State attorneys asked the Florida Supreme Court on Wednesday to reinstate charges that a Bay County video store sold obscene videos to a minor.
The store's attorney argued that a trial court judge and a state Court of Appeal were correct in dismissing the charges because police set up the sale.
Police had no right to try to lure store owner Manuel Munoz into the sale unless they had reason to believe he had been guilty of criminal activity, said his attorney, Alvin Peters.
But Assistant Attorney General Laura Rush said a 1987 entrapment law requires a defendant to prove he was entrapped, rather than forcing police to show entrapment didn't occur.
Florida didn't have an entrapment statute before 1987. A common law definition agreed on by courts said police weren't guilty of entrapment if they could prove the focus of their investigation was to stop a specific ongoing criminal activity.
That wasn't the case when a task force headed by a Bay County sheriff's deputy sent a juvenile to try to rent an X-rated video at Munoz's store, the Video Den, in 1990, Peters argued.
Police had received a complaint that another store, Top Banana Video, had rented X-rated material to a minor, but no complaints about Video Den, Peters said. "There really wasn't any kind of widespread problem."
When he argued in Bay County Circuit Court that police hadn't had specific evidence of criminal activity at Video Den, Circuit Judge Clinton Foster dropped charges against Munoz.
His ruling was upheld on appeal. Prosecutors took the case to the state Supreme Court to get a definitive ruling on what constitutes entrapment, Rush said.
"The courts all over Florida have been in a state of confusion," she said.
Peters told the justices a 34-year-old police task force member obtained a video store membership card, gave it to the juvenile girl and sent her to try to rent the video. She was told to lie about her age and say she was the member's girlfriend or sister, Peters said.
"The investigation took off in what we consider to be a fishing expedition," he said.
Munoz had complained about use of the girl, who faced a felony drug charge if she didn't cooperate in the police sting.
"When somebody from the police joins the club, sets you up, lets her use this membership card, and makes her look older than what she actually is, then I don't feel too comfortable with that situation," Munoz had said when the charge was dismissed.
"The tactics used by the police officer were not reasonably tailored to avoid affecting those not otherwise involved in a crime," Peters said.
Rush said that under the new statute, police don't have to prove a sting is aimed at stopping a particular ongoing criminal activity.
Instead, the defendant must prove he wasn't predisposed to commit the crime, she said. "We have shifted the burden of proof solely to the defendant."
The justices didn't indicate when they would rule.