Controlled purchase and entrapment: where is the line?

• A controlled purchase is a lawful way to document drug trafficking under law enforcement control.
• Entrapment (inducing someone to commit a crime) is prohibited by Article 271 of the CPC and by case law of the European Court of Human Rights.
• Signs of entrapment: police initiative, repeated persuasion, pressure, artificial conditions.
• Evidence obtained through entrapment may be declared inadmissible.
• Attorney Kobets analyzes the covert operation materials and challenges entrapment.

In many drug trafficking cases the key evidence is a controlled purchase. Attorney Oleksii Kobets, with more than 25 years of experience and a background in investigative bodies, explains where the line runs between a lawful purchase and prohibited entrapment and how to use this in the defense.

What is a controlled purchase?

A controlled purchase is a covert measure in which a buyer, often under a pseudonym, purchases drugs under law enforcement control in order to document the fact of trafficking. It is carried out on the basis of a decision of authorized officials in the manner defined by the CPC and the law. The purchase itself is lawful if the person was already trafficking and was not induced to commit the crime. Violations of the procedure for conducting it can also become grounds for challenging the evidence.

How does entrapment differ from a purchase?

The line runs along who took the initiative. If the person was ready to sell the drug on their own, without outside interference, it is a purchase. If they were induced, persuaded, or artificial conditions were created for a sale they would not otherwise have made, it is entrapment, prohibited by Article 271 of the CPC and the case law of the European Court of Human Rights. Entrapment renders such evidence inadmissible.

Example. The “buyer” insistently asks several times to get drugs, plays on sympathy, and a person who was never involved in trafficking finally agrees to help. These are typical signs of entrapment, not a purchase.

What signs point to entrapment?

Entrapment may be indicated by: the initiative coming from law enforcement or their agent, repeated requests and persuasion, pressure or exploitation of a relationship of trust, and the absence of evidence that the person was trafficking before the intervention. The defense carefully examines exactly how the contact began and who pushed for the action.

Example. The case file contains no evidence that the person sold drugs before: the only episode appeared precisely after the persistent requests of the “buyer”. Such an absence of prior involvement is strong evidence of entrapment.

How to challenge evidence obtained through entrapment?

The defense raises the issue of entrapment, demands disclosure of the materials of covert investigative actions, analyzes their lawfulness and sequence, and relies on the case law of the European Court of Human Rights. If entrapment is established, the evidence obtained is declared inadmissible, and without it the trafficking charge often does not hold.

How can a lawyer help?

The lawyer analyzes the covert operation materials, looks for signs of entrapment, seeks disclosure and verification of the covert actions, and questions the “buyer’s” testimony and the lawfulness of the evidence. His background in investigative bodies helps attorney Kobets see where a purchase turns into entrapment. Defense is provided at all stages in Kyiv and beyond.

Frequently asked questions

Is a controlled purchase lawful?
Yes, if the person was not induced to sell and the procedure established by law was followed.

What to do if there was entrapment?
Raise the issue of entrapment, demand disclosure of the covert action materials, and seek to have the obtained evidence declared inadmissible.

Who must rebut an entrapment claim?
Under the case law of the European Court of Human Rights, it is the prosecution that must rebut a substantiated defense claim of entrapment.

Can a defense be built on entrapment alone?
It is one of the strong directions, but the defense usually combines several lines: entrapment, inadmissibility of evidence, and lack of proof of intent to sell.

This material is for information purposes only and is not legal advice or a guarantee of any result. Every case is unique, and the application of legal rules depends on specific circumstances. For an assessment of your situation, seek a personal consultation with a lawyer. The author complies with the Rules of Attorney Ethics and the Law of Ukraine “On the Bar and Practice of Law”.