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.  CRS 18-1-709

        Entrapment is a statutorily recognized affirmative defense of justification or exemption.  CRS 18-1-710.

        Where deception practiced by law enforcement which simply furnishes defendants with an opportunity to engage in illegal drug sales and defendants knowingly and willingly take advantage of this opportunity does not constitute entrapment. There is no entrapment if the defendant was predisposed to commit the crime. The trier of fact must find beyond a reasonable doubt that the offenses committed by the defendant was not procured by duress or unconstitutional police conduct. Bailey v. People, 630 P.2d 1062, 1065 (Colo. 1981).

There are two tests for entrapment - the subjective test and the objective test.
        a.  OBJECTIVE TEST of entrapment grounds the defense on the methods used by government agents to induce the defendant to commit the act as set forth in by minority opinions of the United States Supreme Court. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113(1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).
        b.  SUBJECTIVE TEST of entrapment grounds the defense on defendant was not predisposed to commit the act alleged as set forth in the above majority opinions.

        Since the defense of entrapment is not of constitutional stature, states are free to define it as they choose. Most states have adopted the subjective approach. On the other hand, commentators generally favor the objective test. The commentators have likened the entrapment controversy to the debate over the exclusionary rule: if both the government and the citizen break the rules, whose behavior should be punished? Under the objective theory, the defendant is excused because of the misconduct of the government; the subjective approach sanctions police conduct without question as long as the police actions are directed to persons predisposed to commit the offense charged.

        Colorado adheres to the subjective test of entrapment. 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. Bailey v. People, 630 P.2d 1062, 1067 (Colo. 1981), People v. Sanchez, 40 Colo. App. 552, 580 P.2d 1270 (1978).

        Where deception practiced by law enforcement simply furnishes defendants with an opportunity to engage in illegal drug sales and defendant knowingly and willingly takes advantage of this opportunity, law enforcement conduct does not constitute entrapment. There is no entrapment if the defendant was predisposed to commit the crime. Bailey v. People, 630 P.2d 1062, 1065 (Colo. 1981).

        Entrapment is an affirmative defense which is to be submitted to the trier of fact. Once the defendant has presented credible evidence on the issue, the prosecution must prove beyond a reasonable doubt that no entrapment has occurred. CRS 18-1-407(2), Bailey v. People, 630 P.2d 1062 (Colo. 1981), People v. Sanchez, 40 Colo. App. 552, 580 P.2d 1270 (1978).  However, to be entitled to an entrapment jury instruction, although a defendant should not be required to admit guilt to obtain an entrapment jury instruction, his theory of entrapment must be supported by some evidence of instigation of the offense by the officer. People v. Penson, 184 Colo. 256 (Colo. 1974). (pimping case) Gonzales v. People, 168 Colo. 545, 452 P.2d 46 (1969)

        Merely affording a person an opportunity to commit an offense is not entrapment under CRS 18-1-709. If the trier of fact finds that defendant would have acted the same way if given another opportunity, the prosecution had met its evidentiary burden of proving beyond a reasonable doubt that the defendants had not been entrapped. Bailey v. People, 630 P.2d 1062, 1068 (Colo. 1981)

        Attorney Note:  Entrapment defense would most commonly arise in drug sale or prostitution charges, but could be relevant in other criminal charges.  To put the law in layman's terms, as Flip Wilson said: "the devil made me do it" (the devil being police) or the defendant was led down the paths of unrighteousness by police.

        In addition to statutory entrapment defense, a defendant may move to suppress evidence on the basis of 14th Amendment grounds: that the conduct of the law enforcement agents was so outrageous and egregious that it deprived him / her of due process of law under the federal and state constitutions. As with entrapment affirmative defense, outrageous conduct and denial of due process of law defense will turn upon the facts of the case.

        The trier of fact must find beyond a reasonable doubt that the offenses committed by the defendant was not procured by duress or unconstitutional police conduct. Bailey v. People, 630 P.2d 1062, 1065 (Colo. 1981).

        In regard to such a claim, an asserted denial of due process must be tested by an appraisal of the totality of facts in a given case. People v. Vega, 870 P.2d 549 (Colo. App. 1993). Government officers can employ appropriate artifice and deception to ferret out illegal activities. People in Interest of M.N., 761 P.2d 1124 (Colo. 1988).

        Where:
        a. The investigation was initiated and conducted without any actual knowledge or belief that the respondent was involved in prostitution-related activities.
        b. A law enforcement agent told the respondent that he was from the east coast and was a member of an organization that was attempting to establish a prostitution service in Denver to serve wealthy travelers from the New York area
        c. The law enforcement agent offered respondent a financial interest in the proposed venture.
        d. The record fails to demonstrate that the conduct of the undercover agents was violative of due process of law and was not outrageous conduct.
        People v. Morley, 725 P.2d 510 (Colo. 1986). (soliciting for prostitution); e.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982), cert. denied, 457 U.S. 1106 (1982).

In Morley, respondent eagerly offered for sale his counsel and assistance in the formation of an illegal enterprise. The respondent's decision to engage in this conduct was made freely and knowingly, out of an obvious predisposition to do so, and not as the result of some overbearing inducement by the federal agents. See Hampton v. United States, 425 U.S. 484 (1976); Evans v. People, 706 P.2d 795 (Colo. 1985); Bailey v. People, 630 P.2d 1062 (Colo. 1981).  Further, there was no evidence that the undercover agents were pursuing a course of harassment or engaging in gross improprieties during their contacts with the respondent. See People v. Ressin, 620 P.2d 717 (Colo. 1980)

        If the governmental officials acted outrageously or in bad faith in obtaining the challenged evidence, then due process of law requires the exclusion of such evidence or perhaps the even more drastic remedy of dismissal. There is no "bright line" or "per se" rule in this area of the law, and each case must be decided on the basis of its own peculiar facts. People v. Harfmann, 638 P.2d 745, 748 (Colo. 1981); see Emslie v. State Board of California, 11 Cal.3d 210, 520 P.2d 991, 113 Cal. Rptr. 175 (1974).

        While the undercover operation may have itself been built on deceit, governmental activity in the pursuit of crime "is not confined to behavior suitable for the drawing room." United States v. Murphy, 768 F.2d 1518, 1529 (7th Cir. 1985); see United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985), cert. denied, 106 S. Ct. 1499 (1986).

        When a defendant is charged with sale of narcotic or other illicit drugs, procuring agent has previously been an affirmative defense.  The defense is that the defendant acts as an exclusive agent for a buyer - the law enforcement officials who bought the drugs. As such, the defendant becomes a principal or conspirator in the purchase rather than the sale of the narcotics and, therefore, cannot be convicted of sale or conspiracy to sell narcotic drugs under CRS 12-22-302. People v. Smith, 623 P.2d 404 (Colo. 1981); People v. Fenninger, 191 Colo. 334, 552 P.2d 1018 (1976). In Fenninger and Smith, the defendants never handled either the money or the drugs, although they were present at some drug transactions.  People v. Palmer, 652 P.2d 1092 (Colo. App. 1982), People v. McGhee, 677 P.2d 419 (Colo. App. 1983)

        If defendant is contacted by law enforcement agents and asked if he / she could obtain narcotics, and
        defendant does locate and purchase narcotics from his / her sources, and
        defendant delivers the narcotics to law enforcement agents, and
        defendant receives payment from law enforcement agents, then
        the procuring agent defense does not apply where the defendant sells narcotic drugs to the law enforcement agents.
        Bailey v. People, 630 P.2d 1062, 1069 (Colo. 1981).

        There appears to be no case in this jurisdiction which has held the procuring agent theory of defense applicable to a charge of mere possession of narcotic drugs.  People v. Dodd, 195 Colo. 408, 409 (Colo. 1978).  It is established law that the crime of possession is complete when the defendant has knowingly acquired dominion and control over the contraband substance. People v. Dodd, supra at 410.  See, e.g., People v. Eades, 187 Colo. 74, 528 P.2d 382 (1974); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); People v. Chaves, 182 Colo. 216, 511 P.2d 883 (1973); and Duran v. People, 145 Colo. 563, 360 P.2d 132 (1961).  We, therefore, rule that the procuring agent defense should not be extended to mere possession cases.  People v. Dodd, supra at 410.

        Subsequent to the Colorado Supreme Court's decisions in People v. Dinkel, 189 Colo. 404, 541 P.2d 898 (1975) and People v. Fenninger, supra, the General Assembly enacted comprehensive changes in the laws related to controlled substances.  Accordingly, where the information charges defendant with "sale and distribution" of a controlled substance, refusal to instruct on the procuring agent defense may not be error.  People v. Farris, 812 P.2d 654 (Colo. App. 1991)  Put another way, the procuring agent defense may not be available.