Dissenting Opinion
DeBeulee, J.I dissent from the majority opinion because the State has not met its burden of showing probable cause to believe a suspect was engaged in some type of illegal activity before it initiated its scheme to trap him.
The practice of the police initiating criminal activity in order to apprehend unwary criminals is a drastic one and the Supreme Court of this State has developed limitations on its use in order to safeguard against its abuse. It has been clearly held by this Court that before the police may initiate a scheme to trap a suspect they must first have probable cause to believe he has been involved in illegal activity.
“When appellant evoked the defense of entrapment he imposed upon the state the requirement of proving that it had probable cause of suspecting that the appellant had engaged in illegal conduct.” Smith v. State (1972), 30 Ind. Dec. 489, at 492, quoting Walker v. State (1970), 255 Ind. 65, 262 N. E. 2d 641, at 645.
Moreover when probable cause for “baiting the trap” is absent “the work product of the scheme cannot be utilized....” Smith v. State, supra, at 493. I do not believe that the facts in the case at bar demonstrate sufficient probable cause for agent Chmelik to have initiated such a scheme and since the plan was improper from its inception its “work product” cannot be utilized.
*594The only indication that agent Chmelik had of any illegal activity in this case was the statement of an informer that he could introduce Chmelik to one Robert Nau who has mescaline available for sale. There was no showing that Chmelik inquired into the foundation for this conclusion or knew of any facts which would substantiate the informer’s claim. With only this information in mind agent Chmelik contacted Nau and asked him to sell him some mescaline.
This conclusory hearsay statement from an untried informer is not sufficient probable cause by which the police would be able to initiate a scheme to trap a suspect. Although hearsay may be used as a basis for probable cause it has long been held that there must be some underlying facts or surrounding circumstances to substantiate such a conclusory statement. Kinnard v. State (1968), 251 Ind. 506, 242 N. E. 2d 500. The record here is barren of any such facts or circumstances.
The majority misapplies the case of Walker v. State, supra, to the facts in this case. The informer’s information given to agent Chmelik in the case at bar may well have provided sufficient grounds for the police to pursue these leads further through normal investigative procedures, but as pointed out above, it did not constitute sufficient probable cause to enable the police to initiate unlawful activity in order to catch the suspect.
The principle laid down in Walker v. State, supra, at 645, is as follows:
“We hold that it is not necessary for the officers to have had all the information leading to probable cause prior to the beginning of the information. It is sufficient if during the investigation but before the transaction which is alleged to be entrapment the officers acquire the information which supplies probable cause.”
The record here indicates that the transaction which is alleged to be entrapment was initiated without further investigation into the informer’s conclusory accusations. The scheme was implemented when the agent contacted Nau and *595offered to purchase mescaline from him. This is not a situation where police investigation reaches the point of probable cause and a scheme to trap a suspect is then initiated but is rather a case where the police immediately initiated a scheme without investigation and without sufficient substantial information for probable cause.
I further disagree with the majority “third party” rule which nullifies the defense of entrapment when a non-governmental intermediary leads the agents to a suspect. Justice Frankfurter in his concurring opinion in Sherman v. U.S. (1958), 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848, stated that:
“The court refused to convict an entrapped defendant, not because his conduct falls outside the prescription of the statute, but because, even his guilt be admitted the methods employed on behalf of the government to bring about conviction cannot be contenanced.” 356 U.S. at 380.
The third party rule adopted by the majority today makes the methods employed on behalf of the government irrelevant in its application and removes the defense of entrapment in the third party situation regardless of the surrounding circumstances. The majority rule would ignore such important considerations as the amount of police pressure placed upon the intermediary to approach the third party or, more significantly, the amount and type of inducement or persuasion used by the intermediary on the third party to commit a criminal act.
It should be remembered that, even in the third party situation, we continue to be concerned with the very serious area of government initiated crime. The fact that there appears in the overall scheme a non-governmental intermediary, untrained and unconcerned with the rights of individuals, should increase our concern with his methods rather than abolish it.
Note.—Reported in 290 N. E. 2d 724.