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Entrapment and Drug Free Zones, Measure as the Crow Flies

Prosecutors and police love to charge defendants with selling drugs in drug free zones. As an article on the Texas prosecutors’ website says, “One tool assists prosecutors in their quest for a meaningful prison term for drug offenders: an affirmative finding that the offense was committed in a drug-free zone (DFZ). The DFZ finding can, in many cases, rival a deadly weapon finding in effectiveness.”

A DFZ finding “enhances” the punishment range for a delivery charge, meaning, the minimum and maximum sentences are longer, and the defendant must serve more actual time in prison.

DFZ’s are generally defined by statute as anything within a 1,000 foot radius of a school, playground, daycare center, video arcade, and other places where children are likely to congregate. Police have maps that show these zones, and will have their confidential informants arrange to buy drugs from the target in a DFZ.

Entrapment is not a defense. Texas Penal Code 8.06 provides: It is 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.

Courts have held that a drug dealer is already predisposed to commit the crime, so it is not entrapment.

Another potential defense that the courts have rejected is that the distance should be measured along the path that a car or pedestrian would take to get the school or playground. In other words, measure around buildings, lakes, and so on. The rule is summarized in U.S. v. Watson, 887 F.2d 980 (9th Cir. 1989):
The Second Circuit rejected the same argument in United States v. Ofarril, 779 F.2d 791 (2d Cir.1985) (per curiam), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986), and we agree fully with its reasoning. Requiring speculation about pedestrian routes would create uncertainty in a statute which was meant to establish clear lines of demarcation. As the Second Circuit observed: “Such a tortuous reading would violate the plain meaning of the statute. Moreover, it would generate needless and time-consuming debate, and ultimately hamper the statute’s enforcement.” Id. at 792 (citations omitted). As Judge Kram noted in United States v. Cunningham, 615 F.Supp. 519 (D.C.N.Y.1985), “the statute is designed to protect school-children from the direct and indirect dangers posed by the narcotics trade.” Id. at 520. School children are not known for taking what adults may conclude would be the most appropriate routes to and from school. Only a straight line measurement creates a readily ascertainable zone of protection.

For more information, contact the Law Office of Richard Ellison, P.C. for a free initial consultation.