Police Entrapment in Colorado – When does it cross the line?

Entrapment occurs when the police pressure you into committing a crime you were not predisposed to commit. Entrapment is illegal, and you can raise it as a defense to try to get your charges dismissed.

Police are allowed to lie to you and present you with an opportunity to commit a crime. For example, it is a common practice for officers to go undercover as sex workers or drug buyers in an effort to catch suspects in an illegal act.

However, police deception turns into entrapment when you are pushed into committing a crime you never would have committed but for the police’s coercion. Fortunately, the police’s own bodycam footage is often enough to prove the police crossed the line and entrapped you.

The following bubble graph illustrates the crimes for which entrapment is a common defense:

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. Elements
• 2. Forms of Entrapment
• 3. Entrapment and Opportunity
• Additional Resources

1. Elements

For you to win your Colorado criminal case by claiming entrapment, you have to prove the following two elements by a preponderance of the evidence (which means that it is “more likely than not” that entrapment occurred):

1. A law enforcement officer (or other person acting under law enforcement direction) used methods to create a substantial risk that you would commit the crime you were charged with; and
2. You would not have conceived of or engaged in the crime but for the police’s inducement.¹

Entrapment is only a defense if it involves the police, law enforcement officers, or agents of the police. Therefore, it is not considered entrapment if a private citizen induces you to commit a crime unless they were acting under the police’s direction like informants.

Note that entrapment is what is called an “affirmative defense.” With affirmative defenses, you admit to committing a crime but claim that your actions were justified under the circumstances.²

2. Forms of Entrapment

In Colorado, entrapment typically involves police pressuring you to commit certain illegal acts through harassment, threats, repeated pressure, or fraud.

Example: An undercover officer goes on an online chat room, pretending to be a 13-year-old girl, in an attempt to gather evidence for online sex crimes. In the chatroom, the officer initiates a conversation with a man and continually drops hints that the two should meet for sex in hopes that the man will agree.

When the man does not take the bait, the officer threatens to tell the man’s wife about the chat unless he agrees to send a nude picture. Scared, the man relents and sends a nude picture. The officer then tracks down the man and arrests him for online sexual exploitation of a child.

Here, the man has a good argument that he was entrapped. The man did not break any law until the officer threatened him.

A common misconception is that an undercover police officer has to tell you they are a police officer if you ask. They do not. Therefore, it is not entrapment if you agree to commit a crime after an officer lies and says they are not the police.³

Police practices such as stings and going undercover are legal as long as no entrapment occurs.

3. Entrapment and Opportunity

The Colorado entrapment statute says, “merely affording a person an opportunity to commit an offense is not entrapment.” Police are even allowed to offer you money, rewards, companionship, flattery, or empty promises that no one will find out about your crime.

Police may lawfully trick you because there is an expectation of citizens to resist any “ordinary” temptation of committing a crime. However, if the police’s tactics becomes excessive, threatening or otherwise “unordinary,” you are being entrapped.⁴

Example: An undercover officer approaches Doug and asks that he sell her his Vicodin for her sick son, who is in excruciating pain but is being ignored by doctors. If Doug agrees and then gets arrested, he probably could not claim entrapment because the officer’s sob story was not particularly coercive.

If, however, the officer hounded Doug for days and sent him videos of a sick child crying before Doug finally agreed to sell the drugs, the court would probably dismiss any drug charges against him. The officer’s repeated and harassing actions would likely qualify as entrapment.⁵

Additional Resources

For more in-depth information, refer to the following scholarly articles:

• Rethinking Entrapment – American Criminal Law Review.
• The Law of Police Entrapment: Critical Evaluation and Policy Analysis – Criminal Law Forum.
• Clarifying Entrapment – International Commentary on Evidence.
• Entrapment and the Problem of Deterring Police Misconduct – Connecticut Law Review.
• Sting Operations, Undercover Agents, and Entrapment – Missouri Law Review.

Legal References