Indiana Law Review Reeent Development CRIMINAL PROCEDURE—Probable Cause—Entrapment stan- dard of probable cause to suspect is rejected in favor of a subjective approach which focuses upon the predispositon to commit. — Hardin V. State, 358 N.E.2d 134 (Ind. 1976). The genesis of entrapment probable cause is found in a holding of the Indiana Supreme Court in which the court stated that when the. defense of entrapment is evoked, the burden is placed upon the state "of proving that it had probable cause of suspecting that the appellant was engaged in illegal conduct."^ Re-examining the area of entrapment defense, the court, in Hardin v. State,^ concluded that the procedural standard of probable cause to suspect^ "has proven more difficult in its application than originally believed and no longer should be an additional burden upon law enforcement officials as they combat the trafficking in drugs."^ Analyzing the problems with Indiana's previous entrapment standard of proof, the Indiana Supreme Court determined that courts, even while requiring proof of probable cause to suspect, have also considered the accused's predisposition to commit the crime with which he is charged. Focusing upon this latter consideration, the court enunciated a two- part inquiry which it deems appropriate when the defense of entrapment is raised: "(1) Did police officers or their informants initiate and actively participate in the criminal activity; and (2) [I]s there evidence that the accused was predisposed to commit the crime so that the proscribed activity was not solely the idea of the police officials?"^ Hardin thus moves from the "objective" approach to the "subjec- tive" approach regarding entrapment. The defense of entrapment is available in Indiana to an accused who has been instigated, induced, or lured to commit a crime which he had no independent intention or desire to commit, and who is thereafter prosecuted for that crime.^ iWalker v. State, 255 Ind. 65, 71, 262 N.E.2d 641, 645 (1970). 2358 N.E.2d 134 (Ind. 1976). ^Probable cause to suspect that the accused was engaged in illegal conduct and was already predisposed to commit the crime. See Smith v. State, 258 Ind. 415, 281 N.E.2d 803 (1972); Walker v. State, 255 Ind. 65, 262 N.E.2d 641 (1970). 4358 N.E.2d at 135. 5/d at 136. sMinton v. State, 247 Ind. 307, 214 N.E.2d 380 (1966); Fischer v. State, 312 N.E.2d 904 (Ind. Ct. App. 1974); May v. State, 154 Ind. App. 75, 289 N.E.2d 135 (1972). 747 748 INDIANA LAW REVIEW [Vol. 10:747 This understanding of what constitutes entrapment is consonant with the "subjective approach" to the defense of entrapment which was discussed by the United States Supreme Court in United States v. RusselU Under the subjective approach, the intent of the accused is dispositive. Sound public policy estops the state from prosecuting an accused when the criminal design is formulated not in the mind of the accused but in the mind of government officials.^ The defense of entrapment provides a means of distinguishing between trapping the unwary innocent and trapping the unwary criminal. When the state, through deception, implants criminal intent in the mind of an otherwise innocent individual, the defense of entrapment should be raised.^ Once the defense is raised, however, the standard of proof imposed upon the state differs according to the approach, objective or subjective, followed in the jurisdiction in which the crime was committed. Indiana has, in the past, incorporated certain aspects of the "objective approach."^^ The effect of placing a focus upon the probable cause to suspect was to impose a heavy burden upon the state. If probable cause for "baiting the trap" is not present, the "work product" or evidence obtained by the police cannot be utilized. 11 The court in Smith wrote that the probable cause component "furthers the public interest, ... is simple in its requirements and application and its rigid enforcement would not thwart the reasonable and logical efforts of law enforcement officers. "12 Yet, five years later the Indiana Supreme Court has doubled back, concluding in Hardin that the standard is difficult to apply.13 A real question could be raised as to whether Hardin does represent a departure from previous Indiana judicial holdings, or whether Hardin merely educes the purified "subjective approach" as a result of evolutionary process. Several judicial opinions handed down during 1976 indicate that Indiana's move toward the holding in ^411 U.S. 423 (1973). See also Sherman v. United States, 356 U.S. 369 (1958); Sorrells v. United States, 287 U.S. 435 (1932). ^Sorrells v. United States, 287 U.S. at 445, cited in Gray v. State, 249 Ind. 629, 633, 231 N.E.2d 793, 796 (1967). ^United States v. Russell, 411 U.S. at 436. lOThe "objective approach," focusing upon police conduct, has been discussed in the dissenting opinions of United States v. Russell, 411 U.S. at 436-39 (Douglas, J.), 439- 50 (Stewart, J.), and concurring opinion of Sherman v. United States, 356 U.S. at 378-88 (Frankfurter, J.). iiSmith V. State, 258 Ind. 415, 281 N.E.2d 803 (1972). 12/d at 419, 281 N.E.2d at 806. 13358 N.E.2d at 135. 1977] RECENT DEVELOPMENT 749 Hardin was more gradual than the citations in the Hardin decision would admit. Thomas v. State^^ established that if the police do not initiate a transaction against any particular suspect, the requirement that probable cause must be proven should be considered in conjunction with the defendant's predisposition to commit the crime charged. The Indiana Supreme Court in Thomas did not patently abolish the probable cause to suspect rule, but the latent effect was to severely cripple it. Thomas suggested that probable cause to suspect a defendant of illegal activity is irrelevant where the defendant, caught in a transaction initiated by the State, has the predisposition to commit the crime charged. ^^ In both Shipp v. State^^ and Riding v. State,^^ the probable cause requirement was not termed irrelevant, but each case was affirmed on the grounds that the state had probable cause to suspect the defendant because the evidence showed a predisposition to commit the crime. This melding of the two separate requirements provides some judicial history for the Hardin decision. Thus, Hardin may have pulled the chair from under the entrapment probable cause rule, but it can be argued that the rule was already balancing on one leg. Moreover, as the supreme court points out in Hardin, there is legislative guidance on the subject of entrapment. Indiana's new Penal Code, which becomes effective July 1, 1977, establishes the same criteria for an entrapment defense as were spelled out in Hardin.^^ Justice Hunter, writing the majority opinion in Hardin, acknow- ledged the fact that "courts in Indiana have directed the second portion of their inquiry to the accused's predisposition to commit the crime with which he is charged."^^ The majority coupled this direction with "the legislative choice of the subjective approach" and m45 N.E.2d 835 (Ind. 1976). i^M at 837. 16350 N.E.2d 619 (Ind. 1976). 1^350 N.E.2d 629 (Ind. 1976). isiND. Code § 35-41-3-9 (Burns Supp. 1976) provides in pertinent part: (a) It is a defense that: (1) the prohibited conduct of the person was the product of a public servant using persuasion or other means likely to cause the person to engage in the conduct; and (2) the person was not predisposed to commit the offense. (b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment. For a discussion of this section, see Kerr, Foreword: Indiana's Bicentennial Criminal Code, 1976 Survey ofRecent Developments in Indiana Law, 10 Ind. L. Rev. 1, 8-9 (1976). 19358 N.E.2d at 136. 750 INDIANA LAW REVIEW [Vol. 10:747 adopted the majority view of Sorrells v. United States^^ and Sherman V. United States.^^ Justice De Bruler, concurring in result, complained that "[t]he case before us provides no basis for discarding . . . [entrapment probable cause] . . . [for] [t]he State clearly met that burden in the trial co^rt in this case."22 Justice De Bruler further expressed concern about the future of the defense of entrapment in Indiana, and questioned exactly what burden is left for the state. The defense of entrapment is "void of substance" if "any degree of concurrence by the accused in criminal design at the time it was first laid before the ac|iused is sufficient to rebut the defense."23 While it is true that the abolition of the probable cause to suspect standard eases the difficulty of rebutting an entrapment defense, it is prolDably premature to grieve the demise of the defense itself. Even if the majority in Hardin were heralding what Justice De Bruler characterized as a mere showing "that the accused was not totally innocent . . . toward the proposition offered by the police,"^^ the burden presumably remains upon the state to make that showing.^^ A more noxious and more probable result from Hardin may derive from its inappropriate application to entrapment defenses raised in trials held prior to Hardin. Judge Hoffman, writing for the majority in Davila v. State,^^ a recent Third District Court of Appeals decision, referred to Hardin and concluded that "[p]robable cause to suspect the accused in an entrapment case was formerly required in Indiana . . . ."^7 Judge Staton, concurring in the result, properly pointed out that the majority is essentially applying Hardin retro- actively, and that such application is not only wrong, but also unnecessary, since the facts supported a probable cause to suspect.^^ Two aspects of the Hardin decision may have induced the misunderstanding of its application. First, the majority in Hardin referred to the legislative guidance as support for its holding. However, even the legislature is prohibited from creating a law ex 20287 U.S. 435 (1932). 21356 U.S. 369 (1958). 22358 N.E.2d at 137. 23/d 24M 25Justice De Bruler's fear may be justified. In Davila v. State 360 N.E.2d 283 (Ind. Ct. App. 1977), Judge Hoffman stated: "Properly raised the defense of entrapment must resolve these two issues by showing the general innocence of the accused in the absence of police interference." Id. at 286. 26M at 283. 27M at 285 (emphasis added). 28M 287. 1977] RECENT DEVELOPMENT 751 post facto;29 and the entrapment portion of the Penal Code does not purport to take effect until July 1, 1977, when it may properly be applied only to prosecutions of crimes occurring after that date. The Hardin decision's present tense abolition of the probable cause to suspect rule was handed down on December 30, 1976, a full six months before the effective date of the Penal Code. Yet, the reference to the Penal Code was an overt invitation to apply the Penal Code in advance of its operative date. Second, both of the concurring opinions argue that since the probable cause to suspect burden was met in Hardin, there exists no "good and sufficient" reason to discard precedent.^^ The implicit inference to be garnered from such statement is that Hardin "here and now" abolishes the probable cause to suspect standard of entrapment. Even if immediate rejection of the entrapment probable cause standard had been the intent of the court, it is questionable whether such an effect is constitutional when it would operate to the detriment of an accused. In Marks v. United States,^^ the United States Supreme Court held that the due process clause of the fifth amendment precludes retroactive application of new criminal law standards to the extent that those standards may impose criminal liability for conduct not punishable under earlier standards.^^ Judge Staton explained in Davila v. State^^ that the "new" standard would make no difference in the outcome of either Hardin or Davila, because of the particular fact situations. However, the majority in each of those decisions, and to some extent the concurring judges in Hardin, seem to have accepted the ability of a court to retroactively apply new standards. Yet, in light of Marks v. United States,^"^ Judge Staton's reaction to Hardin is well taken. It is apparent that when a defendant relies upon the existence of a "probable cause to suspect" entrapment rule, the defendant may be harmed if the rule is changed while the game is in progress. Defense trial strategy may dictate that emphasis be placed upon the lack of probable cause aspect rather than the predisposition aspect of the entrapment defense. If, after the parties have played their cards, trump is changed, one can hardly maintain that the game was fair. If 29U.S. Const, art. I, § 9, cl. 3 and § 10, cl. 1. 30358 N.E.2d at 137. 3^97 S. Ct. 990 (1977). 32The court reaffirmed the position taken in Hamling v. United States, 418 U.S. 87 (1974), that "any constitutional principle enunciated in [a decision] which would serve to benefit petitioners must be applied in their case." 45 U.S.L.W. at 4235, quoting 418 U.S. at 102 (emphasis added). 33360 N.E.2d 283 (Ind. Ct. App. 1977). »*97 S. Ct. 990 (1977). 752 INDIANA LAW REVIEW , [Vol. 10:747 a state legislature is barred from changing trump after the cards have been dealt, it should follow that a state supreme court is barred by the due process clause from achieving precisely the same result by judicial construction.^^ One rebuttal which might be forwarded to oppose the thesis that Hardin creates an ex post facto judicial rule of criminal procedure would be that the basic rule, the due process clause, is the same; the court is merely exercising its prerogative to interpret it; and, in fact, it has been in the process of re-interpreting it for some time.^^ However, this argument does not alleviate the seeming necessity to "warn" an accused in advance of triaP"^ that the game rules have been changed. Thomas, Shipp, and Riding were not explicit enunciations of the abolishment of the probable cause to suspect standard. Whether the eventual abolition of the entrapment probable cause rule will be beneficial to the efforts of law enforcement and to society is not the question of importance with regard to the Hardin decision. Nor will Hardin answer that question in the short run. Rather, as Justice Prentice commented, concurring in the result to Hardin, "Such unnecessary activism ... is subject to criticism as an intrusion upon the legislative prerogative and as destabilizing to our case law."38 LeaAnne Bernstein 35Bbuie V. City of Columbia, 378 U.S. 347, 353-54 (1964). 36See Riding v. State, 350 N.E.2d 629 (Ind. 1976); Shipp v. State, 350 N.E.2d 619 (Ind. 1976); Thomas v. State, 345 N.E.2d 835 (Ind. 1976). 37 The Ex Post Facto Clause is a limitation upon the powers of the legislature, and does not of its own force apply to the Judicial Branch of government. But the principle on which the clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. Marks v. United States, 97 S. Ct. at 992. (citations omitted). 38358 N.E.2d at 137.