Entrapment v. Instigation

What is the difference between entrapment and instigation? In entrapment, ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation on the other hand, instigators practically induce the would-be defendant into the commission of the offense and become co-principals themselves. (Ty vs. People, G.R. No. 149275, 27 September 2004, 439 SCRA 220)People v. Aplat (G.R. No. 191727; March 31, 2014): In this case, the prosecution was able to establish that a sale of one brick of marijuana for P1,500.00 took place between PO3 Fines, as buyer, and appellant as seller.1âwphi1 The brick of marijuana was presented before the trial court as Exhibit "O." PO3 Fines positively identified appellant as the seller. It is, therefore, beyond doubt that a buy-bust operation involving the illegal sale of marijuana, a dangerous drug, actually took place. Moreover, such buy-bust operation, in the absence of any evidence to the contrary and based on the facts obtaining in this case, was regularly carried out by the police operatives.

"A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan." In this regard, police authorities are given a wide discretion in the selection of effective means to apprehend drug dealers and the Court is hesitant to establish on a priori basis what detailed acts they might credibly undertake in their entrapment operations for there is no prescribed method on how the operation is to be conducted. As ruled in People v. Salazar, a buy-bust operation deserves judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards, such as in this case.

The police officers’ alleged non- compliance with the requirements under Section 21, Article II of RA 9165 was raised by appellant for the first time on appeal; Chain of Custody properly observed in this case.

Appellant harps on the buy-bust team’s alleged deviation from the mandated procedure in taking post-seizure custody of the dangerous drug as provided under Section 21, Article II of RA 9165. In his Brief, appellant contends that the physical inventory and marking of the subject illegal drug were not made in his presence and at the place of seizure. Such omission, he asserts, cast grave doubt on whether the drug submitted for laboratory examination, and subsequently presented as evidence in court, was the very same drug allegedly sold by him.

Appellant’s insinuation hardly lends credence.

Before anything else, it must be stressed that appellant raised the police operatives’ alleged non-compliance with Section 21 of RA 9165 for the first time on appeal. We have painstakingly scrutinized the transcripts of stenographic notes in this case and found no instance wherein appellant at the very least intimated during trial that there were lapses in the safekeeping of the seized item which affected its integrity and evidentiary value. Neither did he try to show that doubts were cast thereon. Such belated attempt on the part of appellant to raise this issue at this point in time can no longer be entertained. Following our ruling in People v. Sta. Maria, several subsequent cases teem with pronouncement that objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal. The above ruling finds proper application in the present case.

People v. Bartolome (G.R. No 191726; February 6, 2013): A buy-bust operation has been recognized in this jurisdiction as a legitimate form of entrapment of the culprit. It is distinct from instigation, in that the accused who is otherwise not predisposed to commit the crime is enticed or lured or talked into committing the crime. While entrapment is legal, instigation is not.

Instigation is the means by which the accused is lured into the commission of the offense charged in order to prosecute him. On the other hand, entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker. Thus, in instigation, officers of the law or their agents incite, induce, instigate or lure an accused into committing an offense which he or she would otherwise not commit and has no intention of committing. But in entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused, and law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes; thus, the accused cannot justify his or her conduct. In instigation, where law enforcers act as co-principals, the accused will have to be acquitted. But entrapment cannot bar prosecution and conviction. As has been said, instigation is a "trap for the unwary innocent," while entrapment is a "trap for the unwary criminal."

As a general rule, a buy-bust operation, considered as a form of entrapment, is a valid means of arresting violators of Republic Act No. 9165. It is an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.

A police officer’s act of soliciting drugs from the accused during a buy-bust operation, or what is known as a "decoy solicitation," is not prohibited by law and does not render invalid the buy-bust operations. The sale of contraband is a kind of offense habitually committed, and the solicitation simply furnishes evidence of the criminal’s course of conduct. In People v. Sta. Maria, the Court clarified that a "decoy solicitation" is not tantamount to inducement or instigation:

It is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting its commission. Especially is this true in that class of cases where the office is one habitually committed, and the solicitation merely furnishes evidence of a course of conduct.

As here, the solicitation of drugs from appellant by the informant utilized by the police merely furnishes evidence of a course of conduct. The police received an intelligence report that appellant has been habitually dealing in illegal drugs. They duly acted on it by utilizing an informant to effect a drug transaction with appellant. There was no showing that the informant induced the appellant to sell illegal drugs to him.

Conversely, the law deplores instigation or inducement, which occurs when the police or its agent devises the idea of committing the crime and lures the accused into executing the offense. Instigation absolves the accused of any guilt, given the spontaneous moral revulsion from using the powers of government to beguile innocent but ductile persons into lapses that they might otherwise resist.

People v. Doria enumerated the instances when this Court recognized instigation as a valid defense, and an instance when it was not applicable:

In United States v. Phelps, we acquitted the accused from the offense of smoking opium after finding that the government employee, a BIR personnel, actually induced him to commit the crime in order to persecute him. Smith, the BIR agent, testified that Phelps’ apprehension came after he overheard Phelps in a saloon say that he like smoking opium on some occasions. Smith’s testimony was disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an opium den where both of them could smoke this drug. The conduct of the BIR agent was condemned as "most reprehensible." In People v. Abella, we acquitted the accused of the crime of selling explosives after examining the testimony of the apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, xxx a very high one" causing the accused to sell the explosives. We found there was inducement, "direct, persistent and effective" by the police officer and that outside of his testimony, there was no evidence sufficient to convict the accused. In People v. Lua Chu and Uy Se Tieng, [W]e convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the Customs secret serviceman smoothed the way for the introduction of opium from Hong Kong to Cebu after the accused had already planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the prohibited drug and the arrest of the surreptitious importers.

In recent years, it has become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders, which is made difficult by the secrecy with which drug-related offenses are conducted and the many devices and subterfuges employed by offenders to avoid detection. On the other hand, the Court has taken judicial notice of the ugly reality that in cases involving illegal drugs, corrupt law enforcers have been known to prey upon weak, hapless and innocent persons. The distinction between entrapment and instigation has proven to be crucial. The balance needs to be struck between the individual rights and the presumption of innocence on one hand, and ensuring the arrest of those engaged in the illegal traffic of narcotics on the other.

Applying the foregoing, we declare that the accused was not arrested following an instigation for him to commit the crime. Instead, he was caught in flagrante delicto during an entrapment through buy-bust. In a buy-bust operation, the pusher sells the contraband to another posing as a buyer; once the transaction is consummated, the pusher is validly arrested because he is committing or has just committed a crime in the presence of the buyer. Here, Paras asked the accused if he could buy shabu, and the latter, in turn, quickly transacted with the former, receiving the marked bill from Paras and turning over the sachet of shabu he took from his pocket. The accused was shown to have been ready to sell the shabu without much prodding from Paras. There is no question that the idea to commit the crime originated from the mind of the accused.