Entrapment Defense Attorneys in Fairfax, Virginia

Many clients ask whether the entrapment defense is a viable option in their case. This page discusses Virginia law on the subject and explains why the defense is so difficult to present.

Can I Use the Entrapment Defense in My Criminal Case in Virginia?

This is a common question asked by many clients who were “set up” by law enforcement. “I was entrapped!” they say. Unfortunately, Virginia law makes it very difficult to successfully present the entrapment defense at trial.

A common misconception about the entrapment defense is that it applies if the defendant can show that he or she would not have committed the offense except for the actions of the police. That is not exactly how it works though.

In the 1985 case of Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985), the Supreme Court of Virginia adopted the definition of entrapment stated by United States Supreme Court Justice Roberts in Sorrells v. United States, 287 U.S. 435, 454, 53 S. Ct. 210, 217, 77 L. Ed. 413 (1932):

“Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer….“

The entrapment defense bars a conviction only when it results from “improper police conduct.” Wood v. Commonwealth, 213 Va. 363, 367, 192 S.E.2d 762, 765 (1972).

The following language from the Court’s decision in Stamper is critical to understanding why the entrapment defense is so rarely successful in Virginia:

There is nothing improper in the use, by the police, of decoys, undercover agents, and informers to invite the exposure of willing criminals and to present an opportunity to one willing to commit a crime.

When the police merely afford an opportunity for the commission of a crime to one willing to commit it, a subsequent conviction will not be barred on the ground of entrapment.

Entrapment occurs only when the criminal conduct was the product of a ‘creative activity’ that implants in the mind of an otherwise innocent person the disposition to commit an offense.”

Two types of cases in which consideration of the entrapment defense most often arises up are Drug Distribution cases and charges of Internet or Online Solicitation of a Minor for Sexual Activity.

In Drug Distribution cases, often a defendant who is not normally engaged in distribution gets a phone call or text from a friend asking if they can help find some drugs for them. The defendant then makes contact with a dealer they know and eventually serves as a middle man to facilitate the deal. Later it turns out that the “friend” was actually working with law enforcement (usually to help get out of their own charges), and the defendant was set up. In such cases, courts have held that the police – through their informant – merely provided the opportunity to commit the crime to one who was willing and able to do so, so the entrapment defense would not be available.

Most charges of Internet Solicitation of a Minor do not involve a real child/teenager, but actually, an adult police detective posing as a teenager online. Sometimes the undercover detective will even go onto adult chatrooms to make contact with a defendant first, and only later “reveal” that they are actually underage. If the defendant elects to continue the sexual communications after they are given reason to know of the other party’s age, however, they will not be able to rely on entrapment as a defense in their case. Instead, the courts will rule that the defendant should have immediately expressed that they were not interested because of the person’s age, and ceased all further communication.

Just because the entrapment defense is not available though, does not mean that such factors are irrelevant in the ultimate disposition of the case. In Drug Distribution cases it may be possible to argue for an accommodation defense if the defendant did not profit at all from the transaction. In Distribution, Online Solicitation, or any other case where it could be argued that the defendant would not have committed the offense if not for the police initiating things, a good lawyer can always use those facts to help build a compelling case in mitigation for use during plea bargaining and/or sentencing.