DRUG BUYS, STING OPERATIONS AND ENTRAPMENT
By Brad Koffel
I recently reviewed an alarming case where a young man with no criminal history sold $70 worth of marijuana to an undercover detective. That piece of the case is easy - it's illegal. What is jarring to me is (a) how the marijuana sale was originated; (b) the role the government played in enhancing it to a higher level felony; and (c) how illogical Ohio's marijuana laws are. j
A brief history of the client: the defendant had just graduated from high school and was barely 18 years old and was preparing to head off to college in the fall. Had this offense occurred just 100 days earlier, the case would have been handled in the juvenile court with a likely diversion, dismissal, reduction, or
sealing of the record. He had no history of alcohol or drug problems either at home, school, or with the law. He had never been in trouble with the police other than 2 minor speeding tickets. He comes from a loving and supportive family.
Ramping up a case against the client: what happened one summer afternoon in 2009 in a grocery parking lot is very typical. Earlier in the day, another young man was caught with marijuana. The detective offered him a deal - become a "Confidential Informant" (CI) and set up a "buy" and the detective promised some leniency in court for the CI. This young man, the CI, had not been arrested thus his Miranda rights were never explained. It was part of an "ongoing investigation" - a term detectives use in an attempt to keep defense lawyers out of the case. The CI gave the name of the client to the detective which the detective refers to in his police report as the "Target". The CI called the client and arranged for the purchase of a half ounce of marijuana (between 14-16 grams).
The location for the "buy" was arranged by the CI at the direction of the detective. The chosen location was the parking lot of a busy grocery store at 5 pm on a Friday evening. The undercover detective wore a wireless transmitter and had pre-recorded "buy money" (the serial numbers were recorded to prove the money caught on the defendant came from the undercover detective). The undercover detective conveniently parked his vehicle within 100 feet of the front of the Kroger thus placing the entire transaction within 100 feet of any juveniles who may be present with their parents who are grocery shopping. About 20 minutes later, the client pulled up next to the undercover detective's vehicle and got into the backseat.
The client handed the undercover detective a very small amount of marijuana (allegedly 16 grams) and sold it to the undercover detective for $70. The client took the pre-recorded $70, shook hands with the detective, exited the vehicle, got into his vehicle and drove away. The entire transaction lasted less than 2 minutes. Unfortunately, it was alleged by the detective that a juvenile was within 100 feet of this "buy" thus enhancing the case to a 4th degree felony. The total law enforcement presence on this "sting" operation consisted of a Lieutenant, 3 detectives, and a Special Agent. The 16 grams of marijuana was sent to the crime lab where a "forensic chemist" analyzed and weighed it.
How much marijuana is 16 grams? Sixteen (16) grams of marijuana is an extremely small amount under Ohio law. How small? Well,
giving 20 grams of marijuana to another person is simply a minor misdemeanor in Ohio. Also,
possessing 100 grams or less is also a minor misdemeanor. A minor misdemeanor is punishable by a $150 fine only. It is the equivalent of a speeding ticket.
The Illogical Marijuana Laws Involved in this Case: The State of Ohio classifies the act of giving 20 grams of marijuana to another person as the lowest level crime (minor misdemeanor). The State of Ohio classifies possession 100 grams (or 6 times what the client had) as a minor misdemeanor. However, because the client received $70 it was elevated from a minor misdemeanor to a 5th degree felony Drug Trafficking. Then, because the detective put his vehicle within 100 feet of the front door of a busy grocery store thus placing the "buy" within 100 feet of any juveniles further enhanced the case to a 4th Degree Felony. The irony of all of this cannot be overlooked. What the client possessed was a minor misdemeanor amount of marijuana. But, because the detectives requested to buy it from him, it jumped to a felony. Because of where the detective placed his car it jumped again to a 4th degree felony.
Does Entrapment Apply to the Crime? Because entrapment is an affirmative defense, it can only be raised at trial. Entrapment is not a basis for a Motion to Dismiss. Entrapment is also known as "Confession and Avoidance" which means the client confesses to conduct but that he should avoid criminal culpability and punishment because "the criminal design originated with the government officials, and they implanted in the defendant's mind the disposition to commit the alleged offense and induced its commission in order that they may prosecute the defendant.
The entrapment defense historically fails because the accused must prove that he previously had an innocent mind. Entrapment defense does not cover situations where the detectives merely afford opportunities or facilities for the commission of the offense. Also, in 1973, the United States Supreme Court condoned actual deception on the part of detectives to ensnare a defendant. The case, United States v. Russell, concluded that deception is not entrapment.
However, there is a seldom used Entrapment Defense and that is "Outrageous Government Conduct". This defense is a form of entrapment. It is essentially a due process argument that our police exercise their discretion beyond the norm of what society believes is fair. The legitimacy of this defense is still under debate in Ohio. Some judges have refused to acknowledge this defense.
In a nutshell, drug buys involving CI's and undercover detectives almost always fail on Entrapment grounds. I use the above case study as a classic example of how far detectives will go to set up a felony drug buy, to get it within the range of a school or juvenile, and how illogical the marijuana penalties are. Because these "stings" are witnessed by multiple detectives and recorded, it is almost impossible to argue a case at trial. Therefore, you are left with placing yourself on the mercy of the court unless and until Ohio laws are amended to reflect a less serious marijuana transaction.