concurring.
I agree with the majority that the average man standard of Grossman v. State, 457 P.2d 226 (Alaska 1969) requires modification and that what is sought to be prevented by the defense of entrapment is unreasonable or unconscionable police conduct. I would particularize this somewhat by adding that in drug sales it is neither unconscionable nor unreasonable for a police agent to behave as an ordinary buyer. The police should be allowed to provide stimuli to induce a drug sale which are like those which a seller normally encounters. It may not be unusual for a buyer of illegal drugs to claim, or for a seller to require a buyer to claim, dire physical need for drugs. If that is the case a police agent ought to be able to feign a drug need. In such cases the inquiry should be whether the persuasion employed by the police is significantly greater than that generally encountered for similar transactions. This approach has been employed in a number of California cases;1 its advantage is that it does not permit drug sellers to insulate themselves from conviction by the device of requiring all their customers to grovel briefly before a sale is made.
In this case there was but one short conversation which lead to the sale. The trial judge had the opportunity to judge the demeanor of the witnesses and he was not required to believe all that he heard. For these reasons I am not persuaded that we are justified in ruling as a matter of law that the defense of entrapment was made out. However, in light of the modified standard expressed in this opinion, I would remand to the superior court for a rehearing.
. E.g., People v. Braddock, 41 Cal.2d 794, 264 P.2d 521, 525 (1953); People v. Woolwine, 258 Cal.App.2d 385, 65 Cal.Rptr. 672, 676 (1968); People v. Ramos, 146 Cal.App.2d 110, 303 P.2d 783, 784 (1956); People v. Gonzales, 136 Cal.App.2d 437, 288 P.2d 588, 589 (1955).