Sheriff, Washoe County v. Hawkins

OPINION

By the Court,

Gunderson, C. J.:

On May 27, 1986, a twenty-six-year-old black male, David Kenney Hawkins, had the night off from his job at a downtown casino in Reno. Hawkins, it appears, had been steadily and successfully employed at the casino for some time. On the evening in question, he went out to enjoy his leisure time with a white male friend and, as they walked by the corner of First and Center Streets, the two young men saw a well-dressed man lying in a doorway alcove, apparently intoxicated. Several bills protruded temptingly from a brown envelope that was dangling from the apparent drunk’s back pocket. However, Hawkins and his friend continued on their way to the Brass Moose Saloon, which was nearby.

About one-half hour later, they left the drinking establishment. As they re-traced their steps, the ostensible “drunk” still lay in the alcove, apparently unconscious. Upon approaching him, Hawkins’ friend jumped up and down, and made loud noises, apparently to see if the “drunk” was unconscious. Then, when the purported “drunk” remained unresponsive, Hawkins reached down and slipped the bills out of the prone man’s pocket. Six police officers thereupon immediately emerged from hiding and arrested Hawkins, but promptly released his white friend. The man in the alcove had been a police “decoy.” Hawkins had succumbed to “bait” planted as part of a “decoy” operation.¹

We are advised by the prosecutor that the Reno police department had contrived the “decoy” operation under the tutelage of a young deputy prosecutor, in order to “test” how they might avoid, limit, or minimize this court’s decisions in Oliver v. State, 101 Nev. 308, 703 P.2d 869 (1985), and in Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985). In the course of setting up this “test case,” other persons were arrested, but only Hawkins was prosecuted. In the ensuing judicial proceedings that form the basis for this appeal, the district court granted Hawkins’ petition for a writ of habeas corpus, concluding that this decoy operation could not be distinguished from the ones condemned in Oliver and Moreland and was therefore controlled by our decisions in those cases. We agree.

In our view, the decoy operation used to ensnare Hawkins is indistinguishable from those employed in Oliver and Moreland, supra — at least in any ways that justify any result more favorable to the prosecution. In each operation, a decoy officer posed as a “drunk” with money protruding from one of his pockets, appearing to be completely helpless, vulnerable and nonresponsive. In each case, it appeared from the duped defendant’s conduct that, at the time of the incident, he was not disposed to criminal activity. In each case, when the defendant ultimately succumbed to temptation, he did no more than slip the exposed money from the decoy’s pocket and walk away. As in Oliver and Moreland, Hawkins and his friend neither engaged in acts of violence, nor in attempts to find other valuables on the decoy’s person, when they finally succumbed to the artificially created temptation. As in Oliver and Moreland, it thus appears that the decoy operation planted the idea of crime in the minds of Hawkins and his friend. The police did not uncover crime; they created it.

A close reading of the grand jury transcript reveals why the money was exposed in this decoy operation. Members of the Grand Jury repeatedly asked the prosecutor why the money was made visible. In the words of one grand juror, “you can get almost anybody to pick a hundred dollar bill off of you if you are laying there passed out.” The prosecutor admitted to the grand jurors, “This is designed to get the hit.”² In other words, as in Oliver and Moreland, the money was exposed for the express purpose of entrapping someone who might not otherwise be disposed to commit crime. In fact, the “bait” had been increased from the meager $10.00 tendered to the “sucker” entrapped in Oliver, up to $126.00. This hardly is a factual distinction which favors the prosecution herein.

As the cases we relied on in Oliver and Moreland point out, the format of this particular kind of decoy operation is especially troubling because it does not address any actual crime problem. In fact, before formulating this decoy operation, the police department admittedly made a survey of crimes committed in the Reno area in April and May of 1986. They counted 54 grand larcenies, 30 robberies, and 9 larcenies from the person which did not amount to robbery. Not one of the olfenses thus reviewed involved an ostensibly helpless drunk with money hanging out of his pocket. Indeed, the prosecutor admitted to us during oral argument that he does not know of a single complaint ever made by a theft victim who was lying in the street with money bulging from his pockets.³

Unfortunately, even after taking their “survey” the police failed to focus their decoy operations in a way substantially more relevant to social realities than were the artificial temptations we condemned in Oliver and Moreland. Indeed, as noted earlier, the value of the bait was increased to $126.00, supposedly to make any theft a grand larceny, but with the result that the artificially created temptation was increased. It appears to us that this change enhanced and did not reduce the “extraordinary temptation” condemned in Oliver and Moreland.

Thus, in this case, we continue to agree with the decisions of the Florida courts to which we have previously referred with approval, and which conclude that such decoy operations constitute impermissible entrapments:

[T]he decoy did not detect or discover, nor could he reasonably be intended to discover, the type of crime the police were attempting to prevent by the use of the decoy, i.e., robberies and purse snatchings. Indeed, lifting some money protruding from the pocket of a seemingly unconscious, drunken bum is just not sufficiently similar to either robbery or purse snatch-ings. Upon these facts, the decoy simply provided the opportunity to commit a crime to anyone who succumbed to the lure of the bait.

State v. Holliday, 431 So.2d 309, 310-11 (Fla.App. 1983), citing State v. Casper, 417 So.2d 263, 265 (Fla.App. 1982); cited in Oliver, supra, 101 Nev. at 310, 703 P.2d at 870.

The prosecutor has also mentioned a difference between this case and Oliver which he evidently believes offers the possibility of a distinction favoring the prosecution, but which in our opinion does not. In this case, we are told, one officer watched over the decoy, and communicated with him by radio. This “back-up” officer decided to whom the decoy would expose the bait, and signaled the decoy to hide it from passersby whom the “backup” officer did not wish to tempt. In particular, the prosecutor admitted to us that the officers were seeking to ensnare persons who fit a “criminal profile” developed by the police — i.e., “males between 18 and 30, who are black, white, or hispanic”— and also any other persons who, for any other reason, impressed the “back-up” officer as being “criminal types.” According to the prosecutor, then, Hawkins was therefore exposed to the bait and thereafter arrested and prosecuted because he was encompassed by the “criminal profile” the police had formulated: he was black, male, and 26 years old. Interestingly, however, Hawkins’ friend, a young white male, was not arrested, although he could certainly have been held as an accomplice. In any case, we feel the efforts of the Reno police in the area of social science research hardly provide a valid basis for distinguishing Oliver and Moreland.⁴

By structuring their decoy operation in the way they did— contrary to our previous rulings, and the cases therein cited, see e.g., Cruz v. State, 465 So.2d 516, 522 (Fla. 1985) — the police again failed to “cast their nets in permissible waters.” The use of exposed money and a supposedly helpless, vulnerable decoy created an extraordinary temptation which resulted in the entrapment of young men who were not at the time discernibly bent on committing a crime. See Oliver, supra, 101 Nev. at 309; Froggatt v. State, 86 Nev. 267, 271, 467 P.2d 1011, 1013 (1970). As noted, Hawkins and his friend did not approach the decoy the first time they saw him. Nearly an hour later, when they saw the decoy again, they merely succumbed to the lure of the “bait.” Even then, these young men did not molest the decoy in any other way. Thus, there is nothing to suggest they would have stopped at all, if the money had not been openly exposed.

Finally, although we need not ground our opinion on the fact, we wish to note that while the police arrested a number of others, only Hawkins was prosecuted. The prosecutor indicated he thought Hawkins would make the best “test case” because Hawkins had a prior arrest record. Prior arrests, of course, cannot generally be used to prove bad character. NRS 48.045(2); Yates v. State, 95 Nev. 446, 596 P.2d 239 (1979). Nonetheless, with no citation to any contrary legal authority, the prosecutor has suggested vaguely that Oliver is distinguishable from this case because Hawkins had an arrest record. This being so, he seems to say, if we will allow him to proceed to trial — and if Hawkins thereafter tries to assert that he was not criminally disposed on the night in question, but simply succumbed to the extraordinary temptation presented by the police — then in this case the trial judge might allow him to impeach Hawkins through the introduction of Hawkins’ previous arrest record.

Now, of course, a purely technical refutation of the prosecutor’s legally unsupported notions is that, even for rebuttal at trial, evidence of character traits would not be admissible under the Evidence Code except in specifically defined circumstances. Neither the fact that a defendant has claimed innocence, nor the fact that in so doing he has asserted entrapment, appear among those enumerated exceptions. See NRS 48.045. Furthermore, we note that by specific provision of the Code, mere arrests and convictions for misdemeanors may not ordinarily be admitted even for the limited purpose of attacking a witness’s credibility. See NRS 50.095.⁵ Also, it should be mentioned in passing that this court refrained from structuring any judicially created exception to these provisions of the Evidence Code, when we decided the Oliver case — in which the defendant likewise had a record of prior arrests, as well as convictions.

Before leaving the subject of the Evidence Code, we note the prosecutor has omitted from the record on appeal Hawkins’ arrest record or “rap-sheet,” to which the prosecutor referred before the Grand Jury in apparent contravention of NRS 48.045(2) — for the explicitly stated purpose of proving to the jurors that Hawkins was “an ordinary crook.”⁶ However, the prosecutor’s vague references in the transcript to Hawkins’ prior brushes with the law indicate that six years ago, in 1981 — when Hawkins was 20 years old — he was arrested on an unspecified “felony” charge which the Reno police were later constrained to dismiss. Reno police had also arrested Hawkins in 1980, and Sparks police arrested him in 1979, but these unspecified charges likewise were dismissed. The prosecutor also told the Grand Jury that Hawkins had several previous brushes with the law in California, none of which are identified as having resulted in convictions. Now, on appeal, the prosecutor has not contended that the circumstances of any of the arrests bear such similarity to the facts of this case as would justify or compel their admission at trial, to evidence either motive or common plan. See, e.g., Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979), and cases cited therein. Thus, tested by the foregoing principles articulated in the Evidence Code, the prosecutor’s references to Hawkins’ arrests can hardly be deemed such evidence as would establish that the district court erred by applying Oliver and Moreland. In any event, the prosecutor has not tendered any principled distinction in this regard.

Finally, placing aside considerations based on the Evidence Code, we think it would be highly questionable policy to single out for prosecution young people who, like Hawkins, succumb to extraordinary temptation — solely because they previously have been arrested. As Justice Felix Frankfurter once noted:

Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition. ... A contrary view runs afoul of fundamental principles of equality under law, and would espouse the notion that when dealing with the criminal classes anything goes.' The possibility that no matter what his past crimes and general disposition the defendant might not have committed the particular crime unless confronted with inordinate inducements, must not be ignored. Past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing his repeated conviction, from which the ordinary citizen is protected. The whole ameliorative hopes of modern penology and prison administration strongly counsel against such a view.

Sherman v. United States, 356 U.S. 369, 383 (1958) (Frankfurter, J., concurring in result). Of course, if Justice Frankfurter was correct as to persons who previously have been convicted of crime, we think that, a fortiori, he was correct as to persons who merely have previously been arrested.

Thus, so far as we can perceive, the prosecutor in this case has tendered no basis for a principled distinction between the facts of this case and the facts involved in our previous holdings, Oliver and Moreland. So far as we can see, there was neither social utility,⁷ nor legal legitimacy, in tempting Hawkins into crime, and in returning him to the criminal justice system on the basis of purely creative police activity. Sorrells v. United States, 287 U.S. 435, 451 (1932).

In conclusion, we wish to make it clear that we do not deem all decoy operations to be unlawful per se. If it is not to be illegitimate, however, we believe that a decoy operation must focus upon some real, substantial, and subsisting problem of antisocial behavior, and that it must be structured so as to identify actual social predators who are engaging in such behavior, rather than merely being structured to. ensnare weak and gullible persons in the hope of frightening the predators. If a decoy operation is not so structured, we will not deem it to be justified by a contention that the operation may have successfully lured young potential criminals of tomorrow into actual criminal conduct today. Even in dealing with the young, the police must detect crime; they may not manufacture it.

In light of the foregoing, we have determined that the district court correctly concluded that our prior decisions in Oliver and Moreland were controlling in the circumstances of this case. We therefore affirm the district court.

Addendum Re Dissent

We certainly agree with our respected brother Steffen’s admission that he threads a very fine needle in contrasting his dissent today with his concurring vote in Oliver and Moreland. We also agree with our brother’s candid acknowledgment that it is fair to say the essential differences between Oliver and Moreland and the instant case relate only to Hawkins’ attire and the placement of the currency openly tendered as bait. We further agree that, in a judicial system committed to the principle of stare decisis, “[i]t is admittedly troubling to attempt to distinguish the instant case from the other two on such gossamer grounds.”

We disagree, however, with our brother Steffen’s newly adopted perception that this Court “should not substitute its wisdom” for the policy choices of a young prosecutor and a few youthful officers, who have tried to formulate and justify an attempt to evade our prior rulings. The policy choice of whether the resources of the Nevada courts and related services should be expended on manufactured crime — to punish vulnerable persons who have been duped, in the hope of frightening others who truly are social predators — does not in our opinion become vested in an attorney simply because he has landed a job as a district attorney’s deputy. Nor does it become vested in police officers merely because they have survived the rigors of the local police academy. In our view, as laudable as they may be, such accomplishments do not establish prosecutors and police as the living embodiment of a “separate, coordinate branch of government” which possesses a vested power to define “acceptable methodology for dealing with crime” that is superior to this Court’s authority to decide whether the already overtaxed resources of the Nevada court system should be expended to fight manufactured crime. In disputed cases, the executive branch does not define what constitutes real crime; the judiciary performs this function.

We level no personal condemnation at the fine young people who conducted the decoy program now under examination. For healthy, energetic people in the prime of life — during balmy summer months when the sidewalks are warm — perhaps few pastimes could seem more enticing than to go fishing for “suckers,” like Hawkins, as decoy officers commonly speak of the dupes who succumb to their artificial bait. And, we fully understand that few such tyros will pause to weigh the social costs of entrapping young underclass males into manufactured crime, to-wit:

(1) the loss to the entrapped person’s employer of a trained, apparently acceptable employee, as was the case here;

(2) the loss to society in general of the entrapped person’s productivity;

(3) the cost to society for the services of publicly paid prosecution and defense counsel, and support personnel;

(4) the expenditure of the court system’s time, in the justice’s court, the district court, the supreme court, and in several stages of post-conviction proceedings in the state and federal courts;

(5) the overhead cost of imprisoning a person who previously was self-supporting, at an annual expenditure in the neighborhood of $14,000 per year;

(6) the lost use of a prison cell with a replacement value of perhaps $60,000 (generating what economists call an “opportunity cost” of an additional number of thousands of dollars per year), which might otherwise be used to incarcerate a real criminal;

(7) the cost to any family and dependents of the entrapped person, who lose their breadwinner because of a vagrant fortune that he was abroad on a warm night when young officers were out “fishing” for young blacks and other “criminal types”; and

(8) finally, the cost to society of maintaining a larger-than-necessary parole and probation system in order to supervise entrapped persons after their release, even though no supervision would foreseeably have been necessary if the entrapped persons had been left in peace to begin with.

We venture to say nothing about the prospect that, if such officers were not out “fishing” for “crime-prone” young blacks and other underclass males, they could utilize their energies discerning real crime elsewhere — surely with less certitude of success, but with much greater social utility. Nor will we attempt to quantify the probable social cost of making criminals and convicts out of productive persons, who may upon release never return to the ranks of the gainfully employed.

In short, then, we do not agree with our respected brother Steffen that this Court should leave the above-mentioned concerns to be assessed solely by the “executive branch” — as represented by the youthful prosecutor and officers who shaped the “decoy” operation with which we are concerned in the instant case.

At least three more observations concerning other aspects of our brother’s dissent should be made, to-wit:

(1) Our brother Steffen suggests that, commonly, entrapment is determined as a matter of law only where there has been an “active” as opposed to “passive” tender of a criminal opportunity. As we see it, the doctrine of decisions in decoy cases from Florida and other jurisdictions, which we adopted in Oliver and Moreland, are not at odds with this view. Rather, they simply recognize that in situations like the instant one, in which police officers set out to tempt vulnerable people by blandishing valuables in circumstances communicating a message that the property may be taken without risk, there is indeed an active and unacceptable solicitation on the part of the police.

(2) Our brother Steffen also says that he “simply is unwilling to assume, on the basis of the record, that the officers were pursuing Hawkins because of his color.” Of course, this majority opinion is not premised upon any finding of racial bias. Still, as we recall, in previous Nevada cases involving similar entrapment through decoys, the ensnared persons were black. Indeed, in the instant case, Hawkins, a black man, was arrested and prosecuted although the police immediately released his white companion— who arguably was equally implicated.

Although our brother indicates he does not subscribe to what he calls “racial overtones” of our mentioning such phenomena, we continue to think that minority members of society may find several aspects of the record before us to be quite disconcerting. For example, minorities may strongly suspect, and quite possibly resent, that this kind of decoy operation proceeds according to a self-fulfilling prophecy that young blacks and other underclass males in the police “profile,” such as hispanics, are “criminal types.” As one of the police officers told the Grand Jury when explaining why the decoy team exposed the bait to Hawkins, while hiding it from three other persons they feared might take it: “He fits the age, sex and race.”⁸

Thus, here, still another serious societal cost could result from sanctioning manufactured criminal prosecutions against blacks and any others whom young police officers viscerally sense to be within the “profile” of “criminal types” that they have targeted to be purged from free society.

(3) Finally, our brother has attempted to distinguish this Court’s decisions in Oliver and Moreland in ways which, we respectfully believe, cannot legitimately be recognized in a jurisprudential system contemplating only distinctions that are meaningful and comprehensible. In setting precedents to be applied by the trial courts, we believe the law must be kept stable and intelligible. We are unwilling, therefore, to join our brother in propounding a distinction declaring that — while the entrapment defense protected Oliver, a black who took ten dollars from an apparently impoverished black decoy in Las Vegas — the defense is now unavailable to Hawkins, a black who took $126.00 from a well-dressed, apparently affluent white decoy in Reno. Nor can we perceive any possibility of saying (as our brother Steffen also suggests) that the instant case is distinguishable from Oliver because the black entrapped in Oliver had perhaps rationalized his act by thinking he was protecting the decoy against further harm from liquor. Neither our decision, nor the record in Oliver, provides any basis whatever for making such a statement. Finally, we can see no basis for suggesting, as does our brother, that the prosecutor’s claims about the supposed fears of Reno citizens, totally dehors the record, provide any basis for a meaningful distinction.⁹

Young and Springer, JJ., concur.

1 In this opinion we shall from time to time refer to the brandished money as “bait,” just as the record reveals the police and district attorney’s office consistently alluded to it.

2 Another grand juror stated to the prosecutor that he could not understand, in light of our Oliver decision, which the prosecutor had mentioned, why the decoy team had been counseled to leave the “bait” money exposed. Instead of answering the salient question with any coherent explanation, the prosecutor offered to give the grand juror a copy of Oliver to read.

3 Interestingly, too, the public defender representing Hawkins asserted during oral argument, and the prosecutor did not attempt to deny, that the police have only conducted this type of operation in the summer months, while the sidewalks are warm.

4 There is nothing new, of course, about the discovery of the Reno police that young adults constitute the age-group most prone to the commission of street crime. Data compiled and analyzed long ago by academically credible social scientists establish that this nation’s young adults are more prone to engage in street crime than are the middle aged and senior citizens. Nonetheless, we do not believe a legitimate inference follows that young adults should therefore be subjected to artificial temptations, in order to arrest them and, perhaps, incarcerate them until they are older.

5 Conviction of a. felony may be admitted to attack credibility, id., but even as to felony convictions, a trial court may properly exercise discretion to exclude such evidence. See NRS 48.035(1),(2); emphasis added.

6 Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.; emphasis added.

7 In regard to the matter of social utility, it perhaps may be well to recall again that, at the time of the arrest in question here, Hawkins was a working, contributing member of society. If the judicial system were to countenance such entrapments, working young people “baited” into crime in the manner of Hawkins could thus be transformed into prison inmates, each costing the State of Nevada many thousands of dollars yearly. Moreover, other incalculable social damage could be done by subjecting underclass young men such as Hawkins — who like Hawkins may be making at least some effort to work and lead productive lives — to unfair temptations, gamesmanship, and arbitrary choices made in decoy operations of the kind concerned in the instant case. Query: Can prosecutions initiated in the manner of the instant one really be expected to enhance their victim’s respect for the law, and to inculcate better social values? Or is the converse true?

8 It explicitly appears in the Grand Jury Transcript that, before exposing the bait to Hawkins, the officers withheld it from the view of at least three persons whom they did not wish to entrap, because they were waiting for someone they felt was a “criminal type.” As one officer explicitly told the Grand Jury: “[TJhere were probably three people that we didn’t want to take the money that didn’t look like they were criminal types or the type that would ordinarily get into something like that without some obvious temptation.” In other words, with calculation, the police waited and then presented the obvious temptation to Hawkins.

9 As one justification for concluding that this Court should permit police officers, if it pleases them, to entrap young citizens in the manner now being considered, our brother has mentioned that “we were informed by the state during oral argument that criminal activity in downtown Reno has reached such a high level that many local citizens avoid the area.” The young prosecutor did indeed make such a statement, for which we have discerned no support at all in the record. We can locate no data showing that Reno citizens avoid the vicinity of First and Center Streets because they fear crime of any kind — and certainly no support for any suggestion that citizens fear their pockets will be raided if they lie down in a doorway alcove to sleep off a hang-over. In the past, members of this Court ordinarily have not accepted as evidence assertions made by counsel about matters outside the record, and it seems particularly inappropriate to do so about matters which could only be resolved by survey research that has not been performed, so far as anyone can tell from the record. Generally, it has been the practice, rather, to chastise counsel who seek to bias proceedings before us through justification which the record does not support.