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The state must establish initially whether police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power. To guide trial courts, the Supreme Court of Florida has set out a threshold test for establishing entrapment. Entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity. By focusing on police conduct, this objective entrapment standard includes due process considerations.
After the trial court released a witness in order to assist the police in an unrelated drug case, the witness observed respondent user smoke marijuana. The witness requested respondent user's help in obtaining drugs, and respondent user aided the witness in contacting respondent seller. Both respondents were arrested and convicted of trafficking and conspiracy. Both respondents raised several issues on appeal, including whether, under State v. Glosson, 462 So. 2d 1082 (Fla. 1985), the witness’ conduct violated respondents’ due process rights so that the charges against them should have been dismissed. The appellate court held respondents' due process rights had been violated and certified two questions to the Court.
The court answered the questions in the negative and employed other reasoning to reach its decision. The court found the witness had become the state's agent and his acts constituted police activity. Because there was no specific ongoing criminal activity until it was created by the witness, the trial court had erred in convicting respondent user because he had established entrapment. Respondent seller, however, was unable to employ the entrapment defense because respondent user, not the witness, had induced him to sell the drugs. The court remanded with instructions to the trial court to affirm respondent seller's conviction and to reverse its denial of respondent user's motion for judgment of acquittal.