People v. Juillet

Mich v JUILLET PEOPLE PEOPLE BROWN 1-2). (Calendar 76747, 8, Argued May Nos. 85344. Docket Nos. 30, 1991, September released October Decided Cheboygan Danny charged in the Circuit Court Juillet was separate delivery marijuana of lsd and with counts of and (pop). phencyclidine delivery marijuana The defendant of and hearing question entrapment. granted The on the of was court, a Livo, J., was not found that the defendant Robert C. transactions, entrapped entrapped two but was in the first informant, drugs police a obtained the the third because he transaction, drugs the time of the under the influence of at was encouraged transaction the undercover was to enter the and Thereafter, guilty marijuana agent. pleaded deliv- of the Juillet Appeals, charged ery of in the second transaction. The Court (R. Maher, J., Mackenzie, P.J., Chrzanowski, and R. J. J. M. curiam, per dissenting), unpublished opinion affirmed in an holding police did not manufacture the defendant’s considered, likely, objectively to induce crime when by person ready instigate the crime or the commission of it, exploited willing no evidence of an and to commit and found finding support friendship pressure of overt sufficient to 72990). (Docket appeals. No. The defendant charged Ingham Brown in the Circuit Court with Basil W. delivery marijuana, delivery counts of of two counts of of two cocaine, cocaine, possession of one count of and one count marijuana. quash possession The defendant moved to court, information, claiming entrapment. The James T. Kali- man, J., Appeals, Michael J. denied the motion. The Court of Cynar JJ., Kelly, P.J., Shepherd, denied the defen- and and 96380). (Docket Supreme interlocutory appeal No. The dant’s granted. for consideration as on leave Court remanded case P.J., (1987). Appeals, Mackenzie, 428 Mich 851 The Court ' affirmed, J., concurring), (Beasley, E. A. Quinnell, and merely holding some of the conduct was that while investigation truly aspects were and other distasteful police activity instigate reprehensible, crime did not 97840). (Docket interlocutory Supreme Court denied an No. v Juillet delivery pleaded guilty appeal, of mari- the defendant fifty grams juana of cocaine. The Court of and of less than Shepherd JJ., Cynar, P.J., Appeals, Doctoroff, af- finding entrapment, that it was bound firmed on the issue of 105863). (Docket doctrine No. The defendant the law-of-the-case appeals. Riley by opinions by joined Brickley, Justices and In Justice joined by by Chief Justice Cavanagh, Justices Levin Griffin; by Supreme Court held: Boyle, and and Justice the Mallett; analyzed objective entrapment are to be under the Claims of test. Juillet, entrapped, requiring reversal. In defendant was the. Brown, erroneously Appeals and the trial court In the Court claims, entrapment requiring analyzed reversal the defendant’s proceedings regarding question for further the and remand entrapment. Riley joined by Justices Brickley, Griffin, stated: entrapped. objective Defendant Brown was not Under the activities, government’s although entrapment, in- (cid:127)test of the conduct, volving questionable would not have induced a nor- mally law-abiding citizen in Brown’s circumstances to commit charged. with which he was Defendant Juillet was the crimes entrapped. police activity, reprehensible in that The which was conduct, likely it the criminal had the effect of manufactured inducing normally law-abiding person a in his circumstances to drug drug delivery. that of elevate use to purpose entrapment The overall defense is to deter corruptive governmental authority by invalidating use of con- victions that result from law enforcement efforts that have as instigation or their effect the manufacture of new crime disposed. one who would not otherwise have been so In Michi- gan, entrapment negates is not a defense that an essential instead, charged; presents it facts are element of the crime barring justify the defendant’s collateral to the crime that prosecution. objective primarily test of focuses investigative evidence-gathering procedures on the used governmental agents, subjective the test focuses on while predisposition the defendant’s or motivation to commit a new prop- subjective tests crime. Factors of both erly and utilized to determine if can be considered occurred, because both tests are concerned with the eradication invention of convictions that result more from law enforcement purpose It is not the than from law enforcement detection. plan objective test to determine whether the scheme or Mich way police detect the best or most effective used Rather, discourage police purpose is to criminal behavior. manufactures, induces, instigates the commis- conduct that crime, detecting simply criminal behavior. of a rather than sion Jamieson, (1990), 436 Mich 61 As formulated objective entrapment test must determine whether likely question probable and outcome the conduct in had as its activity. instigation the detection of criminal rather than entrapment mainly Although objective test of is con- conduct, reprehensible police cerned the existence of with act, weighed against willingness to commit the of the accused normally law-abiding person how a would react similar circumstances, determining whether also must be considered reprehensible police conduct rose to a level and whether the police. by the The test defendant’s conduct was induced bars prior predisposition, such as convic- evidence of the defendant’s By tions or activities not related to the circumstances at issue. test, applying the similar-circumstances a court can avoid dealing hypothetical situations. governmental activity To determine whether would induce normally law-abiding person in to the circumstances similar engage activity, in criminal courts should con- defendant’s sider, circumstances, governmen- to in addition the defendant’s tal conduct that would indicate that the crime was manufac- tured, including any appeals the whether there existed to friend, sympathy police had defendant’s as a whether the defendant, target particular and whether there reason to a any long lapses investigation were time between the and the arrest. Other factors to be considered are whether there were any make the of a crime inducements that would commission citizen, unusually hypothetical law-abiding attractive to a guaran- whether there were offers of excessive consideration or illegal, not and to tees that the acts were whether what extent existed, any government pressure whether sexual favors were involved, made, any whether threats of arrest were whether government any procedures that would tend to there were defendant, culpability escalate the criminal of the whether informant, police any there was control of and whether the investigation targeted. was raised, evidentiary the of When defense is hearing presence jury must be conducted outside the of the at proving entrapment which the defendant bears the burden of by preponderance a of the evidence. The trial court must make specific findings respect entrapment, of fact with to the issue of clearly and its decision will be reviewed under the erroneous Juillet govern- prove Only the the' defendant can that standard. when agents impermissibly engaged in activities that would ment entrap- instigate a crime can the defense of manufacture or prevail. ment Brown, investi- denied relief. The In the defendant should be crime, any only gators a manufacture but allowed did not past in the to obtain of to continue as it had course conduct police The would not have induced of a crime. conduct evidence defendant, ready similarly otherwise was not a situated who behavior, willing such the criminal to commit and to commit Thus, entrapped, judgment Brown was not and the an offense. Appeals of the Court should be affirmed. of Juillet, entrapped. The encour- In defendant was the instigation relationship aged responsible of a and were for the so, and, doing previously not in the course of did exist repre- friendship resulting played police-manufactured on a amounting hensibility entrapment. was to While defendant user, drug he a there was no ever had been a evidence drug pattern from that Juillet’s criminal was escalated dealer. delivery drugs. possession drugs of use or to nor- in this case the likelihood that a circumstances establish Juillet’s, law-abiding person mally similar to situation disposed drugs, induced not sell would have been otherwise techniques investigative employed. Cavanagh, joined Justices Levin Chief Justice objective Mallett, dispositive inquiry that the under stated entrapment Michigan is not whether the crime test of, activity by, product the creative of law caused or was the officials, at the crime was committed enforcement but whether instigation reprehensible objec- police conduct. While the mind to test the focus from the defendant’s state of tive shifts officers, subjective test law the conduct of the enforcement willingness act. A of the accused to commit the focuses on the prohibit police key purpose objective test is sense, that, likely encourage the commis- in an would not have been committed. sion of crime that otherwise governmental inquiring activity would induce In whether willing hypothetical person ready to commit activity, plurality opens engage itself in criminal crime misinterpretation. "ready will- The term and to confusion and option ing to offer a court the to commit the crime” seems However, the considering state of mind of the accused. ready and may consider whether the defendant was court not average crime, only willing whether an to commit but police hypothetical person induced conduct be Mich engage activity person in criminal that such a would not engaged narrowly otherwise have in. The Court must focus specific activity activity criminal or level of with which the charged inquire police defendant is and whether the reprehensible posed objective causing was so that it an risk of hypothetical person activity who had not reached that level of (even spotlessly law-abiding) if not to do so. reprehensibility police The conduct cannot be defined solely by personality hypothetical reference to the traits of a rather, law-abiding citizen; principle the fundamental is that no past present matter what the defendant’s record and inclina- are, criminality depths tions to or the to which the defendant society, police has sunk in the estimation of certain conduct to ensnare the defendant into further crime is not to be tolerated society. agents an play advanced Law enforcement a debased they instigators crime, partners role when become the of a commission, illegal its or the creative force behind the scheme. Affording person opportunity an to commit an offense does ordinarily constitute unless the circumstances opportunity normally indicate that such an would not be presented furnishing opportunity requires or the mere of the police criminal, dangerous, to commit certain or immoral acts. cases, entrapped. Juillet, In both the defendants were In entrapped, defendant was and his conviction should be re- police versed. The informant’s conduct toward the defendant posed causing average, an hypotheti- likelihood of drug cal activity drug user to dealing escalate the criminal place. outrageous, otherwise would not have taken immoral, apparently informant, criminal conduct of the meaningful supervision, place and the lack operation this permissible well outside bounds. Brown, In because Appeals the trial court and the Court of applied legal analysis rejecting an incorrect the defendant’s entrapment, reversed, claim of the decision should be and the entrapment hearing case application remanded for a new analysis. of the correct The fact that the defendant was known engaged to have previ- in criminal conduct of the same nature ously, might so, have continued to do does not excuse the outrageous lengths employed by agents to induce and orchestrate his continued involvement in crime. A manufac- opportunity may tured to commit crime constitute furnishing if opportunity requires the mere 39 v Juillet acts, criminal, even dangerous, immoral or commit certain entirely the defendant. may toward though they not be directed dissenting part, Boyle, concurring part in and Justice stated: objective Brown nor test neither the that under It is clear of the Court entrapped, member that each

Juillet were opinions Although entrapment. the lead test for favors a new encompassed test, test objective endorses a neither advocate an United objective forth Sorrells test as set the within (1932). Moreover, prosecu- States, neither the 287 US opportunity given an been have nor the defendants tion analysis. anticipates a shift develop such that a record as a matter fairly or affirmed can be reversed Neither case opinions. If there was espoused lead the the tests law under newly law,- tests that the formulated under it was error error of party has applied neither and that have not the trial courts parties the created opportunity Because to address. had an test, they remand objective entitled to are on the records based respect to the new test. to offer evidence subjective adopted test properly is a be should What permits all facts instigation consideration government caused bearing on whether and circumstances prosecution in those question bar and would the conduct reprehen- truly .government’s is conduct rare cases in which instigation No objective should be abandoned. test of The sible. labeled, instigation test examines is an matter how it Thus, subjective, inquiry is defendant’s characteristics. question the defendant necessarily is whether so. The government encour- act without the criminal have committed test, However, adoption of such a agement. in lieu of the prong advocated subjective the causation test for Brickley preferable. is long-asserted authority to not abandon courts should The government investigative Because conduct. restrain abusive only reprehensible, it manufac- may because be conduct above, crime, misconduct the level of on the basis of tures but prosecution because would bar dual view of police that insti- truly reprehensible and for conduct adopted. such a Under gates should be manufactures crime subjectively test, instigation government evaluated would be and the circumstances taking the defendant’s into account defendant, agent government between interaction issues as a matter determine both court would and the trial prong, focus is on the objective-misconduct Under the law. government’s inquiry whether the government The conduct.. Mich acceptable conduct falls below an standard for the fair and justice. analysis subjective honorable administration of inquires instigated whether law enforcement conduct or created crime, inquiry involving analysis an of all evidence bearing question, including predisposition. on the Because this prong given accurately gauges considers whether a act pose society threat the defendant would absent en- couragement, predisposition the defendant’s is a relevant fac- approach necessity tor. Such an would accommodate the protect against preserving overzealous law enforcement while opportunity that, although for defendants who claim police sense, objective conduct was tolerable in the it was light particular intolerable in circumstances. Brown, Appeals In the trial court and the Court of shifted government govern- focus from the misconduct to whether the instigated doing, they ment the criminal act. In so overlooked government’s consideration of the mistreatment of the infor- test, misapplied objective mant. focusing The trial court predisposition. the defendant’s This also was error under the merged objective subjectivé tests set forth Justice Brickley’s opinion. adopted, Under the tests the trial court whether, should determine on the basis of all the facts and cir- cumstances, government instigated the defendant’s conduct exploitation and whether that conduct manifested an of its infor- proper governmental mant inconsistent with the use of author- ity. proceedings. Brown thus should be remanded for further Juillet, In hearing while the case should be remanded for a regarding entrapped whether the defendant was under the standard, suggesting government revised there is no evidence objective conduct that was offensive in the sense. concurring part dissenting Griffin, part, entrapped, also stated that Brown was not but even under the explained opinion, test in the lead Juillet did not meet proving entrapment. the burden of Entrapment recognized should not be as a defense unless the process circumstances rise to the level of a constitutional due given violation. Unless in a situation is so reprehensible imposed by as to violate constitutional standards Clause, person guilty committing Due Process who is criminal act judiciary simply should not be exonerated disapproves part because it of conduct on the of another branch government. While strictly constitutional limitations must be observed, entrapment, the defense of which has no constitu- whatever, that, tional base should be eliminated. Short of we v Juillet Brickley, J. judging subjective standard for at least move to the should entrapment. Brown, and remanded. reversed

Juillet, reversed. (1988) 202; App reversed.

173 Mich NW2d Attorney Gay Kelley, General, Secor Frank J. Joseph Hardy, Kwiatkowski, General, P. Solicitor Prosecuting Attorney, Molner, E. and William people Attorney General, in Juillet. for the Assistant Gay Kelley, Attorney General, Secor Frank J. Hardy, Martin, General, E. Pros- Donald Solicitor ecuting Attorney, Chief, Zera, Crimi- and Paula M. people Division, in Brown. for the nal Appellate (by F. Michael Schuck State Defender Ralph Simpson) for the defendant Juillet. Ferency in Brown. A. for the defendant Zolton again faced In these cases we are Brickley, entrapment. question We with the troublesome granted appeal, after to 436 Mich (1990), leave 880 applying adhering objective it in to the test and opinion plurality Jamieson, 436 continue (1990). 461 NW2d We Mich adhere to the 61; expressed principles in Jamieson determining objective apply test Juillet were en- defendants Brown and whether trapped. Brown was not that defendant Basil

We find entrapment, entrapped. test of Under the government’s say activities, that we cannot involving questionable although conduct, would law-abiding normally citizen, in Brown’s induce a circumstances, which to commit the crimes with charged. Therefore, affirm defen- we would he was Mich Bhickley, dant Brown’s conviction. We find that defendant Danny entrapped. police activity Juillet was The likely inducing did this case have the effect of a normally law-abiding person, in Juillét’s circum- drug drug stances, delivery. to elevate his use to that of Additionally, conduct was re- prehensible regard they to Juillet in that Accordingly, manufactured the criminal conduct. we would reverse defendant Juillet’s conviction.

I. FACTUAL BACKGROUND

A. PEOPLE V BROWN1 This case arose when an unidentified informant Nancy special agent Orga- Kalder, told for the Corruption nized Crime and Public Unit of the Attorney prostitute, office, General’s that a Kath- ryn Roberts, B. had received cocaine mari- juana from Brown. night meeting 15, 1985,

In a on October Kalder understanding and Roberts reached an go apartment, Roberts would to Brown’s as nor- she mally past, had in the and would receive whatever narcotics Brown had available. The narcotics brought sample would then be back Kalder as a possible against and for use as evidence Brown. parties agreed completed The if Roberts her part place drug bargain, she would be furnished with a into a stay, given money, put some program. fact,

rehabilitation In Roberts re- payments expenses, including ceived for all her stay, spending money, any hotel and rides for purpose investigation. even if not related Attorney General’s office also enrolled Roberts in a rehabilitation program._ Beasley by Judge Because the excellent factual review in the Appeals, history opinion.

Court of most of this is taken from his See (1987). 273, 279; App only 163 Mich 766 NW2d We have added necessary. facts and citations to the record where v Juillet Brickley, addicted to heroin since had been

Roberts She earned cocaine since 1979. and had used had been previously money prostitute as charge had one at least twice for and charged meeting through After Brown pending. solicitation with him Roberts was involved prostitute, another apart- went to Brown’s years. over four She for shared prostitute times as a fifty ment at least times only him on occasions. The drugs many with drugs were when none were did not share they exchanged sex Roberts and Brown also available. however, the record does not drugs; or cash for paid Brown how times or how much many indicate Roberts for her sexual services. Kalder on meeting

At the time of her first 15, 1985, had not contacted Roberts October during previous days, and Brown thirty Brown months, the last six had not called Roberts within longer phone because he no had apparently he could reach her. The through number which failure thirty-day lapse reason for the was Roberts’ for the to return she received from Brown $130 However, cocaine for him. dur- purpose buying ing relationship, their illicit it was four-year for them not to contact each other unusual met, long of time.2 When first Brown periods they apartment even told Roberts never to come to his calling always without first. she Consequently, except to his going apartment, called Brown before living for a brief time when she was with her ex- husband and Brown called her. Sometimes Roberts telephone made several calls before Brown would apartment. her to come over to his tell 17, 1985, Agent On October Kalder asked Rob- him erts to call Brown and inform she had partial as a for the that she payment money $50 however, instance, contacts; thirty days In this it was between longer during relationship, interruptions of duration. their there were Mich Brickley, J. apart- come to his him and would had stolen from ment Brown, meeting. Special money. repay then called to the Roberts suggested agreed readily he to her Agent gave to Kalder Roberts $50 obligation. partially repay Brown for $130 thought payment would ensure this Kalder Roberts’ Lansing apartment.

entry into Brown’s apartment, the in- to Brown’s Before she went vestigators strip-searched Roberts to make sure drugs apartment, that no were taken into Brown’s again strip-searched her after she returned drugs any out of his that she had not taken ensure apartment over than those that she handed other thát when she entered to Kalder. Roberts testified apartment, he asked her if she wanted to Brown’s roll them his bedroom a dish. She rolled of them smoked some cocaine that Brown had She joint, marijuana and that was joint both

it. and Brown also used Roberts apartment. his going injected syringe, into the cocaine with a allegedly bathroom to do so because Brown did During like her use the needle.3 this to wátch past, visit, traded sex for as she had Roberts given Although they drugs to her Brown. frequently, type knew this of conduct occurred investigators it to continue on this occa- allowed appear they everything wanted as sion because during longstanding always illicit it relationship apartment, had Roberts’ she left Brown’s with Brown. When gave of mari- he Roberts a small butt gave juana at home. to take with her to smoke She marijuana to Kalder. Through telephone calls, a second a number apartment arranged visit to Brown’s although Testimony during hearing a Turner indicated that give any syringes, carry Kalder did not a Roberts Kalder allowed her to apartment syringe into Brown’s on at least two occasions so that inject normally had could cocaine in a manner in which she Roberts done it. (1973). Turner, 7; People 390 Mich 210 NW2d 336 v Juillet Opinion by Brickley, telephone 1985. Roberts made October meetings with him in the up calls to Brown set preceding same manner that she had for the four call, During phone one as with other years. requested calls General’s phone Attorney office, if stop by Roberts asked Brown she "could agreed and smoke a with him.” Brown to see joint again strip-searched Roberts. Roberts was before entered Brown asked'her apartment. she Brown’s cocaine, agreed, if she wanted some she and he her gave cocaine to take into the bathroom to cocaine, Roberts some of the inject. injected but put purse give the rest into her to Kalder. trip apartment

Another to Brown’s ar- 7, before, ranged for November 1985. As the inves- tigators strip-searched Roberts before she entered apartment. smoking She said that Brown was when she arrived and asked her if she wanted to roll them a She rolled one out of joint. some was on marijuana that defendant’s dresser and both smoked it. they Roberts and Brown also used cocaine, some cocaine. Brown snorted the and she went into the bathroom three times it. In inject drugs, again return for the gave Roberts sexual favors to Brown. Roberts put some of the cocaine given that Brown had envelope her into an in her and it purse carried out with her when she left. gave envelope Roberts to Special Agent Kalder. contacts,

On the basis of these a search warrant signed magistrate arrest warrant were aby 8, 1985, on November charged Brown was four lower court files. 27, 1986,

On March Brown filed a motion to quash the in Ingham information Circuit Court. issue, The motion focused the entrapment on but also contained several other matters not before us appeal. Ingham Judge on Circuit T. Kali- James 34 Mich Brickley, opinion it in an denied the motion and heard man 4, 1986. June dated and order Brown’s denied initially Appeals The Court of 1986, 19, we but December interlocutory appeal leave as on for consideration the case remanded (1987). Ap- The Court Mich 851 granted, findings. Kallman’s Judge affirmed peals in this police of the said that some Court App Mich distasteful.” "merely case was (1987). However, other it found 275; 463 NW2d reprehensible,” investigation "truly of the aspects addict, her allowing drug including using a known defendant, with the sexual acts to commit in meretri- "engag[e] allowing the informant at 276. the defendant.” Id. relationship with cious found Nevertheless, Appeals Court of con- the informant’s "caused” although police in a broad sense the defendant tact with police term, entrapped because Brown was not Id. at 277. the crimes. instigate activity did Beasley concurred, noting that because Judge accept the Court had testify, did not Brown past their relation- regarding testimony of Roberts the evidence the basis of at 295. On ship. Id. had prove did not Brown presented, he failed to charged, and the crimes "instigated” Id. at 295- entrapment. prove his burden to meet Court, this appeal interlocutory After denied, subsequent a conditional which we 17, 1985, of delivery marijuana, to an October plea (2)(c), 14.15(7401)(1), 333.7401(1), (2)(c); MSA MCL 1985, fifty of less than delivery and an October 333.7401(1), (2)(a)(iv); MSA cocaine, MCL of grams of 14.15(7401)(1), (2)(a)(iv), appeal Brown filed an his again reviewed Appeals of The Court right. 202; 433 conviction, NW2d App 173 Mich (Brown (1988) bound II), finding that it was v Juillet Bbickley, affirming thereby law of the case doctrine and prior panel’s findings entrapment. on the issue of granted appeal. Id. at 209-210. We leave to B. PEOPLE V JUILLET only drug While the second of three transactions helpful here, is at issue circumstances September we find it to look at all the surrounding charge. On charged 8, 1982, Juillet was with deliv 333.7401(1), ery marijuana (2)(b), and lsd. MCL (2)(c). (2)(c); 14.15(7401)(1), (2)(b), MSA Juillet was charged separate delivery also marijuana incidents of delivery (phencyclidine). pop 14.15(7401)(2)(b). 333.7401(2)(b); MCL MSA After being charges, bound over for trial on all Juillet requested question hearing and obtained a Turner on the entrapment. Subsequent to Juillet’s hearing, hearing the trial court ordered that his be a supplemented by a more extensive record hearings, related case. From the record of these following facts can be found. began initially Bleser, This case when Ronald Cheboy- informant, undercover moved to the gan County January 12, area on 1982. Bleser at- tempted part alleged "drug to become of an sub- Cheboygan culture” in the area and became supplier known as a user and of narcotics. The Michigan Police, by State who were directed to the Cheboygan sources, area a number of unknown Michigan hired Bleser. The boygan County paid State Police and Che- any

Bleser for his services and expenses other However, that he incurred as an informant. police paid Bleser,

when the he did not money. Bleser, have to account for his use of the covering living expenses, in addition to his also money purchase minors, used the fact known alcohol police, illegal pur- and for the drugs chase of for his own use. Mich Bkickley, police

During investigation, at- never tempted was what activities Bleser to determine during investigation. the course of involved thoroughly inspect police officers also failed to pos- apartment he to determine if ever Bleser’s drugs. Additionally, offi- sessed or sold investigate Bleser’s cers were never instructed may they in the that he event learned have involved criminal activities. been provided drugs continually and alcohol Bleser parties apartment. for that at One occurred his usually store came owner indicated Bleser into a number of times a week and the store purchased alcohol. substantial amounts of Bleser kept large tray alcohol and a filled amounts of apartment marijuana for all use. He his ingested drugs, possessed may also have supplied drugs to as Juillet well as a number persons. other

During untargeted of this undercover course operation, initially Bleser encountered Juillet during January two sometime the last weeks walking inadvertently when met him down a he buy for road. Bleser offered to some beer the two and, later, intoxicated, of them when Juillet was marijuana. Bleser asked him for some Juillet although marijuana, it stated that he had some was sale. to ask Juillet for not for Bleser continued marijuana, obliged, finally Juillet when asking, couple gave Bleser, him a without Juillet’s marijuana cost, of cigarette lit dollars cover day, every it. After time and smoked every just Bleser, that Juillet saw which about was day, drugs. Bleser asked Juillet

In the first transaction with which Juillet charged, approximately which occurred two weeks meeting February 1, 1982, after first their People v Juillet Opinion by Brickley, J. Bleser and an undercover officer went to Juillet’s residence where Juillet stated that he knew some- one who had some

drugs, and the undercover replied making officer that he was interested . purchase. Juillet took the officer to another loca- they parked. gave tion, where The officer Juillet $50, However, and Juillet left the vehicle. Juillet gave indicating soon back, returned and the $50 drugs no were available. The officer then asked if get marijuana. Juillet could him some Juillet di- rected the officer to a second location where the parked again gave officer his vehicle. The officer got $50, Juillet and Juillet out. When Juillet re- simply turned he said "not home” and directed the Cheboygan. town, officer back to In Juillet saw got again. someone he knew and out of the car When Juillet returned he delivered one ounce of marijuana kept to the officer and $50 already given officer had him at the second loca- purchase price. tion as the charged

In a second transaction, which is the charge basis of the at issue and which on occurred or apartment. about March 2, was at 1982, Juillet Bleser’s coming

Bleser said a friend of his was get from out of town and asked if Juillet could his drugs. Later, friend some when Bleser and an posing undercover officer as Bleser’s friend drove past Cheboygan, flagged a local arcade in Juillet them down and came over to the officer’s vehicle. Juillet said there was a man named at "Bob” marijuana arcade who had and lsd for sale. Bleser rep- asked what do, Juillet wanted to and Juillet your apartment lied, "Let’s meet at in about five parties separated, minutes.” The and the officer apartment and Bleser went to Bleser’s and waited. later, Juillet, About ten minutes another man ap- Howell, named Robert and a white female peared produced at Bleser’s door. Howell a number Mich Brickley, marijuana drugs, including one ounce for lsd, he delivered to the officer $70.

some which charged transaction, occurred final which In the 1982, Bleser and Juillet or about March apartment when he asked Juillet were at Bleser’s friend, turned out to for a close who obtain pcp of the trans- officer. At the time be an undercover marijuana smoking action, laced with Juillet was from alcohol. also intoxicated pcp regular Juillet that he was user of admitted marijuana he was Juillet also admitted pcp. previ- get drugs willing he and that Bleser get drugs. ously knew whom he could Juillet from initially twenty years at the time he met was old grade only had an eleventh education. Bleser and Furthermore, ingested that Juillet indicated Bleser in, company. drugs while Juillet’s hearings, Bleser that he no At the admitted had drug knowledge dealer, ever that Juillet was kept friendship up Juillet, that he with and that acquainted generally he with Juillet. opin- 1983, 7, court filed an March the trial

On presented. ion the While basis of evidence completely clear, it does indicate record not analyzed the trial all three transactions that court they if the same manner and as occurred under The court found that same circumstances.4 entrapped in the first two transac- Juillet was not The trial court ruled that because Bleser did tions. participate in the actual transactions —even pro- though Juillet, he the contact with initiated up drugs Juillet, set the trans- vided relationship aggrandize the All of the activities used to between pinpointed they in time defendant were not as informant charged glean offense. from the record that those affected each events were We day pervasive from that the defen and continuous dant and Bleser met. People v Juillet Brickley, actions —Bleser did not cause the transactions occur. The trial court felt that the informant’s con- likely normally duct "was not to induce a law abid- ing person in Defendant’s circumstances to commit delivery court, however, . . . .’’The circuit found entrapped drug that Juillet was in the third trans- action, which occurred on or about March drugs because he obtained the for the infor- drugs mant, was under the influence at the time encouraged transaction, of the and was into the prosecu- Subsequently, transaction Bleser. prosecute charged drug tion also did not the first transaction.

Rather than continue with a bench trial began on March on March Juillet 9, 1983, pleaded guilty marijuana count, which was part charged transaction, of the second in ex- change for dismissal of the lsd count. Juillet was three-year probation sentenced to a term of year Cheboygan County one to be served jail. setting In sentence, Juillet’s the trial court influencing noted that factors the court were Juil- you’re let’s "70 the fact on General i.q., receiving psychological Assistance and have been counseling past.” in the Appeals

The Court of affirmed Juillet’s convic- Unpublished opinion per tion. curiam of the Court (Docket Appeals, decided June 5, No. 1985 Appeals 72990). The Court of held that "the agents or [did not] their manufacture[ ] defendant’s by likely, objectively crime conduct when consid- instigate ered, to induce or the commission of the by person ready willing crime not to commit Slip op, p Appeals it.” 1. The Court of found no exploited friendship pres- evidence of an or overt support finding entrapment. sure sufficient to opinion, appealed. From this Juillet 34 Mich 52 by Brickley, THE DEFENSE II. ENTRAPMENT HISTORY

A. PURPOSE AND entrapment purpose defense The overall of the corruptive governmental use is to deter authority invalidating result convictions that as their that have from law enforcement efforts instigation a new manufacture of effect or not have been crime one who would otherwise D’Angelo, disposed. People 167, 174; 401 v Mich so 257 NW2d 655 (1977); People Turner, v 390 Mich (1973); People Sinclair, 7, 16; v 387 336 NW2d (1972). 91, 116-120; 194 In Michi- Mich NW2d negates gan an is not a defense that charged Instead, it of the crime. essential element presents that are to the crime that facts collateral barring prosecution. justify defendant’s D’Angelo, 401 Mich Michigan’s previously defined

We defense: agents’ involvement in criminal "[W]hen goes beyond offering mere such an

activities when a kind opportunity, and their is of instigate of a that could induce or the commission it, ready willing crime to commit one regardless propensities of the character then — particular person entrap- induced —I think situation, has in that ment occurred. For engaged impermissible in the Government has [Turner, manufacturing .” Mich of crime . . . Russell, (citing United States 21 445; J., 411 US (Stewart, 1637; [1973]) 93 S 36 L Ct Ed 2d Emphasis dissenting). added.] given only However, when a defendant is given opportunity crime, or aid in to commit a furthering already conspiracy committed so government acquire can of that evidence People 53 v Juillet Opinion by Brickley, J. entrapment crime, the defendant cannot claim as Smith, a 182; defense. Mich (1941). NW 605 applying emerged entrapment defense, In two tests country. Many have across the states and government subjective test, the federal use a while Michigan minority and a other states follow the objective entrapment. supra, Jamieson, test In analyzed Michigan we both federal and law and determined we that would continue to follow the objective primarily test, which focuses on the in- vestigative evidence-gathering procedures used governmental agents, than rather the sub- jective pre- test, which focuses the defendant’s disposition or motivation to commit a new crime. Id. 72. at proper approach,

Under factors both the subjective tests can be considered and utilized if to determine occurred. Id. at 79. Both tests are concerned with "the eradication of convictions result from more law enforcement than invention from law enforce- purpose ment Id. detection.” at discourage police test is to instigates manufactures, induces, or com- simply detecting crime, mission of a rather than supra Turner, criminal behavior. at 20. judge particular

We do not whether or scheme plan police used best or most way effective detect criminal behavior. Jamie- supra son, 82. If at we were to decide whether types reprehensible certain conduct were ways because better more effective or tech- niques available, to detect criminal behavior were simply allowing judges we would be and courts personal thoughts vent their own re- beliefs garding police investigative practices. However, objective entrapment test, as formulated Mich Brickley,

Jamieson, determine whether must instead "probable police question its and in has as conduct instigation likely than rather the outcome the activity.” Id. at 77. of criminal detection LAW-ABIDING PERSON B. OF THE ANALYSIS NORMALLY entrap- analyzed objective the test of we When supra, Jamieson, that, al- ment though we restated mainly objective is concerned the test with reprehensible police conduct, con- the existence given willingness of the be to "the sideration must accused to commit the act against

weighed how a normally law-abiding person would react simi- added). (emphasis We lar at circumstancesId. hinged police analysis the our in Jamieson whether question induce or a

conduct cause hypothetical person engage activity. in criminal to By taking Id. into the reactions at account normally law-abiding citizens, we reaffirmed a generally police belief that not all offensive con- support entrap- necessarily duct will a claim of ment. Id. at 76.5 normally law-abiding analysis using the

Our person suggested by not, is as was the dissent in entrapment approach Jamieson, a new to the test. the in Turner Even Court realized when reviewing a to determine if the situation defen- entrapped, dant was a court must the consider defendant’s situation and whether his conduct was induced By applying

by police. supra Turner, at 22-23. See law-abiding "normally per- term restating simply son,” we who could be con- were ready willing "person to sidered a not com- mit” the with crime which he is charged._ simply not We do intend make defense a "but earlier, analysis. for” As causation we indicated where defendant crime, only given opportunity is a commit no Ante, pp exists. 52-53. Juillet Opinion by Brickley, analysis, Under the Jamieson the court can review the circumstances the defendant to de- termine whether would induce similarly person, situated an otherwise law- abiding disposition, charged to commit the crime. particular The circumstances of the defendant may analyzing be considered the trial court in component ready willing the entrapment test, as we stated Jamieson. furnishing

We conclude that of contraband government is insufficient to induce or instigate the average commission of crime defendants, person, is not that similarly situated these who

ready willing commit it. also We note this government’s a case where the furnishing of purpose narcotics the of trying dants. criminal to the culpability escalate defen- Emphasis at 89-90.

[Id. added.] The trial court is entitled to the consider circum- in stances which the defendant was situated in particular charge brought relation to the criminal prosecution. court The shall consider the police upon normally effects of conduct a law- abiding person presented in the circumstances to including potential vulnerability. defendant, us, simply On the record before the case cannot sixteen-year-old

be made that this preyed inmate upon that captors the weaknesses of his to the extent they be beyond induced a readiness to alleged make side the with drug supplier contact out- jail transport drugs jail inside the to such an inmate. Emphasis at 85-86. [Id. added.] targets

The unwary were not or vulnerable. To the contrary, they were trained in law enforce- ment, law, uphold spent sworn their working in a days most controlled environment in Mich Bhickley, charge. plan they uncover were in which drugs jail reported in the did source of (it hoped

prey trans- is on human weakness porting drugs jail into officers is a correction weakness) human or friend- not seen as a normal ship authority [Id. at use of to intimidate. Emphasis added.] Therefore, that the individ- adhere to the belief we are relevant de- circumstances ual defendant’s termining a rose to whether reprehensible level. defendant’s

This test still bars evidence prior predisposition, such convictions or activi- as involved in not related to the circumstances ties the current case. applying By the similar-circum- dealing hypo- test, stances a court can avoid identify trying situations, what "nor- thetical person person a "normal” does. mal” is what allowing evalua- therefore conclude that a test We tion light circumstances, of the defendant’s law-abiding disposition, more in an otherwise purpose keeping de- with the fense.

C. FACTORS POLICE-INDUCED CONDUCT INDICATING activity governmental whether the To determine normally law-abiding person would induce engage to the defendant’s to circumstances similar Michigan activity, and other courts in criminal types test states have stated number to the defen- of conduct to consider addition be to have circumstances that would found dant’s supra, Turner, In we indi- manufactured a crime. that court could whether there cated consider appeals sympathy any defendant’s existed as a friend, the defendant had been whether he was the crime with which known commit v Juillet Brickley, charged, any long and whether there were time lapses investigation between the and the arrest. 390 Mich 22-23.

A number of other factors exist which have been considered various courts to determine if a person in circumstances similar to the defendant’s entrapped. would be In addition to the factors Turner, indicated in ered the courts have also consid- any inducements that would make the com- unusually hypo- mission of a crime attractive to a law-abiding citizen, thetical offers of excessive con- guarantee enticement, sideration or other and a alleged illegal. that the acts as crimes were not Jamieson, Furthermore, 436 Mich 73-74. the courts any govern- consider whether and to what extent pressure existed, ment the existence of sexual any favors, whether there were threats of arrest governmental agents, made and the exis- any government procedures tence of tend to culpability escalate the criminal of the defendant. Finally, Id. the courts have considered the any supra, informant, control over Jamieson, investigation targeted whether or untar- geted, People App Duis, v 698; 81 Mich NW2d (1978); Anders, see also State v 560 So 2d 288 (Fla 1990); App, Lusby State, 507 So 2d 612- 1987) (Fla App, (stating entrapment may goes "fishing expedi- exist when an informant on a person tion” and has no reason to believe that a any illegal drugs), has contact with and whether necessary informant or undercover officer was a ingredient operation. in the undercover While this exclusive, list is not intended to be some of the more these items are important factors that courts have considered.

III. RESPONSE response opinions colleagues, In to the of our we Mich by Brickley, J. important, particularly the of in matter think it opinion two-part in of Justice test forth the set posture recapitulate in of these cases Boyle, entrapment of as it has relation to the defense developed opinions this Court. in recent of appeal application in Juillet The for leave to early Brown, in in 1986 and came to this Court in early abeyance in for held 1987. Both cases were Subsequently, these while of Jamieson. resolution argu- abeyance in status and oral cases were still Jamieson, for we asked ments had been heard regard rebriefing we in that "with to whether case entrapment objective test should preference abandon subjective Jamieson, 436 test.” Mich 65. plu- rebriefing, in a

After decided Jamieson we candidly rality opinion6 we set forth what which shortcomings to be of considered the virtues and they are in effect in federal these two tests as Having so, courts other done we con- and states. not found sufficient reason cluded that we had depart precedent objec- from and adhered tive test. ongoing debate in the

As evidenced entrap- question, courts ment on this across land analysis any it from can defense benefits lightly reason, that we dismiss receive. For do our colleague, scholarly the usual effort Justice yet us an- which would have embark Boyle, given However, the difficulties inherent other test. conceptually in a that alien to tradi- defense Brickley opinion signed by Justices Jamieson Boyle, Riley, Griffin, and Chief Justice and concurred Justice separate writing subjective expressed preference his who in a stated, test, meantime, but "In the while nonetheless using majority persists in the so-called test for resolu Court tion associate claims, prefer, wish to clear that I I make with, myself the version test articulated Brickley.” 436 Mich v Juillet Opinion by Brickley, culpability, tional notions of criminal we must degree certainty finality strive for some particular this area of law. require go through yet

To these two cases another visit to the lower courts the basis of a totally new test and another inevitable round of appeals suggest, is, we not in the best interest entrapment either the tion of defense or the administra- justice. opinion Chief Justice to a Cavanagh, extent, limited and that of Justice to a Boyle,

greater extent, concern us the most in their efforts strip importance causality of the element entrapment by recognizing from the defense reprehensible may some trapment amount to en- considering hypo-

without the effect on a normally law-abiding person. thetical As has been way stated all of us in another, one or purpose entrapment historical abate the of the defense is to police practices that,

use of in the words champion objec- Stewart, of Justice Potter "likely instigate test, tive are or create a crimi- nal offense”—not like, those we do not not those ineffective, that are not those that are distasteful. Russell, United States v 423, 441; 411 US 93 S Ct (1973) (Stewart, 1637; 36 L Ed 2d 366 J., dissent- ing). "instigation” component Once the severed, is my colleagues’ opinions propose, as in our review of "all will, it

view, embark the courts of this state on a conduct that can or will in future, the individual on the basis of the shock level of an ” jurist, 'reprehensible.’ be considered Jamieson, 436 Mich 76. response Boyle’s

In to Justice claim that we are altering objective test for in these respectfully cases, we Boyle note that Justice signed opinion, only year ago, one which not only objective endorsed continued adherence to the Mich Opinion by Brickley, test, overlapping "that is some but stated there [objective the two tests application between can, to some subjective] and that best each extent, at 79. Similarly, be utilized.” Jamieson have, cases, adopted the in these assertion we standard for circumstances” as new "defendant’s not evaluating simply the claim true. In Jamieson we stated: test, applying consideration When willingness given

is mit the act to the of the accused com- against normally weighed how a law- abiding person would react similar circum- Emphasis stances. at [Id. added.] Therefore, departing we from the are clearly es- jurisprudence which this Court has current poused; any implication contrary by to the Boyle interpre- is an incorrect characterization opinion. of our tation a the need we are at loss understand

Finally, in case at bar. hearing for either evidentiary chose not at his en- testify Defendant Brown trapment hearing, knowing that he had the bur- Juillet, In as proof existing den of under law. Boyle acknowledges, the "extensive testi- not produce satisfy did evidence that mony” finding entrapment. her for proposed test a Furthermore, Post, there no p is indication that either Brown or Juillet were denied admis- evidence, it remarkable any sion of would be put any if defendants had not forth available these reprehensible which evidence demonstrated either instigation of the criminal activ- police conduct or their to it. Both these ity vulnerability heavily existing proposed loom all factors entrapment. tests for the error was committed lower

Whatever the the produced evidence analyzing courts Juillet v Opinion by Beickley, represents record, law, it error correctable appellate justifying courts, thus remand hearings. evidentiary to the court for further trial APPLYING THE TEST IV. ENTRAPMENT entrapment We note that when the defense of evidentiary raised, the trial court conduct an must hearing presence D’Angelo, jury. outside During hearing, 401 Mich 183. defendant this proving by preponder- will have the burden of ance of entrapped. he the evidence that was Id. at decision, 182. In its the trial court must make findings specific issue, of fact on the clearly and its will decision be reviewed under the Only erroneous standard. Id. can when the defendant prove government agents engaged that the impermissibly activities that would or prevail. People manufacture instigate a crime will the defense of App Jones, 165 Mich 676- (1988). 677; 419 NW2d A. PEOPLE V BROWN Initially, Appeals, note, we as did Court of the unusual nature of case. this We are faced with testify a situation where the defendant did not at requested hearing. Therefore, Turner in re- viewing investigation, accept this we must testimony presented prosecutor’s by witnesses attempt preponder- and ance of to determine whether a support evidence exists to the defen- entrapped. dant’s claim that he troubling courts, As did the lower we find most and such a offensive misuse of a infor- citizen—the prosecution purporting mant —to whom the is to helpful. However, be our distaste of such behavior toward the informant cannot deter us from the determining task of whether the the infor- use of Mich 34 by Brickley, causing the of one had effect mant this fashion disposed do so.7 to commit a crime to not otherwise clearly this Brown be denied relief under should suggest analysis. simply one much to It is too willing ready crime, nor- to commit a a not law-abiding person, respond positively mally would investigators police the of The to conduct the here. any only, crime, accord- did manufacture but ing testimony presented, of to a course the allowed past it had the to continue as to obtain investigators’ the strat- of a crime. While evidence egy gather using drug-addicted prostitute to a drugs simple offensive, the a evidence of sale of drugs prostitute exchange contact a sex for importune normally successfully a law- would not abiding drugs prostitute. person to to the deliver exchange relationship constituting

The backdrop drugs in which for sexual favors was the prostitute-turned- Roberts, Brown acceded Each knew what was ex- undercover informant. pected of the other. no misunderstand- There were ings. question only the defendant’s be willingness alleged criminal activi- continue question, time ties. At the time in of contact Brown, Roberts and the solicitation between many made in routine no different than the purchases offers police un- informants and sales agents every day on our dercover streets. other which have found that

Unlike cases entrapped, suggestion no defendant was that was there is there Roberts the several calls made friendship. People any play sympathy (1986); Graczyk, App 632; 156 Mich 402 NW2d 60 7 Only remedy police specified narrow situations is lawfully overturning ob otherwise misconduct tained. conviction Again, it is not function of the defense against persons purpose all all in all situations. Its deter is to committed abuse manufacturing be deter crime that would not otherwise law-abiding person. by normally People 63 v Juillet Opinion by Brickley, J. supra; People Soper, App Duis, v 57 Mich (1975). 677; sure, NW2d To be there was appeal an to whatever addictions were borne appeal by defendant, as there was an Brown to the addictions of Roberts. Addictions are at the root of the narcotic trade and are not a lawful excuse for crimes committed their furtherance. Although appeals sym- courts have found that to pathy suffering symp- for an addict withdrawal may entrapment, Graczyk, toms Duis, indicate supra, sug- we know of no other court that has gested, suggest, appeal nor would we that an to an amounting addiction, entrapment. such, as can be a defense Entrapment may recognized also be un- when pressures placed person usual are on the to suc- drugs coupled rehabilitation, cumb to after when appeal recognized with an to some other factor as reprehensible sym- an indicator of pathy conduct such as friendship. supra. Turner, See Brown has argued, testified, nor has he that he was drugs attempting addicted to or that he was Furthermore, overcome an addiction. it was not drugs seeking ongoing which he was in his rela- tionship with Roberts. jurisdictions recognized

Courts in other have pressure supporting on the informant as a factor e.g., See, defense. State, Shrader v (1985); 499; 101 Nev 706 P2d 834 Commonwealth v (1990). Wright, Super 276; 396 Pa 578 A2d 513 pressure And, informant, fact, in this case was on the reinforced substantial efforts of as- solving problems. sistance in her We think pressure perhaps informant, on an while offen- pressure execution, sive its does not amount change hypothetical on the defendant and does not the context judge in which we actual whether the or the entrapped. defendant was Mich Brickley, great pressure on not a deal there was While pressure. defendant, Roberts was some there arrange meetings them. between call Brown did Roberts was up brought person always also the who during drugs Brown, the use discussions. ap- protest occasions, the informant’s some peals, saying did "busy” he and that he did not Indeed, it took to be bothered. sometimes want let would her several calls before Brown Roberts come over to pres- apartment. However, his this entrapment. It not rise the level of sure did to very noted first contact between should be lapse thirty-day Brown, after the Roberts and communications, agreeing with to ended Brown exchange drugs. sex for One tele- see Roberts phone pressure does rise to the level of call not entrapment necessary support to claim. Fur- repay thermore, even offer to Brown does Roberts’ support his claim. not on the record does show While evidence investigators thought might see Brown not her without money, this evidence does not indicate that Brown otherwise have refused see her or other- relationship not ended their and does meet wise entrapment. Brown’s burden to show previously indicated, As other cases have set arguing factor forth sexual favors as a availability See Jamie defense. People App supra; Wisneski, son, 299; 96 Mich (1980). However, the facts 292 NW2d instant as Attorney indicate, case General’s office particular asked this informant to resume contact relationship Brown, it initiate the did only defendant, the informant and but between existing already allowed an course of police continue, which had reason believe only criminal behavior. Not was this involved relationship already existence, there but exists v Juillet Brickley, preponderating no evidence to show that the con- except gov- duct would not have occurred for the ernment’s This conduct would intervention. similarly defendant, not have induced a situated ready willing who was not otherwise to com- behavior, mit the criminal to commit such an Therefore, offense. not we must find that Brown was entrapped. judgment convictions, His and the Appeals question entrap- of the Court of on the ment, should be affirmed.

B. PEOPLE v JUILLET again sepa- case, In this we must undertake a analysis pre- rate of the facts and circumstances sented police the defendant to determine whether the instigated

conduct would have induced or the commission of the crime with which Juillet charged by normally law-abiding person. In un- dertaking analysis, again this we note that prove by prepon- burden is on the defendant entrapped by derance of the evidence that he was reprehensible police D’Angelo, supra. conduct. police willing Here, Brown, inas were to stand activity and allow criminal to be undertaken paid their Brown, however, informant. Unlike police encouraged responsi- this case the and were instigation relationship previ- ble for the of a that ously played doing and, so, did not exist in the course of police-manufactured friendship.

on a For distinguish reason, that which we find to these two reprehensibility amounting cases, we find to en- trapment. again cognizant situation,

In this we are that frequently drugs. the defendant used We must determine whether the facts and circumstances involved in this case would indicate that a nor- mally law-abiding person in Juillet’s circum- Mich Brickley, committing the into would be induced

stances crime police charged of the actions of because through paid informant. their incessantly re- Bleser indicates that

The record drugs quested ing him, includ- around from all those that on at also indicates Juillet. record occasion, could not obtain when Juillet least one drugs Bleser, the officer and the undercover to at Bleser and Juillet officer drove undercover places to Juillet was able other before least two drugs Addition- officer. for the undercover obtain ally, police contrary Brown, the did the facts in target, police specific Juillet as a not focus on did not drug supervise Juillet, activities, and Bleser’s user, the elevated crime was convicted for supra delivery Duis, at and sale of narcotics. App People 99; Rowell, 153 Mich v

See also (1986) (continuous requests least two at NW2d drugs per day were consid- times to obtain to three weigh entrapment). Therefore, factors these ered entrapped he was claim that in favor of Juillet’s by reprehensible conduct. Brown, defendant here took

Unlike hearing presented during his Turner stand prepared that was of the facts. The record version Bleser’s friend Juillet felt he was indicates that and that drugs he for Bleser because obtained friendship. that The record also indicates occasions, that he stated, Bleser needed ing on a number drugs who com- for friends were obtain city. evidence indi- visit from another This taking testimony, cates, into account Juillet’s friendship. appeal indeed an there was friendship Although Bleser and between period years, see does not cover a Juillet App 171, 174-175; 397 Hentkowski, 154 Mich (1986) (mere acquaintance is insufficient NW2d to friendship entrapment), support of a claim v Juillet Brickley, they lasted several months and saw each other testimony daily at the Turner hear basis. ings Juillet, indicated that Bleser did favors for eat, and had Juillet over to his took Juillet out to apartment on numerous occasions. Bleser even parents. met Juillet’s strongly These actions would more friendship person to a of defen indicate depen age education, limited if not a dant’s average person. dency, they to an See than People Mulkey, App 737; v 153 Mich 396 NW2d (1986). appeal Thus, Juillet’s claim of an to his friendship supported by the record. with Bleser police procedures

There also existed that seemed culpability. to escalate Juillet’s criminal The evi- dence indicated that Juillet was a former and drugs; testimony however, of current user at hearings indicated that there was no knowl- edge by police, anyone Bleser, else on the drug record that Juillet was ever a dealer.8 The requested evidence also showed that Bleser Juillet drugs to find persuaded for him on numerous occasions and up drug

Juillet to set transactions with parties, other himself and an undercover officer. found, We note that courts have under either subjective entrapment, or the test drug that when a user is convicted for the sale of drugs where no evidence exists that had knowledge drug dealer, the defendant was a entrapped. supra Shrader, the defendant was at (Utah, 502-504; Soroushirn, State v 571 P2d 1370 1977). Although only many one of factors to con- Jamieson, supra implied In at we that escalation criminal culpability entrapment. was an indication of government’s We also note that this is not a case where the

furnishing purpose trying of narcotics escalate Killian, [citing People culpability the criminal defendants 220; App (1982)]. 117 Mich 323 NW2d 660 Mich 34 68 by Opinion Brickley, J. pattern from

sider, was escalated criminal Juillet’s drugs delivery possession of of to the that of use or presented drugs, circumstances unlike the case, Bleser on a In sent Brown. this fishing expedition "dealers,” find and the arrest nor the neither Bleser of Juillet occurred when police actually any was to believe that Juillet had reason oppo- selling drugs.9 This situation is the investigators Brown, in site of that which charged crimes that had reason were tends believe being actually This factor also committed. reprehensible support of to- Juillet’s claim police conduct. drugs prior alleged by made Juillet

A sale alleged require contrary not a conclusion. does sale was asked for a also a situation where Bleser cigarette, given by marijuana Juillet, one and was cigarette paid for the then Bleser Juillet back being any payment. This situa- for without asked being drug simply user "sociable” tion indicates a friendship. drug part At with another user as that, most, under the circumstances this evidence shows objectively determined, as Juillet only drug was user. insignificant Juillet knew

It also seems prosecu- drug in the defense, noted dealers area. As general "subcul- tion and the there was a people in the and the that subcul- ture” area knowledge seemingly general have ture would the persons ongoing involved activities Therefore, it seems clear that in those activities. drug only Juillet was not a dealer and drugs delivery his to Bleser was the reason for requests by and the other activi- incessant Bleser into Bleser to induce Juillet ties undertaken committing the crime._ example police conduct differed This fact is another of how the "Further, fishing expedition, it not a

from that unrelated to in Jamieson. specific targets.” Id. at v Juillet Bkickley, why the trial court differ- understand do not

We 2 and March March entiated between charges. signifi- change not did The circumstances personally cantly, not that Bleser did and the fact delivery participate control- March 2 in the appeals ling. "friend- There were incredible ship” Juillet, Bleser that existed between drugs appeals sympathy to obtain to Juillet’s also they visit. In when came to Bleser’s friends delivery charges were fact, all on which occasions requests by brought an either Bleser or involved officer, undercover to our in this case establish

The circumstances normally a law- likelihood that satisfaction the abiding person, similarly Juillet situated drugs, disposed to the sale not otherwise investigative techniques by the have been induced employed. here AND CONCLUSION

V. SUMMARY entrapment, objective find we test of Under the Appeals clearly not errone- Court concluding not Brown was ous in defendant Considering entrapped. rounding the circumstances sur- knowledge investigation this investiga- they operating, were under which instigated manu- not tors’ conduct would have normally law-abid- factured criminal behavior ing person. presented merely Their opportunity relationship. illicit to continue an for the defendant was, indeed, en- However, find that Juillet we law-abiding per- normally trapped. that a find We likely induced in his circumstances would be son committing a crime the situation into presented in this case. informant defendant Brown’s Therefore, we would affirm Mich Cavanagh, C.J. conviction and would reverse defendant Juillet’s conviction.

Riley JJ., Griffin, concurred with Brickley, agree wholeheartedly my C.J. I with

Cavanagh, Brickley’s Brother continued adherence to the objective analyzing entrapment test for claims, properly any which, subjec- understood, eschews case-by-case inquiry tive, predisposition, into the if any, of the individual defendant at bar. I also agree generally analysis with much of the set thoughtful opinion, Brickley’s forth in Justice although, explain, agree as I shall I do not with his result in Brown. disagree Boyle

I with Justice that the test estab- today lished is a test[] "new encompassed p post, in the Boyle, J., test.” myself problems IWhile have some analysis, opinion Brickley’s his (1990), v Jamieson, 61; 436 Mich 461 NW2d 884 represented logical development precedents, law, faithful to our and Justice Brick- ley’s analysis in cases, the instant whatever its problems, perfectly is consistent with his Jamieson analysis. objec- I Because view the contours of the differently tive test somewhat than does Justice separately apply however, I write Brickley, analysis my separate concurring opin- set forth in in Jamieson, ion 436 Mich 94-97.

I. THE OBJECTIVE TEST ENTRAPMENT regarding The historical and doctrinal debate longstanding, attempt is I and will not substantially point. simply add to it at this I persuasive note that I continue to find the views of People 71 v Juillet by Cavanagh, C.J. Louis D. as Justices distinguished jurists such Roberts, Stone, Felix Brandéis, Owen J. Harlan F. Frankfurter, Douglas, John Marshall William O. Brennan, Stewart, Jr., Potter Harlan, William J. Su of the United States Thurgood Marshall and Camp Court, Justice James V. and Chief preme this Court. See Justice Isaac of Marston bell and States, v United 435, 453-459; 53 Sorrells 287 US S (1932) opinion L Ed 210; (separate 77 413 Ct Stone, JJ.); Roberts, J., Brandeis joined and States, 356 v United 369, 378-385; Sherman 78 US (1958) (Frankfurter, J., L 819; S 2 Ed 2d 848 Ct Brennan, JJ., Harlan, Douglas, and con joined by Russell, United States v result); in the curring 1637; 2d 423, 436-439; 36 L Ed 93 S Ct US (1973) Brennan, J., J., dissent (Douglas, joined by (Stewart, J., joined ing); id. Brennan at 439-450 Saunders v Marshall, JJ., dissenting); see also and People, (1878) J., (Marston, 218, 221-223 38 Mich C.J., Court, concurring).1 This joined by Campbell, significant exposition of is the first Saunders believed to be Turner, jurisprudence. doctrine American See (1973). 15, 3; phrases n 210 NW2d While 390 Mich vogue "objective "subjective in 1878 test” and test” were not in when decided, views, joined Justice Marston’s Chief Saunders Justice clearly Campbell, test. foreshadowed modern He stated: person contemplating commission The mere fact that the excuse, supposed old no a crime is to be an offender can be of much less pursued justification adopted course then for the and fact, greater If reason would

this case. such were the why actively to exist he should not be assisted seem encouraged in the of a new which could in commission offense light upon past iniquities, way or aid in tend to his no punishing throw therefor, contemplate him as the law does punishment parties the conviction on account allow their conduct, guilt irrespective general bad or of their criminal charged particular offense and for which or innocence best, being enough they at are tried. Human nature frail requires encouragement wrong-doing. [Saunders, no 38 Mich 222.] view, flaw, my finger key put thus his Marston Mich Cavanagh, C.J. objective entrapment course, reaffirmed the test foregoing opinions, in enunciated as a matter Michigan law, Turner, 7; 390 Mich (1973), again just year 210 NW2d 336 last Jamieson.

My analysis differences with Justice Brickley’s essentially regarding First, are twofold. the causa- prong objective entrapment tion test, which analysis, forms the heart of Justice I Brickley’s disagree colleague’s my incorporation of as- pects subjective test, with its focus on the particular character and circumstances of the de- agree generally Second, fendant at bar. while I important that causation is an element of the objective entrapment agree test, I do not illegal entrap- causation is the be-all and end-all of dispositive ment. As I stated in Jamieson: "The inquiry objective under the test of Michigan by, is not whether the crime was caused product activity of, was the the creative of law officials, enforcement but whether the crime was instigation 'reprehensible’ committed at (emphasis origi- conduct.” 436 Mich 94 nal). A. THE CAUSATION OF THE PRONG OBJECTIVE TEST regard point, With to the first Brickley perplexing in Jamieson offered the statement applying objective approach "courts use the state of mind of the accused as a factor. When applying given test, consideration willingness to the of the accused to commit the act subjective By elevating importance test. to crucial question and crime, prior-bad-acts bar, by whether past the defendant at reason of his general character, "predisposed” to commit the instant subjective improperly upon test relies bad-character and and unfairly prejudicial evidence otherwise deemed generally proceedings. inadmissible in criminal v Juillet Opinion Cavanagh, C.J. law-abiding per- normally weighed against how a Id. at in circumstances.” react similar son would troubling was inconsistent dicta 74. This exposition of Brickley’s sound otherwise Justice designed objective course, which, to test, is the state of the defendant’s [the] focus from "shift offi- the law enforcement to the conduct of mind generally 72-74. It is the 72; id. at Id. at see cers.” objective subjective test, fo- test, which not the (at willing- significant part) "the in cuses least As Justice commit the act.” of the accused to ness key "purpose correctly of the Brickley stated, a police prohibit objective to ... test (not objective in individual is, sense that cases), in an encourage likely of crime the commission to committed.” otherwise have been that would not added). (emphasis Id. at Brickley on the in Jamieson Justice settled following objective of the formulation examined of each case must be test: "The facts circumstances, whether, under determine hypothetical governmental activity would induce willing person ready crime to commit the not and activity.” engage 80. As I Id. at criminal willing 'ready Jamieson, "[t]he term and noted necessarily . . . does not the crime’ to commit require objective applying test this that a court Id. at of mind of the accused.” look to the state reading contrary: of Justice A careful Quite Brickley’s the the formulation indicates own permitted to consider whether court is not willing "ready to commit at bar was defendant only Rather, court considers the crime.” person ready average "hypothetical not and will- Properly ing understood the crime.” to commit objective light test, I the true nature essentially Brickley’s formulation believe is, in an conduct at issue asks whether Mich Cavanagh, C.J. generally sense, the kind that would average, hypothetical person engage cause the person activity in criminal that such a engaged otherwise have in.

Unfortunately, "ready willing to commit language my has, view, the crime” sown confu- misinterpretation. sion and lent itself to The lan- guage ever-present temptation seems to offer an path considering embark down the forbidden particular whether defendant at bar was "ready willing crime,” to commit the thus in adopting subjective effect test’s focus on indi- predisposition. Thus, case, vidual in this begins by emphasizing, correctly, Brickley that analysis "hinged his Jamieson ... on whether police question conduct would induce or hypothetical person engage cause a activity.” to in criminal p (emphasis original).

Ante, And yet my colleague up concluding ends that a court dealing hypothetical should situations, "avoid trying identify person what a 'normal’ is and person what a 'normal’ does. We therefore con- allowing clude that a test dant’s evaluation of the defen- light circumstances, of an otherwise law- with, abiding disposition, keeping is more purpose entrapment p Id., of the defense.” added). (emphasis temptation permit consideration of defen- great dant Juillet’s individual circumstances happens pre- because it so that defendant Juillet sympathetic portrait unsophisticated sents a of an twenty-year-old high dropout school who was a drug iq, user, had a low and was on welfare. See pp J., ante, 51, 67. Those factors do not Brickley, generally legal constitute a excuse for criminal acts, however, are, believe, I irrelevant to a proper application objective entrapment illegally entrapped test. Whether Juillet was de- v Juillet Cavanagh, C.J. pends individual, he, not on whether as exceptionally or to vulnerable (although temptations generally he un- of crime was), police doubtedly but on whether (under exceptionally reprehensible so was Justice formulation) posed it own Brickley’s average causing hypotheti- objective threat of (not individually) person just commit Juillet cal crimes when such a

person otherwise would not have done so.2 potential

A source of confusion arises related phrase frequent from substitution of the "nor- person” "person ready mally law-abiding willing Jamieson, to commit the crime.” See Mich J.). (opinion literally If Brickley, language suggest applied, the en- this trapment defense would not be available to previously defendant, Juillet, like who was not law-abiding (by admission, Juillet was a his own drugs), frequent possessor but who and user may not have become involved with a otherwise higher drug behavior, level of criminal such as dealing. properly But the test cannot part fully agree I I be so limited. As discuss in ii(a), with Justice ultimate conclusion that Brickley’s entrapped largely Juillet was because posed of conduct at issue an likelihood average drug causing hypothetical to user drug dealing, escalate his activities to when that probably would not otherwise have occurred. See p J., ante, Brickley, think, however,

1 do this conclusion not requires consideration of the defendant’s individ- 2 all, charged police certainly After with while the should most be duty avoiding reprehensible objectively amounting the entrapment, to police fairly charged duty of cannot be with the psychologically evaluating every potential target of an otherwise valid outset, is, sting operation target especially to determine if the at the vulnerable to criminal enticement. 439 Mich Cavanagh, C.J. requires Rather, all it is that ual circumstances. specific narrowly the court focus more activity activity criminal defendant level which charged, police

is and ask whether the posed objective causing hypo- conduct thetical risk of

person yet that level who had not reached (even spotlessly activity if not a of criminal he was aspect entrap- law-abiding person) to do so. This ago by eighteen years analysis noted ment opinion my it in Turner: "In Justice Williams phrase 'person other- would be well wise innocent’ more construe narrowly per- to a to refer specific type son otherwise innocent of the charged.” reversal).3 of crime concurring J., Mich (Williams, B. THE PRONG REPREHENSIBLE-CONDUCT agree that the causation Brickley I prong asking objective of the test — police speaking, objectively conduct, whether the is average, generally of the kind that would cause an engage hypothetical person activity in criminal person such a have understood as I have otherwise engaged properly is, in— Boyle’s assertion, Contrary to Justice the consideration government average hypotheti whether the conduct would cause the drug activity "radically cal the test for nent of the causation test, user to escalate his criminal does not alter Boyle, J., entrapment.” post, p compo 88. The escalation prong objective is not a new variation of the suggested eighteen ago by years but was first Justice Williams Turner, opinion today by in in Jamieson. See objectively causing dealing, regardless and is reaffirmed the author of the lead J., ante, pp Brickley, 67-68. Police conduct which is poses general of such a nature that it likelihood of average drug criminality drug user to escalate his particular predis of whether the defendant was so

posed, reprehensible conduct which is too for a civilized justice system Concededly, many drug may criminal to tolerate. users undergo prime such "escalation” on their own. Some be candidates will, point But some will not. the whole enough active test is that human nature is weak at best without police encouragement designed of a character to overcome the inhibi predisposed may even of not be to such escalation. tions those who 77 v Juillet by Opinion Cavanagh, C.J. important entrap- above, an discussed element of entrapment analysis. Many may appro- ment cases priately prong. by applying only be resolved the causation is,

That if the court finds that prong, has occurred under that there be no carry inquiry any need to ple, further. For exam- part may Ias discuss in Juillet be re- ii(a), solely prong, solved under that as Justice Brick- ley himself concludes. however, outset, I I

As noted at do not approach purely believe a mechanistic causation captures meaning illegal entrapment. the full reprehensibility police "[T]he conduct” cannot solely "by personality be defined reference to the hypothetical law-abiding traits citizen.” Ja- concurring). mieson, J., 436 Mich 95 (Cavanagh, " principle Rather, '[n]o fundamental is that past pres- matter what defendant’s record and criminality, depths ent inclinations to or the society, which he has sunk in the estimation of police certain conduct to ensnare him into further by crime is not society.’ to be tolerated an advanced ” (Douglas, joined Russell, J., 411 US 437 dissenting), quoting Brennan, J., Sherman, (Frankfurter, joined by Douglas, J., US 382-383 Harlan, concurring Brennan, JJ., in the re- sult). Douglas properly defined such intol- noting erable conduct "[law enforcement] agents play they a debased role when become instigators partners crime, of the or in its commis- illegal sion, or the creative brain behind the Russell, scheme.” US "affording person

I concluded Jamieson that opportunity an ordinarily to commit an offense does not (1)

constitute unless opportunity circumstances indicate that such an (2) normally presented would not be the mere furnishing opportunity requires Mich Cavanagh, C.J. dangerous, criminal, or immoral certain commit original). (emphasis The 95-96 436 Mich acts.” corresponds largely prong to the this test first of prong Brickley’s of Justice at the heart causation analysis. prong I believe reflects what

The second prong "reprehensible conduct” to be the broader may entrapment Thus, there test. though which, even well be cases strictly may causation- under a established not be might approach, il- I still conclude oriented legal has occurred. TO AND BROWN II. APPLICATION JUILLET two differ- here illustrate The two cases at issue police reprehensible con- in which ent directions duct immoral, ducing (1) excessively may zealous, extreme, tend: shocking toward in- tactics directed and target specifically into criminal selected (2) unsupervised excessively activity, un- and randomly "test- toward tactics directed controlled range targets. ing Either the virtue” of a wide reprehensible conduct, if carried to the kind extremes evident cases, amounts, in these two illegal entrapment. my view, to

A. JUILLET agree Brickley that defendant with Justice I applies only entrapped, if even one Juillet was agree prong. generally Jus- I also causation concluding, except reasons for so Brickley’s tice Juillet’s Brickley considers the extent pp ante, The See 65-69. individual characteristics. posed police toward Juillet informant’s conduct causing average, general objective an likelihood of drug hypothetical his criminal user to escalate drug dealing, activity where such escalation place. probably have taken not otherwise People v Juillet Cavanagh, C.J. plainly informant’s conduct violated reprehensible-conduct prong my analysis as presents appalling well. This case illustration sting operation spiralled completely of a which out thoroughly by my facts, of control. The as stated Brother Court of App and as summarized Brickley, Appeals People Crawford, 143 Mich (1985) (a arising 348, 354; 372 NW2d 550 case Cheboygan County operation), from the same re informant, Bleser, veal that Ronald went far beyond simply infiltrating "drug the local subcul preexisting drug Rather, ture” to ensnare dealers. appears enthusiastically it that Bleser offered alco illegal drugs virtually every teenager hol and young Cheboygan, genera adult he met in entirely drug ted an surrounding new center for the culture Allegations improper

himself.4 of con brought against duct had been Bleser connec sting operations, tion with earlier which should police against employing have forewarned the him Cheboygan County operation. in the As Justice Brickley pp police notes, ante, 47-48, see meaningful supervision undertook little or no of Cheboygan County. Bleser’s activities in Bleser completely randomly targets free to select the for the sting.

4As the Court stated in Crawford: significant evidence in this [T]here record which would

support ing charges against agent, criminal the undercover includ- agent drugs evidence that used and distributed on a scale, liquor minors, substantial pected suspects furnished to educated sus- sophisticated techniques, persuaded dealers in more and try arguably dangerous drugs. to new and more [Id.] sixteen-year-old boy charged A who was not in the case testified that occasion, quarter pound marijuana Bleser sold him a of on one and marijuana shared with him on numerous other occasions. A sixteen- (whom year-old girl "dating”) Bleser admitted testified that Bleser relationship Bleser, appears carried on a sexual with her. It that employ taxpayers Michigan, while in the bauching of the of went about de- youth Cheboygan ways of in more than one. 439 Mich Cavanagh, C.J. police are The of this case clear.

The lessons using dispense with unstable and either must disreputable like as undercover individuals Bleser subject they informants, informants must such supervision far, closer more effective to people deserve, and the this state control. law issue dom, demands, raised an no less. Jamieson also given regarding ran informant who was targets unsupervised authority select sting operation, stated, factor,” I "a "that weigh finding in favor of a 97. I under our test.” Mich reluc unsuper tantly "the concluded in Jamieson that present activity of the informant does vised dangers police that issue here make the action at ” 'reprehensible,’ only actions "[t]he but because setting jail . informant . . where the the occurred police ability closely monitor the have the develop.” guard against dangers they as situation Id. plan to have "[a] I noted Jamieson police pose drug agents as dealers and undercover offer to sell

drugs randomly to individuals chosen the street would raise much more serious on entrapment problem,” expressed I concern hypothetical "government about a undercover in- designed vestigation its to 'test virtue’ of citi- ongoing suspicion zens, absent a reasonable criminality . . .” at n 1. the local area . Id. assuming in this case Even adequate grounds had ongoing drug that an believe Cheboygan County, in subculture existed out- rageous, apparently immoral, criminal con- meaningful super- Bleser, and the lack duct place operation per- vision, well outside this missible bounds._ (Levin, J., concurring) (noting special id. at 97-98 See also setting” venality prison might justify "to root out in a "methods

need that would be unacceptable settings”). in other v Juillet Cavanagh, C.J.

B. BROWN my Brickley’s I can understand Brother reluc- tance to find in this case under the exclusively analysis. causation-oriented focus of his may plausibly argued It might be that defendant Brown carry unsavory

have continued to on his relationship including with the female informant — drugs delivery the criminal if the law —even agents deliberately enforcement their had not rekindled relationship. my simply this, view, But inadequacy purely underscores the of a mechanis- by attempting tic Indeed, focus on causation. analysis particu- fine-tune his causation to such a degree, Brickley larized tently I believe Justice inadver- revitalizing subjective

comes close to predisposition test’s focus, albeit in a different guise. The fact that Brown was known to have engaged previous criminal conduct of the same might nature, and so, have continued do does change agents deliberately the fact that outrageous lengths went to to induce and orches- trate his continued involvement in crime. These agents played very kind of "debased role” Douglas criticized Russell, US shocking lengths The and immoral to which the agents willing go were in this case in their zeal entrap they Brown is illustrated the fact that permitted, encouraged, indeed the informant —a prostitute apartment drug addict—to reenter Brown’s syringe injecting

with a to use in her- agents cocaine, self with even as these same went through enrolling the motions of informant drug program. agents’ rehabilitation testi- mony engaging they encouraged the informant to avoid using drugs rings in sex with Brown or singleminded hollow obvious, indeed in view of the Mich Opinion Cavanagh, C.J. sting operation. purpose It was ex- the behind required, pected, the informant and indeed illegal drugs, engage in and use sex with Brown agents sting knew the to well for that "succeed.” hardly position to informant participate repugnant scheme, in to refuse this vulnerability view of the of her situation and coop- to in return for her inducements offered her place eat, eration, live, which included a food transportation spending money, her chil- see opportunity get dren, and an for her treatment drug addiction. ingenious unpersuaded

I am the somewhat argument, pressed by people, for the counsel of the Brown’s claim must investigators’ fail because much to- offensive was directed conduct than ward informant rather the defendant. pp (apparently J., ante, 61-62 en- See Brickley, dorsing "troubling argument, by suggesting that such this citizen,” .

and offensive . . misuse of a causing "distaste,” while legal analysis). is not to the relevant against entrap-

The evils which the narrowly ment doctrine is directed cannot be so Jamieson, As defined. opportunity I stated a manufactured may to commit crime en- constitute trapment furnishing opportu- if "the mere requires nity to commit certain crimi- dangerous, nal, acts.” 436 Mich 95-96. immoral may That such immoral actions not directed be entirely dispositive. toward defendant is agree Boyle’s

I much of discussion particular, agree of Brown. In and I that the trial court Appeals misapplied the Court of properly analyze test failed to objectively reprehensible govern- agents, especially ment infor- toward female pp disagree, post, however, mant. See 100-104. I with her that Brown should be re- conclusion People v Juillet Cavanagh, C.J. hearing findings.” p Id., manded for "further My colleague explain why does not Brown testify any would want to or introduce new evi when, notes, dence remand as she herself sought "Brown to have the trial court consider the significance regarding government of evidence mis conduct without consideration of his individual added). (emphasis circumstances. sought Id. Brown correctly apply

to have the lower courts objective entrapment Boyle test, which, as Justice they Boyle notes, failed to do. Justice has thus ordinary legal identified an form of error correcta appellate legal error, ble in the courts. That as suggested, Boyle Justice herself has consists in the properly analyze lower courts’ failure to the evi already presented. dence which Brown has Brown nor Neither any party sug other to this case has gested any findings,” need to adduce "further . . . sponte, suggests. as Justice sua Boyle, Having legal analytical noted the errors by committed the courts below on the record al- ready established, I would reverse Brown’s convic- prosecution charges tion and bar further on these grounds illegal entrapment. Because justices signing opinion this do not constitute majority, reluctantly however, I concur by result reached insofar as she Boyle, analysis would reverse the erroneous of the lower entrapment hearing courts and remand for a new opportunity at which the trial court will have an apply analysis the correct and reach the correct surprised result. I would be if Brown were to seek to any hearing, introduce "further” evidence at such a faithfully court, because I do not see how trial applying analysis objective entrapment opinion, test as set forth in this and in Justice regard Boyle’s "government- opinion with to her prong, misconduct” could do other than Mich by Cavanagh, C.J. prefer to reach which I would reach result today. THE BASIS OF THE DOCTRINE

III. LEGAL ENTRAPMENT infrequently briefly ad- I to an issue advert legal precise or other courts: dressed this authority upon which have enforced courts entrapment. subjective defense currently Su- test favored the United States implied upon preme nominally Court based statutory Russell, 411 432-435. federal law. See US aspects theory, however, one of the That has been subjective severely test which has been most jurists those who as "sheer fiction” criticized e.g., Sherman, See, have favored the test. (Frankfurter, Doug- joined by J., 356 US 379-380 concurring las, Harlan, result). Brennan, JJ., in the objective that Justice Frankfurter asserted the properly judicially test is rooted in a form of upon developed law common based the courts’ jurisdiction "supervisory the over administration justice.” Id. this Court of criminal did not address the at While

legal entrapment the for basis supra, sug- Turner, in Justice doctrine Brickley gested similarly the for nonconstitutional basis Jamieson, 79, 7, in n he doctrine stated that "the 436 Mich where entrapment standard purpose . . . has as discour- its police the evaluation and procedures agement of and conduct that are necessarily . . . .” invalid unconstitutional perceived any This lack of constitutional basis entrapment appears primary the doctrine be a in factor view the doctrine Griffin’s altogether. be See id. at 98-99. should abandoned view,that Agreeing with Justice Frankfurter’s "implied statutory theory subjec- the law” Juillet v Opinion by Cavanagh, C.J. fiction,” tive "sheer I test is tend be equally troubled the notion of this Court enforcing implied theory common-law based upon inherent judicial supervisory power. Apart from the issue of legitimacy promul- this Court’s authority gate doctrine, such a this the trou- theory carries bling suggestion Legislature might at any time, statute, entrapment abolish the defense. view, the my

In. doctrine is necessar- ily rooted in the concept pro- fundamental cedural fairness inherent in Due Process has, Clause. United Supreme States Court course, suggested a constitutional process due stan- dard applicable reprehensible police conduct. Russell, 430-432; See 411 US Hampton see also States, United 484, 491-495; 1646; US 96 S Ct (1976) (Powell, J., 48 L Ed 2d joined by Black- mun, J., concurring judgment). in the That stan- defined, however, dard has thus far been such vague, amorphous, terms "shock-the-conscience” as to be quite meaningless, and it falls well clearly short of embracing the full even scope of flawed test. subjective entrapment

I disagree with limited reading thus far given to concept process of due United area, States this I Supreme Court doctrine, find that applied as test, this through state the prevailing objective properly rooted the Due Process Clause 1, Michigan Constitution. See Const 17.6 art §

IV. CONCLUSION reasons, For the I foregoing concur with Justice Boyle opines my in that discussion this section constitutes Post, p 109, indeed, view, “unnecessary my It dicta.” n 30. is odd to suggest underlying legal that an articulation of the basis of the dispositive applied judge analysis or decide a a court to case "unnecessary constitutes dicta.” Mich Boyle, J. entrapped

Brickley his and that that Juillet I concur with Justice conviction must be reversed. Ap- Boyle court the Court of the trial and by apply- peals entrapment rejected Brown’s claim ing analysis, judg- legal and that the an incorrect Appeals must in Brown ment of the Court of I though concur, reluc- therefore be reversed. tantly, also Boyle’s that Brown in Justice conclusion entrapment hear- for a new should be remanded ing, opportu- court have an at which trial will analysis nity apply the and reach to correct the. correct result. JJ., Mallett, concurred

Levin and Cavanagh, C.J. (concurring part dissenting Boyle,

part). generated immediate When the interest opinions long waned, since wake of these has analyz- investigators, ing lawyers, judges be will application entrap- of the definition and today in ment announced order reach defense fully by a coherent view of endorsed justices majority I of this Court. therefore separately write summarize the force of opinions together my posi- taken and to set forth regarding appropriate approach tion remanding issue and reasons for these cases to the trial court.

Initially, Brown nor it is clear that neither entrapped Juillet could be found to be under the objective test. Whether asks law- one whether a abiding person given drugs sex, have for would person provided drugs whether have parties gave third a friend him free beer because marijuana, clearly, "no.” answer is justices Second, it is clear that all seven favor entrapment. test for new test 87 v Juillet Opinion by Boyle, J. entrapment police engaged asks whether type normally of a misconduct that would induce a person question. law-abiding to commit the crime in 459; States, 53 Sorrells v United 287 US S Ct (1932) (Roberts, concurring). 210; J., 77 L Ed 413 test, Under the circumstances of this the defendant Brickley’s are irrelevant. Because Justice test defendant, considers the circumstances actual Cavanagh and Chief Justice the circum- considers (the hypothetical average stances of drug defendant user), entrapment both endorse new tests for encompassed objective Moreover, in the test. protestations "objective” the test remains prosecution cannot obscure fact that neither the given opportunity nor the defendants have been develop anticipates a record that shift in this analysis. agree Brickley’s

Third, I with the force Justice opinion People (1990), Jamieson, 61; Mich par- NW2d 884 Justice Griffin’s partial tial concurrence and dissent would adopt subjective instigation entrapment. test for Id., 98. p Cavanagh Fourth, Chief Justice I

recognize, degrees, reprehensible- to different entrapment. Finally, test in lieu of Court’s reconsideration of its adherence to the so- objective adop- called test for and its purely subjective align test, tion of the I would myself with the version of defense today by Brickley. set forth Justice

I A Brickley alters test for entrapment by contorting the test so that the trial indulge may susceptibility court in inferences of Mich Boyle, age, defendant, such as from circumstances of limited dependency. p education, Ante, apparent immediately approach is The flaw in the applied, produces test, inconsistent as when reprehensi- Although objectively more it is results. drugs prostitute to use obtain ble to an addicted up targeted it to set an from a defendant than supplies marijuana to members of informant who a local drug culture, Brown loses and Juillet wins. only the distinction them offered Since between government "instigat- is that the Brickley p relationship,” Juillet, ante, 65, [ed the] but existing already "only an of con- allowed course p ante, Brown, his duct to continue” in result ready clearly turns on the fact that Brown willing, predisposed is, the that to commit objective/subjective test crime. Justice Brickley’s considering trial from bars the court nonetheless including predisposition,1 evidence, all relevant the the transaction between that bears on police actual produces that and the defendant and results internally are neither reliable nor consistent. test would even more Chief Justice Cavanagh’s entrapment. radically alter test While barring defendant’s individual consideration predisposition, and of the Chief Jus- circumstances inquire proposes that we tice whether speaking, objectively conduct, kind that is of a drug average hypothetical would have caused the criminality. acknowledges He to escalate his user drug may many own; escalate on their users p ante, not,” 76, n will, 3. Not- "Some some will logical withstanding that the force of this observa- inquire "will,” not,” or who "will tion is who contrast, permitting By I read Jamieson as consideration of all rejecting prose surrounding the transaction and as circumstances argument entrapment jury ques that the issue should be cution’s tion. v Juillet Boyle, J. judges Cavanagh Chief Justice would force trial to assume a defendant who "will not.” Otherwise immunizing stated, at the cost of the criminal escalate, conduct of all those who would the trial regarding court must assume a circumstance drug defendant, casual, case, is, users, this that all regular, inveterate, would not escalate. Cavanagh’s Chief Justice test would thus skew reliability pre- of the decision cluding any regarding access to relevant facts defendant’s role in the transaction.

For the reasons set forth in I would abandon i(b), subjec- causation test favor of the permits tive test that consideration of all facts and bearing government circumstances on whether the question. "caused” the conduct in align myself justices I also would with those Supreme the United States Court and federal and recognize objective-misconduct state courts that prong pros- defense that bars govern- ecution in those rare cases in which the truly reprehensible. ment’s conduct is agree IWhile do not that the de- agree principle eliminated, fense should be I in suggestion with Justice Griffin’s that we should subjective "at least move” to Jamieson, the test. supra, p far-ranging analy- 98. The Chief Justice’s broadly sis will immunize that, criminal conduct reality, in is attributable to the defendants. Justice analysis, though flawed, is the least Brickley’s objectionable apparently of the views that each provide guidance Thus, command three votes. on the to adoption issue, and in lieu of the Court’s of subjective entrapment, reluctantly a for test with Justice I align myself subjective/ Brickley’s objective prong test for the causation of the test.

My colleagues’ contrary contentions notwith- standing, my fairly view, in neither case can be Mich Boyle, Although of law. as a matter

reversed or affirmed logical previ- profess opinions extension of both adopts the of law, a version ous in truth each juris- previously "objective” in our unknown test prudence. knowledge Cavanagh ac- does not Chief Justice Brickley’s test,

that, under Justice might prosecution and the defendants both the produce irrele- that have been now evidence would purely objective test. Justice Brick- vant under acknowledge ley not that Brown’s decision does prosecution’s evidence, as well as the not offer (such as record of failure to introduce evidence the conversations), influenced the the rebutting would have been vulnerability or that evidence

fact evidence vulnerability in- the was inference entrapment. under test for admissible opinions Similarly, both state whatever below, error analyzing appellate committed was error of law was record, evidence correctable recognize courts. each fails What that, law,” it error if there was "error newly tests, a trial under formulated passed credibility judge has not on the of evidence defendants, offered under tests these prosecution, oppor- the tunity have been afforded the produce evidence for the record relevant argue application or to their to the testi- thereto mony offered. opinions today short,

In because the Court entrapment, long create defendants and the tests new after

government created records objective test, I hold that based on government would parties are

and the both cases any may party remand, entitled to a at which time provide govern- evidence relevant whether the normally activities have induced "a ment’s law-abiding citizen, [the defendant’s] circum- stances, to commit the crimes with which he’ was People v Juillet Boyle, charged,” p additionally ante, 41, and, Brown, reprehensible police whether they manufactured the criminal conduct. B Michigan courts have never deviated from artic- ulating upon a rationale for founded precludes punishment belief the doctrine government engaged where the that has in conduct unfairly entices a to commit defendant prosecute only criminal act to him. We have re- punish fused would a criminal defendant because "it duty [an seem to be the law] officer steps likely prevent to take such as would be offense, the commission and tend to the improvement elevation and of the would-be crimi- nal, rather than to his farther debasement.” Saun- (1878) People, 218, ders 38 Mich (Marston, concurring). government right J., punish its loses agents extremely when its have acted in reprehensible way. recognizes time,

At the same this Court necessity sting for undercover work and virtually tactics to combat undetectable crimes. attempted Thus, the Court has not to decide investigative whether more better or effective tech- niques might been have used and has avoided a bright-line approach, which can function as per investigative techniques se of all authorization bright within the line as well as immunization of bright Devising criminal conduct outside the line.2 limiting probative A formulation force of the defendant’s might circumstances to his innovative weaknesses invite the defen education,” employ young who are "limited dant runners and have ante, 67, p Supreme a result which Justice Matthews of Alaska permitting "drug Court from conviction grovel briefly illustrated as insulate sellers to themselves requiring device of all their customers to State, before is made.” a sale Pascu v 577 P2d 1978) (Alas, (Matthews, J., concurring). 439 Mich 34

92 by Opinion Boyle, J. preclude punishment specific where that a test will unfairly government manufactures misconduct preventing essential law without creates crime possible.3 may activity How- not be enforcement agree the ever, that not with Justice Griffin do I authority long-asserted abandon the courts should investigative rhet- conduct. The to restrain abusive rights suggesting oric eradication of constitutional drugs may, times, at on be as the cost overblown. cency regarding war compla- That should not lead to fact lengths frus- the to which may carry good even intentions tration and given investigation. persuaded

I we am that should abandon instigation. objective entrapment test of The con- inadequacy urgency from the clusion derives some Brickley put by for an of the test forth Justice particular "objective test” focuses on vulnerability defendant, of circumstances and pro- barring predisposition of while evidence ducing applied in results as the instant inconsistent Cavanagh’s Likewise, Chief cases. while postulate average hypo- test would thetical "the drug ostensibly user,” a formulation comports objective approach, with the state 3 encounter, drawing line is a task which the courts often Judicial but, examining govern interplay between conduct and criminal action, guide investigatory general principles to ment the the search for especially Kent Greenawalt observed court is difficult. Professor "we our intu that when confronted with serious moral choices test princi particular against accepted our itive ples” situations reactions give, may calls a until both and "we arrive at what John Rawls right particular equilibrium,’ in which our of 'reflective sense Greenawalt, significance principles.” enduring issues matches our (1978). process principles, It L R is that of neutral Colum difficulty past which has sometimes caused this Court Nevertheless, engaged law which is built are in these cases. the common we gradual development precedent upon mesh as courts shifting patterns guiding principles with fact which arise as circum duty prevent prosecutions change. Given stances the Court’s police conduct, necessary reprehensible it to examine each basis is light principles this new set facts in articulated Court. v Juillet Boyle, postulate expose sure, is to its fatal flaw. To be may possible it there be situations which regarding govern- inquiry answer ment’s conduct whether the "instigate[d] the commission of a ready willing it,” one to commit crime dissenting, Stewart, J., Russell, United States v 423, 445; 411 US (1973), 93 S L 1637; Ct Ed 2d 366 drug hypothetical but the casual user as- sumption regard- yield will not answer reliable ing government whether conduct the caused aver- drug age criminality user to escalate his "where probably escalation such would not otherwise have place.” p point reality, Ante, taken know a casual In we nothing regarding whether a defendant was

drug regular drug user, user, a or an reality that, inveterate abuser. The irreducible is instigation labeled, no matter is how it an test examines the defendant’s characteristics. The in- quiry subjective necessarily question is and The so. is whether the defendant would have done the act government encouragement. Thus, without importantly, instigation most adopt subjective

I would the test for entrapment by failure to because define subjective objective to factors, reference distorts both meaningful any reality of the evaluation govern- of what caused the transaction between ment accused. government may

However, because conduct be reprehensible, only because it manufactures crime, but on the basis of the level of misconduct "entrap- alone,4 I would embrace a dual view prosecution truly ment” that would bar because 4 observing may In there be in circumstances which conduct predisposed might government at not directed defendant bar the invoking judicial process, Henry observed, Judge Friendly from certainly allowing governmental is to "there crime. agents a limit involvement unthinkable, permit example, government It would be instigate beatings merely gather robberies and evidence '¡investigation’ involving participation .... to convict that in activities injury rights of its is a result[s] citizens course that Mich Opinion by Boyle, pros-

reprehensible police and would bar instigates or manufac- for conduct ecution would be tures misconduct crime. Government focusing police Govern- evaluated conduct. subjectively instigation would be evaluated ment taking circum- into account the defendant’s govern- between stances and the interaction ment agent defendant, court the trial and the as matter of law. both issues determine necessity approach Such will accommodate protect against enforcement to that overzealous law objective approach, Sher-

is the heart of States, 369, 381; 78 S Ct man United 356 US (1958) (Frankfurter, J., 819; concur- 2 L Ed 2d result), ring preserving opportu- in the while although nity that, claim for the defendants who objec- in the conduct was not intolerable light partic- sense, it tive was intolerable ular circumstances. justified misconduct defense illegal government engages behavior,

when the government personal privacy, conduct invades government unfairly antisocial manufactures [entrapping places activity, behavior] or "because power to make in the hands of the executive the criminals.” Supreme entrap- Court, Seidman, The Sup justice dilemma, ment, our 1981 criminal 111, R 145. Ct encouragement to of an individual

Government perform prohibited func- a act interferes with the expected requirement rule- tions of the act a system Carlson, act of criminal law. oriented requirement entrap- and the foundations (1987). 1011, defense, To ment 73 Va LR extremely to States v courts be reluctant sanction.” United should (CA 1973). 2, Archer, similarly It 486 F2d 676-677 is unthinkable opine any of us that Brown’s conviction could stand that had gain one unwilling government tortured or threatened an Roberts against him. evidence People v Juillet Boyle, punishment, requires merit criminal conduct both voluntary reus, an actus act or omission which harm, rea, causes social and a mens the mental provided See, state generally, in the definition of the offense. Understanding

Dressier, Law, Criminal pp requirement 63-115. The act embodies critical imposition limitations on the of criminal sanctions. guarantees something It that the accused has done punishment,5 preserves sphere to merit personal autonomy in which an individual can government think and act without fear of intru- prevents arbitrary sions,6 and and abusive exercise government power of Carlson, in the criminal law arena.7

supra, pp 1053-1056. Because the use of government encouragement protec- thwarts these requirement, tions of the act de- prevents prosecutions govern- fense criminal when authority by reprehen- ment has been undermined government sible conduct._ adhering justification Whether to a retributive or utilitarian punishment, requirement punishment justifi the act ensures that is by performing able because of the social harm committed the act resulting itself or the social harm from a violation of the social potential dangerousness contract or as an indicator of the Carlson, supra, pp criminal sug actor. See 1059-1082. It has been gested involving that cases like that John De Lorean in which the

jury entrapment, despite predisposition, found evidence of rest on the authority government factfinder’s has been punish sense the moral Comment, employed. Entrap undermined the methods ment, operation: De Lorean and the undercover A constitutional connection, (1985). 18 J Marshall L R 365 employs power Government its to intrude into an individual’s making maintaining position decision than rather a "neutral vis-á-vis Carlson, they supra, p its citizens and the choices that This forces the individual to make.” 1086. expend energy time and on "unsolicited probably crime, and a unwanted enticement to and he is forced to make might Id., p choice he otherwise never have faced.” 7Generally speaking, government precluded imposing from criminal sanctions until there has been an actus reus. The act requirement government punishing limits the conduct which harm, "provides reasonably objective causes some social assessing ability criminal sanction.” basis for punished, government’s who should be and hinders the target protect its enemies or its friends when it uses the Carlson, supra, p

96 34 439 Mich Boyle, entrapment component subjective The recognizes cannot realisti- courts that trial defense cally activity governmental whether determine question the crime without has manufactured surrounding considering the circumstances transaction. judge recognized, explicitly can-

As Jamieson regarding question reliably answer question was caused the conduct whether postulating only police by vulnerabil- a defendant’s normally hypothetical ity law-abiding defendant. or probably average person cannot be or tempted absent conduct into criminal or induced coercion.8 duress or prong objective of the causation formulation

An unreliably it elimi- may because underinclusive be persons susceptible to weaker who succumb nates pressure hypo- than the normal inducements or person. Yet, seems an inducement which thetical particular may unfair in a be "fair in abstract agent to the case, are unknown for reasons that propriety of his not affect the and therefore do controversy, 60 Park, The conduct.” (1976). may Likewise, the 163, 220 test Minn LR requires unreliably it overinclusive because be instigation question trial court to determine State, State, (replacing supra, p 1067 the Grossman v n 2 Pasen v [Alas, average-person with a focus on the standard 457 P2d particular presented); Cripps, State v in the case 1984) ("an 747, (Utah, average person ordinary citizen 749-750 P2d is not a former addict, drug begged by a former lover to will not be any people drugs, reach who not have notion of how to does obtain sell stranger drugs, probably turns the sort of who not befriend imagine agent, and could not to be an undercover narcotics out prompt physical him that would short of threats circumstances sell”). Note, People latest marijuana v Barraza: California’s obtain theory entrapment, attempt 68 Cal to accommodate an (1980) (characterizing explanation entrapment on L R concluding law-abiding persons normally as circular and the basis that applied questionable the standard can be without it is whether defense”). "emasculating People v Juillet 97 by Opinion Boyle, J. considering probative bearing without evidence on the issue.9 This Court’s historical concern with recognition misconduct is addressed tion of of a varia- process pros- due defense that will bar government engaged truly ecution when the has reprehensible approach pre- conduct.10 This will authority serve the Court’s historic to curb abusive permitting conduct while a realistic exami- question regarding govern- nation of the whether instigated ment has the criminal conduct. Saun- supra, p ders, 222. objective-misconduct prong,

Under an the trial government court focuses on the conduct. Govern- ment unusually inducements should not make the crime explained, nor,

attractive as Jamieson "discretionary investigative should enforcement beyond measures extend design a tolerable level when government pressure, uses continued appeals friendship sympathy, or threats of ar- vulnerability, rest, an informant’s favors, sexual procedures culpability.” which escalate criminal supra, p (Emphasis original.) Jamieson, in the inquiry government’s The is whether the 9 example, government foe, targets political For if the the conduct may finding, question warrant an but resolution of the necessarily requires government examination of both the conduct and government the characteristics of and interaction with the individual Likewise, judges may intuitively suspect defendant. that some of charged major drug may those defendants offenses have reached triggers mandatory the amount that minimum sentences because the amount, defendant, rather than the criminal intent of the was the target investigation, inquiry another which involves a factual evaluation of the characteristics of the defendant and the interaction government. between the defendant and the 10 justices comprising concurring Five dissenting opinions States, Hampton 484; 1646; v United 425 US 96 S Ct 48 L Ed 2d (1976), expressly recognized viability process 113 of a due defense involving outrageous government developed in cases conduct. As courts, generally the lower federal the defense is available to a admittedly predisposed defendant question to commit the crime and raises a (CA Twigg, of law for the court. United v States 588 F2d 373 3, 1978); Klar, approach entrapment, The need for a dual 59 Wash (1981). QLU Mich Boyle, acceptable fair for the an standard

falls below justice. administration honorable inquires analysis subjective into whether instigated or created law enforcement conduct the the analysis inquiry crime, an which involves including bearing question, on all evidence of predisposition.11 question the causation Because de- be without reference cannot answered inquiry been, fact, trial, this has fendant part (Frankfurter, p supra, Sherman, test. dissenting).12 J., See also (1973). Turner, 7, 23; 390 Mich 210 NW2d 336 government-instigation the or -causation Since given accurately prong act considers whether poses gauges the that the defendant to threat police encouragement, society Carlson, see absent p supra, 1093, 254, the n the court must examine leading up offense, to the the inter- transactions 11 instigation regarded who raises defense should not be as One the conduct, being implicitly arguing than a free that the criminal rather act, police. the was caused the inducements of Such and deliberate analysis contrary assumptions is basic of criminal law concern an to ing will of causal statements the free the defendant confuses instrumentality judgments of meant to on the idea with causal based understanding of See of the motivation the individual. com reflect ment, defense, 28 UCLA Causation and intention in the (1981). type ordinarily L R 892-894 of inducements at issue when as is raised does not involve use of an individual an is, instrumentality, voluntary without his exercise of will or Normally, provides tempt government which action. or the defendant remains free to act inducements persuade engage complained-of in the the defendant to but persons or not. are used When as another, instrumentality they normally of are excused from re an hand, sponsibility for their the other the law does not actions. On normally simply excuse actor because it understands forces engage proscribed To motivated him in the conduct. hold Dressier, could result universal excuse. Reñections on otherwise excusing in a wrongdoers: theory, new and the modern Moral excuses (1988). code, Rutgers penal 19 L 687 J States, (Powell, J., Hampton supra, p n also v United See (under process approach, concurring) differences between the circumstances would be outrageous although predisposition varying objective test of the due despite irrelevant circumstances, government conduct relative proved persons widely against be of could degrees criminality). v Juillet Boyle, agent defendant, action between the and the type inducements, and size of the nature of the issue, criminal conduct at investigation targets the extent which the particular individual, procedures the extent to which used escalated culpability criminal dant’s of the defendant. The defen- predisposition is a relevant factor under upon prong this since it bears whether he would posed society independent have a threat government dispositive, It inducements.13 is not but instigation accurately issue cannot be evalu- prior assumed, ated14 if weaknesses must be if activity disregarded, unrelated criminal and motive to commit must be present activity may if past activity.15 be inferred from similar Just as improper police authority conduct weakens the to limits evidentiary entice criminal Carlson, supra, pp ment has been weakened. If the enticement was unusual or calculated to induce a motive besides Sherman v United 22 Crim L Bull 197 ses, proach have considered the nature of the inducement and the defen- ance of the evidence standard, dant’s reaction to it as tion on the defendant and government. issues: defendant would have encouragement. attempt defendant had a NW2d 878 459 However, courts for police (1977), employed Focusing exclusively 14 yield While the defendant bears the The focus on (Roberts, J., misconduct. See punishment Burden federal and state courts a correct result People v while suggesting (1972); function variety conspiracy) Marcus, of conduct, predisposition Therefore, long proof, questions predisposition concurring); 1080-1081. When the Saunders v States, supra, p D’Angelo, of in an criminal The tests, that that part engaged People (1986). to circumstances where corroborating on the defendant’s in some cases. anticipatory entrapment even courts shifting the defendant’s he was including evidentiary ordinary 401 Mich People, supra; does not history, v note, has been criticized in the conduct without Sinclair, of law and applying inquiry burden the burden of entrapped placing the actor’s criminal it is not government criminal justify adhering defense and the liability function of the act Normally, 387 Mich of into predisposition proving by past 180-183; fact, v Sorrells, the burden of entrapment. always Barraza, subjective under intent, to a situation inconsistent defen record can persuasion has intervened to the criminal act 91, 116-120; misconduct, 257 NW2d act supra, pp this and other clear that subjective ap- a even if the the government n 8 procedural serves the preponder test have (such See, purpose. unlikely require- produc justify supra. to the 458- e.g., 655 as Mich Boyle, findings punish,

government based trial court jerry-built factual relia- weaken the constructs pub- findings bility and, hence, courts’ of the trial in the result. lic confidence

II highly dis- the Court with cases confront These parate Brown, Court is In factual scenarios. targeted investiga- apparently presented with an figure public in which tion a well-known into drug prostitute government informant, ad- apartment gained dict, to obtain access to Brown’s drugs delivery possession of evidence of the relationship longstanding through with Brown. her presented un- Juillet, with an In the Court investigation broad-ranging undercover focused among persons Cheboygan drug young into County meeting use stumbled after into which the defendant In on the street. each the informant govern- cases, defendants contend that these sufficiently reprehensible ment conduct entrapment finding. warrant an

A. PEOPLE BROWN Having analysis I set forth the having agreed adopt, that in lieu adopt objective/ I would thereof Brickley’s disagree subjective test, I with the conclusion must findings affirm the lower court which would entrapped. my view, In the record Brown was not supports neither Justice conclu- below Brickley’s entrapped, nor Chief sion that Brown was not posits government-instigation or -causation defense would not have committed the crime without the defendant illegal is, police. question for the court would he? question full —a be answered without a examination that cannot circumstances. the defendant and his Juillet by Opinion Boyle, J. govern- Cavanagh’s the conclusion that Justice engaged activity or the criminal ment escalated reprehensible the I reverse decision conduct. Appeals the for remand case and of the Court regarding findings hearing whether and further standards under revised occurred entrapment. for the sought trial court consider to have the

Brown regarding government significance of evidence his individual consideration of misconduct without Court of the trial court and Both circumstances. government Appeals misconduct from shifted focus instigated government the criminal whether By analyzing was convicted. act of which Brown the government-instigation prong, under the case presented, despite the lower lack evidence govern- consideration of courts overlooked informant, Roberts. mistreatment of the ment’s as trial stated the test court supports "a conclusion the record that whether police agent Defendant’s their manufactured likely, objectively when consid- crimes ered, instigate the of a induce or commission willing person ready to commit crime it . applying Yet, the facts . .” the test to . when case, trial focused on Brown’s of this court changed predisposition, is, whether the previous This was error course of conduct. Brown’s objective test, it is error under under the subjective opinion’s merging objective lead considerations. Brickley rests of the case on affirmance pre- apparent Mr. Brown conclusion disposed, p ante, without consideration willing vulnerability subjective to in- that he is dulge regarding Juillet. Brown denied defendant no different "the solicitation was relief because than the purchases many made in routine offers Mich Boyle, by police and sales informants,” id., while Juillet’s despite conviction is barred the fact that he com- charged mitted the oifense with which he was meeting within hours of the informant. It is true testify that Brown did not that he was addicted to drugs, p id., 63. Neither did Juillet. Nor is there entrapment hearing evidence in the in Juillet of dependency appeals sympathy.16 to Finally, analysis Brickley’s does not explain why police encouragement that leads to informant’s decision to "resume contact with p permissible Brown,” id., 64,17 friendship, is use of "police-manufactured friendship” while use of investigate drug imper- the subculture in Juillet p Id., missible.18 process accepted

The due defense in United supra, pp Russell, States v 431-432, and acknowl- edged in enough courts, the federal is broad consider treatment of the informant and is distin- guishable only by degree from the stan- entrapment. Entrapment dard Note, for defense in Jersey, Rutgers (1990). New 419, 435, L J n 136 remand, On the court should consider: whether police engaged themselves in criminal con- 16Both apparently Brown and engaged Juillet had in the use of drugs presence government agents. various initiation of the to the of the From the investigation, supplied both drugs Brown and Juillet government agents, Bleser, apparent Roberts and with little Although hesitation or reluctance. supplied drugs Brown and Juillet government agents occasions, on several charged neither was drug dealing properly nor drug can be characterized as dealers. 17Although apparently the trial court satisfied itself that there was governmental no impermissible misconduct or targeting motive in Brown, there is no in supporting camera record this conclusion. On remand, the trial government’s court should examine the basis for targeting Brown to insure that no misconduct was involved. 18There is no doubt that Brown’s conduct was sordid. He met prostitute, through Roberts as a the instant prostitute. another In the course of he, investigation, Roberts, drugs and another woman used apartment. Moreover, in his government may while the have ex ploited addiction, Roberts’ so did Mr. Brown. What is sordid conduct part, may on Mr. Brown’s part be intolerable conduct on the of the government. People Juillet v Boyle, past police appeals to made

duct;19 whether gain, friendships, temptation or re- financial peated had a solicitations; and whether conducting investigation. legitimate motive 511, 521; Isaacson, 406 NYS2d 44 NY2d (1978). 714; 378 NE2d Hampton v Powell As Justice observed 1646; 484, 495, 7;n 96 S Ct States, 425 US United (1976), the rare case it will be 48 L Ed 2d 113 Vigi- will succeed. defense which misconduct sophistication are essential and increased lance litany enforcement, of woe effective law drug culture admits wake of our dominated However, conduct of less. consideration no law enforcement is a factor

toward an informant determining may whether which be evaluated accept- government’s an falls below the conduct of administration the honorable standard for able justice.20 the under court remand should address on 19 1979) (an (Utah, People Taylor, undercover 599 496 See v P2d prostitution, supported by cohab

agent, had an her habit addict who defendant, relationship him to and the with with the resumed ited charges distributing gain held to have of heroin was evidence for engen relationship personal entrapped him on the basis her close drugs). dering sympathy pity for her need for despite upheld of intimate the use courts have convictions State primary charge prostitu- relationships the in cases which sexual tion and facts are evidence, necessary these but the are to obtain relations See, 608; Tookes, e.g., 67 Hawaii not here. State v before us (1985) (the by sex civilian volunteer P2d 983 deceitful use of 699 acting prostitution ring police investigating not was at behest of (Alas App, conduct); Anchorage Flanagan, outrageous 1982) (use 649 P2d 957 v investigation an officer sex undercover Putnam, 156; App outrageous); prostitution 31 Wash State a civilian (1982)(use working in an of sex 639 P2d 858 permissible). investigation prostitution was instigate say the conduct that Brown did not 20 This is not to government engaged reprehensible that the such that the barred, urge questions my colleagues me to prosecution must be say resolve, agree Brown with their results. It is that both albeit to (whose party government both as an interested status overlook) opportunity to opinion dissent are entitled lead formulate colleagues adopt. my under the new tests record Mich Boyle, J. government-instigation prong or -causation all rel- bearing instigation evant considerations question, including, on the to, but not limited who initi- relationship, ated the sexual who first introduced drugs payment, as a method of and the extent to tapes which, all, if at the contents of the of Rob- instigation erts’ conversations bear on the conduct issue.21 or mis- lower courts would also con- The. troubling aspect sider the most of the case under analysis government’s the misconduct treat- —the prosti- ment informant, of its Roberts, a known tute, drugs.22 addict, heroin and user of other illicit The trial court should also address whether government agreed inject that Roberts could her- self necessary with cocaine and whether it was adopted obtain the evidence. Under the tests to- day, the trial court whether, must determine the basis of all the circumstances, facts and government instigated the defendant’s conduct and government’s whether the conduct manifested an exploitation of Roberts that is inconsistent with proper governmental authority.23 use of

B. PEOPLE v JUILLET disagree finding I also with the defen- may it hypothesize While be difficult to a case short of a violation process of due prong that would violate the misconduct where the predisposed crime, defendant was to commit the I would not eliminate possibility that here. emphasize To remand, the determination that should occur on I Brickley’s my disagreement observe both that with Justice conclusion government’s treatment of Roberts is irrelevant and the factual regarding conclusion of the Chief Justice the informant’s "vulnerability,” Cavanagh, C.J., ante, p 82. People Isaacson, (an supra, pp See "overriding police 522-523 any desire for a conviction of police brutality individual” which was obtained "cunning subterfuge employed to enlist informant,” together, services of an continuing pattern viewed "reveal a brazen and disregard rights” of fundamental sufficient to preclude prosecution process grounds). on due v Juillet Boyle, although entrapped.24 However, Juillet was

dant five prosecution prepared justices bar this Court are of entrapment, I observe the basis conse- more serious far this reversal bodes that than quences the law enforcement for effective Although symmetry People v Brown. the result hearing requires for further of this case remand regarding findings oc- whether entrap- the revised standard under curred ment,25 ing government suggest- no evidence on this record there is in the that was offensive conduct objective sense. marijuana delivery to the

In addition delivery charged Trooper with Patrick, was Juillet marijuana in a transaction for his of occurring occasion, he 1982. On on March 2, agent and undercover and another met Bleser meeting arranged had mari- dealer who with a juana and lsd for sale. regarding testimony

Despite extensive operation conduct, there and Bleser’s undercover type or of inducements the size no evidence that is used opportunity to com- in an resulted Bleser Nor or excessive. that was uncommon mit crime unambiguous testimony Juillet there sympathy fear, motive, such as out of a acted other Although ordinary criminal intent. than his Bleser that he considered testified Juillet Brickley’s of this case inconsistent reversal 24 I find Justice crime, willing forth objective person, ready commit the set Jamieson, internally just inconsistent with as this result in conclusion neither Juillet that Juillet’s conduct above, Ante, p predisposed. 62. As noted that Brown was Moreover, drug extent to the dealers. nor Brown were " simply credibly sociable’ described as can be id., friendship,” p part so was drug as of a with another user Brown’s. run, that, outcome, long suspect in the prejudging I Without today’s arise from significance decisions will not jurisprudential rather, but, from the conclu like that Brown unusual situation an sion of rather unsuspectingly and individual who fell of an investigative atypical enthusiastically net. a not into Mich 34 Opinion Boyle, J. friend, the record reveals an association between begun the two that had less than a month before giving the transaction rise to this action. Juillet expressed frequently also remarked that Bleser purchasing drugs interest assisting for himself or in purchase drugs. friends to But there is no suggestion urged help that Bleser Juillet be- friendship. any cause of their mony suggesting Nor is there testi- thought

that Juillet or that he or his Bleser was drugs addicted to friends were drugs Finally, need of to avoid withdrawal. while seems to believe that the defen- Brickley being drugs, dant was convicted of a dealer he Juillet, Brown, was not. like of convicted delivery marijuana, an offense that does not require consideration . as an element. Juillet pleaded guilty delivery marijuana, precise activity engaged very day he in on the first he met Objec- Bleser, and with little or no inducement. tively appears police simply viewed, it that the set widespread unsuspectingly net into which Juillet (Alas State, fell.26See Folsom v 734 P2d 1987). App, Allegations repeatedly were made that Bleser including against laws, violated various those suggest use delivery drugs. The facts that Juil engaged delivery marijuana let in the on a profit. They suggest small scale and not for do not drugs persons that Juillet never delivered to other exchange goods. money Apparently, Juil drugs profit, let sold for cost rather than to make a require profit but the statute does not for a 14.15(7401)(1). 333.7401(1); violation. MCL MSA may unaccept- While Bleser’s activities have been up acquaintance and, Bleser struck with Juillet on the street asking enough bar, go after if Juillet was old to a offered to purchase beer for the two of them. Juillet and Bleser went to Bleser’s where, beer, apartment drinking request, after some at Bleser’s supplied joints. Juillet Bleser with two v Juillet Boyle, appear they scheme, do not in the overall

able in the to Juillet’s conduct have been relevant charge.27 specific my reemphasize that the result conclusion

To nor affirmance reversal can be neither Brown again Jus- stands, I that it observe as the record predisposed that Brown was finds tice Brickley these the extent that not. To Juillet was of the defen- circumstances rest on conclusions questions and law of fact dant, mixed these are opportu- given prosecution no has been the that nity no Juillet, Brown had and that to contest objective explore opportunity the test. under that, since Indeed, conclusion Brickley’s drug dealer, a that Juillet was no evidence there is drugs” "delivery only was for his reason the Bleser’s incessant p requests, ante, 68, classical is begging. question test, extant Under the predisposition, Mr. like that of in Brown, Juillet’s Thus, a either was irrelevant. whether was drug irrelevant and inadmissible deliverer was entrapment hearing. from the To conclude the govern- the fact that of an inadmissible absence ment must have the crime in Juillet manufactured again the in Brown not manufacture crime but did newly objective/subjec- that the created evidences yield result, it and that test will not a reliable tive questionable that conduct such as allow will Brown, prohibiting undercover activ- while routine that in ities such as Juillet.28_ 27 Brown, government vis-á- unlike where This case is obtaining directly the evidence connected with the informant was vis for Brown’s conviction. finding strongest argument under for an Juillet’s advantage drug government instigation prong of his that took instigate intelligence dependency crime that otherwise and limited However, argument adequate this also lacks not have occurred. support. used lsd and had testified that he had never record Juillet pcp stands, Juillet approximately now twice. As the record used marijuana. regular only Nor appears user of to have been Mich Opinion by Boyle, opinions today of the Court have Because adopted entrapment, definition new tests for the Appeals I would reverse the Court of and remand parties the case to the trial court to afford the opportunity present any additional evidence to the relevant revised standards.29

III reject, instigation test, I would under the approach hypothesizes a defendant without a history fantasy as well as creates "average, drug hypothetical user.” Cavanagh, p approach C.J., ante, 78. The that accords with reality produce likely is, therefore, most analyze result is to reliable facts under the government-instigation prong to determine accurately whether criminal conduct measures society the threat from the individual defen- suggest dant, or whether the circumstances defendant, alone, if left would not have en- gaged government-misconduct recognize in the criminal conduct. I would prosecu-

defense that bars tion where the evidence has been obtained reprehensible objectively conduct, evaluated. opted align myself instigation

I have with the analysis opinion of the lead because to leave the posture perhaps, do, in Court its divided is to greater damage jurisprudence to the Court and the "objective” I than tests. I cannot fear' from either of the new agree, however, that either presented regarding intelligence during evidence entrapment hearing. Juillet’s limited exploit The trial court concluded that Bleser did Juillet’s vulnera (by smoking marijuana using superior bilities him with and his pop intelligence training) him to induce sell to an undercover agent. marijuana The trial court noted that had Bleser smoked with "causally Juillet and had We do not reach the is not . . . orchestrated the entire transaction .” it propriety finding of this and conclusion since the Court. before People v Juillet Griffin, J.

government punished or the defendants should be fortuity or should from the benefit various today. would, therefore, I tests announced reverse Appeals the decisions of the Court of and remand Brown and Juillet to the trial court for further proceedings.30 recognize I that both the defendants government legitimate and the have a interest in long delayed my the view, however, resolution of these cases. In

giving opportunity to for- each an positions opinions mulate their around the issued today respective better serves both their interests jurisprudence, say that of the than to one side perceive wins or loses because of a failure to "objective evolution of the penumbras test” Jamieson or the today. its shadow casts (concurring part dissenting Griffin, part). opinion IWhile concur in the of Justice disagree Brickley Brown, as it I relates to my colleague, regarding Justice the re- Brickley, find, sult I Juillet. do not even under "objective” explained today by test as Juillet has met the burden re- Brickley, quired entrapment. for the defense of separately my addition,

In I write to reiterate expressed adherence to I views v Jamie son, 436 Mich NW2d I As (1990). 98; "guidance” provided it, see to the bench and variety opinions today bar issued serves only why entrapment to demonstrate should not recognized be as a defense unless the circum stances rise to the level of a constitutional due process Jamieson, violation. As I said in Mich 98: clear, question, 30 I wish make in connection with the misconduct myself unnecessary

that Justice that I disassociate from the dicta of the Chief doctrine is rooted the Due Process Michigan Clause of the Constitution. 439 Mich Griffin, given is so in a situation Unless conduct stan- reprehensible violate constitutional as to Clause, I do not imposed by Due Process dards committing a guilty of that one believe criminal act should be exonerated who judiciary disapproves of on the simply because it government. part stitutional is another of While con- branch observed, it strictly must be limitations which my entrapment, view that the defense whatever, be no should has constitutional base that, Short we should at least move eliminated. entrap- "subjective” judging to the ment, standard in the position already taken courts overwhelming majority in the system federal our sister states.

Case Details

Case Name: People v. Juillet

Court Name: Michigan Supreme Court

Date Published: Oct 1, 1991

Citation: 475 N.W.2d 786

Docket Number: Docket Nos. 76747, 85344, (Calendar Nos. 1-2)

Court Abbreviation: Mich.