Case Law Links

Accardi v. Shaughnessy, 347 U.S. 260, 265-67 (1954).
an agency has an obligation to abide by its own regulations.

STATE v. ODOM, 382 S.C. 144 (2009)
This Court has held on a number of occasions that violations of procedure go to the weight, rather than the admissibility of evidence. See, e.g., State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002) (failure to conduct breathalyzer test using required sample); State v. Carter, 344 S.C. 419, 544 S.E.2d 835 (2001) (flaw in chain of custody). Moreover, exclusion is typically reserved for constitutional violations. See Huntley, 349 S.C. at 6, 562 S.E.2d at 474 ("Exclusion of evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the defendant cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedures.").

The MOU and ICAC Standards are not codified and were created, not by the Legislature, but by law enforcement. The MOU and ICAC Standards serve a variety of purposes. We find that the violation of the MOU and ICAC policies speak to the weight of the evidence rather than its admissibility.

McGee v. State, 687 So.2d 22 (1996) (Fla. 2nd DCA Dec. 20, 1996)
As a general rule, inconsistent verdicts are permitted. See Eaton v. State, 438 So.2d 822 (1983). This is because jury verdicts may reflect leniency and therefore, do not always speak to the guilt or innocence of a defendant. There is only one recognized exception to this general rule; namely, the "true inconsistent verdict" exception. True inconsistent verdicts are "those in which an acquittal on one count negates a necessary element for conviction on another count." Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA), cause dismissed, 444 So.2d 417 (Fla.1983). An example of a true inconsistent verdict is where a defendant is convicted of committing felony murder but acquitted on the underlying felony charge. See Mahaun v. State, 377 So.2d 1158 (Fla.1979). See also Redondo v. State, 403 So.2d 954 (Fla.1981)(defendant could not be convicted of unlawful possession of a firearm during the commission of a felony where the jury failed to find the defendant guilty of any felony).

Morehead vs. State, 556 So.2d 523 (Fla. 5th DCA Feb 8, 1990)
In every attempt, there are three essential elements: (1) a specific intent to commit a particular crime (here escape from lawful confinement); (2) some actual overt step taken, or some overt act done, to actually commit the crime, and (3) a failure to accomplish the intent. See 1 W. Burdick, Law of Crime, § 103 (1946). See Thomas v. State, 531 So.2d 708 (Fla. 1988); Gustine v. State, 86 Fla. 24, 97 So. 207 (1923). These are essentially the elements of the statutory definition of the crime of attempt as set forth in section 777.04(1), Florida Statutes. The act in an attempt is known as an "overt act" and an information charging an attempt must allege facts showing an overt act. Pittman v. State, 47 So.2d 691 (Fla. 1950); Taylor v. Chapman, 127 Fla. 401, 173 So. 143 (1937). The State here was actually charging attempted escape and as such, should have specified an overt act. However, even if the State had alleged an overt act, it did not prove an overt act.

"Overt" means open, apparent and an "overt act" denotes some outward act in manifest pursuance of a design or intent to commit a particular crime. 1 Burdick, Law of Crime, § 103. The "overt act" must be adapted to effect the intent to commit the particular crime but must be more than mere preparation. Gustine, 97 So. at 208. Preparation generally consists of devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward
the commission after preparations are completed. State v. Coker, 452 So.2d 1135 (Fla. 2d DCA 1984). The overt act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime. Coker.

State vs. Duke, 709 So.2d 580 (Fla. 5th DCA March 27, 1998)
In this case, we do not think the proven conduct undertaken by Duke reached the level of an overt act leading to the commission of sexual battery as required by section 777.04(1). He discussed sexual acts with "Niki," he intended to commit them with Niki, he planned an occasion where he could carry out those acts, and he arrived at a prearranged meeting point. But we conclude that is not enough to constitute an attempt to commit a sexual battery. We note the difficulty in policing the Internet, and the challenges the cyber world poses to preventing criminal acts against children. This may be an area the Legislature needs to address specifically.

Ticknor vs. State, 595 So.2d 109 (Fla. 2nd DCA Feb. 7, 1992)
Two elements are required to convict a defendant of an attempt to commit an offense. These elements are (1) the specific intent to commit the offense and (2) a separate overt act done toward the commission of the offense, which is interrupted by some circumstance not caused by the perpetrator. State v. Coker, 452 So.2d 1135 (Fla. 2d DCA 1984). The victim testified that she closed her knees when Ticknor, standing over her in his underwear, moved toward her and stated, "Isn't this what you want... ." The victim further testified that she did not see Ticknor put any clothes on or take any off during this period of time. We conclude that the victim's testimony was insufficient to establish the elements of attempted sexual battery.

Hartley vs. State, No. 4D12-2486 (Fla. 4th DCA 2013)
We find that appellant's conviction and sentence under count III should be vacated for violation of double jeopardy…

This review indicates that all the elements of soliciting a child are included within the offense of traveling to meet a minor; traveling to meet a minor contains an element that is not an element of soliciting a child, namely, knowingly traveling within the state. Therefore, because all the elements of soliciting are included in the traveling offense, it appears that section 775.021(4)(b)(3) applies to counts III and IV, and the elements of the lesser offense are subsumed in the greater offense.

Grohs vs. State, 944 So.2d 450 (Fla, 4th DCA 2006)
We conclude that a jury could "fairly and reasonably infer" that various statements made by Grohs in his online communications with "Bobby" met the plain and ordinary definitions of seduce, solicit, lure, and entice, although only obliquely and implicitly by avoiding explicit references to sexual conduct. The tenor of Grohs's suggestive comments could be interpreted to demonstrate both the adroit artfulness, or enticement, and the enjoyment of active attraction, or allurement, of a predator laying a trap for his prey. The trap may have been set by phrases such as "we can be more, and do whatever makes you happy" and "I'd be happy to do anything with and/or for you right now." When taken in the context of being directed at a believed fifteen-year-old boy first contacted in a "Young Men" chat room, these phrases could reasonably be construed as aimed at physical seduction to sexual intercourse and the propositioning of sexual conduct. Consequently, we conclude that the trial court did not err by denying Grohs's motion for judgment of acquittal and allowing the jury to exercise its fact-finding role to "fairly and reasonably infer" conclusions from sufficient evidence regarding conduct that presented "room for a difference of opinion between reasonable men."

United States v. Gladish, 536 F.3d 646, 649 (7th Cir.2008)
Because Goetzke and his intended victim had a prior relationship, his effort to lure the victim back to Montana for sex could not be thought idle chatter. But the fact that the defendant in the present case said to a stranger whom he thought a young girl things like "ill suck your titties" and "ill kiss your inner thighs" and "ill let ya suck me and learn about how to do that," while not "harmless banter," did not indicate that he would travel to northern Indiana to do these things to her in person; nor did he invite her to meet him in southern Indiana or elsewhere. His talk and his sending her a video of himself masturbating (the basis of his unchallenged conviction for violating 18 U.S.C. § 1470) are equally consistent with his having intended to obtain sexual satisfaction vicariously. There is no indication that he has ever had sex with an underage girl. Indeed, since she furnished no proof of her age, he could not have been sure and may indeed have doubted that she was a girl, or even a woman. He may have thought (this is common in Internet relationships) that they were both enacting a fantasy.

We are surprised that the government prosecuted him under section 2422(b). Treating speech (even obscene speech) as the "substantial step" would abolish any requirement of a substantial step. It would imply that if X says to Y, "I'm planning to rob a bank," X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows. So he is entitled to an acquittal on the section 2422(b) count, the effect of which will be to reduce his sentence from 13 years to 10 years.

We add, because it bears on our analysis of the attempt issue, that the district judge should not have prevented the psychologist whom the defendant had hired as an expert witness to testify with respect to the attempt. The expert's report states that the defendant seeks sexual gratification in Internet chat rooms and in watching pornographic films because he has a "character pathology" that has produced "a pervasive interpersonal apprehensiveness with the expectation that others will reject and disparage him." The defendant explained to the psychologist that he uses the Internet to gratify his sexual desires because "it's safer and less expensive—it's a cheap date and I don't have to worry about all the sexually transmitted diseases." The expert's report says that "such a response underscores the emotional and physical distance he prefers in his adult interpersonal relationships due to pronounced fear of ridicule and rejection." This was support for the "hot air" hypothesis of Gladish's conduct.

Ex Parte John Christopher Lo vs. Texas, NO. PD-1560-12, (Court of Appeals, October 30, 2013)

“The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.” This rule reflects the judgment that “[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted[.]”...

Free Speech Coalition tells us that a ban upon constitutionally protected speech may not be upheld on the theory that “law enforcement is hard,” and the State may not punish speech simply because that speech increases the chance that “a pervert” might commit an illegal act “at some indefinite future time.”...

On the other hand, in Reno v. ACLU, the Supreme Court struck down as overbroad a portion of the federal Communications Decency Act that prohibited the “knowing” dissemination of “indecent” communications as well as “obscene” communications to children over the internet. As the court explained, “In evaluating the free speech rights of adults, we have made it perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment.’” Therefore, the communication of descriptions or other depictions of non-obscene sexual conduct that do not involve live performances or visual reproductions of live performances by children retain First Amendment protections...

New Mexico and Virginia enacted statutes that criminalized the dissemination of non-obscene but sexually explicit material to minors over the internet, but federal courts held those statutes unconstitutionally overbroad under Reno because they unconstitutionally burdened otherwise protected speech...

As the Supreme Court warned,

The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

Gennette vs. State, 1D12-3407 (Sept. 13, 2013)
Because the preponderance of the evidence, as set out in the e-mail messages, showed the law enforcement officer’s methods of persuasion induced or encouraged, and as a direct result caused Appellant’s unlawful communications, the legal definition of entrapment set out in section 777.201, Florida Statues was met and the motion to dismiss should have been granted. The law does not tolerate government action to provoke a law-abiding citizen to commit a crime in order to prosecute him or her with that crime.

State v. Duke, 709 So.2d 580 (Fla. 5th DCA 1998)
In this case, we do not think the proven conduct undertaken by Duke reached the level of an overt act leading to the commission of sexual battery as required by section 777.04(1). He discussed sexual acts with "Niki," he intended to commit them with Niki, he planned an occasion where he could carry out those acts, and he arrived at a prearranged meeting point. But we conclude that is not enough to constitute an attempt to commit a sexual battery.
Pamblanco vs. State, 5D11-1820 (April 12, 2013)
More problematic for the State is that the age of the person solicited is an element of the offense of solicitation in violation of section 800.04(6). The statute provides "[a] person who . . . solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct." § 800.04(6)(a)(2), Fla. Stat. (emphasis added). That the child's age is an element of the offense makes perfect sense because soliciting an adult to commit a lewd or lascivious act is not a crime in Florida; it is a crime only if the person solicited is under sixteen years of age. Moreover, it is only a person who actually commits (versus attempts to commit) lewd or lascivious conduct who commits a felony. See, e.g., § 800.04(6)(b), Fla. Stat. ("An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree.").
United States vs. Poehlman, 217 F.3d 692 (9th Cir. 2000)
An `inducement' consists of an `opportunity' plus something else—typically, excessive pressure by the government upon the defendant or the government's taking advantage of an alternative, non-criminal type of motive." United States v. Gendron,18 F.3d 955, 961 (1st Cir.1994) (quoting Jacobson, 503 U.S. at 550, 112 S.Ct. 1535)… Cases like Jacobson, Sherman and Sorrells demonstrate that even very subtle governmental pressure, if skillfully applied, can amount to inducement… In Hollingsworth, the inducement was nothing more than giving the defendant the idea of committing the crime, coupled with the means to do it. See Hollingsworth, 27 F.3d at 1200-02.
United States v. Reese, 92 U.S. 214, 221 (1876)
It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
Moreover, the Government's claim that the work must be considered patently offensive "in context" was itself vague because the relevant context might refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings… The District Court specifically found that "[c]ommunications over the Internet do not ‘invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content ‘by accident.' " 929 F. Supp., at 844 (finding 88). It also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and cited testimony that " ‘odds are slim' that a user would come across a sexually explicit sight by accident." Ibid… The Government's assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the "specific person" requirement of § 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would be discoursers that his 17 year old child--a "specific person . . . under 18 years of age," 47 U. S. C. A. § 223(d)(1)(A) (Supp. 1997)--would be present… The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship… (internal quotations omitted)
United States v. Williams, 444 F.3d 1286 (11th Cir. 2006)(citing Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999))
That protected speech may be banned as a means to ban unprotected speech… turns the First Amendment upside down… The First Amendment plainly protects speech advocating or encouraging or approving of otherwise illegal activity, so long as it does not rise to fighting word status… Freedom of the mind occupies a highly-protected position in our constitutional heritage. Even when an individual's ideas concern immoral thoughts about images of children, the Supreme Court has steadfastly maintained the right to think freely. As the Court stated in Free Speech Coalition, First Amendment freedoms are most in danger when the government seeks to control thought or justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought… In the wake of Free Speech Coalition, sexually explicit speech regarding children that is neither obscene nor the product of sexual abuse of a real minor retains protection of the First Amendment. (internal quotations omitted)
United States v. Still, 850 F.2d 607 (9th Cir. 1988)
A conviction for an attempt requires proof of both culpable intent and conduct constituting a substantial step toward commission of the crime that is in pursuit of that intent. United States v. Buffington, 815 F.2d at 1301; United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980), cert. denied, 450 U.S. 957, 101 S.Ct. 1416, 67 L.Ed.2d 382 (1981). A substantial step is conduct strongly corroborative of the firmness of the defendant’s criminal intent. United States v. Buffington, supra; United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). Culpable intent can be inferred from a particular defendant’s conduct and from the surrounding circumstances. United States V. Buffington, 815 F.2d at 1302. (internal quotations omitted)
Travers v. State, 739 So.2d 1262 (Fla. 2nd DCA, 1999)
The situation here is best analogized to the anonymous tip cases. All the information on which the detective acted was from the chat room participant, but there is nothing in the record to indicate that the detective's chat room participant was a reliable source of information. "When police act on the information of an informant, the reliability of that information must be established before a citizen can be stopped and frisked." J.L. v. State,727 So.2d 204, 206 (Fla.1998).

Bist v. State, 35 So.3d 936 (Fla. 5th DCA, 2010)
The defense of outrageous government conduct or objective entrapment is evaluated under the due process provision of Article I, section 9, of the Florida Constitution. Munoz v. State,629 So.2d 90, 98 (Fla.1993). It requires reviewing the totality of the circumstances "`in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.'" Rochin v. California,342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (quoting Malinski v. New York,324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029 (U.S.1945)). Due process is violated when "`the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.'" Tercero v. State,963 So.2d 878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson,462 So.2d 1082, 1084 (Fla.1985)). It is a balancing test; the court must weigh the rights of the defendant against the government's need to combat crime. McDonald v. State,742 So.2d 830, 831 (Fla. 4th DCA 1999).
State v. Banks, 499 So.2d 894 (Fla. 5th DCA 1986)
When law enforcement agencies utilize confidential informants who use sex, or the express or implied promise thereof, to obtain contraband the defendant did not already possess, there is no way for the courts or anyone else to determine whether such inducement served only to uncover an existing propensity or created a new one. This violates the threshold objective test.
Madera v. State, 943 So.2d 960 (Fla. 4th DCA 2006)
Similarly, in this case, there would have been no crime without the CI's prodding and improper conduct. At the time, the Defendant was gainfully employed at a lawful occupation, had no prior criminal history, and was not even suspected of criminal activity. The CI was used here, not to detect crime, but to manufacture it. Thus, as in Curry, we find that the Defendant's due process rights were violated by this egregious conduct and that he was objectively entrapped as a matter of law.
Curry v. State, 876 So.2d 29 (Fla. 4th DCA 2004)
In the case at bar, the state argues that entrapment was not established because there was no evidence of inducement. The state further contends that the three step test utilized in a subjective entrapment analysis is applicable. However, as discussed above, the two theories of entrapment are distinct. The state's analysis is misguided and has no bearing on the issue of objective entrapment.
The facts of this case are akin to those in Farley and Finno in that there is no indication Curry was involved with any criminal undertaking prior to the involvement of law enforcement.
People v. Aguirre, No. G045009 (CA 4th DCA, April 5, 2012)
Our analysis suggests the government should not be in the business of testing the will of law-abiding citizens with elaborate (if improbable) fantasies of sensuous teenagers desperate to engage in sexual acts with random middle-aged men...
The pertinent question in this case is whether an individual seeking consensual casual sex on the Internet who would normally confine the search and pursuit to adults, would nonetheless be induced by the police conduct at issue in this case to pursue lewd conduct with a minor. (See Barraza, supra, 23 Cal.3d at p. 690 [police conduct cannot "be viewed in a vacuum" but instead "should . . . be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand"].)
Lusby v. State 507 So.2d 611 (1987)
We do not condone general forrays into the population at large by government agents to question at random the citizenry of this country to test their law abiding nature, i.e., virtue testing.
Jeffery L. Cashatt v. State of Florida, 873 So. 2d 430 (2004)
…sexually oriented communication on a computer on-line service which is viewed by a child is not a violation of the statute unless the sender of the communication “knowingly” attempts by the communication to seduce the child
Newman v. United States, 299 F. 128 - 1924
When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.
State v. Casper, 417 So.2d 263 (Fla. 1st DCA, 1982)
...entrapment has occurred where "the decoy simply provided the opportunity to commit a crime to anyone who succumbed to the lure of the bait."
Sherman v. United States, 356 U.S. 369 (1958)
Entrapment occurs only when the criminal conduct was "the product of the creative activity" of law enforcement officials.
Cruz v. State of Florida, 465 So. 2d 516 (1985)
To guide the trial courts, we propound the following thresh hold test of an entrapment defense: Entrapment has not occurred as a matter of law where police activity (1) has as its end the interruption of a specific ongoing criminal activity; and (2) utilizes means reasonably tailored to apprehend those involved in the ongoing criminal activity.
Sorrells v. United States, 287 U.S. 435 (1932)
Literal interpretation of statutes at the expense of the reason of the law and producing absurd consequences or flagrant injustice has frequently been condemned.
United States v. Palmer, 16 U.S. 610 (1818)
...general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them.
Kadis v. US, 373 F.2d 370, 374 (1st Cir. 1967)
Any evidence . . . that the government agents went beyond a simple request and pleaded or argued with the defendant, should be enough.
Farley v. State, 848 So.393 (Fla. 4th DCA, 2003)
LEACH (Broward County Sheriff's Office LEACH Taskforce) manufactured copies of videos featuring child pornography. Although child pornography may not be deadly like crack cocaine, child pornography may encourage and memorialize traumatic sex crimes. Additionally, Farley was not involved in an existing criminal undertaking in need of detection by law enforcement; rather, LEACH sought to manufacture crime based on a list of names and addresses of unknown origin.
Beattie v. State, 636 So.2d 744 (Fla. 2nd DCA, 1994)
It is undisputed that law enforcement did not know Beattie for any deviant activity or involvement with child pornography until he responded to the advertisement. Customs did not target individuals when it placed the advertisement in the publication.
Munoz v. State, 629 So.2d 90 (Fla. 1993)
To construe section 777.201 as mandating that the issue of entrapment is to be submitted to a jury for determination as a matter of law would result in an unconstitutional construction that would violate article I, section 9, of the Florida Constitution.