Last Updated on May 2, 2025
One of the most commonly cited legal myths is that if you ask someone if they are a police officer, they have to tell you, or it is entrapment. Not only is this untrue, but it also underscores how little the average person understands about this legal concept. Unfortunately, entrapment is a complex area of the law, which is why defense lawyers and prosecutors frequently end up debating the matter in court.
What is Entrapment?
When a law enforcement official tricks someone into committing a crime they would typically not commit, it is entrapment. But the concept is much more complex than it initially sounds, which is why it is so poorly understood. One of the most misunderstood aspects of the law is that entrapment is not the same as opportunity, meaning that if a police officer simply presents someone with an opportunity to commit a crime, it is not considered entrapment.
Inducing someone to break the law goes beyond merely suggesting that someone commit a crime, but instead means actively persuading or coercing them to do so. California law states that entrapment only occurs when an officer’s conduct involves pressure, harassment, fraud, flattery, or threats.
This defense is commonly used in cases involving soliciting a minor for sex, drug sales, lewd conduct, prostitution, and drug transportation.
Is Entrapment Illegal?
It is not a crime for a police officer to entrap a suspect, but they are not permitted to under the law. Otherwise, officers could easily use this tactic to bump up their arrest numbers or find a reason to arrest people they don’t like. Because it is not allowed under the law, criminal attorneys can argue that the charges against their clients should be dropped if they were victims of entrapment.
How do You Prove Entrapment?
Often, there is a fine line between what is or is not considered entrapment, and it is often up to the suspect’s defense attorney to prove to the court that entrapment occurred. The biggest problem you will face when arguing entrapment occurred is proving your claims.
If you and the officer have the same story and simply disagree on whether or not it was entrapment, or if there is a recording of what happened, then this isn’t a real problem. But if you say that you were forced to commit a crime because the officer threatened you, and he says he merely presented you with an opportunity and you jumped at it, you may have a hard time with this defense.
Another big problem is if your statements after you were arrested contradict your claims of entrapment, which is another reason why you should never speak with police unless you have a lawyer present.
One good thing about this defense is that defendants must only convince jurors using a preponderance of evidence (meaning something happened more likely than not), not proof beyond a reasonable doubt, which is a higher legal standard.
Examples of Entrapment
The most obvious and easiest to prove examples of entrapment are those that involve threats. If a police officer threatened to beat someone with a bat if they didn’t commit a carjacking, that would most certainly qualify as entrapment. (If you commit a crime out of duress because you fear for your life or someone else’s life, you have an automatic defense whether that person is a police officer or not.)
Another easy-to-prove case of entrapment would occur if an undercover cop fraudulently convinced someone that something wasn’t illegal. For example, if the officer told someone about running a pyramid scheme and kept telling the suspect that it was “all above board,” then the defendant could claim the officer wrongly entrapped them into committing a crime unknowingly.
Other forms of entrapment aren’t so cut and dry. For example, it’s hard to put a distinct definition of what constitutes “harassment” when it comes to entrapment. Obviously, calling someone’s home, workplace, and cell phone non-stop is harassment, but if an undercover officer mentions a crime a few times when speaking with a suspect, it wouldn’t be. Most real-life cases involving alleged entrapment through harassment fall somewhere between the two examples, and it is up to the defendant’s lawyer to show that the suspect only committed the crime because of the harassment they were subjected to.
On the other hand, if an undercover officer tells someone about an opportunity to commit a crime, sets up the illegal activity, and tells the suspect there’s no way they’ll get caught, entrapment has not occurred because the officer did not push the defendant to do something they would not normally do otherwise.
The police often use undercover officers to get suspects to meet a minor for sex by establishing a fake identity of a child. While they may send enticing photographs or encourage a meeting, a reasonable, law-abiding person wouldn’t be induced to meet a minor for sex under those or other circumstances, so this is not considered entrapment in most cases.
Can a Private Citizen Entrap Someone?
No. Entrapment is something that can only be done by a law enforcement officer. These laws were only created to prevent overzealous officers from finding ways to wrongfully arrest citizens. If you feel someone tricked you into committing a crime, this is not a defense to a crime. That being said, if a private citizen working at the bequest of law enforcement entraps another person to commit a crime, then entrapment can be a valid defense because the police were involved.
If you have been accused of a crime and believe you were a victim of police entrapment, please call Peter M. Liss at (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation.
