "[a]nd an entire day 2 chill wit me;-)."¹ The defendant said that he was in and asked what time. He also said that the CI would have to get him drunk first. The CI responded that he might have to take a few shots because "bizness iz bizness" for her. She then said that afterwards she would buy him drinks because she wanted to go out and celebrate since it was a lot of money. The defendant again stated that he was in. After confirming that the hotel did not have functioning cameras and that the CI would have a car, the defendant stated that he would be ready.

Over the next two weeks, the CI and the defendant continued to exchange text messages. The defendant asked on multiple occasions when they were going to commit the crime. The CI also confirmed on several occasions that the defendant still wanted to commit the crime. In one text message, the defendant told the CI that he wanted to perform a sexual act on the CI, and the CI responded, "Lmao," which is an abbreviation for "laughing my a-- off." After several more days of texts messages, the CI finally texted the defendant to ask if he was ready to commit the crime. He said he was.

The CI and her "housekeeper friend"—who was actually an undercover officer—picked the defendant up and drove to the hotel. This was the first time the defendant saw the CI in person since contacting her on Facebook. The undercover officer gave the defendant the key to the hotel room, which contained money, jewelry, fake cocaine, and half a kilo of cocaine locked in a safe. All of the items in the hotel room were placed there by the sheriff's office. Once inside the room, the defendant went straight for the safe, removed it from the room, and put it in the car. He then went back in and took the currency, jewelry, and fake cocaine.

After his arrest, the defendant waived his Miranda rights. He admitted that the CI did not promise sexual relations or to be his girlfriend in exchange for his commission of the burglary.

Subsequently, the defendant was charged with trafficking in cocaine, burglary of a dwelling, and grand theft. The defendant filed a motion to dismiss based on subjective and objective entrapment. He testified that while he was on probation, he was not committing any crimes and did not have any intention to commit any crimes. The defendant thought a sexual relationship with the CI could be an option or a possibility. On cross-examination, however, the defendant again admitted that the CI never promised him sexual relations or to be his girlfriend.

The trial court granted the motion to dismiss. The trial court found subjective entrapment because the CI, a government agent, induced the defendant with a promise to spend time with him and the defendant was not predisposed to commit this crime. As to objective entrapment, the court found that BSO provided all of the elements of the crime committed by the defendant.

The standard of review of an order dismissing the charging document is de novo. Senger v. State , 200 So.3d 137, 143 (Fla. 5th DCA 2016).

1. OBJECTIVE ENTRAPMENT

We begin our analysis with a discussion of objective entrapment. "Objective entrapment analysis focuses on the conduct of law enforcement and operates as a bar to prosecution in those instances where the government's conduct so offends decency or a sense of justice that it amounts to a denial of due process." State v. Henderson , 955 So.2d 1193, 1194 (Fla. 4th DCA 2007) (citation and internal quotation marks omitted). "[I]n the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9, of the Florida Constitution." Munoz v. State , 629 So.2d 90, 99 (Fla. 1993).

"Cases finding a due process violation based on outrageous government conduct have one common thread: affirmative and unacceptable conduct by law enforcement or its agent." Bist v. State , 35 So.3d 936, 940 (Fla. 5th DCA 2010). In contrast, "creating nothing more than an opportunity to commit a crime is not prohibited." State v. Laing , 182 So.3d 812, 817 (Fla. 4th DCA 2016). "Law enforcement may provide the facilities necessary to carry out the crime, and the mere use of deceit does not violate due process." Bist , 35 So.3d at 940.

Florida courts have found objective entrapment only in a few circumstances where law enforcement's actions rose to the level of "outrageous" government conduct. See Madera v. State , 943 So.2d 960, 962 (Fla. 4th DCA 2006) (finding due process violation where a CI made promises of an intimate relationship, including sexual relations, if defendant assisted her in obtaining drugs); Farley v. State , 848 So.2d 393, 397-98 (Fla. 4th DCA 2003) (finding due process violation where taskforce illegally manufactured child pornography with intent to lure defendant into purchasing such material); Soohoo v. State , 737 So.2d 1108, 1111 (Fla. 4th DCA 1999) (finding a due process violation where an undercover agent offered defendant a consignment arrangement for the sale of drugs); State v. Finno , 643 So.2d 1166, 1169 (Fla. 4th DCA 1994) (finding due process violation where government agents investigated defendant for several months and, after finding no evidence of criminal activity, showed defendant how to conduct a loansharking operation); State v. Williams , 623 So.2d 462, 466 (Fla. 1993) (finding due process violation where law enforcement illegally manufactured crack cocaine for use in a reverse sting operation).

In finding that BSO violated the defendant's due process rights, the trial court relied on Finno . That case is clearly distinguishable because in Finno , government agents showed the defendant how to conduct a loansharking operation after investigating the defendant for several months and finding no evidence of prior criminal activity. 643 So.2d at 1170. Unlike in Finno , where the defendant was unfamiliar with how to run a loansharking operation, in this case the defendant had a criminal history involving burglaries and BSO did not teach the defendant how to commit a burglary. The defendant, for example, knew to wipe off his fingerprints at the crime scene.

This case is more akin to State v. Blanco , 896 So.2d 900 (Fla. 4th DCA 2005) (en banc). In Blanco , law enforcement received information that drugs were being sold at a bar. An undercover officer went to the bar and sat next to the defendant. The officer told...