State v. LeBrun

• Decision Date: 10 November 1966
• Citation: 245 Or. 265,419 P.2d 948
• Parties: STATE of Oregon, Respondent, v. Phillip Alan LeBRUN, Appellant.
• Court: Oregon Supreme Court

Page 948

419 P.2d 948

245 Or. 265

STATE of Oregon, Respondent, v. Phillip Alan LeBRUN, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 6, 1966.

Decided Nov. 10, 1966.

Charles R. Harvey, Portland, argued the cause and filed a brief for appellant.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and George M. Joseph, Deputy Dist. Atty., Portland.

Before McALLISTER, C.J., and SLOAN, GOODWIN, HOLMAN and LUSK, JJ.

LUSK, Justice.

The defendant was convicted of the unlawful possession of morphine sulphate, a narcotic drug, and has appealed.

His defense was entrapment and the sole assignment of error is directed to the court's refusal to give the following requested instruction:

'The defendant in this case has claimed entrapment as a defense. Where the doing of a particular act is a crime, if the intent to do the act originates with the defendant, the fact that an opportunity is furnished in order to secure the evidence necessary to prosecute him does not constitute a defense.

'However, if the criminal intent to do the act originates in the mind of the entrapping person or by anyone acting in his behalf, and the accused was not a previously suspected person, then the defendant cannot be convicted because of entrapment, regardless of the fact that what the defendant did was morally wrong and was a violation of the law.'

The court submitted the issue of entrapment in an instruction to which no exception was taken. We need not, therefore, consider whether the instruction given was in all respects correct. The point urged by the defendant is that the court failed to submit to the jury 'the rule that * * * an illegal act by the defendant could not warrant a conviction if he were entrapped unless he was previously suspected.' No authority has been cited by either party on this question. Our examination of the cases leads us to the conclusion that the requested instruction was properly refused.

What has been referred to as 'the classic definition of entrapment': Butler v. United States, 191 F.2d 433, 437 (4th Cir), was written by Chief Justice Hughes in Sorrells v. United States, 287 U.S. 435, 445, 53 S.Ct. 210, 214, 77 L.Ed. 413, 86 A.L.R. 249, where he quotes the following from Newman v. United States, 299 F. 128, 131 (4th Cir):

'* * * It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor. * * *'

An annotation of this subject as it relates to narcotic offenses may be found in 33 A.L.R.2d 883. See, especially, pages 886--891.

There are dicta in the cases to the effect that, if the police did not have reasonable cause to believe that the accused was engaged in violating the law, ¹ entrapment would be established as matter of law. See, for example, Ryles v. United States, 183 F.2d 944 (10th Cir). In United States v. Certain Quantities of Intoxicating Liquors, 290 F. 824, 826 (D.N.H.) the court said that 'one of two conditions must be present to warrant a conviction in this class of cases--either (1) reasonable suspicion on the part of the officers that the party is engaged in the commission of a crime or is about to do so; or (2) the original suggestion or initiative must have come from the perpetrator.' The subject is discussed in 'Entrapment: An Analysis of Disagreement,' 45 Boston Univ.L.Rev. 542, 554--555, where the author characterizes the position taken in the last cited case as 'extreme' (p 555, Note 78). With that comment we agree, for 'reasonable suspicion,' as we view it, is only an element--an important one it may be--in the consideration of the ultimate question where evidence of entrapment comes into the case.

In the Sorrells case the Supreme Court said that to determine the question of entrapment both the conduct of the officers and the 'predisposition and criminal design of the defendant are relevant': 287 U.S. at 451, 53 S.Ct. at 216. The controlling question, the court continued, is 'whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials': (Id.). The doctrine of the Sorrells case was reaffirmed in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; ² and is generally accepted by the lower federal courts and the state courts. See the cases collated in the annotation, 33 A.L.R.2d 883, § 3.

Nothing in these statements of the law requires the conclusion that previous suspicion (meaning, we assume, that the accused was a violator of the particular statute involved or some similar statute) or reasonable ground for such suspicion, is an indispensable part of the prosecutor's proof.

And so Judge Learned Hand in United States v. Becker, 62 F.2d 1007, 1008 (2d Cir), in considering what would 'excuse' instigation by an officer, said: 'The only excuses that courts have suggested so far as we can find, are these: an existing course of similar criminal conduct; the accused's already formed design to commit the crime or similar crimes; his willingness to do so, as evinced by ready complaisance.'

Again, Judge Hand in United States v. Sherman, 200 F.2d 880, 882 (2d Cir) ³ said that in cases of alleged entrapment two questions of fact arise: '(1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence.' Elaborating on his earlier statement in the Becker case, above quoted, Judge Hand said:

'* * * As we understand the doctrine it comes to this: that it is a valid reply to the defence, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offence charged, whenever the opportunity offered. In that event the inducement which brought about the actual offence was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his preexisting purpose. The proof of this may be by evidence of his past offences, of his preparation, even of his 'ready complaisance.' Obviously, it is not necessary that the past offences proved shall be precisely the same as that charged, provided they are near enough in kind to support an inference that his purpose included offences of the sort charged.' 200 F.2d at 882.

In other cases some of the courts have come directly to grips with the question before us. In Swallum v. United States, 39 F.2d 390, 393 (8th Cir), the defendant argued that the agent who procured illegal prescriptions for morphine from him did not have reasonable cause to believe that the law was being violated by him and therefore entrapment was conclusively shown. The court rejected this contention saying:

'We do not find any authority holding that lack of probable cause to believe defendant was unlawfully selling morphine, or lack of suspicion in the mind of an agent who makes a pretended purchase, alone, constitutes entrapment. See United States v. Siegel (D.C.) 16 F.2d 134, where the above authorities are digested.

'That an agent manufactures an offense against the law and then incites a person against his will to commit that offense for the purpose of prosecution is the gist of a defense of entrapment.'

Judge Clark writing for the court in United States v. Abdallah, 149 F.2d 219 (2d Cir), said:

'Defendant argues that there must be reasonable cause for suspicion before a detective may give the culprit an opportunity to commit the crime, citing cases such as De Mayo v. United States, 8 Cir., 32 F.2d 472, 474, 475; Fisk v. United States, 6 Cir., 279 F. 12; Partan v. United States, 9 Cir., 261 F. 515, certiorari denied 251 U.S. 561, 40 S.Ct. 220, 64 L.Ed. 415; United States v. Reisenweber, 2 Cir., 288 F. 520. These cases, however, use facts showing 'reasonable cause' as evidentiary of an already existing criminal intent upon the part of the accused, rather than as an absolute prerequisite to the police practice...