Outrageous Police Misconduct Factors
The extent of police conduct which constitutes "outrageous" involvement is a question of degree.
In United States v. West (3d Cir. 1975) 511 F.2d 1083, 1085, the court discussed some of these factors: "But when the government's own agent has set the accused up in illicit activity by supplying him with narcotics and then introducing him to another government agent as a prospective buyer, the role of government has passed the point of toleration. Moreover, such conduct does not facilitate discovery or suppression of ongoing illicit traffic in drugs. It serves no justifying social objective. Rather, it puts the law enforcement authorities in the position of creating new crime for the sake of bringing charges against a person they had persuaded to participate in wrongdoing." (See also Greene v. United States (9th Cir. 1971) 454 F.2d 783, 787:
"When the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, supplying materials, location and operator of a still the same underlying objections which render entrapment repugnant to American criminal justice are operative.") An important factor is whether the criminal plan originates with the defendant. ( Twigg, supra , 588 F.2d at p. 380.)
The three Hampton court dissenters and Justices Powell and Blackmun cite United States v. Archer (2d Cir. 1973) 486 F.2d 670, 676-677, where Judge Friendly said:
"There is certainly a limit to allowing governmental involvement in crime. It would be unthinkable, for example, to permit government agents to instigate robberies and beatings merely to gather evidence to convict other members of a gang of hoodlums."
The Hampton minority also cite United States v. Bueno (5th Cir. 1971) 447 F.2d 903, 905 and United States v. West (3d Cir. 1975) 511 F.2d 1083, where "the Government is doing nothing less than buying contraband from itself through an intermediary and jailing the intermediary." ( Hampton v. United States, supra , 425 U.S. at p. 498 48 L.Ed.2d at p. 124.)