Police Entrapment in Colorado – When does it cross the line?

Entrapment occurs when police improperly induce you to commit a crime you otherwise would not have committed. Entrapment is an illegal law enforcement practice in Colorado, and you can raise it as a defense to try to get your charges dismissed.

Police are allowed to lie to you and present you with an opportunity to commit a crime. For example, it is a common practice for officers to go undercover as sex workers or drug buyers in an effort to catch suspects in an illegal act.

However, police deception turns into entrapment when you are pushed into committing a crime you never would have committed but for the police’s coercion. Fortunately, body-camera footage, recordings, text messages, and other evidence can sometimes show that police crossed the line into unlawful inducement.

In our experience, people often misunderstand what entrapment actually means because television and social media make it sound like any undercover operation is illegal. Most entrapment cases are much more nuanced. We spend a great deal of time reviewing body-camera footage, text messages, recordings, and police reports to determine whether officers crossed the legal line into improper inducement.

In this article, our Denver, Colorado criminal defense lawyers will address the following key topics:

• 1. Entrapment Elements
• 2. Forms of Entrapment
• 3. Entrapment and Opportunity
• Frequently Asked Questions

1. Entrapment Elements

To raise an entrapment defense in a Colorado criminal case, you must present some credible evidence that:

1. A law enforcement officer (or another person acting under law enforcement’s direction) used methods that created a substantial risk you would commit the charged crime; and
2. You would not have conceived of or engaged in the criminal conduct but for the police’s inducement.¹

Once there is sufficient evidence to raise the defense, the prosecution has the burden of proving beyond a reasonable doubt that you were not entrapped, in addition to proving every other element of the charged offense.²

Entrapment applies only when the inducement comes from law enforcement officers or someone acting on law enforcement’s behalf, such as a confidential informant. It is generally not a defense if a purely private citizen persuades you to commit a crime without acting under police direction.³

When we evaluate these cases, we rarely focus on the arrest itself first. Instead, we look at everything leading up to it. The conversations, timing, repeated requests, and our clients’ initial reactions often reveal much more about whether police improperly induced the alleged offense than the final transaction does.

2. Forms of Entrapment

In Colorado, entrapment typically involves police pressuring you to commit certain illegal acts through harassment, threats, or repeated pressure.

Example: An undercover officer goes on an online chat room, pretending to be a 13-year-old girl, in an attempt to gather evidence for online sex crimes. In the chatroom, the officer initiates a conversation with a man and continually drops hints that the two should meet for sex in hopes that the man will agree.

When the man does not take the bait, the officer threatens to tell the man’s wife about the chat unless he agrees to send a nude picture. Scared, the man relents and sends a nude picture. The officer then tracks down the man and arrests him for online sexual exploitation of a child. Here, the man has a good argument that he was entrapped. The man did not break any law until the officer threatened him.

A common misconception is that an undercover police officer must disclose their identity if asked. They do not. Therefore, it is not entrapment if you agree to commit a crime after an officer lies and says they are not the police.³

In cases we have handled, officers and confidential informants sometimes use very different approaches depending on the investigation. Some rely on deception alone, which is usually lawful. Others repeatedly pressure someone over days or weeks. Understanding exactly which tactics were used is often one of the most important parts of building an entrapment defense.

3. Entrapment and Opportunity

The Colorado entrapment statute says, “merely affording a person an opportunity to commit an offense is not entrapment.” Police may use deception, false identities, flattery, or appeals to friendship while conducting undercover investigations.

Standing alone, those tactics generally do not amount to entrapment unless they create a substantial risk that someone who otherwise would not commit the offense does so because of the police’s conduct.

The law allows police to trick you because there is an expectation of citizens to resist any “ordinary” temptation of committing a crime. However, if the police’s tactics become excessive, threatening or otherwise “unordinary,” you are being entrapped.⁴

Example: An undercover officer approaches Doug and asks that he sell her his Vicodin for her sick son, who is in excruciating pain but is being ignored by doctors. If Doug agrees and then gets arrested, he probably could not claim entrapment. The officer merely presented Doug with an opportunity to commit the offense rather than using methods likely to induce someone who otherwise would not have done so.

If, however, the officer hounded Doug for days and sent him videos of a sick child crying before Doug finally agreed to sell the drugs, the court would probably dismiss any drug charges against him. The officer’s repeated and harassing actions would likely qualify as entrapment.⁵

One of the first things we explain to clients is that the law expects people to resist ordinary opportunities to commit crimes. The difficult question is when police conduct becomes so persuasive that it creates a substantial risk that an otherwise law-abiding person would give in. That line is not always obvious, which is why every fact and every communication matters.

Frequently Asked Questions

Can Colorado police use undercover officers without committing entrapment?

Yes. Colorado law allows police officers to pose as drug buyers, prostitutes, online minors, or other participants in criminal activity as part of legitimate undercover investigations, as per C.R.S. 18-1-709.

An undercover operation alone is not entrapment. The legal issue is whether law enforcement crossed the line from providing an opportunity to using methods that created a substantial risk that someone who otherwise would not have committed the offense did so because of police inducement.

In our experience, many clients assume that simply discovering an undercover officer was involved automatically means their case should be dismissed. That is rarely how Colorado courts analyze these cases.

What usually matters is every conversation leading up to the arrest—how many requests were made, what promises were offered, whether officers exploited vulnerabilities, and whether our client showed hesitation before finally agreeing. Those details often determine whether an entrapment defense becomes viable.

Who has the burden of proving or disproving entrapment in a Colorado criminal case?

The first thing that happens is we inform the court that we are raising the entrapment defense. Once the court is satisfied we have sufficient supporting evidence of entrapment, the “burden of proof” shifts to the prosecution, as per C.R.S. 18-1-709: 

For you to get convicted, the prosecution must prove two things beyond a reasonable doubt:

1. You were not entrapped, and
2. Every element of the charged crime. 

We tell clients that raising entrapment is not simply about making accusations against the police. We need evidence—recordings, text messages, body-camera footage, witness testimony, or other proof showing how officers or informants encouraged the conduct. Once that evidence exists, the prosecution often has a much harder time explaining why the case should still result in a conviction.

Can confidential informants entrap someone under Colorado law?

Yes. Entrapment is not limited to sworn police officers.

Colorado law also applies when the inducement comes from someone acting under law enforcement’s direction, including confidential informants cooperating with police investigations. If an informant uses improper pressure or inducement while gathering evidence for law enforcement, the same entrapment principles may apply.

In cases we have seen, confidential informants sometimes become the most important witnesses because they were the ones communicating with the defendant for weeks or months before an arrest occurred. We carefully examine every interaction, since those conversations often reveal whether the defendant was persuaded into conduct they otherwise would have avoided.

Can I claim entrapment if I have a prior criminal record?

Yes. A previous criminal record does not automatically prevent you from asserting an entrapment defense.

However, once entrapment becomes an issue, prosecutors may attempt to introduce evidence suggesting you were already predisposed to commit the charged offense. Whether that evidence is admissible and how persuasive it is depends on the specific facts of the case.

From what we have seen, clients are often discouraged from raising entrapment because they believe any prior conviction automatically destroys the defense. That is not necessarily true. We focus on whether you were predisposed to commit this particular offense—not simply whether you have ever been in trouble before.

Can entrapment occur during an online sting operation?

Yes. Colorado’s entrapment statute applies equally to online investigations involving internet chats, social media, messaging apps, and other digital communications. While officers may lawfully conduct online sting operations, they cannot use improper inducement that creates a substantial risk that someone who otherwise would not commit the offense does so because of police pressure.

In our experience, internet sting cases often involve lengthy message histories rather than a single conversation. We review every message chronologically because small details—who first suggested criminal conduct, whether there was repeated persuasion, or whether officers escalated the conversation—can become extremely important when evaluating an entrapment defense.

What police tactics count as entrapment? 

Merely giving someone an opportunity to commit a crime is not entrapment under Colorado law. Courts instead look for methods that go beyond providing an opportunity, such as repeated pressure, emotional manipulation, exploitation of personal weaknesses, extraordinary promises of benefit, or other unusually persuasive tactics that create a substantial risk that an otherwise law-abiding person would commit the offense.

We often tell clients that juries understand the difference between temptation and coercion. A single request is usually viewed very differently than weeks of repeated encouragement, emotional appeals, or escalating pressure. That is why we reconstruct the entire timeline instead of focusing only on the final interaction that resulted in the arrest.

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