Petition for Writ of Certiorari — Florida v. Cruz

84~- 1693. Office -Supreme Court, U

FILED

Case No. APR 26 1985

In The ALEXANDER L. STEWAS:

SUPREME COURT OF THE UNITED Sar EN eal

October Term, 1984

STATE OF FLORIDA,

Petitioner,

Vv.

PEDRO A. CRUZ,

Respondent.

and

STATE OF FLORIDA,

Petitioner,

Ve

THADDEUS TYRONE HOLLIDAY,

Alvin Leon Townsend and

James Willie Jackson,

Respondents.

JOINT PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

AND APPENDIX

BRIEF OF PETITIONER ON JURISDICTION

JIM SMITH

ATTORNEY GENERAL

ANN GARRISON PASCHALL

PEGGY ANN QUINCE

Assistant Attorneys General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

OF COUNSSL FOR PETITIONER

2

C\\

QUESTION PRESENTED

Whether the decisions of the Florida

Supreme Court in the instant cases

adopting an objective test for en-

trapment purportedly based on Jus-

tice Roberts’ concurring opinion in

Sorrells v. United States, 287 U.S.

Q33, DS Bete 21G, FF LobO. 413

(1932) and Justice Frankfurter's

concurrence in Sherman v. United

States, 356 U.S. 369, 7/8 S.Ct. 819,

2 L.Ed.2d 848 (1958) is in fact in

conflict with this Court's decisions

in Hampton v. United States, 425

U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d

113 (1976) and United States v. Rus-

sell, 411 U.S. 423, 93 S.Ct. 1637,

36 L.Ed.2d 366 (1974)?

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TABLE OF CONTENTS

PAGE NO.

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

TABLE OF CITATIONS iii

OPINIONS BELOW 1

JURISDICTIONAL STATEMENT 2

CONSTITUTIONAL AND STATUTORY 2

PROVISIONS INVOLVED

STATEMENT OF THE CASE 6

REASONS FOR GRANTING THE WRIT 17

CONCLUSION 25

CERTIFICATE OF SERVICE 26

APPENDIX:

Opinion of the Supreme Court of A-1

Florida in Cruz v. State.

Opinion of the District Court of A-35

Appeal. Second District of Florida.

Opinion of the Supreme Court of A-47

Florida in State v. Holliday.

Opinion of the District Court of A-49

Appeal, First District of Florida.

iii.

TABLE OF CITATIONS

Cruz v. State,

__ $0.26 _— (Fla. 1985)

Hampton v. United States,

425 U.S. 484, 96 S.Ct. 1646,

48 L.Ed.2d 113 (1976)

Sherman v. United States,

356 U.S. 369, 78 S.Ct. 819,

2 L.Ed.2d 848 (1958)

Sorrells v. United States,

287 U.S. 435, 53 S.Ct. 210,

77 L.Ed. 413 (1932)

State v. Casper,

417 So.2d 263 (Fla. ist DCA 1982)

State v. Cruz,

426 So.2d 1308 (Fla. 2d DCA 1983)

State v. Holliday,

__ §$o.2d _ (Fla. 1985)

State v. Holliday,

431 So.2d 309 (Fla. 1st DCA 1983)

United States v. Janotti,

673 F.2d 578 (3rd Cir. 1982)

United States v. Kelly,

707 F.2d 1460 (D.C. Cir. 1983)

PAGE NO.

iv.

United States v. Myers, 23

635 F.2d 932, (2d Cir.), cert.

den., 449 U.S. 956 (1980)

United States v. Russell, ea - ae

411 U.S. 423, 93 S.Ct. 1637, 16, 17

36 L.Ed.2d 366 (1973) 18, 19

22, 24

OTHER AUTHORITIES CITED

PAGE NO.

28 U.S.C.

§ 1257(3) 2

§ 2257 4

28 iF Aw

U.S. Sup. Ct. Rule 19.4 4

Constitution of the United States

Amendment V 2

Amendment XIV 3

Florida Rules of

Criminal Procedure

Rule 3.190(c) (4) 6, 12

Florida Statutes

§812.014(2)(b), (1981) on we

12

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

OPINIONS BELOW

The opinion of the Florida Supreme

Court is reported as Cruz v. State, __

So.2d _—‘ (Fla. 1985) and appears in the

appendix at Al - 34.

The opinion of the District Court of

Appeal, Second District of Florida is re-

ported as State v. Cruz, 426 So.2d 1308

(Fla. 2d DCA 1983) and appears in the ap-

pendix at A 35 - 46.

The opinion of the Florida Supreme

Court is reported as State v. Holliday, _

So.2d _ (Fla. 1985) and appears in the

appendix at A 47 - 48.

The opinion of the District Court of

Appeal, First District of Florida is re-

ported as State v. Holliday, 431 So.2d 309

(Fla. 1st DCA 1983) and appears in the

appendix at A 49 - 59.

JURISDICTIONAL STATEMENT

On March 7, 1985 the Supreme Court of

Florida quashed an order oi the District

Court of Appeal, Second District of Flor-

ida which had reversed the trial court's

dismissal of an information charging Re-

spondent Cruz with grand theft. On the

same date the Florida Supreme Court ap-

proved the First District's opinion in

Holliday which dismissed informations of

grand theft based on a finding of entrap-

ment as a matter of law.

This Court's jurisdiction is invoked

pursuant to 28 U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Amendment V of the Constitution of

the United States provides that:

$

|

4

3

:

;

i

sphere

No person shall be held to an-

swer for a capital, or otherwise

infamous crime, unless on a pre-

sentment or indictment of a cap-

ital Grand Jury, except in cases

arising in the land or naval

forces, or in the militia, when

in actual service in time of war

or public danger; nor shall any

person be subject for the same

offense to be twice put in jeo-

pardy of life or limb nor shall

be compelled in any criminal

case to be a witness against

himself, nor be deprived of

life, liberty, or property,

without due process of law; nor

shall private property be taken

for public use, without just

compensation.

Amendment XIV of the Constitution of

the United States provides inter alia,

that:

All persons born or naturalized

in the United States, and sub-

ject to the jurisdiction there-

of, are citizens of the United

States and of the state wherein

they reside. No state shall

make or enforce any law which

shall abridge the privileges or

immunities of citizens of the

United States; nor shall any

state deprive any person of life

liberty, or property, without

due process of law; nor deny to

any person within its jurisdic-

tion the equal protection of the

law.

Title 28 U.S.C. §2257 provides in

pertinent part:

U.S.

Final judgments or decrees ren-

dered by the highest court of a

State in which a decison could

be had, may be reviewed by the

Supreme Court as follows:

(3) By writ of certiorari,

where the validity of a treaty

or statute of the United States

is drawn in question or where

the validity of a State statute

is drawn in question on the

ground of its being repugnant to

the Constitution, treaties or

laws of the United States, or

where any title, right, privi-

lege or immunity is specially

set up or claimed under the Con-

stitution, treaties or statutes

of, commission held or authority

exercised under, the United

States.

Sup. Ct. Rule 19.4, 28 U.S.C.A.

Parties interested jointly, sev-

erally, or otherwise in a judg-

ment may join in a petition for

a writ of certiorari therefron;

or any one or more of them may

petition separately; or any two

or more of them may join ina

petition. When two or more

cases are sought to be reviewed

cn certiorari to the same court

and involve identical or closely

related questions, it will suf-

fice to file a single petition

for writ of certiorari covering

all the cases.

STATEMENT OF THE CASE

Respondent, Pedro A. Cruz, was char-

ged by direct information in the Circuit

Court of the Thirteenth Judicial Circuit

in and for Hillsborough County, Florida

with grand theft in violation of §812.014

(2)(b) Florida Statutes (1981), said

charge arising from an incident occuring

on March 1, 1982 in Hillsborough County,

Florida. On May 14, 1982 Cruz filed a mo-

tion to dismiss the information pursuant

to Rule 3.190(c)(4), Florida Rules of

Criminal Procedure. The motion contained

the following sworn facts:

ke On March 1, 1982, certain mem-

bers of the Tampa Police Department, spe-

cifically, Officer Tommy Ellis, Officer

John L. Counsman, Officer George L. Lease,

Officer P. Saladino, and Officer M. D.

Johnson, were conducting a decoy operation

in the area of West Kennedy Boulevard and

Brevard Street.

2. As part of said operation, Off-

icer Tommy Ellis was dressed as a low in-

come individual wearing blue slacks, a

torn checked coat and a golf hat and was

the decoy in the operation.

3. Officer Ellis was simulating a

state of intoxication, to wit: he was

doused with alcohol, pretending to be

drinking wine from a bottle, and was

coughing and belching.

| 4. Officer Ellis was stationed near

an alleyway, leaning against a building

with his face to the building, and dis-

playing currency in the amount of $150.00,

the bills being paper-clipped together,

from his right rear pants pocket.

5. The other officers involved in

the operation were stationed in

surrounding locations and were to provide

back up assistance in apprehending anyone

who may lift the money from the decoy's

pocket.

6. At some time after 10:00 p.m.,

Officer Saladino, who was stationed in an

alleyway by the decoy, observed the Defen-

dant and a white female walking west on

Kennedy Boulevard.

7. Officer Saladino testified at a

deposition taken at the Office of the

Public Defender on May 13, 1982, that it

appeared that the Defendant approached the

decoy and perhaps attempted to speak to

him and then walked away from the decoy.

8. Approximately ten to fifteen

minutes after that time, Officer Saladino

testified that he observed the Defendant

and the white female return to the loca-

tion of the decoy, the Defendant paused a

short time and then lifted the money from

the decoy's pocket without physically

harming the decoy in any way.

9. The Defendant then proceeded

westbound on Kennedy Boulevard and was,

without making any attempt to elude the

officers, then apprehended by several

officers.

10. The Defendant was placed under

arrest and charged with grand theft.

11. On March 22, 1982, the State of

Florida then filed an Information charging

the Defendant with grand theft under Flor-

ida Statutes 812.014(2)(b).

12. Officer Saladino testified that

none of the unsolved crimes occuring near

this location involved the same modus op-

erandi as the simulated situation created

by the officers.

13. Officer Saladino, Officer

10.

Counsman, and Officer Johnson testified

at depositions taken on May 13, 1982, that

the decoy operation was not set up to

catch any particular individual.

14. Said officers further testified

that they had not observed the Defendant

being engaged in any criminal activity

prior to the time the money was taken from

the decoy, had no knowledge that the De-

fendant had previously engaged in similar

theft related crimes, had no knowledge of

any crmminal record for the Defendant and

had no knowledge of any reputation of the

Defendant for criminal activities. (R 4,

5)

The Circuit Court, relying on the )

then controlling decision in State v.

11.

Casper,! 417 So.2d 263 (Fla. 1st DCA

1982), granted the motion to dismiss on

May 26, 1982. The State of Florida ap-

pealed to the District Court of Appeal,

Second District of Florida.

Arguments in the Second District fo-

cused on whether a defendant's predisposi-

tion or lack thereof was a jury question

or whether predisposition could be deter-

mined by a trial judge on a motion to dis-

miss as the First District Court of Appeal

had determined in Casper, supra. Ina

written opinion filed February 25, 1983,

the Second District reversed the trial

court's order granting the motion to

| The Casper court, relying in part on

United States v. Russell, 411 U.S. 423, 93

S.Ct. 1637, 36 L.Ed.2d 366 (1973) and

Hampton v. United States, 425 U.S. 484, 96

S.Ct. 1646, 48 L.Ed.2d 113 (1976) had held

a similar police decoy operation constitu-

ted entrapment as a matter of law.

12.

dismiss and remanded this cause to the

trial court for further proceedings.

State v. Cruz, 426 So.2d 1308 (Fla. 2d DCA

1983) (A 35 - 46). At this point, Cruz,

through counsel filed a timely notice to

invoke the discretionary jurisdiction of

the Florida Supreme Court. That Court ac-

cepted jurisdiction on July 12, 1983.

Respondents Thaddeaus Tyrone Holli-

day, Alvin Leon Townsend and James Willie

Jackson were arrested on April 18, 1981,

October 16, 1981 and October 16, 1981

Respectively. Each was subsequently

charged with grand theft in violation of

Section 812.014, Florida Statutes. A mo-

tion to dismiss pursuant to Rule 3.190(c)

(4), Florida Rule of Criminal Procedure

was filed on each defendant's behalf and

the State filed a traverse and demurrer.

The motions were jointly heard in

13.

the Circuit Court for the Fourth Judicial

Circuit in and for Duval County, Florida.

The trial judge entered three separate or-

ders grantig the motions to dismiss with-

out making either findings of fact or con-

clusions of law. The State appealed the

three orders to the First District Court

of Appeal.

On appeal the State argued inter

alia, under the circumstances of these

cases there was no entrapment under the

standard espoused in Hampton v. United

States, supra; Sorrells v. United States,

287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413

(1932); United States v. Russell, supra

and Sherman v. United States, 356 U.S.

369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

The circumstances, as outlined in the

Holliday district court opinion, include

the fact that a special unit of the Jack-

sonville sheriff's office used a decoy

operation on North Main Street in that

city to investigate robberies and thefts.

Tivere had been several robberies and purse

snatchings in the general area. The decoy

dressed in old clothing, doused with alco-

hol and lay semi-prone on the sidewalk.

Bills totalling $150.00 were placed in the

decoy's rear pants pocket and were visible

to passersby. The decoy pretended to be

unconscious and was unresponsiove to any

physical or verbal acts toward him.

Respondent Holliday walked back and

forth several times, then he reached down

and took the exposed money. Holliday ran

away but was apprehended a short distance

down the street. He threw down the money

and admitted taking it bacause he was

broke. Respondent Townsend likewise took

exposed money from the pocket of a decoy.

However, the decoy in this case did not

15.

douse himself with alcohol or appear in-

toxicated. The decoy in the Jackson case

also was not doused with alcohol.

None of the three defendants were

suspected of any thefts of this kind.

Jackson had no prior arrests, and Townsend

had been arrested for burglary some two

years prior but the case had been dropped.

Several robberies and thefts had occured

in that area involving suspects of Holli-

day's general description. The prior in-

cidents involved similar victims and modus

operandi. Police statistics indicated

most people tried to aid the decoy, and

less than 50% of contacts with the decoy

resulted in thefts.

The district court relied on State

v. Casper, supra, to affirm the trial

court's granting of the motions to dis-

miss. As previously stated the Casper

court relied heavily on Hampton v. United

States, supra and United States v. Rus-

sell, supra The State of Florida sought

discretionary review on the Holliday de-

cision in the Florida Supreme Court.

On March 7, 1985, the Florida Supreme

Court entered written opinions quashing

the decision of the Second District and

affirming the First District.

In its opinion, the Florida Supreme

Court determined that there were, in fact,

two tests for entrapment. The traditional

or "subjective" test focusing on an indi-

vidual's predisposition to commit the

crime for which he claimed entrapment as

set forth in Sorrells v. United States,

supra, and its progeny. The Florida Su-

preme Court opined that the district court

of appeal had properly found predisposi-

tion to be a jury question. The Court

went on to adopt a novel "objective" test

for entrapment.

ee

17

REASONS FOR GRANTING THE WRIT

THE DECISIONS BELOW, HOLDING

THAT THERE IS AN OBJECTIVE TEST

FOR ENTRAPMENT FOCUSING ON PO-

LICE CONDUCT RATHER THAN AN IN-

DIVIDUAL DEFENDANT'S PREDISPO-

SITION CNSTITUTES AN UNWARRANTED

EXPANSION OF THE ENTRAPMENT DE-

FENSE CONTRARY TO THIS COURT'S

DECISIONS IN HAMPTON V. UNITED

STATES, 425 U.S. 484, 96 S.Ct.

1646, 48 L.Ed.2d 113 (1976) and

UNITED STATES V. RUSSELL, 411

U.S. 823, 93° S.Ct. 1637, 36

L.Ed.2d 366 (1974).

In the instant cases, the Florida Su-

preme Court reached the question of state

law properly before it, deciding that a

defendant's predisposition or lack thereof

is a jury question and went on to adopt a

new objective test of entrapment, purpor-

tedly grounded on federal due process

principles. An examination of the Florida —

court's rationale for its decision re-

flects that court has, for all practical

purposes, adopted Justice Brennan's

dissent in Hampton v. United States, 425

U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113

(1976) at 48 L.Ed.2d 122 - 125. The Filor-

ida Supreme Court ignores the fact that

five members of this Court declined to

join in Justice Brennan's opinion in

Hampton.

In acting as it did, the Florida

court disregards this Court's holding in

United States v. Russell, 411 US. 423, 93

S.Ct. 1637, 36 L.Ed.2d 366 (1973) that:

[T]he entrapment defense prohi-

bits law enforcement officers

from instigating a criminal act

by persons otherwise innocent in

order to lure them to its conm-

mission and punish them. Thus,

the thrust of the entrapment de-

fense was held to focus on the

intent or predisposition of the

defendant to commit the crime.

Id. at 411 U.S. 428, 429.

The objective test fashioned in Cruz

provides that trial judges shall make a

preliminary inquiry into the propriety of

law enforcement activity whenever an

19.

entrapment defense is raised to determine

whether that activity "(1) has as its end

the interruption of a specific ongoing

criminal activity; and (2) utilizes means

reasonably tailored to aprehend those in-

volved in the ongoing criminal activity."

Cruz v. State, So.2d _ (Fla., Case No.

63,451, March 7, 1985).2 (A 1, 21, 22)

In short, unlike their brethren in the

federal judiciary or sister states, Flor-

ida's judiciary may now exercise a chan-

cellor's foot veto over law enforcement

practices of which it does not approve.

Cf. United States v. Russell, supra;

Hampton, supra.

2 It is interesting to note that the

Florida Supreme court rejected this very

approach to the entrapment defense, in re-

liance on United States v. Russell, supra,

in State v. Dickinson, 3/70 So.2d 762 (Fla.

1979). The Cruz court preferred to ignore

rather than reconcile its conflicting pre-

cendent.

20.

The impact of the Florida Supreme

Court's decisions in the instant cases ex-

tends far beyond their facts, for it must

be presumed that all under cover police

activity, whether in the narcotics arena,

ABSCAM-type operations, or simple attempts

to control crime at the street level as

occured in the instant cases are now sus-

pect. The ABSCAM operation which ensnared

a Florida congressman could not be under-

taken by state law enforcement officers in

Florida today. See United States v.

Kelly, 707 F.2d 1460 (D.C. Cir. 1983)

This state is often referred to as a

gateway to the United States for drug

traffickers. State narcotic and corrup-

tion investigations will be drastically

curtailed if the decisions in these cases

are allowed to stand, and yet, what

Florida can no longer do to protect itself

21.

from crime, federal officials remain free

to undertake within the boundaries of this

state. In fact, federal authorities will

be forced to step in to fill the void.

Florida criminals will now defend them-

selves in federal forums placing an addi-

tional strain on an already overburden:d

federal judiciary as well as the Drug En-

forcement Administration and other federal

law enforcement officials.

To the extent that law enforcement

officials in this state attempt to act

within the confines of Cruz, Florida

courts will be burdened with lengthy

pre-trial proceedings focusing not on an

individual's guilt or lack therof, but on

the conduct of the police as they attempt

to reduce crime. Confidenial techniques

used to ferret out crime will undoubtedly

have to be disclosed so that judges can

22.

determine whether they are acceptable.

In United States v. Janotti, 673 F.2d

578 (3rd Cir. 1982) the Court of Appeals

tr< ced the development of the entrapment

de. nse as set forth by this Court in

Sorrells v. United States, 287 U.S. 435,

53 S.Ct. 210 77 L.Ed. 413 (1932); Sherman

v. United States, 356 U.S. 369, 78 S.Ct.

819, 2 L.Ed.2d 848 (1958), Russell: and

Hampton. Noting that the Russell court

had disapproved the expansion of the en-

trapment defense beyond this Court's opin-

ions in Sorrells and Sherman and the Third

Circuit stated:

We must be careful not to under-

mine the Court's consistent re-

jection of the objective test of

entrapment by permiting it to

re-emerge cloaked as a due pro-

cess defense. While the lines

between the objective test of

entrapment favored by a minority

of the Justices and the due pro-

cess defense accepted by a ma-

jority of the Justices are in-

deed hazy, the majority of the

Court has manifestly reserved

23.

for the constitutional defense

only the most intolerable gov-

ernment conduct. Id. at 608.

What the Janotti court worked

scrupulously to avoid, the Florida Supreme

Court has achieved, an objective entrap-

ment test which is required by due pro-

cess. It is ludicrous to suggest that the

police activity found to be entrapment un-

der the objective test propounded by the

Florida Supreme Court reaches that demon-

strable level of outrageousness at which a

due process defense might be considered.

See Hampton, supra at 48 L.Ed.2d 122 and

compare United States v. Savage, 701 F.2d

867 (11th Cir. 1983); United States v.

Kelly, supra; United States v. Janotti,

supra; United States v. Myers, 635 F.2d

932, (2d Cir.), cert. denied, 449 U.S. 956

(1980).

Petitioner respectfully submits that

the time has come for this Court to

24.

address and resolve the confusion abound-

ing nationwide caused by the intermingling

vf theories of objective entrapment and

due process. Specifically this Court

should grant the istant petitoin for writ

of certiorari to review the application of

Sorrells, Sherman, Russell and Hampton

found in the instant cases, lest the

Florida Supreme Court's decison become

another contribution to the "extra

baggage" which has rendered our system

ineffective in dealing with crime.

a5»

CONCLUSION

For these reasons, Petitioner res-

pectfully urges this Court to grant cer-

tiorari and reverse the decision of the

Florida Supreme Court.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

ANN GARRISON PASCHALL

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

PEGG QUINCE

Assistant Attonrey General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

26.

CERTIFICATE OF SERVICE

I, ANN GARRISON PASCHALL, Counsel for

Petitioner, and a member of the Bar of

this Court, hereby certify that on the wn

day of April, 1985, I served three copies

of the Petition for Writ of Certiorari on

Robert F. Moeller, Esq., Assistant Public

Defender, 455 North Broadway Avenue, Bar-

tow, Florida 33830 and James Miller, Esq.,

Assistant Public Defender, Duval County

Courthouse, Room 407, Jacksonville,

Florida 32202, by depositing with the

United States Postal Service a duly ad-

dressed envelope with postage prepaid.

fare Merrsstrn thapatt

OF COUNSEL FOR PETITIONER.

APPENDIX

SUPREME COURT OF FLORIDA

No. 63,451

PEDRO A. CRUZ, Petitioner,

vs.

STATE OF FLORIDA Respondent.

[March 7, 1985]

EHRLICH, J.

This case is before us on appeal from

a decision of the Second District Court of

Appeal, 426 So.2d 1308 (Fla. 2 DCA 1983).

The decision directly and expressly con-

flicts with State v. Casper, 417 So.2d 263

(Fla. 1 DCA), review denied, 418 So.2d

1280 (Fla. 1982). We take jurisdiction

pursuant to article V, section 3(b) (3),

Florida Constitution. We disapprove the

district court's decision.

Tampa police undertook a decoy opera-

tion in a high-crime area. An officer

posed as an inebriated indigent, smelling

of alcohol and pretending to drink wine

from a bottle. The officer leaned against

a building near an alleyway, his face to

the wall. Plainly displayed from a rear

pants pocket was $150 in currency, paper-

clipped together. Defendant Cruz and a

woman happened upon the scene as passersby

some time after 10 P.M. Cruz approached

the decoy officer, may have attempted to

say something to him, then continued on

his way. Ten to fifteen minutes later,

the defendant and his companion returned

to the scene and Cruz took the money from

the decoy's pocket without harming him in

any way. Officers then arrested Cruz and

he walked from the scene. The decoy situ-

ation did not involve the same modus

operandi as any of the unsolved crimes

which had occurred in the area. Police

were not seeking a particular individual,

nor were they aware of any prior criminal

acts by the defendant.

Cruz was charged by information with

grand theft. Pursuant to Florida Rule of

Criminal Procedure 3.190(c)(4), Cruz moved

to dismiss the information, arguing that

the arrest constituted entrapment as a

matter of law. The trial court granted

the motion to dismiss on the authority of

State v. Casper, 417 So.2d 263 (Fla. 1

DCA), review denied, 418 So.2d 1280 (Fla.

1982). On appeal, the Second District

Court of Appeal reversed, acknowledging

its decision was in conflict with Casper.

The entrapment defense arises from a

recognition that sometimes police activity

will induce an otherwise innocent

individual to commit the criminal act the

police activity seeks to produce. The

United States Supreme Court has addressed

the issue in four principal cases. Hamp-

ton v. United States, 425 U.S. 484 (1976);

United States v. Russell, 411 U.S. 423

(1973); Sherman v. United States, 356 US.

369 (1958); Sorrells v. United States, 287

U.S. 435 (1932). The Third Circuit Court

of Appeal offers a clear discussion of the

historical development of the defense in

the Supreme Court:

In Sorrells v. United

States, where the Court first

recognized the defense of en-

trapment, the Court held the de-

fendant was entitled to have the

jury consider whether his acts

of possessing and selling one-

half gallon of whiskey in viola-

tion of the National Prohibition

Act were instigated by the pro-

hibition agent who implanted in

the "mind of an innocent person

the disposition to commit the

alleged offense and induce its

commission in order that

[Government officials] may pro-

secute." 287 U.S. at 442, 53

S.Ct. at 212. The nature of the

defense was outlined more fully

when the Court next considered

the defense a quarter of a cen-

tury later in Sherman v. United

States. Chief Justice Warren,

writing for the majority of the

Court, stated that “[t]lo deter-

mine whether entrapment has been

established, a line must be

drawn between the trap for the

unwary innocent and the trap for

the unwary criminal." 356 U.S.

at 372, 78 S.Ct. at 820. In

concluding that entrapment had

been established as a matter of

law, the Court determined from

the undisputed testimony of the

prosecution's witnesses that the

defendant was induced to sell

narcotics by the government in-

former and that he was not pre-

disposed, i.e., that he engaged

in conduct he would not other-

wise have attempted. The Court

noted, "Entrapment occurs only

when the criminal conduct was

‘the product of the creative ac-

tivity’ of lawenforcement offi-

cials." Id. (emphasis in ori-

ginal).

In United States v. Rus-

sell, the Court expressly dis-

approved of the decisions of the

lower federal courts which had

expanded the entrapment defense

beyond the Court's opinions in

Sorrells and Sherman. Instead,

the Court reiterated that the

defense was not of constitution-

al dimension, and reaffirmed its

prior opinions that established

that entrapment is a “relatively

limited defense", 411 U.S. at

435, 93 S.Ct. at 1644, which

cannot be used by a predisposed

defendant. Most recently, in

Hampton v. United States, a ma-

jority of the Court, in two sep-

arate opinions, upheld defen-

dant's conviction arising from

his sales of heroin which had

allegedly been procured from a

government informant, reaffirn-

ing once again the unavailabil-

ity of the entrapment defense to

a predisposed defendant.

United States v. Jannotti, 673 F.2d 578,

596 - 97 (3d Cir.), cert. denied, 457 U.S.

1106 (1982).

The entrapment defense thus normally

focuses on the predisposition of the de-

fendant. We adopted this view in State v.

Dickinson, 370 So.2d 762 (Fla. 1972). The

First District, in State v. Casper, 417

So.2d 263 (Fla. 1 DCA 1982), focused on

predisposition when it found the "drunken

bum" decoy at issue here to constitute

entrapment as a matter of law. In Casper,

Jacksonville police set up a decoy situd-

tion legally indistinguishable from the

scenario in this case. The Casper court

held that the state must prove the defen-

dant was predisposed to steal from the de-

coy and that predisposition can be found

under four circumstances: (1) the defen-

dant has prior convictions for similar

crimes; (2) the defendant has a reputation

for committing similar crimes; (3) police

have reasonable suspicion the defendant

was engaged in similar crimes; or (4) the

defendant showed ready acquiescence to

commit the crime suggested by police.

Story v. State, 355 So.2d 1213 (Fla. 4th

DCA), cert. denied, 364 So.2d 893 (1978).

The Casper court found no evidence of the

first two elements in that case. The

third element is irrelevant in the type

of random expedition at issue here. The

question thus boiled down to whether Cas-

per "readily acquiesced" to the criminal

scenario. The Casper court found that an

otherwise unpredisposed passerby who chose

to take the money did not acquiesce, but

"succumbed to temptation .. . to the lure

of the bait." 417 So.2d at 265. The Cas-

per court therefore distinguished between

"succumbing to temptation" and "readily

acquiescing," and found that this is a

question of law: where the trial judge

finds the defendant succumbed to tempta-

tion, the matter shall not be put to a

jury.

The Second District, in the case now

before us, rejected this position. The

Cruz court found that such a judgment is

one for the jury to make. "[W]here, as

here, a defendant's intent or state of

mind (i.e., predisposition) is an issue,

that issue should not be decided on a

motion to dismiss . .. ." 426 So.2d at

1310. Petitioner would have this court

hold that where the only evidence of pre-

disposition is the commission of the crime

the police scenario was designed to elli-

cit, there is an insufficient showing of

predisposition, as a matter of law. We do

not agree.

We agree with the Second District

that the question of predisposition will

always be a question of fact for the jury.

However, we also believe that the First

Distiict's concern for entrapment scenar-

ios in which the innocent will succumb to

temptation is well founded. To protect

against such abuse, we turn to another as-

pect of entrapment.

A-10

Entrapment is a potentialy dangerous

tool given to police to fight crime.

"Society is at war with the criminal

classes, and courts have uniformly held

that in waging this warfare the forces of

prevention and detection may use traps,

decoys, and deception to obtain evidence

of crime." Sorrells v. United States, 287

U.S. 435, 453 - 54 (separate opinion of

Roberts, J.). "The appropriate object of

this permitted activity, frequently essen-

tial to the enforcement of the law, is to

reveal the criminal design; to expose the

illicit traffic, the prohibited publica-

tion, the fraudulent use of the mails, the

illegal conspiracy, or other offenses, and

thus to disclose the would-be violators of

the law. A different question is presen-

ted when the criminal design originates

with the officials of the Government, and

A-11

they implant in the mind of an innocent

person the disposition to commit the al-

leged offense and induce its commission in

order that they may prosecute." Id. at

441 - 42) (opinion of the Court). "Such a

gross abuse of authority given for the

purpose of detecting and punishing crime,

and not for the making of criminals, de-

serves the severist condemnation, but the

question whether it precludes prosecution

or affords a ground of defense, and, if

so, upon what theory, has given rise to

conflicting opinions." Id. at 441. These

words of the United States Supreme Court,

in its seminal Sorrells decision, outline

the basis on which the entrapment practi-

ces of police are seen as a necessary evil

but an evil to be controlled. The Sor-

rells Court concluded that the defense of

entrapment protected against such

abuse. !

The entrapment defense adopted in

Sorrells, focusing on the predisposition

| The Supreme Court has subsequently

come to realize that the entrapment de-

fense may not be the only protection

against police abuse in this context. In

United States v. Russell, 411 U.S. 423

(1973) and Hampton v. United States, 425

U.S. 484 (1976), the Court recognized that

“we may some day be presented with a situ-

ation in which the conduct of law enforce-

ment agents is so outrageous that due pro-

cess principles would absolutely bar the

government from invoking judicial process-

es to obtain a conviction." 411 U.S. at

431 - 32 (quoted at 425 U.S. at 489, and

citing Rochin v. California, 342 US. 165

(1952) (pumping defendant's stomach to re-

trieve swallowed contraband shocks the ju-

dicial conscience) ).

In both Russell and Hampton the Court

found no such due proces violation. How-

ever, at least two United States circuit

courts have found due process violations

in the entrapment context. Greene v. Uni-

ted States, 454 F.2d 783 (9th Cir. 1971);

United States v. Twigg, 588 F.2d 373 (3d

Cir. 1978); cf. United States v. Beverly,

723 F.2d 11 (3d Cir. 1983). At least five

other circuits have recognized the possi-

bility of due process violations, but have

rejected finding such violations in the

fact situations of the particular cases.

A-13

of the defendant, is termed the subjec-

tive view of entrapment. However, begin-

ning with Justice Roberts’ concurrence in

Sorrells, a minority of the United States

Supreme Court has favored what is termed

the objective view. This view was well

expressed by Justice Franfurter, in Sher-

man v. United States:

The crucial question, not

easy of answer, to which the

court must direct itself is whe-

ther the police conduct revealed

in the particular case falls be-

low standards, to which common

feelings respond, for the proper

use of governmental power...

- « « [A] test that looks to

the character and predisposition

of the defendant rather than the

United States v. Garrett, 716 F.2d 257

(5th Cir. 1983), cert. denied, 104 S.Ct.

1910 (1984); United States v. Perez, 600

F.2d 782 (10th Cir. 1979); United States

v. Leja, 563 F.2d 244 (6th Cir. 1977),

cert. denied, 434 US. 1074 (1978); United

States v. Quinn, 543 F.2d 460 (8th Cir.

1976); United States v. Swiderski, 539

F.2d 854 (2d Cir. 1976).

A-14

conduct of the police loses

sight of the underlying reason

for the defense of entrapment.

No matter what the defendant's

past record and present inclina-

tions to criminality, or the

depths to which he has sunk in

the estimation of society, cer-

tain police conduct to ensnare

him into further crime is not to

be tolerated by an advanced

society . . . Permissible police

activity does not vary according

to the particular defendant con-

cerned; surely if two suspects

have been solicited at the same

time in the same manner, one

should not go to jail simply be

cause he has been convicted be-

fore and is said to have a crin-

inal disposition. No more does

it vary according to the suspi-

cion, reasonable or unreason-

able, of the police concerning

the defendant's activities.

Appeals to sympathy, friendship,

the possibility of exhorbitant

gain, and so forth, can no more

be tolerated when directed

against a past offender than

against an ordinary law-abiding

citizen. A contrary view runs

afoul of fundamental principles

of equality under law, and would

espouse the notion that when

dealing with the criminal class-

es anything goes. The possibil-

ity that no matter what his past

crimes and general disposition

the defendant might not have

A-15

committed the particular crime

unless confronted with inordi-

nate inducements, must not be

ignored. Past crimes do not

forever outlaw the criminal and

open him to police practices,

aimed at securing his repeated

conviction, from which the

ordinary citizen is protected.

356 U.S. at 382 - 83 (Frankfurter, J.,

concurring in the result).

The subjective view recognizes that

innocent, unpredisposed, persons will

sometimes be ensnared by otherwise permis-

sible police behavior. However, there are

times when police resort to impermissible

techniques. In those cases, the subjec-

tive view allows conviction of predisposed

defendants. The objective view requires

that all persons so ensnared be

released.2

2 While the objective view parallels a

due process analysis, it is not founded on

constitutinal principles. The justices of

the United States Supreme Court who have

favored the objective view have found that

the court must "protect itself and the

Although the United States Supreme

Court implies the objective and subjective

views of entrapment are mutally exclusive,

we find that they are not. The objective

view is a statenent of judicially cogniz-

able considerations worthy of being given

as much weight as the subjective view.

This court has already provided such pro-

tection in a civil injunction case. State

investigators hired two informants to so-

licit dental work from a dental technician

not licenced to perform the work. Justice

Terrell wrote:

government from such prostitution of the

criminal law. The violation of the prin-

ciples'of justice by the entrapment of the

unwary into crime should be dealt with by

the court no matter by whom or at what

stage of the proceedings the facts are

brought to its attention." Sorrells, 287

U.S. at 457 (Roberts, J., in a separate

opinion). Justice Frankfurter also found

that a judge's decision using the objec-

tive view would offer significant guidance

A-17

I do not think this court should

sanction such apostasy from ap-

proved procedure. It is con-

trary to law and public policy

for an officer or member of an

administrative board to induce

the commission of a wrong or a

crime for the purpose of secur-

ing a pretext to punish it. ...

- « »« All the evidence in this

case was induced for pay and if

given full face value, it leaves

one in doubt whether defendant

was doing the work of a dentist

or a dental technician. In most

cases due process and fair trial

turn on procedure. I can think

of nothing more disastrous to

fair trial or more insolent to

the safeguards with which it is

protected, than a conviction se-

cured solely on deliberately

purchased evidence.

Peters v. Brown, 55 So.2d 334, 336 (Fla.

1951).

We do not foresee a problem in pro-

viding two independent methods of protec-

tion in entrapment cases. The New Jersey

for future official conduct, while a jury

verdict offers no such guidance. Sherman,

356 U.S. at 385 (Frankfurter, J.,

concurring in the result).

A-18

Supreme Court has found that the two

tests of entrapment can coexist:

In articulating [the en-

trapment doctrine], our Court

has adopted two standards re-

specting entrapment. The tradi-

tional or subjective standard

defines entrapment as law en-

forcement conduct which implants

in the mind of an innocent per-

son the disposition to commit

the alleged crime, and hence in-

duces its commission... ..

Under this traditional formula-

tion, the defense of entrapment

is limited to those defendants

who were not predisposed to com-

mit the crime induced by

government actions.

In recent years, however,

this Court has fashioned a se-

cond, independent standard for

assessing entrapment. It recog-

nizes that when official conduct

inducing crime is so egregious

as to impugn the integrity of a

court that permits'a conviction,

the predisposition of the defen-

dant becomes irrelevant...

This Court recently explained in

Talbot [State v. Talbot, 71 N.J.

160, 167 - 68, 364 A.2d 9, 13

(1976)]:

A-19

[A]s the part played by the

State in the criminal acti-

vity increases, the impor-

tance of the factor of de-

fendant's criminal intent

decreases, until finally a

point may be reached where

the methods [employed] by

the state to obtain a con-

viction cannot be countenan-

ced, even though a defen-

dant's predisposition is

shown. Whether the police

activity has overstepped the

bounds of permissible con-

duct is a question to be de-

cided by the trial court

rather than the jury.

State v. Molnar, 81 N.J. 475, 484, 410

A.2d 37, 41 (1980)3

3 The Molnar court held that the objec-

tive test was to be administered by the

trial court, as we hold here. Subsequent

to its Molnar decision, the New Jersey

court held that statutory law had super-

seded the common law, placing the decision

on both the subjective and objective as-

pects of entrapment in the hands of the

trier of fact. State v. Rockholt, 96 N.J.

570, 476 A.2d 1236 (1984). Even though

the New Jersey court concluded that its

common law paradigm had been supplanted,

it noted that there may still be situa-

tions where the gevernment conduct is so

A-20

We find, like the New Jersey court,

that the subjective and objective entrap-

ment doctrines can coexist. The subjec-

tive test is normally a jury question.

The objective test is a matter of law for

the trial court to decide.

The effect of a threshhold objective

test is to require the state to establish

initially whether "police conduct revealed

in the particular case falls below stan-

dards, to which common feelings respond,

for the proper use of governmental power."

Sherman, 356 U.S. at 382 (Frankfurter, J.,

concurring in the result). Once the state

has established the validity of the police

activity, the question remains whether

outrageous that constitutional due process

requires dismissal. See discussion at

note 1, supra. There is no parallel to

the New Jersey legislative action in

Florida, and we conclude that the policy

considerations of the Molnar decision re-

main valid in this case.

A-21

“the criminal design originates with the

officials of the government, and they im-

plant in the mind of an innocent person

the disposition to commit the alleged

offense and induce its commission in order

that they may prosecute." Sorrells, 287

U.S. at 442 (1932). This question is an-

swered by deciding whether the defendant

was predisposed, and is properly for the

jury to decide. In other words, the court

must first decide whether the police have

cast their nets in permissible waters,

and, if so, the jury must decide whether

the particular defendant was one of the

guilty the police may permissibly ensnare.

To guide the trial courts, we pro-

pound the following threshhold test of an

entrapment defense: Entrapment has not

occurred as a matter of law where police

activity (1) has as its end the

A-22

interruption of a specific ongoing crim-

inal activity; and (2) utilizes means rea-

sonably tailored to apprehend those invol-

ved in the ongoing criminal activity.

The first prong of this test address-

es the problem of police “virtue testing,"

that is, police activity seeking to prose-

cute crime where no such crime exists but

for the police activity engendering the

crime. As Justice Roberts wrote in his

separate opinion in Sorrells, “Society is

at war with the criminal classes," 287

U.S. at 453 - 54. Police must fight this

war, not engage in the manufacture of new

hostilities.

The second prong of the threshhold

test addressed the problem of inappro-

priate techniques. Considerations in de-

ciding whether police activity is permis-

sible under this prong include whether a

government agent "induces or encourages

A-23

another person to engage in conduct con-

stituting such offense by either: (a)

making knowingly false representations

designed to induce the belief that such

conduct is not prohibited; or (b) employ-

ing methods of persuasion or inducement

which create a substantial risk that such

an offense will be committed by persons

other than those who are ready to commit

it." Model Penal Code §2.13 (1962).4

4 We note that, under this threshhold

test, considerations which normally might

not be recognized under the subjective

test may be cognizable. In United States

v. Jannotti, 673 F.2d 578, 596 - 97 (3d

Cir. 1982), one of the ABSCAM cases, the

court addressed the question of whether

the size of bribes offered to city offi-

cials could be found to negate predisposi-

tion as a matter of law. The Third Cir-

cuit questioned whether the strength of

the inducement could ever negate predispo-

sition, but found that the size of the

bribes in that case were insufficient,

even if the strength of the inducement

were a factor. Under the threshhold test

we adopt here, the strength of the induce-

‘ment is certainly a significant factor,

since there could be a "substantial risk

A-24

Applying this test to the case before

us, we find that the drunken bum decoy

operation fails. In Cruz's motion to dis-

miss, one of the undisputed facts was that

"none of the unsolved crimes occuring

[sic] near this location involved the same

modus operandi as the simulated situation

created by the officers." Cruz, 426 So.2d

that such an offense will be committed by

persons other than those who are ready to

commit it." While such a factor is thus

cognizable, it does not always dictate a

finding of entrapment as a matter of law,

since, as the Third Circuit found in the

context of its predisposition analysis,

even substantial sums of money offered to

city officials may be found to create no

such substantial risk. Likewise, the re-

lative "benignity"” of the favor asked to

the officials in Jannotti (defendants ar-

gued they only agreed to do that which

they would have done anyway) was a ques-

tion of fact for the jury in its determin-

ation of whether the defendants were pre-

disposed, not a question of whether there

was predisposition as a mattter of law.

Once such issues are addressed in the con-

text of the threshhold test, the problems

inherent in attempting to determine whe-

ther certain facts tend to show predispo-

sition as a matter of law are resolved.

A-25

at 1309. The record thus implies police

were apparently attempting to interrupt

some kind of ongoing criminal activity.

However, the record does not show what

specific activity was targeted. This lack

of focus is sufficient for the scenario to

fail the first prong of the test. How-

ever, even if the police were seeking to

catch persons who had been "rolling"

drunks in the area, the criminal scenario

here, with $150 (paper-clipped to ensure

more than $100 was taken, making the of-

fense a felony) enticingly protruding from

the back pocket of a person seemingly in-

capable of noticing its removal, carries

with it the "substantial risk that such an

offense will be committed by persons other

than those who are ready to commt it."

Model Penal Code §2.13. This sufficiently

addresses the Casper court's proper

A-26

recognition that entrapment has occurred

where "the decoy simply provided the op-

portunity to commit a crime to anyone who

succumbed to the lure of the bait." 417

So.2d at 265. This test also recognizes,

as the Cruz court did, that the considera-

tions inherent in our threshhold test are

not properly addressed in the context of

the predisposition element of the second,

subjective test.

For the reasons discussed, we hold

that the police activity in the instant

case corstituted entrpment a a matter of

law under the thres! ld test adopted

here. Accordingly, we quash the district

court decision.

A-27

It is so ordered.

BOYD, C.J., ADKINS, McDONALD and SHAW,

JJ., Concur

OVERTON, J., Concurs specially with an

opinion

ALDERMAN, J., Dissents with an opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETER-

MINED.

A-28

OVERTON, J., specially concurring.

I fully concur with the majority-

opinion and, contrary to my dissenting

colleague, I find that it is totally con-

sistent with our opinion in State v. Dick-

inson, 370 So.2d 762 (Fla. 1979), and the

United States Supreme Court cases of Sor-

rells v. United States, 287 U.S. 435

(1932), Sherman v. United States, 356 U.S.

369 (1958), and United States v. Russell,

411 U.S. 423 (1973). In my view, it is

clear that the majority opinion does not

depart from the "great weight of judicial

authority in the United States." Further,

it should be emphasized that in appropri-

ate circumstances the issue of predisposi-

tion may be disposed of as a matter of law

on a motion to dismiss. The United States

Supreme Court so held in Sherman, in which

it determined that predisposition did not

A-29

exist as a matter of law and concluded

that there had been entrapment.

ALDERMAN, J., dissenting.

I would approve the decision of the

Second District holding that where, as in

the present case, a defendant's intent or

state of mind, i.e., his predisposition to

commit a crime, is an issue, that issue

cannot be decided on a motion to dismiss.

I disagree with this Court's adoption of a

threshold objective test for entrapment,

and I disagree that the police activity in

the present case constituted entrapment as

a matter of law.

The majority should adhere to our de-

cision in State v. Dickinson, 370 So.2d

762 (Fla. 1979), wherein we explained that

the essential element of the defense of

entrapment is the absence of a predisposi-

tion of the defendant to commit the of-

fense. The appropriate test for entrap-

ment is a subjective test. In Dickinson,

we ee ee aa

A-31

we upheld the constitutionality of sec-

tion 812.028(4), Florida Statutes (1977),

which provided:

It shall not constitute a de-

fense to a prosecution for any

violation of the provisions of

§§ 812.012 - 812.037 that:

x*«*ek

(4) A law enforcement officer

solicited a person predisposed

to engage in conduct in viola-

tion of any provision of

§§812.012 - 812.037 in order to

gain evidence against that per-

son, provided such solicitation

would not induce an ordinary

law-abiding person to violate

any provision of §812.012 -

812.037.

We said that this statute codifies

entrapment as it now exists and held that

here is clearly no constitutional prohibi-

tion against a law enforcement officer .

providing the opportunity for a person who

has the willingness and readiness to break

the law. We quoted with approval the fol-

lowing holding of the Supreme Court of the

A-32

United States in United States v. Rus-

sell, 411 US. 423, 435 - 46 (1973):

Sorrells and Sherman both recog-

nize “that the fact that offi-

cers or employees of the Govern-

ment merely afford opportunities

or facilities for the commission

of the offense does not defeat

the prosecution . . .." Nor will

the mere fact of deceit defeat a

prosecution . . . for there are

circumstances when the use of

deceit is the only practicable

law enforcement technique avail-

able. It is only when the

Government's deception actually

implants the criminal design in

the mind of the defendant that

the defense of entrapment comes

into play (citations omitted).

State v. Dickinson, 370 So.2d at 763.

The thrust of the entrapment defense in

Florida has been held to focus upon and

should continue to focus upon the intent

or predisposition to commit the crime. In

Dickinson, we said that section 812.028(4)

preserves the line between the predisposed

criminal and the unwary innocent. Section

A-33

812.028(4) has not been amended since our

decision in Dickinson.

We have not been asked by the parties

to nor should we gratuitously adopt a new

standard for entrapment. There are no

compelling reasons why we should depart

from long-established precedents. The new

standard adopted by the majority has the

effect of chaging the meaning of this de-

fense. It is not constitutionally manda-

ted and is contrary to the standard ex-

pressly recognized by the Florida Legisla-

ture and by the great weight of judicial

authority in the United States. We should

not expand the concept of entrapment be-

yond that explained in Dickinson and codi-

fied by statute.

I would approve the decision of the

Second District.

A-34

Application for Review of the Decision of

the District Court of Appeal - Direct

Conflict of Decisions

Second District - Case No. 82-1502

Jerry Hill, Public Defender; and Robert

F. Moeller, Bartow, Florida and Douglas S.

Connor, Tampa, Fiorida , Assistant Public

Defenders, Tenth Judicial Circuit,

for Petitioner

Jim Smith, Attorney General and M. Ann

Garrison, Assistant Attorney General,

Tampa, Florida,

for Respondent

Louis 0. Frost, Jr., Public Defender and

James Miller, Assistant Public Defender,

Fourth Judicial Circuit, Jacksonville,

Florida, amicus curiae

;

t

a

5

iv

b

:

*

A-35

STATE of Florida, Appellant,

Vv.

Pedro A. CRUZ, Appellee.

No. 82-1502.

District Court of Appeal of Florida,

Second District.

Feb. 25, 1983.

In prosecution for grand theft, the

Circuit Court, Hillsborough County, Fred

J. Woods, J., granted defendant's motion

to dismiss, and the State appealed. The

District Court of Appeal, Scheb, J., held

that issue of defendant's predisposition,

as relating to his entrapment defense,

should not have been decided on motion to

dismiss.

Reversed and remanded.

A-36

1. Criminal Law 37(5)

There is no prohibition against

police using decoys to present opportunity

to those intending or willing to commit a

crime.

2. Criminal Law 739.1(1)

Although entrapment can exist as a

matter of law, where a defendant's intent

or state of mind is an issue, that issue

should not be decided on a motion to dis-

miss. West's F.S.A. RCrP Rule

3.190(c) (4).

3. Criminal Law 739.1(3)

In prosecution for grand theft ari-

sing from defendant's taking money from

police decoy and in which defendant raised

entrapment defense, issue of defendant's

predisposition should not have been de-

cided on motion to dismiss. West's F.S.A.

RCrP Rule 3.190(c) (4).

A-37

Jim Smith, Atty. Gen., Tallahassee,

and Ann G. Paschall, Asst. Atty. Gen.,

Tampa, for appellant.

Jerry Hill, Public Defender, Bartow,

and Glenn E. Brown, Asst. Public Defender,

Tampa, for appellee.

SCHEB, Judge.

The state filed an information char-

ging Pedro A. Cruz with grand theft. Cruz

moved to dismiss the charges under Florida

Rule of Criminal Procedure 3.190(c)(4) on

the ground that the undisputed facts

showed he was entrapped as a matter of

law. The trial court granted Cruz's mo-

tion on the authority of State v. Casper,

417 So.2d 263 (Fla. 1 DCA 1982).! We

1 The trial judge was bound by the

First District's decision in State v.

Casper. Chapman v. Pinellas County, 423

So.2d 578 (Fla. 2 DCA 1982); State v.

Hayes, 333 So.2d 51 (Fla. 4 DCA 1976).

A-38

disagree with the First District's

opinion in Casper. We reverse.

In Cruz's motion to dismiss, he con-

tended that the following facts were un-

disputed and did not establish a prima

facie case of guilt.

1. On March 1, 1982, certain men-

bers of the Tampa Police Department, spe-

cifically Officer Tommy Ellis, Officer

John L. Counsman, Officer George L. Lease,

Officer P. Saladino, and Officer M.D.

Johnson, were conducting a decoy operation

in the area of West Kennedy Boulevard and

Brevard Street.

2. As part of said operation,

Officer Tommy Ellis was dressed as a low

income individual wearing blue slacks, a

torn checked coat and a golf hat and was

the decoy in the operation.

3. Officer Ellis was simulating a

A-39

state of intoxication, to wit: he was

doused with alcohol, pretending to be

drinking wine from a bottle, and was

coughing and belching.

4. Officer Ellis was stationed near

an alleyway, leaning against a building

with his face to the building, and dis-

playing currency in the amount of $150.00,

the bills being paper-clipped together,

from his right rear pants pocket.

Se The other officers involved in

the operation were stationed in surround-

ing locations and were to provide back up

assistance in apprehending anyone who may

lift the money from the decoy's pocket.

6. At some time after 10:00 p.m.,

Officer Saladino, who was stationed in an

alleyway by the decoy, observed the Defen-

dant and a white female walking west on

Kennedy Boulevard.

A-40

7. «© « « it appeared that the De-

fendant approached the decoy and perhaps

attempted to speak to him and then walked

away from the decoy.

8. Approximately ten to fifteen

minutes after that time, .. . the Defen-

dant and the white female return to the

location of the decoy, then Defendant

paused a short time and thenlifted the

money from the decoy's pocket without phy-

sically harming the decoy in any way. . ..

12. .. . none of the unsolved

crimes occuring (sic) near this location

involved the same modus operandi as the

simulated situation created by the offi-

cers.

13. . . . the decoy operation was

not set up to catch any particular indivi-

dual.

14. Said officers . .. had not ob-

served the Defendant being engaged in any

(ok)

A-41

criminal activity prior to the time the

money was taken from the decoy, had no

knowledge that the Defendant had previous-

ly engaged in similar theft related

crimes, had no knowledge of any criminal

record for the Defendant and had no know-

ledge of any reputation of the Defendant

for criminal activities.

After hearing arguments by counsel

and determining there was no dispute as to

any material facts, the trial court grant-

ed Cruz's motion on the authority of Cas-

per.

The essential facts in Casper, as

recited by the court, are that:

[T]he Jacksonville Sheriff's

Office deployed a decoy .. .to

apprehend potential robbers and

thieves. The decoy was dressed

in old clothes and doused hinm-

self with alcohol in order to

appear to be under the influence

of alcoholic beverages. He was

in a semi-prone position on the

sidewalk with several bills

amounting to $150 protruding

from his rear pant’s pocket.

A-42

The bills were clearly visible

to passersby and were stapled

together. If someone approached

the decoy and talked to him, he

was to pretend that he was uh-

conscious and could not respond.

Several robberies and purse

snatchings had occurred in the

general area of the site of the

decoy. However, no robberies or

thefts had occurred at this spe-

cific site to the best knowledge

of the Sheriff's office. None

of the unsolved robberies or

thefts involved the same type of

victim or modus operandi of this

case. The Sheriff's office had

no suspects or identifications

of possible suspects for the

thefts and robberies and did not

employ the decoy to catch any

particular individual ... the

defendant walked along Duval

Street and observed the decoy

lying on the side of the street.

The defendant walked by and then

returned to the decoy, reaching

down and removing the protruding

money. He then walked on down

the street, where the police ar-

rested him. The police had not

observed the defendant in the

area prior to his arrest. They

had no knowledge that he had

previously engaged in similar

theft-related crimes prior to

this arrest.

A-43

417 So.2Zd at 264. Om the basis of the

above undisputed facts, the First District

concluded that the defendant had been en-

trapped as a matter of law. The court

held that under no reasonable construction

could the state establish a prima facie

case that the defendant showed a predispo-

sition to commit the crime. We disagree.

In State v. Sokos, 426 So.2d 1044

(Fla. 2 DCA 1983), we recognized that the

law relating to entrapment is correctly

set forth in Casper, but we noted that we

did not necessarily agree that those facts

would constitute entrapment as a matter of

law. In Sokos, Associate Judge Spicola,

speaking for this court, noted that: "The

entrapment defense 'focuses on the intent

or predisposition of the defendant to con-

mit a crime.' State v. Brider, 386 So.2d

818, 820 (Fla. 2 DCA 1980) (emphasis

A-44

supplied)." He explained that predispo-

sition could be shown by establishing (1)

prior criminal activity by the defendant;

or (2) reasonable suspicion of his in-

volvement in such activity; or (3) his

ready acquiescence in the commission of

the crime. See Story v. State, 355 So.2d

1213, 1215 (Fla. 4 DCA), cert. denied, 364

So.2d 893 (Fla. 1978).

[1] There is no prohibition against

the police using decoys to present the op-

portunity to those intending or willing to

commit a crime. See State v. Rouse, 239

So.2d 79 (Fla. 4 DCA 1970); Koptyra v.

State, 172 So.2d 628 (Fla. 2 DCA 1965).

Here, the police provided an opportunity

for Cruz to commit a crime, but there is

no showing that he was approached or en-

couraged by the police to do so. Thus,

there is a question of fact as to whether

————eEEEEeEeEeeEeEeEEEEEeeEE——————OOOOeeeee

A-45

Cruz was predisposed to commit the

offense.

[2,3] Entrapment can exist as a mat-

ter of law, Smith v. State, 320 So.d 420

(Fla. 2 DCA 1975), cert. denied, 334 So.2d

608 (Fla. 1976), but where, as here, a de-

fendant's intent or state of mind (i.e.,

predisposition) is an issue, that issue

should not be decided on a motion to dis-

miss under rule 3.190(c)(4). State v.

Evans, 394 So.2d 1068 (Fla. 4th DCA 1981);

State v. Rogers, 386 So.2d 278 (Fla. 2d

DCA), petition for review denied, 392

So.2d 1378 ( Fla. 1980); Cummings v.

State, 378 So.2d 879 (Fla. 1st DCA 1979),

cert. denied, 386 So.2d 635 (Fla. 1980);

State v. J.T.S, 373 So.2d 418 (Fla. 2d DCA

1979); State v. West, 262 So.2d 457 (Fla.

4th DCA 1972).

As noted, tle facts in this case are

A-46

nearly identical to those in Casper. We

disagree with our sister court that such

facts constitute entrapment as a matter of

law. Our decision, we acknowledge, con-

flicts with State v. Casper.

Accordingly, we reverse the order

dismissing the information and remand for

further proceedings.

HOBSON, A.C.J., and LEHAN, J.,

concur,

A-47

SUPREME COURT OF FLORIDA

No. 63,832

STATE OF FLORIDA, Petitioner,

vs.

THADDEUS TYRONE HOLLIDAY, ET.AL.,

Respondents.

[March 7, 1985]

PER CURIAM.

We accepted jurisdiction based on the

district court's certification of con-

flict. Art. V, §3(b)(4), Fla. Const. We

resolve the conflict in Cruz v. State, No.

63,451, released today, and accordingly

the decision here is approved.

It is so ordered.

BOYD, C. J., ADKINS, OVERTON, McDONALD,

EHRLICH and SHAW, JJ., Concur, ALDERMAN,

J. Dissents

NOT FINAL UNTIL TIME EXPIRES TO FILE RE-

HEARING MOTION AND, IF FILED, DETERMINED.

Application for Review of the Decision of

the District Court of Appeal - Certified

Direct Conflict

First District - Case Nos. A0-294,

A0-325 & A0-326

Jim Smith, Attcrney General and Barbara

Ann Butler, Assistant Attorney General,

Jacksonville, Florida,

for Petitioner

Louis O. Frost, Jr., Public Defender and

James Miller, Assistant Public Defender,

Jacksonville, Florida,

for Respondents.

oN i a gt tak Ce a en en ale lel

A-49

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, NOT FINAL

UNTIL TIME

Appellant, EXPIRES TO

FILE MOTION FOR

vs. REHEARING AND

DISPOSITION

THADDEUS TYRONE HOLLIDAY, THEREOF IF

ALVIN L. TOWNSEND, and FILED

JAMES W. JACKSON,

CONSOLIDATED CASE

Appellees. NOS. A0-294; A0-325;

A0-326

Opinion filed May 17, 1983.

An appeal from the Circuit Court for Duval

County. Thomas D. Oakley, Judge.

Jim Smith, Attorney General, and Barbara

Ann Butler, Assistant Attorney General,

Jacksonville, for Appellant.

Louis 0. Frost, Jr., Public Defender, and

James T. Miller, Assistant Public Defend-

er, Jacksonville, for Appellee.

PER CURIAM.

The State appeals from orders in

three consolidated cases, entered on mo-

tions filed pursuant to Rule 3.190(c)(4),

Fla. R. Crim. P., dismissing informations

A-50

against defendants on a finding of en-

trapment as a matter of law. These ap-

peals question the application of this

Court's decision in State v. Casper, 417

So.2d 263 (Fla. 1st DCA, 1982), cert.

den., 418 So.2d 1280 (Fla. 1982), especi-

ally in light of the refusal by our sister

court to follow that decision in State v.

Sokos, _ So.2d __, 8 FLW 366 (Fla. 2d

DCA, January 19, 1983) and State v. Cruz,

__ So.2d _, 8 FLW 647 (Fla. 2d DCA, Feb-

ruary 25, 1983). Each case involved use

of a “decoy operation," and the undisputed

facts in all are substantially similar.

Holliday (Case No. A0-294): On April

28, 1981, Jacksonville sheriff's office,

pursuant to a Special Investigation Sec-

tion operation, deployed a decoy on North

Main Street in Jacksonville for the pur-

pose of investigating criminal activity

A-51

involving potential robberies and

thefts. Several robbberies and purse

snatchings had occured in this general

area. The decoy wore old clothes, doused

himself with alcohol to appear intoxica-

ted, and lay in a semi-prone position on

the sidewalk. As directed by his superi-

ors, the decoy had placed $150 in bills in

his rear pants pocket so as to be clearly

visible to passersby and pretended to be

unconscious. As directed, he was unre-

sponsive to any physical or verbal acts

toward him. Holliday walked by the decoy

and observed him. He then walked back and

forth by the decoy several times more, and

finally reached down and took the exposed

money. Holliday then ran away, but was

apprehended by police a short distance

down the street. As police approached, he

threw the money on the ground and admitted

having taken it because he was broke.

A-52

After Holliday's arrest, several other

persons took the "bait" offered by the de-

coy and were arrested. The police had no

knowledge that Holliday had previously en-

gaged in similar theft-related crimes and

were not specifically looking to arrest

Holliday for any suspected thefts. Sever-

al robberies and thefts had occurred in

this area, however, involving suspects

matching Holliday's general description

and involving similar victims and modus

Operandi. Statistics on the decoy opera-

tion kept by the sheriff's office indica-

ted that more than 50% of passersby con-

tact with the decoys did not result in

theft or robbery, but that most persons

attempted to assist the decoy and help him

retain his money.

Townsend (Case No. AO-325): The de-

coy operation resulting in Townsend's ar-

rest occurred on October 16, 1981, near

A-53

the same area, and involved a factual

situation similar to Holliday, with the

following slight differences. This time,

the decoy did not douse himself with al-

cohol or appear to be intoxicated, and the

money was not stapled together. Townsend

nevertheless took all of the bills and

walked away. He admitted to taking the

money when arrested, but did not say why.

Townsend had been arrested in August 1979

for burglary, but the State dropped the

case on September 6, 1979, and Townsend

was not suspected of thefts involving this

modus operandi.

Jackson (Case No. A0Q-326): This de-

coy operation also occurred on October 16,

1981, in the same general location. The

factual situation was similar to that in-

volving Holliday, with the differences

noted in the Townsend case. Jackson,

A-54

however, had no prior arrests.

The three cases were carried on the

trial court's calendar awaiting decision

in State v. Casper, supra. The trial

court granted the motions to dismiss on

the authority of that decision.

On this appeal, the state argues that

sufficient material differences exist be-

tween Casper and the cases under consider-

ation to make Casper distinguishable and,

thus, not controlling. We disagree. The

controlling facts and circumstances in

these cases do not materially differ from

those upon which the court in Casper held

as follows:

The State may demonstrate pre-

disposition by proof of the de-

fendant's prior criminal activi-

ties, his reputation for such

activity, or his ready acquie-

scence in the commission of the

crime. Story v. State, 355

So.2d 1213 (Fla. 4th DCA 1978).

Moreover, evidence of prior

A-55

unlawful acts, similar to the

one with which the defendant is

charged, is ordinarily admissi-

ble to rebut a defense of en-

trapment. See, e.g., Drayton v.

State, 292 So.2d (Fla. 3rd

DCA 1974), cert. denied 300 So.

2d 900 (Fla. 1974); Marion v.

State, 287 So.2d 419 (Fla. 4th

DCA 1974), cert. denied, 294 So.

2d 91 (Fla. 1974). Upon this re-

cord, we are unable to find any

evidence which would tend to

show predisposition so as to de-

feat a motion to dismiss under

Rule 3.190(c) (4), and the State

did not traverse the facts as

stated in defendant's motion.

There is no evidence of any pri-

or conduct of the defendant that

would have shown predisposition.

There is no evidence that he was

engaging in criminal activity

before he took the money from

the decoy. See Dupuy, supra.

No ready acquiescence is shown;

on the contrary, the defendant's

acts, as stated in the motion,

demonstrate only that he suc-

cumbed to temptation. The re-

cord, as such, reveals that the

decoy did not detect or disco-

ver. nor could he reasonably be

intended to discover, the type

of crime the police were attemp-

ting to prevent by the use of

decoy, i.e., robberies and

purse snatchings. Indeed,

lifting some money protruding

from the pocket of a

A-56

seemingly unconscious, drunken

bum is just not sufficiently

similar to either robbery or

purse snatchings. Upon these

facts, the decoy simply provided

the opportunity to commit a

crime to anyone who succumbed to

the lure of the bait. According-

ly, we uphold the trial court's

ruling that, as a matter of law,

the defendant was entrapped. In

doing so, we do not wish to pro-

scribe any use of the police de-

coy procedure. We hold only

that, where the defense of en-

trapment is raised, the State

must demonstrate [or, as in this

case, allege] facts tending to

show a predisposition on the

accused's part to commit the

crime. Absent such a showing or

allegation, as the case may be,

we will have no alternative but

to conclude that the accused's

entrapment defense has merit and

prevents the conviction for the

offense. (417 So.2d at 265)

The State also argues that, unlike

Casper, here it filed not only a Siicer .

but also a traverse which specifically de-

nied certain facts alleged in the motions,

and alleged additional material facts

which the State contended were in dispute.

' A-57

The State relies on State v. J.T.S., 373

So.2d 418 (Fla. 2d DCA 1979) and other

similar decisions for the proposition that

once a traverse specifically denying

material facts is filed, automatic denial

of the motion is required. In this case,

however, with the approval of the trial

court, the State stipulated to the defen-

dants' adoption, as part of their motions

to dismiss, of all evidentiary facts al-

leged in the State's traverse and denial.

As a result, no evidentiary facts remained

in dispute, and the issue left for deci-

sion was whether predisposition to commit

the crime was sufficiently shown by the

evidence to raise a jury question or

should be decided against the State as a

matter of law under Casper. We see no-

thing improper in this procedure. A tra-

verse by the State, in order to be

A-58

effective, must constitute a good faith

dispute of material facts. Cf., Fox v.

State, 384 So.2d 226 (Fla. 3rd DCA 1980);

Ellis v. State, 346 So.2d 1044 (Fla. ist

DCA 1977); State v. Kemp, 305 So.2d 833

(Fla. 3d DCA 1975). In stipulating to the

amendment of defendant's motions, the

State agreed it had no good faith dispute

with the facts as so amended.

Finally, the State asks that we limit

or recede from the holding in Casper and

reverse the orders below in view of the

decisions by the Second District Court of

Appeal in State v. Sokos, supra, and State

v. Cruz, supra. We recognize that those

decisions, being based on substantially

similar factual situations, refused to

follow Casper on the premise that intent

or state of mind concerning predisposition

is not an issue to be decided as a matter

A-59

of law on motion to dismiss under Rule

3.190 (c)(4). While this panel of the

Court has some doubt as to the propriety

of disposing of this issue on a Rule 3.190

(c)(4) motion, nevertheless we are con-

strained to follow Casper. The orders

appealed are affirmed.

In view of the apparent widespread

use of the decoy operations involved in

these cases by law enforcement agencies

around the state of Florida, and the ack-

nowledged conflict between decisions, we

certify to the Supreme Court, pursuant to

Article V, Section 3(b)(4), that this de-

cision is in direct conflict with the de-

cisions of the District Court of Appeal,

Second District, in State v. Sokos, _

So.2d _, 8 FLW 366 (Fla. 2d DCA, January

19, 1983) and State v. Cruz, _ So.2d __,

8 FLW (Fla. 2d DCA, February 25, 1983).

BOOTH, L. SMITH, and ZEHMER, JJ., CONCUR