CO Code § 18-1-709 (2021)
2021 Colorado Code|Title 18 - Criminal Code|Article 1 - Provisions Applicable to Offenses Generally|Part 7 - Justification and Exemptions From Criminal Responsibility|§ 18-1-709. Entrapment

 The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used.   History. Source: L. 71: R&RE, p. 411, § 1. C.R.S. 1963: § 40-1-809 .    ANNOTATION   Law reviews. For article, “Criminal Law”, which discusses a Tenth Circuit decision dealing with the entrapment defense, see 61 Den. L.J. 272 (1984). For article, “The Entrapment Defense in Colorado”, see 40 Colo. Law. 47 (Jan. 2011).   Entrapment may be asserted as an affirmative defense only to acts that would otherwise constitute an offense and is not applicable to sentencing provisions such as the sentence enhancing provisions of § 18-18-107 , which merely impact the degree of punishment imposed. Vega v. People, 893 P.2d 107 (Colo. 1995).   The defense of entrapment has long been recognized in Colorado when the prosecution, through its agents, in fact, induces, instigates, and causes a criminal offense to be committed. People v. Bucher, 182 Colo. 211 , 511 P.2d 895 (1973).   States are free to define defense of entrapment as they choose, since it is not of constitutional stature. Bailey v. People, 630 P.2d 1062 (Colo. 1981).   This section is patterned upon § 40.05 of article 40 N.Y. Penal Law Consol. Bailey v. People, 630 P.2d 1062 (Colo. 1981).   Detection of crime distinguished from entrapment. A suspected person may be tested by being offered the opportunity to transgress the law in such a manner as is usual in the activity alleged to be unlawful. However, law enforcement officers may not induce persons, who would not otherwise have committed the crime, to violate the law. The former is legitimate “detection” of crime. The latter is “entrapment” to commit the crime in which the officer's conduct instigates the offense, the commission of which was nonexistent in the mind of the intended victim of the entrapment. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969).   To prove entrapment, the defense must show that the prosecution played the primary role. People v. Bucher, 182 Colo. 211 , 511 P.2d 895 (1973).   Test of entrapment focuses on defendant's conduct. In determining whether the affirmative defense of entrapment exists, the court focuses on the conduct of the defendant. An examination is made of the circumstances surrounding the sale to see whether the officers merely afforded the defendant the opportunity to commit the offense, or whether the defendant had been improperly induced to do something he otherwise would not have done. People v. Williams, 654 P.2d 319 (Colo. App. 1982).   Entrapment is a subjective test that focuses on a defendant's state of mind. This section does not set forth general standards for police conduct. Thus, evidence of federal drug enforcement agency's system for rewarding and promoting agents was irrelevant to a narcotics case where entrapment issue was raised. People v. Aponte, 867 P.2d 183 (Colo. App. 1993); Vega v. People, 893 P.2d 107 (Colo. 1995).   While police methods are relevant to the defense of entrapment, police motives are not relevant because they do not impact the subjective state of mind of the defendant. However, such motives may be relevant for the purpose of establishing bias in DEA agents' testimony. Vega v. People, 893 P.2d 107 (Colo. 1995).   This section codifies subjective test, as the defendant's predisposition to commit the crime, rather than the conduct of the government agent, remains the dispositive factor in determining whether entrapment has occurred. People v. Sanchez, 40 Colo. App. 552, 580 P.2d 1270 (1978); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 (Colo. 1981).   However, the carefully crafted requirements of the entrapment statute are swept aside by a jury instruction which selectively excerpted the statement from Bailey v. People (630 P.2d 1062 (Colo. 1981)) that “the defendant's predisposition to commit the crime, rather than the conduct of the [police, is] the dispositive factor.”, because statements from opinions do not necessarily translate with clarity into jury instructions. Evans v. People, 706 P.2d 795 (Colo. 1985).   This section creates a subjective test which is concerned with the state of mind of a particular defendant; it does not set general standards for police conduct. Thus, evidence of a law enforcement agency's internal reward system generally would not be relevant to whether a particular defendant was entrapped. People v. Vega, 870 P.2d 549 (Colo. App. 1993).   Section requires the defendant to admit committing the acts before being entitled to assert the defense of entrapment. The court did not err in refusing to give an instruction on the defense when the defendant denied committing the acts. People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001); People v. Grizzle, 140 P.3d 224 (Colo. App. 2006).   Elements of the defense: (1) The defendant must be a person who, but for the offered inducement offered, would not have conceived of or engaged in conduct of the sort induced; (2) the defendant must in fact have engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and not as a result of the defendant's own predisposition; (3) the methods used to obtain such evidence must have been such as to create a substantial risk that this particular defendant would engage in the sort of conduct induced; and (4) the methods used must have been more persuasive than merely affording the defendant an opportunity to commit an offense, even when such an opportunity was coupled with representations or inducements calculated to overcome the defendant's fear of detection. Evans v. People, 706 P.2d 795 (Colo. 1985).   Predisposition and inducement are inextricably interwoven within the first three elements of the defense. Evans v. People, 706 P.2d 795 (Colo. 1985).   Existence of any predisposition on the part of the defendant must be determined first; then the extent of any such predisposition must be considered in relation to the character of the inducements to determine whether the second and third elements have been satisfied. Evans v. People, 706 P.2d 795 (Colo. 1985).   Prosecution must prove defendant not entrapped. The prosecution must prove beyond a reasonable doubt that the defendant was not entrapped. People v. Williams, 654 P.2d 319 (Colo. App. 1982).   Prosecution may rely solely on the defendant's predisposition only if they are able to prove that the defendant would have committed the crime even if the police had offered no inducement more persuasive than merely affording the defendant an opportunity to commit the crime. Evans v. People, 706 P.2d 795 (Colo. 1985).   In reviewing the sufficiency of predisposition evidence, courts may rely upon evidence obtained after the government's initial contact with the defendant, so long as such evidence is relevant to the defendant's state of mind as it existed prior to the government's suggestion of the crime. People v. Sprouse, 983 P.2d 771 (Colo. 1999).   Intent to commit the crime must originate with the defendant. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).   Entrapment operates where police originate criminal intent. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials, that is, only where the criminal design originates in the mind of the police officer and not with the accused. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969); People v. Hankin, 179 Colo. 70 , 498 P.2d 1116 (1972).   One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of entrapment. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969).   Notwithstanding aim of capturing old offenders. When detectives suggest the commission of a crime and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked rather than encouraged by the courts. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969).   And not where officer merely supplies opportunity for crime. Defense of entrapment is not available where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 (Colo. 1981).   The Colorado courts have drawn a strong distinction between the seduction by a government agent of an innocent person into doing an unlawful act not contemplated by him, and a government agent affording an opportunity to one who has the intent and design to commit a criminal offense to do so. The first situation affords a complete defense to one charged with a crime under those circumstances, but the second is a perfectly proper tool in the arsenal of law enforcement agents. People v. Simmons, 179 Colo. 431 , 501 P.2d 119 (1972).   Entrapment does not occur when government agent merely offers person the opportunity to commit the offense. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).   When an undercover police agent merely provides one with the opportunity to transgress the law, there is no entrapment. People v. Ross, 182 Colo. 267 , 512 P.2d 1154 (1973).   There is no entrapment when the representations of a government agent merely afford an opportunity for the defendant to commit a criminal act in the belief that the representations were true. People v. Adler, 629 P.2d 569 (Colo. 1981).   There is no entrapment if the police agent merely furnishes an opportunity for the criminal act to one ready and willing to commit it. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).   The plain wording of this section indicates that the defense of entrapment cannot be established in those cases where the police merely furnish the defendant with an opportunity to commit a crime. People v. Jackson, 627 P.2d 741 (Colo. 1981).   The mere use of an undercover agent does not prove that the prosecution induced the crime and thereby vitiated any subsequent conviction of the crime. People v. Bucher, 182 Colo. 211 , 511 P.2d 895 (1973).   Question of fact. Where many of the elements of entrapment are in the record in a libel case, but on the issue of good faith and belief in the truth of the statements made there is at least a doubt, summary judgment should not be granted. Abrahamsen v. Mtn. States Tel. & Tel. Co., 177 Colo. 422 , 494 P.2d 1287 (1972).   Entrapment defense available where agent induced, instigated, and caused commission of offense. The defense of entrapment is available only where the defendant shows that law enforcement agents, in fact, induced, instigated, and caused a criminal offense to be committed. People v. Jackson, 627 P.2d 741 (Colo. 1981).   Entrapment not present simply because defendant initially approached victim with humanitarian intentions. When the defendant testified that although he approached the apparent drunk (decoy police officer) with humanitarian intentions, he later decided that if dead the drunk would have no further use of his money, the police agents provided only an opportunity for a thief who was ready and willing and thus entrapment was not present as a matter of law. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).   Entrapment in narcotics cases. Where released narcotics suspect agrees to make arrangements for undercover police agents to purchase dangerous drugs, and where he notifies police that defendant has LSD for sale and arranges a meeting which results in defendant's selling LSD to police, entrapment is not established. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).   Entrapment does not consist of mere act of making sale to person who has offered to purchase narcotics. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).   Defense of entrapment is not intended to be escape hatch for those who mistakenly sell narcotics to police officer. When person who has narcotics for sale is ready, willing, and able to effect sale with no more than ordinary persuasion, he has not been entrapped and must suffer consequences for dispensing or selling narcotics. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).   Encouragement by police informant for a defendant to import cocaine into this state did not amount to outrageous conduct. People v. Aponte, 867 P.2d 183 (Colo. App. 1993).   Even if undercover police agent sought out drugs and asked defendant if she had any or knew where she could get some, this behavior did not constitute entrapment. People v. Ross, 182 Colo. 267 , 512 P.2d 1154 (1973); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 (Colo. 1981).   Fourteenth amendment violated when a jury instruction could lead a jury to believe that it was enough for the prosecution to prove that the defendant has some predisposition to commit the crime. Evans v. People, 706 P.2d 795 (Colo. 1985).   Court did not err in refusing to instruct jury on entrapment as an affirmative defense. Since entrapment is an affirmative defense, it only applies if the defendant admits to committing the crime. In this case, the only contested issue was whether the substance was a controlled substance. Since defendant had to distribute a controlled substance to commit the crime, by disputing that the substance was a controlled substance, defendant did not admit to all elements of the crime. Thus, defendant was not entitled to an entrapment defense instruction. People v. Santana, 240 P.3d 302 (Colo. App. 2009), rev'd on other grounds, 255 P.3d 1126 (Colo. 2011); People v. Taylor, 2012 COA 91 , 296 P.3d 317.   Evidence held insufficient to establish entrapment. People v. Simmons, 179 Colo. 431 , 501 P.2d 119 (1972).