Opinion
Case No. 4D03-113.
Opinion filed January 21, 2004.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Susan Lebow, Judge; L.T. Case No. 02-1219 CF10A.
Charles J. Crist, Jr., Attorney General, Tallahassee and Andrea D. England, Assistant Attorney General, Fort Lauderdale, for appellant.
Kevin J. Kulik, Fort Lauderdale, for appellee.
The issue is whether the police conduct in this case "falls below standards, to which common feelings respond, for the proper use of governmental power." Cruz v. State, 465 So.2d 516, 521 (Fla. 1985), cert. denied, 473 U.S. 905 (1985) (quoting Sherman v. United States, 356 U.S. 369, 382 (1958) (Frankfurter, J., concurring in the result)). We agree with the trial court and affirm its dismissal of the charges on the grounds of entrapment.
At the hearing on the motion to dismiss, Blanco testified to the following facts. He describes himself as a lonely homosexual man, who was drinking alone at a gay bar looking for someone to pay attention to him. An extremely friendly and attractive man sat down on the barstool next to him, said his name was Mike, and began paying attention to him. Mike had arrived with a couple of friends, but left his friends and gave Blanco his undivided attention. Mike was very attentive, and they had a couple of drinks together. When Mike told Blanco that he and his friends wanted to have a good time, Blanco told him that he had come to the right place.
According to Blanco, Mike asked him if he liked to "party" and Blanco thought "party" meant having a good time or being sexually involved. Blanco then asked what he meant by "party" and Mike responded that he liked to have a good time and asked Blanco about cocaine. Blanco refused to get Mike any cocaine, and they continued drinking and talking. Mike was extremely friendly, and then he asked Blanco for cocaine a second time. Again Blanco said no.
When Mike asked Blanco a third time for cocaine, Blanco became annoyed and started to leave. Blanco told him that if he was looking for drugs, he did not have any. Mike entreated Blanco to stay and said, "come on, can you get me some?" Blanco testified the he was still very interested in Mike because Mike was a very handsome guy. Blanco finally relented and told Mike he would go to the restroom and if he happened to see anybody he knew he would ask, but that was as far as he would go.
Blanco saw several friends in the restroom and determined that they had only crystal meth, called "Tina." He returned to Mike and told him he could not get cocaine but asked if he was interested in Tina. Mike agreed and gave Blanco $60. Blanco left, returned with the drugs, and gave them to Mike. Mike got Blanco a beer and introduced him to his friends. They continued talking and then Mike said that he had to go to Miami. Mike and Blanco exchanged numbers. Mike continued calling him during the following days. Blanco was arrested two weeks later.
Although Mike told Blanco he was on vacation and had a business in New York, he was actually an undercover detective assigned to the Drug Enforcement Administration (DEA) Task Force. Working in this capacity for approximately nine months, Mike was assigned to the DEA, often with DEA agents and other Federal agencies. Mike testified that he was aware that it was a gay night club and that he and another detective went there because they had received a tip that narcotic sales were occurring at the nightclub. Mike admitted that he had received no information about Blanco and did not know him when he sat down next to him at the bar. Blanco had never previously been arrested.
Mike's testimony about the encounter paints a different picture. He disclaimed any intent to appear attractive to Blanco. Mike testified that from his past experiences "to party" is what people are going to say if they are going to engage in narcotics conversation or buying or selling narcotics. According to Mike, it was not he but Blanco who "asked if they liked to party, or did they party." Mike testified that he responded that they loved to party, that he "believed" he asked Blanco if he could help them out, that he "believed" that Mike asked him what he needed, that he touched his own nose and told Mike cocaine, that he "believed" Blanco responded by telling him he would be right back, and that Blanco then went toward the restrooms. Mike testified that when Blanco returned he said there wasn't any cocaine but asked him if he wanted Tina, that before he responded to Blanco he deferred to the other detective who gave him a non-verbal nod, and that $60 was given to Blanco who left and returned with crystal meth. When Mike was asked by the court what time of day it was when the encounter took place, Mike said it was between 10 pm and 2 am.
Defendant moved to dismiss the case on the grounds of police entrapment. The court heard the foregoing testimony of defendant and the officer, as well as argument from both sides. The State pointed out that only objective entrapment could be the basis for a dismissal upon motion, that if it were merely subjective entrapment being argued the matter would have to be resolved by the jury. With that statement we agree. But, the State argued, from the facts presented "you haven't heard anything today that would even rise to the level" of the objective entrapment standard.
In granting the motion to dismiss, the court explained:
"I have to kind of disagree with you. . . . [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 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." [e.s.]
The court added:
"The whole situation seemed very clear to me. I mean, the detective walked in dressed in a T-shirt and jeans, and for the record he was a very attractive man and ____" [e.s.]
COUNSEL: I was going to ask you to make a finding.
COURT: I make that a finding. He's a very attractive man.
At that point, defense counsel pointed out:
"For the record, I would submit he was about 6' 2". He was in good shape, you know, a fit individual, young detective, looked to be maybe 30, something like that."
The prosecutor expressed no disagreement with counsel's statement.
Based on the explicit and implicit findings by the trial court, the police conduct at issue can best be described as using the allure of the possibility of sex to induce one who is under no suspicion of criminal plans or activity to commit a non-sex related crime that has been instigated and suggested by police. The question is whether the police conduct in this case is acceptable under the Due Process Clause.
As Justice Frankfurter explained, objective entrapment:
"does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. . . . It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention . . . to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime. . . . The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime." [e.s.]
Sherman, 356 U.S. at 384; Cruz, 465 So.2d at 519 (objective entrapment view "well expressed" by Justice Frankfurter); see also State v. Williams, 623 So.2d 462, 467 (Fla. 1993) ("[T]he protection of due process rights requires that the courts refuse to invoke the judicial process to obtain a conviction where the facts of the case show that the methods used by law enforcement officials cannot be countenanced with a sense of justice and fairness."); Spencer v. State, 263 So.2d 282 (Fla. 1st DCA 1972) ("It is beneath the dignity of the State of Florida to allow [sexually enticing] agents to appear to be of questionable virtue in order to lure [subjects] into committing the crime of [transacting in illegal drugs]."). While we do not foreclose the possibility that there will be circumstances in which the government can properly use the lure of sex in cases not involving sex related crimes, we simply find its use in this case unjustifiable and improper.
The State's contention — accepted in whole by the dissent — is that there is no entrapment because Mike explained that "to party" meant drugs to him and thus Blanco knew Mike was seeking drugs, not sex. With this argument the State attempts to reduce the entrapment issue to just two words — "to party" — but conveniently fails to consider that Blanco testified that Mike said he liked to have a good time and wanted cocaine. The trial court obviously believed Blanco's version of the facts and could have reasonably interpreted Mike's answer as indicating to Blanco that Mike wanted to have a good time and that a good time would include cocaine as well as something else.
In general, the State's argument completely ignores the style and manner of the approach used by Mike, and seeks instead to narrow attention to a single aspect only — the verbal communication, and only two words at that. It tries to hide the essential impropriety of police conduct designed to promote and generate crime, where none is in the air, by attempting to deflect the judicial focus from the whole encounter to just one of its incidents. In so doing, the State's argument fails to address the totality of the circumstances of Mike's behavior and disregards the resolution of facts by the trial judge, who was obviously more impressed by the non-verbal communication used by Mike in staging this encounter. ("The manner of procedure hereand the talk that resulted would certainly seem to me objectionable. . . . The whole situation seemed very clear to me." [e.s.]).
There is no suggestion by anyone that the defendant was interested in committing any crime — and certainly not any drug crime — until the State instigated and promoted such a violation. The defendant rejected the State's entreaties three separate times and even attempted to leave the bar before the undercover detective persuaded him to remain and ultimately commit the offense. To expand on Justice Frankfurter's intuition, the human psyche is especially vulnerable to certain charms and, thus weakened, is ever subject to siege by an array of lures and temptations without the State routinely resorting to the oldest and perhaps most effective seduction of them all to create crimes unrelated to the inducement.
AFFIRMED.
FARMER, C.J., and GUNTHER, J., concur.
MAY, J., dissents with opinion.
I must respectfully dissent. Today the majority holds that when an attractive undercover officer asks a defendant in a gay bar "if he like[s] to party," it constitutes conduct so outrageous that it violates the defendant's right to due process, entitling him to dismissal of his charges. I cannot join in that decision.
In its opinion, the majority blurs the important, and here dispositive, distinction between objective and subjective entrapment. Unlike subjective entrapment, which focuses on the defendant's predisposition, the objective entrapment defense focuses on the conduct of law enforcement. Munoz v. State, 629 So.2d 90 (Fla. 1993). Yet, both the trial court and the majority have emphasized the affect of the officer's conduct on the defendant, the defendant's subjective perception of the situation, and his apparent lack of predisposition. Respectfully, none of those factors are relevant to a decision based upon "objective" entrapment.
The majority suggests that because the trial court found that law enforcement used the "allure of the possibility of sex to induce one who is under no suspicion of criminal plans or activity to commit a non-sex related crime that has been instigated and suggested by police," we are bound to find the conduct "outrageous." The majority casts doubt on whether such conduct is permissible if the crime targeted is "unrelated to the inducement." It admits, however, that there may be occasion where "the government might properly use the lure of sex in cases not involving sex related crimes." I respectfully suggest the type of crime targeted should not affect the holding in this case. If the conduct is outrageous, it should be banned. If it isn't outrageous, it should be permitted.
By limiting the reach of its holding, the majority has avoided the potential affect of its opinion on law enforcement's efforts to combat prostitution, child pornography and exploitation (especially using the internet). However, the opinion creates uncertainty as to when law enforcement may employ conduct that is perceived as having sexual overtones in crimes such as drug trafficking, conspiracy, murder, and other non-sex crimes. The focus in this case should be on the conduct of law enforcement, not on the nature of the targeted crime or the defendant's predisposition to commit it.
Here, the defendant's, trial court's, and majority's interpretation of the encounter hinged in part on the word "party." They interpreted it to mean "sex." However, the defendant admitted that the officer clarified his reference to "party" by telling him he wanted cocaine.
Absent evidence that the officer engaged in behavior to connote the promise of a sexual encounter, I cannot agree that the conduct was outrageous. The mere fact that the defendant (and the trial court for that matter) found the officer attractive does not make it so. Nevertheless, the trial court found, and the majority holds, that the conduct reached the level of "outrageous" and exceeded the bounds permitted by the Due Process Clause.
The majority suggests that the trial court's factual findings resolve the legal issue of whether law enforcement's conduct surpassed constitutional bounds. I disagree. Just because the trial court found the officer attractive and that the defendant was attracted to him, does not dictate the legal result. There really was no conflict in the testimony concerning the facts, only in the interpretation to be given them. The trial court not only accepted the defendant's testimony concerning the facts, but also his subjective perception of them. By injecting the defendant's subjectivity into its consideration, the court abandoned its duty to objectively consider only law enforcement's conduct and relied upon the subjective response of the defendant, which is not at issue in an objective entrapment defense.
Conduct of the type that so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction violates due process. 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 (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. However, when the conduct fails to rise to that level, the issue of subjective entrapment is left for the jury's consideration.
Here, law enforcement was alerted that drugs were being sold at this bar. They used undercover officers to attempt to find the dealers. This tool is used daily in combating illegal drug sales. The fact that this defendant was a lonely gay man looking for attention does not transform the officer's conduct into a type prohibited by the constitution. Under the recognized standard for objective entrapment, I would find for the State.
This does not prohibit the defendant from raising the affirmative defense of subjective entrapment. Whether law enforcement induced an otherwise law-abiding citizen to conduct a crime, which appears to be the concern of the majority, is an issue to be decided at trial. A jury may find him not guilty on that basis. That is a decision for another day. I would reverse and remand the case for trial.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.