When is it entrapment?

5-26-2015 National:

This is a very interesting question posed to us by a reader.

Is it entrapment if the police are asked by a registrant, beforehand, to verify that a residence is in compliance with law, and police refuse to check (or tell registrant they are not responsible for doing that) then registrant moves in and police then say he is in violation of the law?

Definition:
In criminal law, entrapment is a practice whereby a law enforcement agent induces a person to commit a criminal offense that the person would have otherwise been unlikely to commit.[1] It is a conduct that is generally discouraged and thus, in many jurisdictions, it is a possible defense against criminal liability.

Depending on the law in the jurisdiction, the prosecution may be required to prove beyond a reasonable doubt that the defendant was not entrapped or the defendant may be required to prove that they were entrapped as an affirmative defense.

So the question is: Does a refusal -by police- to answer allow registrant to raise the issue of entrapment?

Thats the question we are asking folks to chime in on...please cite cases if you have them. Mere opinion is not really helpful, we are looking for authority.

Then if the registrant did move in, and it was entrapment, what happens next?

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Consider the following

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What is the defense of entrapment by estoppel?

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This defense focuses on the actions of government officials and not on the predisposition of the accused. In order to successfully assert this defense, one must actually rely on a point of law misrepresented by a government official and such reliance must be objectively reasonable given the identity of the official, the point of law misrepresented, and the substance of the misrepresentation. The misrepresentation must be made directly to the accused rather than to others.

This defense exists where a government official tells the accused that certain conduct is legal, the accused relies on that representation in engaging in that conduct, and the accused is then later prosecuted for engaging in that conduct.

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Entrapment by Estoppel

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Entrapment by estoppel requires one to establish (1) that a government official told him the act was legal; (2) that he relied on the advice; (3) that the reliance was reasonable; and (4) that, given the reliance, prosecution would be unfair. See United States v. Smith, 940 F.2d 710, 715 (1st Cir. 1991).

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When must a defendant raise issue of entrapment?

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Where a defendant does not assert that his "guilty plea was involuntary" or "that it was made with a misunderstanding of the nature of the charge or the consequences of the plea," a plea of guilty waives all defenses. United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971). It also waives "all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects." United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005). Defendant has not asserted his plea was involuntary or that he did not understand its consequences. Accordingly, defendant's plea of guilty to the charges waived any defenses he may have had thereto, including the defense of entrapment.

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