Simmons v. State

Orth, J., delivered the opinion of the Court. THE DEFENSE OF ENTRAPMENT We find it clear that the opinions of the Court of Appeals have established that the defense of entrapment is available to criminal defendants in this jurisdiction. In Baxter v. State, 223 Md. 495, 499 , the Court said: “The law in this State with respect to the defense of entrapment was restated in Ferraro v. State, 200 Md. 274 , 89 A. 2d 628 (1952), at p. 279 (by quoting from Callahan v. State, 163 Md. 298, 301 , 162 Atl. 856 [1932]) in this manner: Tt is not objectionable for an officer of the law to lay a trap or unite with others to de ³⁵⁸ tect an offender. The only effect would be to justify a more careful scrutiny of the evidence.

Where the crime is not against the person nor the property of the instigator, 1 it is not clear how, in the absence of special circumstances, the commission of crime at the solicitation or procurement of another, although an officer of the law, makes the culprit any less guilty than if the criminal design had originated with the wrongdoer himself.’ ” The rationale of making the defense available to an accused is “not in the view that the accused though guilty may go free, but the government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct.” Sorrells v. United States, 287 U. S. 435, 452 . Or as the Court said in Sherman v. United States, 356 U. S. 369 , at 372: “The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include ³⁵⁹ the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.

However, ‘A different question is presented when the criminal design originates with the officials of the government, and they implant 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 v. United States], 287 U. S. at page 442 , 53 S. Ct. at page 212 . Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search.” Application of the law as stated in Ferraro is not without difficulties. It requires consideration of the phrase “in the absence of special circumstances.” We believe the “special circumstances” refers to the circumstances surrounding the “solicitation or procurement” of the accused, that is the inducement to commit the crime. It has been held that where there was “no repeated and persistent solicitation of a previously law abiding citizen in order to overcome his reluctance to commit a crime” there was no entrapment as this “was only the permissible offering of an opportunity to a known offender to exercise his predisposition to violate the law.” Stewart v. State, 232 Md. 318 ; Snead v. State, 234 Md. 63 .

Where the illegal transaction originated with the accused and not the enforcement authorities there was no entrapment. Pointer v. State, 239 Md. 641 ; Cross v. State, 235 Md. 377 . In Lane v. State, 226 Md. 81 , that the police laid not one but three separate traps for the accused was not deemed to be entrapment, the Court stating “that the conduct of the officers * * * had an appropriate objective of uncovering criminal design, and was permitted police activity, often employed and frequently essential to the effective enforcement of the law.” At 88. This Court in disposing of the contention of entrapment has simply ³⁶⁰ applied the rule as stated in Ferraro , by finding no special circumstances existent. 2 These opinions, while lending some guidance, do not provide the full answer to questions presented when the defense of entrapment is raised.

Determined in effect on findings from the particular circumstances of each case that “special circumstances” were absent, they do not enunciate a test for the application of the Ferraro rule and we think it fair to say that the trial courts, prosecutors and defendants are not without some confusion with respect to the matter. It appears that the Court of Appeals has expressly not adopted either of the two divergent views regarding entrapment. In Ferraro it discussed at length the divergent views in the majority and concurring opinions in Sorrells but concluded: “We do not find it necessary to decide which, if any, of the divergent views of the defense of entrapment is law in Maryland.” 200 Md. at 281 . And see Baxter v. State, supra, at 499-500, quoting Ferraro .

We feel it advisable now to adopt a test for the application of the rule regarding the defense of entrapment. We believe that the view of the majority in Sorrells , restated in the majority opinions of Sherman v. United States, supra, and Masciale v. United States, 356 U. S. 386 is the better one, and adopt it. We note that in Sherman , the Court said, 356 U. S. at 372: “The intervening years have in no way detracted from the principles underlying [the Sorrells] decision.” We think, at the least, the opinions of the Court of Appeals do not preclude its adoption. We construe the opinion of the Court in Sorrells as enunciating what has been termed the “origin of interest” test. 3 This test was stated in substance by Judge ³⁶¹ Learned Hand in United States v. Sherman, 200 F. 2d 880 (2d Cir. 1952).

Probing the aspect of inducement he concluded that in Sorrells “all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose of the prosecution had induced the accused to commit the offense charged which he would not have otherwise committed.” At 882. 4 Inducement was further explained in Sherman v. United States, 356 U. S. 369 , at 372: “* * * [T]he fact that government agents ‘merely afford opportunities or facilities for the commission of the offense does not’ constitute entrapment. Entrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law-enforcement officials. (Emphasis supplied.) See 287 U. S. at pages 441, 451, 53 S. Ct. at pages 212, 216. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” But the inducement should not per se be an absolute bar to criminal liability, unanswerable by the State.

If it were, law enforcement would founder in cases, for example, involving secret transactions where informers are used. 5 Resolving this problem in the light of Sorrells , Judge Hand said: ³⁶² * * [I]t is a valid reply to the defense, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offense charged, whenever the opportunity offered. In that event the inducement which brought about the actual offense was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his pre-existing purpose. Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.” The principles by which these questions of fact are to be determined by the courts were outlined in Sorrells .

See 287 U. S. at 451 . As stated in Sherman, 356 U. S. at 373 , they are: “On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an ‘appropriate and searching inquiry into his own conduct and predisposition’ as bearing on his claim of innocence.” Once the accused has met his burden by establishing that the police induced him to commit the offense charged, it does not necessarily follow that the State, to meet its burden of showing that the accused had a predisposition to commit the offense, must show that the police prior to the inducement, had a “reasonable suspicion” that the accused was engaged in the commission of a crime or was ³⁶³ about to be. It is clear that if the original suggestions or initiative had come from the accused this would not be necessary. See Cornelius, The Law of Search and Seizure (2d Ed.) § 75, p. 256.

But contrary to Cornelius, who was not discussing the point in the frame of reference of the test we have here adopted, even if the initiative had not come from the accused, we think that on the totality of the circumstances it may be shown that the accused was “ready and willing without persuasion” and was “awaiting any propitious opportunity to commit the offense.” As to this, reasonable suspicion that the accused was engaged or about to engage in the commission of an offense would be relevant and material but not essential. 6 We find support for our view in Smith v. State, 242 Md. 712 , where the defendant, convicted of possession and control of narcotics, relied on entrapment among other defenses. The Court set out the facts as follows : “A Baltimore City police officer met an informer and, while they stood on a pavement in West Baltimore, a third person joined them and the possibility of buying narcotics was discussed. The third person disappeared into a nearby building and then the appellant emerged, joined the informer and the police officer and discussed a possible sale. After receiving ten dollars from the informer, the appellant left and returned a short while later and gave one cellophane bag to the officer in exchange for ten dollars and another bag to the informer.

The contents of the bag were found to be heroin hydrochloride, an opium derivative.” ³⁶⁴ The Court flatly held that “the record showed no more than that the police officer joined with a civilian to detect a violation of the law. The fact that the police officer neither knew nor was looking for the [defendant] when the meeting occurred, rebuts the possibility of ‘repeated and persistent solicitation of a previously law abiding citizen in order to overcome his reluctance to commit crime’.” It did not appear from the opinion that the police had a reasonable suspicion prior to any inducement that the defendant was engaged in or about to engage in the commission of a crime; or whether or not the original suggestions or initiative came from the defendant — “the possibility of buying narcotics was discussed” — or whether in fact the defendant was previously a law abiding citizen; or whether the informer previously knew the defendant or had knowledge of any prior illicit activities (the informer was called by the appellant at trial and refused to testify). Whether the holding be construed as being predicated upon a finding of no inducement or, if there was an inducement, upon the absence of special circumstances, we think it not contrary to our views. PROCEDURE AS TO THE DEFENSE OF ENTRAPMENT Under the test we have adopted resort to entrapment does not render an indictment thereafter found a nullity nor does it call for the exclusion of evidence so procured.

Thus a motion to dismiss the indictment or suppress the evidence does not lie. The defense of entrapment having been raised, the issue of whether a defendant has been entrapped is for the trier of fact as part of its function of determining the guilt or innocence of the accused. 7 Thus it is a matter of ³⁶⁵ the sufficiency of the evidence. The burden as to the first question — did the police, directly or through their agent, induce the defendant to commit the offense charged in the indictment — is on the defendant. This may be established by a preponderance of the evidence.

The burden as to the second question — was the defendant’s criminal conduct due to his own readiness and not to the persuasion of the police, that is, did he have a predisposition to commit the offense 8 — is on the State. This must be established beyond a reasonable doubt. The question of the sufficiency of the evidence would be raised by motion for judgment of acquittal. In a jury trial if the motion is denied, the issue of entrapment would be submitted to the jury with appropriate instructions. 9 THE INSTANT CASE Patrick Alan Simmons (appellant) was found guilty ³⁶⁶ at a court trial in the Circuit Court for Baltimore County of selling