Texas Bait Car Arrests: Criminal Defenses in Police Bait Car Sting
Posted on by Michael Lowe.
Defendants charged with theft after a bait car arrest may not win an entrapment argument but this does not mean there may not be a viable defense.
Stealing cars (along with pickup trucks, SUVs, and minivans) is big business here in Texas. According to the FBI’s Uniform Crime Reports, Texas has more auto thefts each year than any other state in the country except for California.
Car theft is especially hot here in North Texas. Our local news reports warn of skyrocketing auto theft numbers for the Dallas-Fort Worth area:
- Every 54 minutes, a car is reported stolen in Dallas;
- Over in Fort Worth, auto theft has jumped 19% in the past two years.
Police Use Bait Cars to Arrest People for Stealing Motor Vehicles
This brings us to the use of bait cars by local law enforcement. For many criminal defense lawyers, it is outrageous to consider that police officers spend the time and money to plan stings where they set things up and watch, hoping for someone to commit a criminal offense — instead of getting out there and investigating real-life crimes.
For prosecutors and police, they are hoping that using bait cars can help stem the tide of auto thefts – even if some members of the public, as well as those of the defense bar, wonder about the ethics and integrity of their actions.
Increasing Use of Bait Cars by Local Police
This month, the Dallas Police Department announced it intends to expand its Bait Car program. See, “Dallas PD Wants to Double Its Fleet of Bait Cars to Catch Thieves,” written by Jack Fink and published by CBSDFW on April 9, 2019.
It’s big: the Dallas Police want to double the size of their fleet. Dallas is not alone; police departments all across North Texas have active bait car programs. For instance, over in Fort Worth, police are very happy with their bait car stings. Fort Worth has been using bait cars for over a decade to try and catch car thieves.
Tarrant County’s Auto Crimes Task Force, which involves eleven different law enforcement agencies, reports its joint C.O.B.R.A. (Covert Organized Bait, Recovery and Apprehension) bait car program has “…logged over 1,000 arrests since 2006.”
Suffice to say, in North Texas, bait car operations are very popular with police. Anyone getting behind the wheel of a vehicle they don’t own needs to be aware of these setups.
What Exactly is a Bait Car?
A bait car is what it implies: it is bait set out by police to try and catch thieves. Sometimes it may be called a decoy or a trap car, but it always involves a motor vehicle which can be remotely monitored by the police (and usually controlled) via modern surveillance technology including GPS systems.
The police own the car and its hidden cameras, microphones, etc., as well as the enticements they will leave inside the car to tempt someone to take it. Things like laptops, phones, and even cases of beer might be obviously left inside the trap for anyone pondering whether or not to take the bait.
Once someone drives off in the bait car, the police are recording everything that is happening with their hidden surveillance cams. Often, the bait car technology allows law enforcement the ability to shut down the car’s motor remotely after a certain period of time. The police may also be able to lock the doors and windows to prevent the occupants from exiting the vehicle until officers arrive on the scene to make an arrest.
For more details, watch this YouTube video provided by the City of Dallas.
Isn’t Using a Bait Car Entrapment?
Lots of people assume this law enforcement trickery has to be entrapment. Surely the police can’t set up traps to catch people like this? Yes, they can.
Police Can Lie and It’s Okay
Police can lie to suspects when they are trying to get a confession. According to the Supreme Court of the United States, it’s not entrapment: it’s doing what’s necessary to catch a criminal. There is even have a nice term for it: “deceptive interrogation technique.” Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969).
Undercover police officers are masters of deception. They create entire lives that are entirely fabricated, but this considered legally justified as necessary to apprehend criminals and break up criminal enterprises. See, e.g., Marx, Gary T. “Under‐the‐covers undercover investigations: Some reflections on the state’s use of sex and deception in law enforcement.” Criminal Justice Ethics 11.1 (1992): 13-24.
Police Can Set Up Traps and It’s Okay
Ethical questions aside, police bait cars are legal in Texas. See Adams v. State, 270 S.W.3d 657, 662 (Tex. App.-Fort Worth 2008, pet. ref’d).
In Adams, the defendant tried to suppress evidence obtained by the Fort Worth Police Department in a bait car fortified with technology that allowed the police to controls its GPS system and door locks, as well as killing the engine. The system also alerted the police when the car had been entered or moved, with hidden cameras automatically recording everything happening in the car.
The defendant argued that the Fort Worth bait car program violated law enforcement’s duty to preserve the peace and prevent and suppress crime. He lost. The court ruled that public policy allowed the Fort Worth Police to use the trap as a means to fight against rampant auto thefts in the area.
Of course, it is true that entrapment is illegal. However, entrapment does not block the action. Entrapment does not stop an arrest. Entrapment is a defense to be used after an arrest has been made.
Bait car arrests result in serious felony charges, like allegations of violating Tex. Penal Code Ann. §31.03(e)(4)(A), which constitutes a state jail felony for stolen property valued between $2,500 – $30,000.
Facing felony charges, the entrapment defense has been offered. It is usually unsuccessful because the prosecution will argue that bait cars are not within the legal definition of “entrapment.”
“… a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”
This legal definition applies to local and state law enforcement agencies as well as the federal government, or anyone working on their behalf.
Within the definition of entrapment is the loophole used by prosecutors in auto theft cases where bait cars are used: giving someone an opportunity to commit an offense isn’t entrapment.
Two-prong test for entrapment
To win with an entrapment defense, the bait car defendant must be able to demonstrate his case meets the two-pronged test for entrapment. England v. State, 887 S.W.2d 902, 910 (Tex. Crim. App. 1994); McGann v. State, 30 S.W.3d 540, 545 (Tex. App.-Fort Worth 2000, pet. ref’d).
- Subjectively, there must be evidence showing the police actually induced the defendant into committing the charged offense. England, 887 S.W.2d at 913; and
- Objectively, there must be evidence that the persuasion used by the police was such as to cause an ordinarily law-abiding person of average resistance to nevertheless commit the offense. Id.
While there may be situations where the particular sting or bait car does cross the line and provide a viable entrapment defense, anyone arrested on a bait car theft charge in North Texas should not rely upon cries of entrapment to defend against a conviction. Most bait car cases will not be able to meet this two-prong test for a valid entrapment defense.
This does not mean that there are not valid and strong defenses to be argued against bait car charges.
Abandonment is actually a good defense in many of these bait car cases. Also, the person charged with theft may be able to assert a mistake of fact defense. If the case goes to trial, the jury will be given specific jury instructions to be used in consideration of the defense.
Bait Car Defense: Abandonment and Mistake of Fact
In Texas, any kind of theft involves someone who “… unlawfully appropriates property with intent to deprive the owner of property.” Texas Penal Code § 31.03(a). Bait cars involve charges of auto theft.
Anyone facing bait car auto theft charges may be able to defend against them by looking to the definition of “theft” under the law.
What if the allegedly stolen property looked to be abandoned when the defendant got behind the wheel? Here, how can there be any intent to deprive the owner of property?
Bait Car or Abandoned Property?
For over a century, Texas has recognized abandoned property. The courts have defined abandonment as a “giving up, a total desertion, an absolute relinquishment.” Worsham v. State, 56 Tex.Crim. 253, 260, 120 S.W. 439, 443 (1909); see Fender v. Schaded, 420 S.W.2d 468, 473 (Tex.Civ.App.-Tyler 1967, writ ref’d n.r.e.). Under the law, abandonment must be shown to involve (1) the intention to forsake or abandon and (2) the act by which such intention is carried into effect. Worsham, 56 Tex.Crim. at 260, 120 S.W. at 443-44.
What if the defendant has evidence to show that the bait car looked to him (or her) to be abandoned property? In the circumstances, did it look like the car had been deserted or relinquished by its owner?
As one Texas court explains: “… it is possible to take possession of abandoned property without committing a theft or intending to commit a theft.” Ingram v. State, 261 S.W.3d 749, 753-54 (Tex.App.-Tyler 2008, no pet.).
Mistake of Fact Defense: Texas Penal Code Section 8.02
There may also be evidence to challenge the elements of theft under Texas Penal Code § 8.02 if the bait car defendant can assert a Mistake of Fact defense. See, In re FLR, 293 S.W.3d 278 (Tex. App. 2009).
“… a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.”
It is important to note that this may or may not be a complete defense. The statute also states that:
“[a]lthough an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.”
The Mental State of the Defendant at the Time He Took the Bait Car
Key to asserting this defense will be providing proof of the defendant’s mental state at the time he (or she) took the bait car. The defense negates the necessary element of intent to commit a crime, which the prosecution must establish in order to get a conviction.
The mistake-of-fact defense can only be used if it is shown that his mistake in thinking the car was abandoned affected his culpable mental state regarding commission of the auto theft offense. Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App. 1990).
In other words, the mistake of fact defense is allowed only when there is evidence that the defendant formed a reasonable belief about the car which, while wrong, establishes that his mistaken belief negated the necessary intent or motive needed to prove that he commit the crime of theft. Sands v. State, 64 S.W.3d 488, 495 (Tex.App .-Texarkana 2001, no pet.).
How can this happen?
Consider the mistake of fact defense argued in an Austin bait car case. There, a bait car was set up in downtown Austin, Texas, complete with hidden cameras. The defendant was recorded getting into the unlocked car, searching inside the car for a few minutes, and then starting the engine and driving the car to a nearby location (he was clocked as driving it for around seven minutes).
He was arrested and his case went before a jury, which was instructed on his mistake of fact defense. The defendant explained that he made money by helping people partying on Sixth Street by either parking their cars or retrieving them, and that he had been approached by a man who offered to pay him twenty dollars to go and get his car for him.
He explained that the reason the video showed him rummaging through things in the vehicle was his attempt to make sure he had the right car before he drove off, and that he didn’t intend to steal the car – he drove it back to where the man was to pick the car up, and parked it.
For more, read: Bishop v. State, No. 03-08-00710-CR (Tex. App. Aug. 26, 2010).
Auto Theft Arrests Involving a Police Bait Car
Anyone caught in a police sting involving a bait car may feel overwhelmed and wondering if there is any hope: after all, the car was rigged with cameras and microphones and police were monitoring everything that happened.
Bait car defenses do exist. Each case must be independently evaluated. Entrapment is not often a viable defense, but there may be situations where it applies. Mistake of fact defenses may be appropriate in some instances, as well.
In every bait car case, the prosecutor must still prove up every element of the crime and the aggressive criminal defense lawyer will delve into every detail of the government’s case for flaws that can either reduce the sentence in a plea deal or take the case to the jury with a solid defense for their consideration.
To learn more about questionable police practices, read:
- Dallas Sex Crime Arrests and Possible Criminal Charges against the Dallas Vice Unit
- Resisting Arrest vs Excessive Force: Lessons from Fort Worth Police BodyCam
- False Confessions: Police Get Them, Prosecutors Use Them – Three Recent Examples and How to Protect Yourself
- Police That Lie: More on the Secret Texas District Attorney Lists of Police Officers Not Trustworthy to Take the Witness Stand.
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