8

If a cop is responding to a known fraudulent prescription, ask the pharmacist to stall the subject until they arrive so he can arrest the subject, but, instead of making the arrest for attempt to obtain by fraud, directs the pharmacist to fill the known fraudulent prescription in order to arrest the subject for the higher crime of trafficking, is the subject guilty of possession/trafficking?

If the subject is not guilty of possession then the subject can get up to 5 years in prison for an attempt or qualify for drug court:

Florida Statutes 893.13 (7)(a)9
Acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

If the subject is guilty of possession, most hydrocodone prescriptions will consist of an aggregate trafficking amount, then the subject is disqualified for drug court and faces an extremely severe penalty:

Florida Statutes 893.135 1(c)1c
Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall be ordered to pay a fine of $500,000.

It seems the same as a cop planting drugs on someone to convict them of possession or trafficking.

  • 3
    If you're a pharmacist, don't you have a certification and code of ethics that would dictate what you should do? – Raystafarian Sep 16 '15 at 13:11
  • 4
    @Raystafarian Yes, there are federal/state laws as well as pharmacy procedures that a pharmacist must abide by in order to keep their license. The cop directed the pharmacist to bypass all of them to put the subject in possession – Breakskater Sep 16 '15 at 15:13
  • 3
    other than one who is ready to commit it. You can arguably say a person can not be ready to commit a crime if there is a law in place to prevent that crime from occurring. Yeah, you could argue that if you like to lose. I mean, you could open with that, but now you need to back it up with facts about the accused. – jqning Sep 18 '15 at 2:04
  • 5
    Your assertions - particularly that last one - are dangerous and should not be relied upon in any circumstances where their accuracy is desirable. It is reckless to spread and assert this opinion - and then accept your own answer - without evidence to support it. Statutory interpretation is a skill learned through years of practice, and reinforced - or disproven - by case law. Please, cite some case law that supports your various arguments within the rationes. You have accepted your own erroneous answer - if you had any interest in justice you would accept another answer and delete it. – jimsug Sep 22 '15 at 10:50
  • 2
    @jimsug show me in the law where it says a police officer can direct a pharmacist to break federal and state laws and fill a known fraudulent prescription – Breakskater Sep 29 '15 at 3:12
9

The circuits all over the place on this one but I don't see these facts fitting according to the strictest rule.

It is within the discretion of the police to decide whether delaying the arrest of the suspect will help ensnare co-conspirators, as exemplified by this case, will give the police greater understanding of the nature of the criminal enterprise, or merely will allow the suspect enough "rope to hang himself."

U.S. V. Garcia 79 F.3d 74 (7th Cir. 1996)

See also Hoffa v. United States 385 U.S. 293 (1966)

A suspect has no constitutional right to be arrested when the police have probable cause.

The police are not required to guess, at their peril, the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.

EDITING THE ANSWER in light of some comments.

Florida recognizes sentence manipulation and outrageous government conduct as defenses. United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007) Outrageous government conduct and sentencing factor manipulation focus on the government's behavior. Outrageous government conduct occurs when law enforcement obtains a conviction for conduct beyond the defendant's predisposition by employing methods that fail to comport with due process guarantees. Under this standard, the conduct must be so outrageous that it is fundamentally unfair. See United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.1987)

In the Ciszkowski case, the defendant was charged with murder for hire as part of a sting. As part of the sting, the government provided Ciszkowski with the gun. The gun had a silencer, the silencer converted his crime to a more serious offense. Ciszkowski argued that he did not know the gun had a silencer and accused the government of sentence manipulation. He lost. The court tells us that the standard for establishing that the government's conduct is sufficiently reprehensible to constitute sentencing factor manipulation is high as gives us some cases where the court declined the finding.

See United States v. Bohannon, 476 F.3d 1246, 1252 (11th Cir.2007 (government's selection of age of "minor" victim for sting operation was not manipulation even though the selected age resulted in enhancement under guideline);

United States v. Williams, 456 F.3d 1353, 1370-71 (11th Cir.2006) government's purchase of crack cocaine rather than powder cocaine was not manipulation despite sentencing differential);

United States v. Sanchez, 138 F.3d 1410, 1412-13 (11th Cir.1998) (government informant's selection of a fictitious amount of drugs to be stolen by defendants was not manipulation of the quantity)

Now, about this doctor. The reason this is might be troubling is that this doctor might have entrapped the suspect. For example, if the suspect went to the dr and just wanted some aspirin but the dr convinced him to ask for vicodin and pain killers in some excessive amount (I don't know, I do not want to make up facts). This could be entrapment by a citizen acting purely on his own; if this is the case there is no entrapment. See Worley v. State, 848 So. 2d 491 (Fla. Dist. Ct. App. 2003)

However, when the person making the inducement is acting as an agent of the government, courts may allow an entrapment defense. The government is responsible for the actions of its agents. But keep in mind that you still need to establish both elements of entrapment.

Per United States v. Isnadin, No. 12-13474 (Feb. 12, 2014):

The entrapment defense involves two separate elements : (1) Government inducement of the crime, and (2) lack of predisposition on the part of the defendant. The defendant bears an initial burden of production to show that the first element, Government inducement, is met. Once the defendant makes this initial showing, the burden shifts to the Government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.

For any of these defenses to work, the guy who was filling the prescription can not have been predisposed to commit the crime except for the actions of the government and its agents inducing him.

  • 4
    I saw this a lot as a teenager working in a grocery store. The pharmacist would call the cops and they would mill around until the subject took possession of the drugs. I don't think it was done just to increase the sentence. Taking possession took the crime from intent to actual commission and removed the "I changed my mind" defense. – Dave D Sep 14 '15 at 20:31
  • 3
    This is a good answer, but I read the question differently. Can the cops require the pharmacist to fill the known, fraudulent prescription? I suspect not. Could the pharmacist just refuse the prescription? – emory Sep 14 '15 at 21:43
  • 3
    @emory since the question was about sentence entrapment/manipulation I thought the directing of the pharmacist not applicable. However, while police can order citizens to do various things, I think that a pharmacist has a colorable argument for refusing to fill a prescription based on either ethics codes or federal regulations. Here's a nurse who refused to draw blood; she settled for $78k. – jqning Sep 14 '15 at 21:58
  • 3
    @Breakskater I edited my answer to address some comments – jqning Sep 16 '15 at 0:19
  • 2
    @Breakskater ok, so now "the reader" will see that comment too. So it's taken care of. You took care of it. Just like you asked the original question, and then didn't like the answer and answered it yourself and marked your own answer to your own question correct. I'd like to be done here. Take it up in meta if you think I'm harming someone. – jqning Nov 16 '15 at 4:16

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.