On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. Concurring in part, Dissenting in part -- Justice Stein. The opinion of the Court was delivered by Handler, J. Stein, J., Concurring in part and Dissenting in part.
[127 NJ Page 460] This criminal case requires the Court to revisit the defense of entrapment. Defendants, a police officer and his girlfriend, attempted to sell drugs pursuant to a plan that had been devised by law enforcement officers and proposed to defendants through an informant. As a result, defendants were indicted for drug and other related offenses. They then moved
to dismiss the indictment on the ground that they had been entrapped. The trial court dismissed the indictment, concluding that defendants had been entrapped as a matter of due process. The Appellate Division affirmed in an unreported opinion. This Court granted the State's petition for certification. 127 N.J. 327, 604 A.2d 601 (1991).
During the summer of 1988, defendants, Jerome Johnson, a New Jersey State Trooper, and Wanda Bonet, his girlfriend, met a person with whom they used cocaine. Thereafter, on a fairly regular basis, that person supplied Johnson and Bonet with small amounts of cocaine. On one of those occasions, Johnson told his cocaine supplier, "I would like to rip off a drug dealer with a lot of cocaine and then I could turn around and sell it and make some money."
Some months later, Johnson's supplier was arrested while delivering a large quantity of cocaine to an undercover agent of the Drug Enforcement Task Force. The supplier thereafter decided to cooperate with law enforcement authorities by becoming an informant. He told agents of the United States Drug Enforcement Administration that Johnson would be willing to "rip off" drugs from a drug dealer and then sell those drugs for money.
The federal agents verified Johnson's employment as a State Trooper, and then communicated what they had learned to the New Jersey State Police. The two law enforcement agencies then jointly developed a plan to give Johnson the opportunity to steal drugs from a drug dealer and to sell those drugs. The plan contemplated that the informant would tell Johnson that he knew of an opportunity for Johnson to steal drugs from a drug courier and make a lot of money; that he, the informant, was acting as a broker for the sale of a kilogram of cocaine, and that he had arranged for a "mule," a paid courier, to transport the drugs by car to a meeting place with a prospective
buyer; and that the informant and the seller of the cocaine would be in a second car following the mule. According to the plan, Johnson, wearing his State Trooper uniform, would pretend to make a traffic stop of the mule's car at a prearranged location on Frelinghuysen Avenue in Newark, and then would seize the cocaine. The seller of the cocaine, following in the car with the broker-informant, would see the seizure and chalk up the loss of the cocaine as a cost of doing business. Johnson then would meet the broker at Johnson's apartment and sell the cocaine to the mule for $5,000.
The informant thereafter presented and explained the scheme to Johnson. Johnson readily agreed to participate, adding new elements to the plan. He requested $1,000 cash in advance, an unmarked car, and a portable flashing red light to use to make the traffic stop. Johnson also indicated he would change shifts so that he would be off-duty at the time of the stop. Bonet, present during the meeting, actively participated in the conversation, at times explaining to Johnson how the plan would be accomplished.
On December 22, 1988, the informant and a detective, acting as the mule, met with defendants at defendants' Newark apartment. The parties reviewed and discussed the details of the plan. Bonet encouraged Johnson's participation, and both defendants actively engaged in the Discussions and refinement of the plan. The detective gave Johnson $1,000 in marked one-hundred-dollar bills and the portable flashing red light. The participants arranged to meet again the following morning.
The next morning, Johnson, who had changed shifts, was supplied with the 1988 Chevrolet Caprice automobile to be used in stopping the mule. Johnson also viewed the car that the mule would be driving at the time of the stop and the precise location where the seizure of the drugs would occur. Johnson then changed into his State Trooper uniform. At approximately 11:30 a.m., the plan was put into effect. Driving the Chevrolet with the portable flashing red light and dressed in his
uniform, Johnson stopped the mule and seized from him one kilogram of cocaine. The informant and a special agent, posing as the seller, drove off. Johnson drove to his apartment, followed by the mule. On his arrival at approximately 12:05 p.m., Johnson was arrested. In his possession were the kilogram of cocaine, the Chevrolet, the flashing red light, and seven of the ten marked one-hundred-dollar bills. The sale of the cocaine back to the mule was not completed.
The State Grand Jury indicted defendants on five counts. Count One charged them with a second-degree conspiracy to violate the drug laws of this State, to exercise unlawful control over movable property of the State, and to commit misconduct in office, contrary to N.J.S.A. 2C:5-2. Count Two charged defendants with possession with intent to distribute a controlled dangerous substance, a first-degree crime contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1). The third count charged possession of a controlled dangerous substance, a crime of the third degree, contrary to N.J.S.A. 2C:35-10a(1). Count Four charged theft of movable property, a second-degree crime contrary to N.J.S.A. 2C:20-3, and Count Five charged official misconduct in office, a second-degree crime contrary to N.J.S.A. 2C:30-2.
Defendants conceded for purposes of their motion to dismiss the indictment that they were predisposed to commit the crime, the effect of which was to raise the defense of entrapment only as a matter of due process. Because the parties did not dispute the facts concerning the nature of the government's conduct in investigating the crimes and preDisposition was not an issue, they agreed to have the matter decided on the facts adduced in the Grand Jury proceedings. The lower courts were satisfied that the government conduct was improper and constituted entrapment as a matter of due process. That determination calls for an examination of the general doctrine of entrapment and the entrapment defense as it has evolved in this state. We can then address entrapment as a constitutional doctrine and
consider whether the facts in this case demonstrate that defendants were entrapped as a matter of due process.
The defense of entrapment, which serves to excuse the defendant from criminal responsibility, can arise whenever a defendant introduces evidence of the government's involvement in the crime through initiation, solicitation, or active participation. Ted K. Yasuda, Entrapment as a Due Process Defense, 57 Ind.L.J. 89, 92 (1982) (" Entrapment Due Process "). There are two major, somewhat opposing views of entrapment: subjective and objective. The choice between the two theories usually "centers on whether the purpose of the entrapment defense is to deter government misconduct or to protect the innocent." Paul Marcus, The Entrapment Defense 81 (1989).
Subjective entrapment concentrates on the criminal preDisposition of the defendant wholly apart from the nature of the police conduct. The defense will fail if the defendant was ready and willing to commit the crime. The subjective approach reflects the policy that law enforcement officials should detect existing crime rather than entice the innocent into committing crime. State v. Dolce, 41 N.J. 422, 432, 197 A.2d 185 (1964). Subjective entrapment protects the unwary innocent but not the unwary criminal.
In contrast, objective entrapment stresses the wrongfulness of government action without regard to the defendant's criminal preDisposition. "The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of government power." Sherman v. United States, 356 U.S. 369, 382, 78 S. Ct. 819, 825, 2 L. Ed. 2d 848, 856 (1958) (Frankfurter, J., Concurring). Objective entrapment seeks to deter police misconduct, even if the unwary criminal goes free.
The determinative elements of the respective tests are the defendant's criminal preDisposition and the government's conduct. The objective theory focusing on improper police conduct asks whether the government acts would have induced the average law abiding citizen to commit crime. The subjective theory stressing individual culpability asks whether the particular defendant would have committed the crime even without the government inducement. Kevin H. Marino, Outrageous Conduct: The Third Circuit's Treatment of the Due Process Defense, 19 Seton Hall L.Rev. 606, 612-13, 625, 630 (1989) (" Outrageous Conduct "). Although many courts purport to espouse either a pure subjective test or a pure objective test, "[a]s a matter of practicality, in many instances the application of the two theories overlap." People v. Jamieson, 436 Mich. 61, 461 N.W. 2d 884, 889 (1990); accord Marcus, supra, § 304; Roger Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 179-84 (1976).
Under the subjective test, for example, in order to demonstrate that the preDisposition of the defendant did not cause the crime, some courts suggest that highly improper police conduct may be found to be the cause of the crime. United States v. Townsend, 555 F.2d 152, 155 n. 3 (7th Cir.) ("even the most habitual offender can be entrapped if the officers use coercive inducement to overbear the defendant's reluctance"), cert. denied, 434 U.S. 897, 98 S. Ct. 277, 54 L. Ed. 2d 184 (1977); United States v. Watson, 489 F.2d 504, 511 (3d Cir.1973) ("the stronger the inducement, the more likely that any resulting criminal conduct of the defendant was due to the inducement rather than to the defendant's own preDisposition"). Emphasis on the nature of government conduct resembles the objective test.
Similarly, in objective entrapment, although the focus is whether the police conduct is likely to ensnare an average law abiding citizen, courts often perceive the average law abiding citizen as one who would not succumb to a simple invitation to commit a crime. E.g., People v. Barraza, 23 Cal. 3d 675, 153 Cal.Rptr. 459, 467, 591 P. 2d 947, 955 (1979); State v. Tookes,
67 Haw. 608, 699 P. 2d 983, 987 (1985). Some courts believe that the defendant's obvious preDisposition can mute the wrongfulness of police conduct, and, conversely, the defendant's lack of preDisposition can magnify the wrongfulness of that conduct. E.g., United States v. Batres-Santolino, 521 F. Supp. 744, 751 (N.D.Cal.1981); Marcus, supra, at 90-92. Hence, depending on the circumstances, the emphasis on the defendant's preDisposition "collapses" the objective test into the subjective test. Mark M. Stavsky, The "Sting" Reconsidered: Organized Crime, Corruption and Entrapment, 16 Rutgers L.J. 937, 947-49 & n. 81 (1985) (" The 'Sting' Reconsidered ").
Some jurisdictions pursue hybrid approaches combining both objective and subjective elements of entrapment. See, e.g., State v. Molnar, 81 N.J. 475, 486, 410 A.2d 37 (1980) (Code of Criminal Justice represents intermediate position between the subjective and objective views on entrapment); see also Cruz v. State, 465 So. 2d 516, 521 (Fla.) ("subjective and objective entrapment doctrines can coexist"), cert. denied, 473 U.S. 905, 105 S. Ct. 3527, 87 L. Ed. 2d 652 (1985); Baird v. State, 440 N.E. 2d 1143, 1145-46 (Ind.Ct.App.1982) (explaining dual nature of Indiana's statutory entrapment defense); People v. Isaacson, 44 N.Y. 2d 511, 406 N.Y.S. 2d 714, 378 N.E. 2d 78 (1978) (creating an entrapment test combining both subjective and objective aspects).
New Jersey recognized both forms of the entrapment defense prior to the adoption of the Code of Criminal Justice, which became effective in 1979. Historically, the common-law entrapment defense in New Jersey was based primarily on a subjective test. See generally State v. Rockholt, 96 N.J. 570, 574-76, 476 A.2d 1236 (1984) (a detailed history of subjective entrapment in New Jersey). The critical factor was the presence or absence of the defendant's preDisposition to commit the crime, which depended on whether Disposition to commit the crime originated with the defendant or with the police. This Court's opinion in State v. Dolce, supra, 41 N.J. at 430, 197 A.2d 185, explained that "[e]ntrapment exists when the criminal design
originates with the police officials, and they implant in the mind of an innocent person the Disposition to commit the offense and they induce its commission in order that they may prosecute." Subjective entrapment was available only to a defendant who had "no preDisposition to commit the crime induced by the government agents," State v. Stein, 70 N.J. 369, 391, 360 A.2d 347 (1976), or when "the criminal conduct was the product of the creative activity of law enforcement officials." State v. Talbot, 71 N.J. 160, 165, 364 A.2d 9 (1976). The basic purpose of subjective entrapment was to "protect the innocent from being led to crime through the activities of law enforcement officers but . . . [not to] protect the guilty from the consequences of subjectively mistaking apparent for actual opportunity to commit crime safely." Dolce, supra, 41 N.J. at 431-32, 197 A.2d 185.
Although the entrapment defense first recognized in New Jersey was based on the subjective theory, the Court, in Talbot, supra, 71 N.J. at 168, 364 A.2d 9, adopted an objective theory of entrapment. That form of entrapment focused on the nature of police conduct and could arise "as a matter of law even though preDisposition to commit the crime may appear . . . ." See Molnar, supra, 81 N.J. at 484-86, 410 A.2d 37. Objective entrapment was "bottomed on the principles of fundamental fairness . . . . [T]he methods employed by the State must measure up to commonly accepted standards of decency of conduct to which government must adhere. The manufacture or creation of a crime by law enforcement authorities cannot be tolerated." Talbot, supra, 71 N.J. at 168, 364 A.2d 9. Nevertheless, even though police conduct was determinative under objective entrapment, the preDisposition of the defendant was not wholly irrelevant and immaterial. According to the Court, the importance of the defendant's criminal intent decreases as the part played by the State increases, "until finally a point may be reached where the methods used by State cannot be countenanced, even though a defendant's preDisposition is shown." Id. at 167-68, 364 A.2d 9.
Three years after Talbot, the Legislature adopted a statutory entrapment defense. When it enacted the Code, it was mindful of the prevailing theories of entrapment and the common-law background of the defense. Sean M. Foxe, New Jersey Criminal Code Modifies Entrapment Defense, 15 Seton Hall L.Rev. 464 (1985); Michael A. Gill, The Entrapment Defense in New Jersey: A Call for Reform, 21 Rutgers L.J. 419, 438-40 (1990) (" Call for Reform "). The Code "replaced the prior law of entrapment with a single statutory defense" that intertwined the two conventional strands of common-law entrapment. Rockholt, supra, 96 N.J. at 579, 476 A.2d 1236.
The Code defense of entrapment provides:
a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by * * *
(2) Employing 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. [ N.J.S.A. 2C:2-12.]
However, the formulation of entrapment under the Code did not simplify the doctrine. The Code requires that the defendant address an objective prong that stresses the nature or character of government conduct. That conduct must involve (1) "methods of persuasion or inducement" that (2) create "a substantial risk" of the commission of a crime (3) by a person not otherwise "ready to commit [that crime]." N.J.S.A. 2C:2-12a(2). That test focuses on "the ability of the average person, rather than the particular defendant, to withstand inducements to engage in criminal activity." Rockholt, supra, 96 N.J. at 579, 476 A.2d 1236.
The Code also imposes a causation requirement, namely, that police conduct "as a direct result, cause[ ]" the defendant to commit the crime. N.J.S.A. 2C:2-12a. That constitutes a subjective prong because it focuses on the preDisposition of the particular defendant. "This additional language," the Court
explained in Rockholt, "pinpoints the effect of the police action on the particular defendant and thus necessarily triggers an inquiry into the defendant's preDisposition." 96 N.J. at 578, 476 A.2d 1236.
In this case, application of the Code standards was obviated because defendants, for the purpose of their motion to dismiss the indictment on constitutional grounds, conceded that they had been predisposed to commit the crime. However, traditional objective entrapment doctrine applies to a predisposed defendant under the rubric of due process entrapment. Therefore, objective entrapment principles remain relevant and instructive with respect to any inquiry into constitutional due process entrapment, the central issue of this case.
Entrapment based on standards of due process may occur even though entrapment has not been established under a statute. See State v. Medina, 201 N.J. Super. 565, 576-77, 493 A.2d 623 (App.Div.) (Talbot defense is of constitutional due process nature and thus exists independently of N.J.S.A. 2C:2-12), certif. denied, 102 N.J. 298, 508 A.2d 185 (1985); Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985) (jury rejected defendant's entrapment defense under statutory objective approach, yet court used due process standard to bar conviction because police conduct was so egregious). This Court in Rockholt recognized that the pre-Code defense of entrapment had a constitutional basis in due process and that due process entrapment survived the enactment of the statutory entrapment defense. 96 N.J. at 580-81, 476 A.2d 1236. As explained in Molnar, 81 N.J. at 486, 410 A.2d 37, the rationale for the "objective entrapment" defense of Talbot was based on the constitutional considerations of due process and fundamental fairness. Medina, supra, 201 N.J. Super. at 576-77, 493 A.2d 623.
Due process entrapment is like traditional objective entrapment in that it concentrates on government conduct. E.g., United States v. Valdovinos-Valdovinos, 588 F. Supp. 551, 554-55 (N.D.Cal.), rev'd on other grounds, 743 F.2d 1436 (9th Cir.1984), cert. denied, 469 U.S. 1114, 105 S. Ct. 799, 83 L. Ed. 2d 791 (1985). Due process entrapment, however, is an "involvement-based" doctrine, which focuses on the extent of the government's involvement in the crime, not merely on whether that conduct objectively or subjectively induced or caused the crime. Outrageous Conduct, supra, 19 Seton Hall L.Rev. at 613. Nevertheless, due process and objective entrapment serve like policies. 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 83 n. 4 (Supp.1991). The similarity of policies and standards can obscure the distinction between ordinary objective entrapment and due process entrapment. See United States v. Jannotti, 673 F.2d 578, 608 (3d Cir.1982) (en banc) (the lines between objective entrapment and due process entrapment "are indeed hazy"), rev'g 501 F. Supp. 1182 (E.D.Pa.1980), cert. denied, 457 U.S. 1106, 102 S. Ct. 2906, 73 L. Ed. 2d 1315 (1982); Call for Reform, supra, 21 Rutgers L.J. at 435 n. 136 (due process entrapment is distinguishable from the objective theory of entrapment "only in ...