Claim of entrapment for crime for which arrest warrant issued did not void search incident to arrest on the warrant

Claim of entrapment to commit crime did not nullify the arrest warrant for his arrest, so the search incident to defendant’s arrest was valid. The fruit of the poisonous tree does not apply to such situations. Tercero v. State, 963 So. 2d 878 (Fla. App. 4th DCA 2007), released for publication September 7, 2007:

The District Court for the Eastern District of New York made a similar finding in Torres v. Marquardt, No. 93-CV-2993 JG, 1997 WL 1068680 (E.D.N.Y. Apr. 3, 1997). There, in addressing the same argument, the court held that the defense of entrapment “does not ‘negate the commission of the crime'” or any of its elements. Id. at *4 (quoting People v. Millard, 90 A.D.2d 590, 456 N.Y.S.2d 201, 203 (N.Y. App. Div. 1982)). Rather, the defense is a “‘confession and avoidance.'” Id. (quoting People v. Morris, 68 A.D.2d 893, 413 N.Y.S.2d 757, 758 (N.Y. App. Div. 1979)). The court concluded, “[i]ndeed, the validity of an arrest does not turn upon the ultimate finding of guilt or innocence, but whether probable cause existed at the time of arrest. Thus, the probable cause arising from Torres’ actions remains unaffected by the subsequent finding of entrapment.” Id. (citation omitted).

Other federal courts have held that “[e]ntrapment is not part of our Fourth Amendment probable-cause-to-arrest analysis.” Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998). Whereas a probable cause analysis “requires one to examine the circumstances from the view of an objectively reasonable police officer[,] [e]ntrapment … is an affirmative defense of a criminal defendant to otherwise culpable conduct.” Id. To negate probable cause, “the plaintiff must provide evidence that the officer ‘knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and that the false statements were necessary to the judicial officers’ determinations that probable cause existed for the arrests.'” Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 866 (7th Cir. 2004) (quoting Molina ex rel. Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003)).

Defendant failed in a Franks challenge where the omitted information did not detract from the probable cause showing. United States v. Willis, 2007 U.S. Dist. LEXIS 61258 (S.D. Ga. August 20, 2007).*

The affidavit for child porn on defendant’s computer showed probable cause because of the detail shown in the FBI investigation into a Yahoo! posting and tracing back to defendant’s computer and subscriber information from internet service providers. United States v. Huitt, 2007 U.S. Dist. LEXIS 60980 (D. Idaho August 17, 2007).*