In editing People v. Watson, 990 P.2d 1031 (Cal. 2000), for the entrapment unit of my Criminal Law class, I was struck by the elementary yet common flaw in the concurrence. Here is the fact pattern:
One March evening in 1997, Bakersfield police officers conducted a vehicle theft “sting” operation. They staged an arrest of a plainclothes police officer driving a black 1980 Chevrolet Monte Carlo that belonged to the police department. The arresting officers activated the emergency lights and siren of their marked patrol car and stopped the Monte Carlo. The Monte Carlo’s driver drove into a parking lot and parked. While a group of spectators watched, a uniformed police officer approached the Monte Carlo, ordered the driver out, patted him down, handcuffed him, placed him in the back seat of the patrol car, and drove away, leaving the Monte Carlo behind. The police left the Monte Carlo unlocked with the keys in the ignition to make it easier to take. They wanted to “give the impression [the driver] was arrested and the vehicle was left there.”
A couple of hours later, police arrested defendant after he drove the Monte Carlo from the parking lot. He told the arresting officer that his niece had informed him of the earlier apparent arrest and told him to “come and take” the car. He did just that, intending to use it to “roll,” i.e., to drive it.
Defendant was charged with taking a vehicle. [The question was whether he was entitled to an “entrapment” instruction, and the court said no:] The trial court was required to instruct the second jury on the defense of entrapment if, but only if, substantial evidence supported the defense. People v. Barraza, 591 P.2d 947 (Cal. 1979). In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. “[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” [Details omitted. -EV]
And here is Justice Mosk’s concurrence:
I concede that the result that the majority opinion reaches is sound under the law.
But I cannot resist expressing my reservations about the morality of the conduct by the police.
It is a primary function of a law enforcement agency not only to investigate the commission of crimes but also to prevent their commission in the first place, certainly not to encourage them. Members of the public are persuaded to lock their motor vehicles and to remove the keys therefrom. The police acted to the contrary here and thus deliberately encouraged commission of a crime. The defendant, so motivated, accommodated them.
If leaving the keys in an open motor vehicle is sound law enforcement, then next we may anticipate arranging for a homeowner to leave his front door open all night to attract a burglar. Or a bank to leave a signed check on the counter to attract a forger. Or leaving a loaded gun on a park bench to attract a potential robber. Police may thus apprehend more criminals. But there will be more crimes.
In a strange rebuttal, the majority opinion refers to the police “risking their own property.” [That part of the majority is omitted in this excerpt. -EV] The fact, of course, is that police possess and use public property and must act with that in mind.
My preference is for law enforcement agencies to take steps to make the commission of crimes impossible, or at least more difficult, rather than simpler. Admittedly there are potential criminals in our midst, and weak-willed persons who will take advantage of criminal opportunity. I would prefer discouraging them rather than devising techniques to make their task easier.
Now I agree that some police stings can be improper under some circumstances, much as nearly any police tactic can be improper under some circumstances. And I am in principle open to the argument that police decoy operations might be generally impermissible.
But the argument the concurrence makes just doesn’t work (incoming law students, take heed). The fallacy is in the assumption that “to prevent [the] commission [of a crime]” and “to encourage [the commission of a crime]” (even when the encouragement is in the form of a decoy operation) are opposites, or at least incompatible. (Likewise, note the supposed incompatibility of “discouraging [potential criminals]” and “devising techniques to make their task easier.”)
In fact, the obvious premise of sting operations is that one can prevent the commission of future crimes by encouraging the commission of a present one: This can help catch people who are disposed to commit the crime, and can help deter others. Maybe one shouldn’t do this even if it’s effective. Or maybe there are subtle reasons why it’s ineffective. But if that’s one’s argument, one needs to make it, rather than just assuming that preventing crime and encouraging a crime by means of a decoy are incompatible, to the point that no further argument is required.
One helpful way of thinking about this is to imagine a structurally similar police investigation of a more severe crime. Say that a rapist has been attacking women in a park. And say that the police decide to send a woman officer in as a decoy. To make her an even more appealing target, let’s assume she’s very attractive and at the same time and apparently an easy mark (for instance, she’s staggering as if she’s drunk).
Are the police trying to prevent the commission of rape? Absolutely. Are they encouraging the commission of an attempted rape? Yes, in the sense that they are making it more likely that an attempted rape would take place this particular evening. (Presumably they have set things up so that it’s extremely unlikely that the decoy will actually be raped, or otherwise seriously hurt.) So whatever argument there might be against this practice, it can’t be that police should “prevent [the] commission [of crimes] in the first place, certainly not to encourage them.”
The car decoy example is structurally quite similar. (There are differences, of course, especially in the severity of the crime; but those differences are not, I think, relevant to the particular argument that the concurrence is making.) One can’t condemn such a decoy simply on the grounds that the function of the police is to prevent rather than encourage crimes, unless one confronts the possibility that they can prevent real crimes by encouraging doomed attempts.