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If an FBI or some law enforcement agent is on the Dark Web posing as a user, does this constitute entrapment?
They do not inform you of their status. Sharing personal information is not very frequent there, but if it does come up and they directly do not mention occupation if asked, will you be able to avoid future charges initiated with this contact because they were not honest?
Dale M. has a pretty good, black letter law definition: "Entrapment involves the law enforcement officer inducing the perpetrator to commit a crime that they otherwise would not." However, I think that from a practical standpoint I'd actually go even further: A defense on the basis of entrapment is highly unlikely to succeed unless the law enforcement officer puts the idea to commit the crime in your head and then persuades you to do it. Or, to use a couple of (only slightly facetious) hypotheticals:
Not Entrapment:
Undercover law enforcement officer says to you: "Man, I could really use some cash. You know, we could rob a bank."
You: "Huh, well, I think ABC Bank has pretty lousy security guards. We could hit that one, if we wanted to. Yeah, that's a pretty good idea."
Undercover: "Hey, that sounds like a plan to me. I'm in if you are."
You: "Yeah, I think I am. Let's do it."
Possibly Entrapment:
Undercover: "Man, we could both use some cash. Why don't we rob a bank or something?"
You: "I don't know. That sounds kinda dangerous. Plus, if we get caught we could go to a federal prison for years. I don't think I'd be down with that."
Undercover: "Oh, come on. I know this sweet bank, ABC Bank. Terrible security. We'd be in and out in no time. No danger, nobody goes to prison. And you need cash as bad as I do, don't you?"
You: "Well, yeah, I guess so."
Undercover: "Alright, so don't be chicken. Let's do it."
You: "Well..."
Undercover: "Oh, come on. Easy money!!"
You: "Okay, I guess."
Let's put it this way: When I took criminal procedure in law school the modern cases we read all had the same theme: "No, X doesn't constitute entrapment." To my knowledge, it's just a really, really hard defense to win on in modern American law. (Under federal law and in almost all states, as far as I'm aware.)
Requisite disclaimer: I am not a criminal lawyer who has direct experience with making entrapment law defenses under the law of whatever jurisdiction you might be worried about potentially being charged under. If you want a definitive, reliable answer you need to talk to somebody who is. (You already figured that out, I'm sure, but just for the record...) Still, maybe this helps.
A law enforcement officer not telling you they are a law enforcement officer is not entrapment; it's just undercover police work.
Entrapment involves the law enforcement officer inducing the perpetrator to commit a crime that they otherwise would not.
Will you be able to avoid future charges initiated with this contact because they were not honest?
Of course not, there is no obligation on a law enforcement officer to be honest if being dishonest is in accordance with their job requirements at the time.
For example, it is perfectly legal for a male 45-year-old police officer to pretend to be a 14-year-old female on the web in an attempt to catch pedophiles. If the officer induced the perpetrator to request a meeting for the purposes of sex or to request child abuse material then that would be entrapment; if they simply play the role and respond without crossing that line that is OK.
Generally not.
In the U.S. police can use lies and deception during investigations and interrogation of suspects. There are few limitations on this. Just search for "police can lie".
"Entrapment" is a defense whose viability is very case-specific. Again, plenty of reading to be had on the subject. In general,
States employ either an objective or a subjective standard to determine whether entrapment occurred.
- Objective standard: Under an objective standard, when defendants offer entrapment evidence jurors decide whether a police officer's actions would have induced a normally law-abiding person to commit a crime.
- Subjective standard: Entrapment defenses are less likely to succeed under a subjective standard. The reason is that under a subjective standard, when a defendant offers entrapment evidence, jurors decide whether the defendant's predisposition to commit the crime makes the defendant responsible for his or her actions, regardless of any government agent's inducements.
It's worth taking a look at the past stings on the DNMs to get an idea of what is considered kosher. I keep a comprehensive list of DNM-related arrests, and there are a number of stings using undercover agents & flipped accounts, primarily relating to poisons and guns: the 'weaponsguy' case, several UK buyers of poison, Brian Korff, 'dark_mart', and some others.
If you read the available complaints, you see that there is a consistent pattern of the UC letting the future arrestee initiate contact and initiate the deal - the seller, at least after flipping, is never strongly advertising themselves on the DNM forums and may be quite low key about even selling products. (While initially investigating 'dark_mart' to figure out if he was the FBI honeypot, which eventually I figured out he was, I wasn't even certain if he was selling in the relevant time period, he was so low key about it.) Once the buyer has initiated contact and expressed definite intentions about buying the gun or poison, I've noticed the seller is often quoted as reminding the buyer that the items are illegal or could be used to kill, which I assume is deliberate on the UC's part to help establish mens rea. If the buyer doesn't give up, then the UC will take the money and ship fake goods and usually the buyer will then receive a controlled-delivery. (At which point depending on how elaborate the sting is, the buyer might then be coerced into leaving positive feedback on the seller account, which I believe is part of how the weaponsguy sting racked up something like 18 arrests before I figured out who it was and Agora then shut them down.)
