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January 21, 2004

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Michigan case could help define entrapment

The case of a Pontiac police officer nailed in a drug sting 10 years ago has finally made it to the Michigan Supreme Court. This could help set Michigan's standard for how far cops can go in undercover stings.

Former officer Jessie Johnson was fired, even though the case never went to trial. In 1992, Johnson was charged with a pair of felonies -- two counts of possession of cocaine with intent to distribute. The case has been working its way through the court system ever since.

Early on, Oakland Circuit Judge David Breck dismissed the charges, ruling that an undercover operation entrapped Johnson. Prosecutors disagreed and appealed the decision.

Supreme Court arguments are the culmination of the process, and could change the guidelines for how entrapment is decided in Michigan in the future.

Michigan courts currently use an "objective test," which tries to prevent police from creating a crime where none would have occurred, to decide whether someone was entrapped.

But the state Supreme Court asked both sides if Michigan should use the "subjective test" -- used by federal courts and most other states -- to decide if police have crossed the line. The federal standard focuses on what the accused was thinking -- in short, whether police lured a noncriminal into committing a crime.

Both the defendant and the prosecutor in Johnson's case favor sticking with the present rule. So does Michigan Attorney General Jennifer Granholm, in a friend of the court brief.

But the prosecution argues that Johnson's arrest was proper under the Michigan standard. Frankel said Tuesday's arguments focused mostly on the legal technicalities.

According to court documents, Pontiac police got a tip that Johnson was running a crack house on Florence Street and then asked state police to take over the investigation. An undercover officer posed as a drug supplier and offered to pay Johnson for protection.

On one occasion Johnson acted as a bodyguard and watched while the trooper bought a bag of cocaine from another undercover officer, according to the documents. Then Johnson allegedly took the bag of drugs himself to guard against a possible rip-off.

The documents said Johnson participated in two more drug deals as well, collecting $2,000 for his work. Breck said the undercover cops created a more serious crime of possession by handing the drugs to Johnson when he only agreed to stand guard.

The court's decision should be announced by the end of July.

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