Supreme Court Urged to Sanction Police Conduct in Drug Sting

Thursday, October 9, 2003

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Supreme Court Urged to Sanction Police Conduct in Drug Sting

Justices Told It Was ‘Outrageous’ for Police to Use Huge Quantity of Cocaine to Obtain Enhancements

By KENNETH OFGANG, Staff Writer/Appellate Courts

Los Angeles Police Department officers who allegedly supplied more than 80 kilograms of cocaine to a trio of defendants in order to stack a 25-year enhancement on top of their sentences were guilty of “outrageous” misconduct justifying reversal of the convictions, defense lawyers told the state Supreme Court yesterday.

Attorneys for Edaleene Smith, Waymond Thomas, and Obed Gonzalez urged the justices to go further than Div. Seven of this district’s Court of Appeal, which rejected the defendants’ due process argument but agreed that the police engaged in “sentence manipulation”—deliberate pre-arrest conduct designed solely to increase the potential sentences— and shaved 10 years off the defendants’ prison terms.

Deputy Attorney General Michael C. Keller, however, said during arguments in Los Angeles the officers did nothing more than “explore the extent of the defendants’ criminality” and urged the high court to restore the original sentences.

Police witnesses testified that a reliable informant had fingered Smith as the perpetrator of a series of drug sales and home invasion robberies. As a result of that information, according to the testimony, an undercover officer pretending to work for a major drug dealer asked Smith if she would be willing to steal a shipment of cocaine from the officer’s “boss.”

Sting Set Up

When Smith expressed interest, police set up a sting operation, obtaining a court order releasing 85 kilograms of cocaine from a supply scheduled to be destroyed. The cocaine was placed in a van, which was parked in the garage of a vacant house with the key in the ignition.

The officers then set up the house to look like a place of drug-dealing activity and notified Smith as to where the “rip off” was to take place. Smith showed up with the other defendants, all three of whom were arrested after Thomas backed the van out of the garage.

All three defendants were convicted of robbery, attempting to transport a controlled substance, and grand theft; Smith and Thomas were also convicted of conspiracy. Smith was sentenced to 36 years in prison; Thomas to 47 years, eight months; and Gonzalez to 33 years.

The sentences in each case included the 25-year enhancement prescribed by Health and Safety Code Sec. 11370.4.

Judge’s Discretion

The statute allows the sentencing judge the discretion to strike the enhancement if there are mitigating circumstances. But Los Angeles Superior Court Judge Terry A. Green, while acknowledging the harshness of the sentences, noted that the defendants could have backed out, but instead were enticed by the opportunity to steal more than $1 million worth of cocaine.

Gonzalez’s attorney, Stephen Gilbert of Santa Monica, said sentence manipulation “violates our separation of powers and it violates...our sentencing scheme” by “allowing police officers to choose sentences.”

That led Chief Justice Ronald M. George to ask how the police conduct in this case was different than in conspiracy cases, in which officers exercise discretion as to how far to allow the conspirators to go in furtherance of the scheme before making arrests.

Narrow Ruling Sought

Gilbert replied that the rule he was arguing for was a narrow one, applicable only to cases like the current one in which “the drugs [were] all provided by the policeman.” He noted that Green would not allow him to ask the lead investigator why the quantity of 85 kilograms was chosen, when the defendants would obviously have been willing to go along with the plot even if less than half that amount were involved.

Justice Joyce L. Kennard persistently attempted to draw the defense lawyers into a discussion of the concept of “sentence entrapment” recognized in some federal circuits. The order granting review of the Court of Appeal decision, she noted, specifically raised the issue of whether the doctrine should apply under California law.

But Phillip Bronson, an Encino attorney representing Smith, said it would be difficult to apply sentence entrapment in California, since the concept is based on the more traditional entrapment defense—that the police overcame the defendant’s will, persuading him or her to commit an offense he or she was not predisposed to commit.

Entrapment Standards

California, the attorney noted, uses an objective standard to determine entrapment, while the federal standard is a subjective one. The high court, he said, should adopt a sentence-manipulation rule as a matter of state and Fourteenth Amendment due process.

But Keller, arguing for the state, said the police did nothing wrong, and Kennard seemed to agree.

The defendants, Smith in particular, “seemed very much interested in...robbing the home and taking the cocaine” and expressed no concerns about the large amount involved, the justice commented.

The case would be different, Keller suggested, if the police had lied to the defendants, for example by intentionally understating the amount of cocaine. But even then, the deputy attorney general argued, there would be no need for the type of judicially created remedy favored by the Court of Appeal, since the statute already provides a remedy in the form of the judge’s discretion to strike the enhancement.