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? Sep 16, 2015 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 Sep 16, 2015 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, 2015 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, 2015 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 Sep 29, 2015 at 3:12

1 Answer 1


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.

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Dale M
    Sep 30, 2019 at 1:47

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .