Last week, Florida’s 2nd District Court of Appeals, remanded a lower court’s dismissal of a sting case back to the trial court. While the outcome (a dismissed ICAC sting case was reopened) wasn’t great, we’re getting a bit more attention to these stings and the rules of the game. Courts are beginning to notice what’s been going on and hopefully these cases will be viewed with more scrutiny than before.

Let’s begin with the game itself… Law enforcement officers create a fake profile on an adult dating app or chat app. The profile is usually a picture of an attractive woman with a description of being 19-21. They troll the waters waiting for unsuspecting dupes to take the bait and once they have the target on the hook with some sexually suggestive conversation, they suddenly become 14!

I know what you are thinking… Come on! Don’t they warn every male under 25 about this? Who is still so gullible?!?! Well I guess if there are still tens of thousands of people out there waiting for an eight million dollar inheritance from a relative they never heard of that’s supposed to be wired right after they make just one more payment to Barrister Stevens John from Nigeria… there are still some people out there who didn’t get the memo.

Regardless, In State of Florida v. Lopez Garcia (Case No. 2D21-1492) the Court gave us the rules… Section 777.201(1), Florida Statutes (2020), provides: A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

“The first question to be determined is whether law enforcement induced the defendant to commit the charged offense. If the answer is yes, then the second question is whether the defendant was predisposed to commit the charged offense.” In other words… (1) did the cop induce the defendant (Inducement is defined as including ‘persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy[,] or friendship.’, and (2) if so, was the defendant predispositioned to commit the crime (Predisposition focuses upon whether the defendant was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.)

The Appellate Court held that someone’s predisposition to commit a crime is not a matter of law but a matter to be decided by a Jury, so they sent it back to the trial court.

The problem with many of these cases is that so few people take these cases to trial. The fear of spending decades in prison if you lose is enough to persuade anybody to take a quick plea to get out of the room. Nobody can blame them for not wanting to roll the dice. But, if you showed up in an adult chat room, looking to meet an adult, never had any underage pornography, never have been investigated for soliciting minors and were just an ‘unwary innocent’ who gave into an officer’s persuasive tactics… it’s something to speak to your attorney about.

 

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