Major FL Court Finds Entrapment In Marijuana Sting – Legal Impact in Solicitation and Traveling to Meet a Minor Cases?

September 11, 2026 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

Florida’s 3rd District Court of Appeal ruled that a defendant was impermissibly entrapped when he was repeatedly contacted by police informants in an effort to get him to sell marijuana – even after he repeatedly told them “no.” How does this apply to entrapment arguments in 2026?

CASE: Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1983)

Charge(s): Marijuana Trafficking

Outcome: Conviction REVERSED, as law enforcement impermissibly entrapped the defendant – making his conviction unlawful.

Entrapment in Florida

In Florida, entrapment is a TOTAL DEFENSE to criminal charges. Entrapment occurs when law enforcement uses impermissible tactics to get a person to commit a crime that would NOT have otherwise occurred but for their intervention. 

Two forms of entrapment are recognized under Florida law. The first is OBJECTIVE entrapment, and the second is SUBJECTIVE entrapment. The difference between them is vital to understand if someone wishes to maximize their chances of successfully relying upon an entrapment defense in a Florida criminal case.

Objective entrapment occurs when law enforcement acts SO EGREGIOUSLY in manufacturing (bringing about) a crime, that prosecuting the defendant for it would violate their constitutional due process rights – even if they are guilty. This is the case even if a defendant was predisposed to commit the offense. For more, click here.

Florida courts are usually very reluctant to rule that a defendant was objectively entrapped – so it is less commonly argued than subjective entrapment. However, some examples of cases in which objective entrapment has been found include:

• A police task force sends child pornography through the mail to arrest someone for possessing it (Farley v. State, 848 So.2d 393, 397-98 (Fla. 4th DCA 2003))
• A law enforcement officer or informant enters a sexual relationship with the defendant to get them to act criminally (Madera v. State, 943 So.2d 960 (Fla. 4th DCA 2006))
• Law enforcement manufactures drugs at the police station to sell to people on the street while undercover, only to arrest people when they try to buy them (State v. Williams, 623 So.2d 462, 466 (Fla. 1993))

It is important to note that objective entrapment is only argued as a matter of law (to the judge – not the jury). Since this is not a question for the jury, dismissal for objective entrapment can only be moved for in a pretrial motion to dismiss OR a motion for judgment of acquittal during trial. Dippolito v. State, 275 So.3d 653 (Fla 4th DCA 2019)

The second form of entrapment is subjective entrapment. Subjective entrapment, also known as statutory entrapment, occurs when law enforcement uses impermissible methods of inducement to get someone to commit a crime who was not predisposed to act unlawfully. 

Florida’s subjective entrapment test is codified by Fla. Statutes 777.201 and Munoz v. State, 629 So. 2d 90 (Fla. 1993), a Florida Supreme Court decision. Unlike objective entrapment, subjective entrapment can be argued BOTH as a matter of law (e.g. in a pretrial motion to dismiss) AND at trial itself (e.g. to the jury).

The first prong of a subjective entrapment determination is inducement. Many believe that if law enforcement urged the defendant to commit the charged offense, inducement can be said to have occurred. 

However, this is not the case. For inducement to be proven, it must be shown by a preponderance of the evidence that the police relied upon impermissible tactics to bring about the criminality, such as:

• Persuasion, fraudulent representations, threats, and coercive tactics
• Harassment, promises of reward, or pleas based on need, sympathy or friendship” (State v. Henderson, 955 So.2d 1193, 1195 (Fla. 4th DCA 2007))

Notably, the defendant is NOT required for someone to prove that law enforcement did ALL of this. Even if one inducement tactic has a causal nexus to a defendant’s behavior, the inducement prong of the subjective entrapment test has been satisfied.

Once the defense establishes inducement by a preponderance of the evidence, the burden shifts to the State to establish that the defendant was PREDISPOSED to commit the charged crime(s) beyond a reasonable doubt.

For someone to be predisposed under Florida’s subjective entrapment law, it must be shown that they were “ready and willing, without persuasion” to complete the charged offense(s) BEFORE law enforcement ever gave them a chance to do so. 

When evaluating whether a defendant was predisposed to commit the alleged offense(s), courts are likely to consider a variety of factors. These may include the defendant’s criminal history, as well as their “ready acquiescence” (or lack thereof) once law enforcement officers introduce the idea of engaging in unlawful activity. State v. Lopez-Garcia, 356 So. 3d 857 (Fla. 2d. DCA 2022)

Note: To learn more about inducement for entrapment purposes, click here. To learn more about predisposition, click here.

The subjective entrapment defense is frequently used in Florida when someone faces traveling to meet a minor and/or solicitation of a minor charges. For someone to be guilty of solicitation of a minor (Fla. Stat. 847.0135(3)), the State must prove the following beyond a reasonable doubt:

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor (e.g. undercover law enforcement) to engage in sexual activity (or attempted to do so)

For someone to be guilty of traveling to meet a minor for unlawful sexual activity, the State must prove the following beyond a reasonable doubt (Fla. Stat. 847.0135(4)):

• The defendant knowingly used a computer, online service, internet service, local bulletin board service or any device capable of electronic data transmission
• The defendant used the device to seduce, solicit, lure or entice a minor (under 18) or person believed to be a minor to engage in sexual activity (or attempted to do so)
• After that solicitation, the defendant then traveled or attempted to travel within Florida to meet the minor (or person believed to be a minor) to engage in unlawful sexual activity

You may notice the elements of solicitation of a minor are entirely contained within the crime of traveling to meet a minor. Thus, if the State charges a defendant with BOTH crimes, they likely have a motion to dismiss the solicitation count due to a violation of double jeopardy. For more on this, click here.

Since traveling and solicitation charges so frequently result from law enforcement activity (sting operations), an entrapment defense may be viable – though this is largely dependent on the facts of the case. 

Decades ago, however, the most common police stings did NOT involve online solicitation of a minor. Instead, stings were commonly used to thwart drug sales and trafficking operations. This led various Florida defendants to challenge the charges against them (and/or the legal validity of their convictions on appeal) on the basis that they were ENTRAPPED.

As you can imagine, some cases involved clear wrongdoing by the defendant that did NOT stem from police entrapment. Sometimes, however, law enforcement led a defendant into misbehavior that otherwise would not have occurred – and used impermissible methods to do so.

This occurred in a foundational entrapment case heard by Florida’s 3rd District Court of Appeal (Miami FL’s highest court). There, a defendant was accused of attempted trafficking in cannabis. He claimed he was entrapped as a matter of law. The trial judge DENIED both a pretrial motion to dismiss and a motion for judgment of acquittal (JOA), leading to his eventual conviction.

On appeal to the 3rd DCA, the defendant claimed his conviction required REVERSAL due to the law enforcement misconduct that produced it. The 3rd DCA AGREED, concluding the defendant was objectively entrapped – and thus, the charge(s) should’ve been dismissed by the trial judge.

Let’s take a look at the case – Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1983) – and discuss what it means for those seeking to argue entrapment in Florida drug cases, as well as solicitation and traveling to meet a minor cases.

KEY CASE: Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1983)

In Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1983), the defendant (Marrero) was accused of attempted trafficking in cannabis. At trial, the following was revealed:

• The defendant testified that he had been contacted 20 to 30 times by an informant over a six-month period who urged him to sell marijuana
• The informant contacted him at various locations – including by telephone, at his home, and at his work site
• The defendant refused all of the offers – but eventually, he was fired and fell behind on his mortgage payments
• The final time he was approached by the informant was during a period of significant financial distress
• He agreed to sell the marijuana after the informant told him it was an “easy way to make money”
• When the defendant arrived to hand over the marijuana to a buyer, he was arrested by law enforcement
• Marrero made a motion for a judgment of acquittal (JOA), arguing he’d been entrapped – but the motion was DENIED
• Marrero then urged the trial judge to give the jury an instruction on subjective entrapment – and this request was similarly denied
• Marrero was ultimately convicted

On appeal, Marrero argued the following two points to the 3rd DCA:

• The failure to dismiss the charge as a matter of law was error, and;
• Alternatively, the failure to give the entrapment instruction was reversible error, as there was sufficient evidence of subjective entrapment for the jury to consider the defense

The 3rd DCA AGREED with Marrero and REVERSED his conviction, ordering his immediate release from custody. On the entrapment issue, the majority wrote:

“Applying the relevant threshold test of entrapment to the facts developed in the record before us, we conclude that the police activity leading to Marrero’s arrest “has overstepped the bounds of permissible conduct,” Cruz v. State, 415 So.2d at 521, and thus constitutes entrapment as a matter of law. The police activity involved here consisted of the police informant’s repeated inquiries of Marrero, over a six month period, whether he would sell marijuana, despite Marrero’s continued refusals. The detectives had no information about any prior involvement of Marrero in such criminal activity. Upon being made aware of his name, they immediately contacted Marrero to set up the drug sale. However, because they had made no inquiry, the police were not aware of how the informant came to know Marrero wanted to participate in the drug sale, or that the informant had persisted in requesting Marrero’s participation for six months. Therefore, as a matter of law, the police activity fails to meet either of the two parts of the threshold test for entrapment: it did not “have as its end the interruption of a specific ongoing criminal activity; ” nor did it “utilize means reasonably tailored to apprehend those involved in the ongoing criminal activity.”

Put simply, the 3rd DCA found that law enforcement had dragged Marrero into a drug trafficking scheme that otherwise would have never existed, and overstepped its bounds by using informants to continuously contact Marrero until he agreed (when he was in dire financial straits) to sell the cannabis.

One 3rd DCA judge dissented. Judge Ferguson of the 3rd DCA believed Marrero was entitled to a new trial due to the failure to give an entrapment instruction – but he believed the majority was INCORRECT in dismissing the case in its entirety:

“I still concur in the reversal of the conviction for failure to give a requested instruction on entrapment. My view is that appellant is entitled to only a new trial where the trial judge may objectively test whether the conduct of the police fell below standards for proper use of governmental power, and to have the jury instructed on entrapment if a trial is required. The majority has gone beyond Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985), on which it purports to rely. In Cruz the supreme court approved a threshold objective entrapment test to be applied by the trial judge on defendant’s pretrial sworn motion to dismiss. Here there was no pretrial motion. For purposes of applying an objective entrapment test, a motion for judgment of acquittal cannot substitute for a sworn motion to dismiss. A sworn motion to dismiss assumes the truth of all the facts which are not traversed by the state, State v. Georgalis, 421 So.2d 676 (Fla. 4th DCA 1982), and does not require the court to invade the fact-finder’s province. Where material facts are controverted the motion must be denied.”

In essence, Judge Ferguson claimed that Marrero’s failure to file a pretrial motion claiming that he was OBJECTIVELY entrapped meant that it could not serve as the basis for a reversal of his conviction (or a motion for judgment of acquittal). However, the majority did not agree.

In sum, Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1983) marks a significant development in Florida’s corpus of case law surrounding entrapment. Florida’s 3rd DCA (Miami’s highest court) held that:

• Marrero was OBJECTIVELY entrapped as a matter of law due to an informant contacting him 20 to 30 times before he finally gave in and attempted to sell marijuana
• Because of this, the judge should have GRANTED his motion for judgment of acquittal on the attempted trafficking charge
• Moreover, the judge erred by failing to give the jury an instruction on entrapment
• This required REVERSAL of Marrero’s conviction

Judge Ferguson dissented, arguing on procedural grounds that Marrero FAILED to preserve his objective entrapment argument for appeal – as he did not file a pretrial motion to dismiss based on objective entrapment. However, the majority found no such requirement under Florida law.

Florida’s criminal defense community should take note of Marrero v. State, 493 So.2d 463 (Fla. 3d DCA 1983), as it is a fascinating exploration of Florida’s entrapment law and the procedural rules surrounding the utilization of objective and subjective entrapment defenses.

If someone is arrested and formally charged in Florida in a case and has a potential entrapment defense, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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