Can the Police Really Do That? - Entrapment

Day after day, clients ask Dave Z. and the rest of the Shapiro Zwanetz & Lake (SZL) crew, “Can the police really do that?” in reference to scenes from popular TV shows and movies. In the Pop-Culture Corner, Dave Z. will compare and contrast scenes from television shows and movies with the real life rules set out by the Constitution of our great country. First up is HBO’s “The Wire.”

Warning: “The Wire” often has scenes containing inappropriate language. Therefore, please be advised that the video clips occasionally attached for reference are probably not sufficient for viewing at work or by people under the age of 17.

In our fourth post of the “Can the Police Really Do That?” series, we will take a look at the legal defense of entrapment and what it means to be entrapped by police action.

Continuing our discussion of the police activity on The Wire, in Season 3 Major Bunny Colvin decides to respond to the continued community complaints and the pressure to reduce crime throughout Baltimore, by pushing the drug trade in his jurisdiction to three designated areas. Within these free zones the drug trade is essentially legalized. The designated free zones were referred to as “Hamsterdam” after one of the drug dealers misheard a reference to Amsterdam.

After word gets out that Colvin has essentially legalized drugs in Hamsterdam, the operation is shut down by the police commissioner and everyone in the free zones were arrested.

Bodie, a drug dealer initially associated with the Barksdale crew, is one of the dealers arrested. While being questioned, Bodie asserts that he was selling drugs in the free zone, had been stopped by McNulty while possessing drugs and had been released and allowed to continue selling drugs. He asserted that the situation amounted to “contrapment” and ultimately beat the charges using entrapment as a defense.

(If you can start this clip at 35 seconds you avoid any curse words)

The question is, was the situation Bodie found himself in actually entrapment?

What is Entrapment?

Entrapment is a defense to a criminal charge. The defense is based on the conduct of law enforcement when a crime occurs. A suspect may raise entrapment as a defense if law enforcement acted in a way that induced or caused the suspect to commit the crime in question. Whether or not an entrapment defense is appropriate is often evaluated using one of two tests.

The “subjective” test for entrapment looks at the suspect’s state of mind to determine whether or not he or she was predisposed to commit the crime charged.

The “objective” test examines the police conduct to determine whether or not a law-abiding citizen would be persuaded to commit the crime in question based on the conduct of the law enforcement agents.

Was Bodie Entrapped?

Using the two tests we can look at the situation Bodie was in and determine whether or not his entrapment defense would have been successful in Maryland.

The subjective test, holds a stronger possibility than the objective test but it will be a difficult argument to make. Bodie was a street level drug dealer. He was encouraged to move his drug trade to Hamsterdam by Major Colvin but he was dealing drugs before the Major created the free zones. The fact that he was stopped with drugs on his person and released allows him to make a stronger argument that he wouldn’t have been in the free zone when the arrests occurred. However, he could have been arrested at the time he was stopped by McNulty, making the argument extremely weak.

Under the objective test, the entrapment argument fails. The average law abiding citizen would not start dealing drugs in the free zone if given the same opportunities Bodie was given.

In Maryland, Bodie’s argument would most likely fail. But as you can see, using the specific facts in each case is extremely important in situations where police participated in or encouraged the illegal activity. Working with an experienced criminal defense attorney is the only way to successfully mount an entrapment defense.