dissenting.
With a degree of reluctance which I shall hereafter explain, I respectfully dissent.
To me, the real issue of this appeal concerns the proper role of the judiciary in dictating to a separate, coordinate branch of government acceptable methodology for dealing with crime. However, I would observe at the outset that my concern here does not implicate such court-generated constraints as Mapp v. Ohio, *82367 U.S. 643 (1961) and Miranda v. Arizona, 384 U.S. 436 (1966), that relate to law enforcement activities that have been held to impinge individual rights under the United States Constitution. No such rights are at stake here. The milieu presented by this case involved a simple larceny from the person and the availability of entrapment as a defense to conviction. The judiciary has accorded to defendants such as Hawkins the opportunity to avoid strict legal accountability, thus nullifying improvident or improper prosecutions directed at persons who, without predisposition, have succumbed to “extraordinary temptations or inducements” employed by the state. Oliver v. State, 101 Nev. 308, 309, 703 P.2d 869, 870 (1985) (citing Froggatt v. State, 86 Nev. 267, 467 P.2d 1011 (1970)).
As a rule, entrapment is an issue to be decided by the trier of fact as part of its function to determine the innocence or guilt of an accused. Sherman v. United States, 356 U.S. 369, 377 (1958). There are, of course, exceptions when the issue may be decided as an issue of law. Id. In Sherman, the Court determined that entrapment had been shown as a matter of law because of repeated entreaties to entice a formerly active addict back into involvement with drugs. The picture thus presented portrayed a former addict who was trying to overcome the degradations and deprivations of drug use and who, at last, succumbed to the majestic efforts of the government to promote his return to drug involvement. I have little trouble invoking entrapment as a matter of law under those circumstances. However, as Justice Frankfurter noted in his concurrence in Sherman:
“This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of the crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations.”
356 U.S. at 383-84.
In the decoy case of Reyes v. Municipal Court, 173 Cal.Rptr. 48, 51 (Ct.App. 1981), the court said:
[R]uses, stings and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime. . . . Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is *83impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.
In the instant case, the decoy operation was entirely passive in nature insofar as unsuspecting participants were concerned.1 I therefore have great difficulty placing this case in the category of entrapment as a matter of law.
Admittedly, I thread a fine needle in contrasting today’s dissent with my approval in Oliver and Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985). In Oliver, we were unwilling to permit the state to tempt passersby with an apparently drunken, unconscious derelict who exhibited a ten-dollar bill hanging from his tattered pocket. The enticement thus presented was that of an alcoholic who, upon awakening, would likely stagger to the nearest purveyor of liquor to exchange the bill for a liquid pacifier. Even those with borderline commitments to honest behavior could rationalize their act of larceny as one of benefit to the health of the derelict. Moreover, the ten-dollar bill could be viewed as more of a symbol for amelioration of the desperate than enticement to the criminal. In any event, the spectacle of the decoy operation in Oliver seemed to have the distinct flavor of an affront to human dignity and a rational society, factors that persuaded me to decide the issue as a matter of law. Admittedly, those factors waft more of an odor of arrogated judicial wisdom than that of an appropriate jurisdictional basis for dictating law enforcement policy. I suppose it could be argued that an analogue to Oliver would be a decision by the court directing the geographic placement of police officers in efforts to prevent and detect crime. This court simply should not substitute its wisdom for that of the governmental agency entrusted with the rights and responsibilities of law enforcement. Reverting, nevertheless, to the usual methodology of jurisprudes who frequently distinguish the non-distinguishable, the instant case does present, in contrast to Oliver, a well-dressed decoy who was ostensibly unconscious. Those who passed the fallen man could only speculate as to the cause of his plight. The currency observably protruding from an envelope in his rear pocket was not hanging as an invitation to removal by minuscule manipulation. Nor was it an indivisible *84source of relief to the desperate. It was, however, a passively tempting morsel to a thief.
The Moreland case fell prey to Oliver and was essentially of the same character. The decoy masqueraded as a derelict who was intoxicated or asleep. Protruding from his pocket were three one-dollar bills and a simulated $100 dollar bill. What I have said about Oliver may generally be said about Moreland with the exception of the large simulated bill and, depending upon the quality of the bill, its potential effect on those attracted to the bait. Still, the spectacle was that of a drunken vagrant whose use of the carelessly exposed currency was predictable.
It could be fairly stated that the essential differences between Oliver and Moreland and the instant case relate only to the attire and the denominations and placement of the currency. It is admittedly troubling to attempt to distinguish the instant case from the other two on such gossamer grounds. And perhaps what I am honestly doing is re-thinking the course we have taken through Oliver and Moreland.2 However, from the prospect of a *85judge living in a society with limited assets and a healthy regard for individual freedom, the Oliver scenario seemed inherently offensive to both. For the price of a ten-dollar bill displayed as an apple on an isolated tree, a man then rightfully free lost his freedom. And the honest taxpayers of Nevada were forced to divert scarce assets to the cost of incarcerating Oliver for at least part of a ten-year sentence. Equally troubling is the tragic realization that our society has produced a large number of “basically” honest people who rationalize their entitlement to whatever they can take with impunity. Employers consistently sustain substantial losses from employee pilferage “justified” by the conclusion that the employee is underpaid and exploited. The underprivileged in many walks of life conclude that the affluent enjoy life at their expense, and therefore are willing to view life in part as the law of the jungle and the survival of the fittest. While I do not condone theft or dishonesty even on the level of Oliver, I do not see societal benefit stemming from efforts to entice and incarcerate persons who succumb to the temptation of a ten-dollar bill dangled before them in trappings that virtually assure an undetected opportunity for some rationalized enrichment at perhaps not great personal expense to the victim. Even if the state elects not to prosecute after arrest, the trauma of the arrest and the stigma of the record cause one to reflect on the value of such an operation. Moreover, if the arrest reveals a fish that has frequented the criminal justice waters on previous occasions, can we truly claim triumph in having developed an artifice that has successfully strengthened the recidivism rate?
On the other hand, we were informed by the state during oral argument that criminal activity in downtown Reno has reached such a high level that many local citizens avoid the area. The challenges facing law enforcement agencies in preventing crime and apprehending criminals are enormous. Because, as judicial officers, we do not shoulder the burden of our law enforcement agencies, I am most reluctant to limit the options available to them in protecting society. It seems to me that the measured response of the criminal justice system to the unacceptable manufacturing of crime by police is the defense of entrapment. Rarely, I suggest, should the issue of entrapment be decided as a matter of law. The Olivers and Morelands should be the exception rather than the rule. Moreover, I am reluctant to decide, as a matter of law, that the police decoy operating here was either unwarranted or inordinately enticing. As previously stated, the decoy was well *86dressed and the bait less readily available than in Oliver and Moreland. The stage thus presented was not that of a drunken derelict who would likely awaken and perhaps do no more than wonder where or how he lost the money to buy another bottle. Additionally, as in Oliver and Moreland, there was no importuning, cajoling, badgering or affirmative measures taken to induce Hawkins to commit the crime. In short, however tenuous the differences between the instant case and Oliver and Moreland, I cannot conclude as a matter of law that the decoy operation utilized here constituted entrapment.
Although I am becoming progressively persuaded that we should not presume to dictate how, when and where police officials should exercise their rightful prerogatives in protecting society, I do not wish to be understood as favoring indiscriminate decoys that do not focus on existing criminal activity. As noted previously, even if a passive decoy operation snares an individual who has demonstrated past criminal propensities, but is otherwise apparently functioning within the law — or at least is not wanted by law enforcement authorities — I have some difficulty viewing the creation of a recidivist as a sensible triumph of law enforcement. I am nevertheless willing to assume that our law enforcement officials, who must answer to the public concerning the use of their limited resources, will utilize those resources reasonably. If they do not do so in the area of decoy operations, the law of entrapment should protect an accused from an improper conviction.
I must also disagree with the majority’s view of the evidence code in an attempt by the State to prove predisposition. In Busby, a recent case on the subject, the court held:
In determining whether a criminal defendant is predisposed to commit a particular crime we examine: “the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.”
United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986) (emphasis added) (quoting United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (9th Cir. 1977), cert. denied, 436 U.S. 926, (1978)). Obviously, an appellate court could not review the character, reputation, and prior criminal record of a defendant if they were inadmissible at trial. In my view, they clearly are admissible to show predisposition under the intent exception *87specified in NRS 48.045(2). Moreover, we have already held in Nevada that evidence of prior offenses is admissible on the issue of predisposition unless its probative value is outweighed by its prejudicial impact, a determination left to the sound discretion of the trial judge. Hill v. State, 95 Nev. 327, 329-30, 594 P.2d 699, 700-01 (1979). The rule admitting such evidence to show predisposition is so well established throughout the country that further citation is unnecessary.
Because I cannot conclude as a matter of law that Hawkins was entrapped, I would reverse and remand for trial.
Although I share the concerns of the majority in the wisdom of the type of unfocused net employed in apprehending Hawkins, I do not subscribe to the racial overtones in the majority opinion. If, in fact, race was a motivator in the prosecution of Hawkins, the effort is deserving of condemnation; I am simply unwilling to assume, on the basis of this record, that the officers were pursuing Hawkins because of skin color.
It is difficult to place our Oliver and Moreland decisions in either of the two recognized species of judicial responses to crime generated in part by law enforcement officers. The majority of courts have adopted the so-called “subjective” theory of entrapment that focuses on the issue of a defendant’s predisposition to commit the crime. Although Oliver and Moreland have muddied Nevada’s law on the subject, clearly prior to those decisions, Nevada stood among the majority of jurisdictions in its approach to entrapment. Thus, in Hill v. State, 95 Nev. 327, 330, 594 P.2d 699, 701 (1979), we said: “Since the defense of entrapment focuses on an appellant’s predisposition to commit the crime as charged, evidence that he previously supplied marijuana was relevant in establishing his state of mind while supplying marijuana to the undercover agents.” Moreover, we inferentially rejected the minority or so-called “objective” theory of entrapment by referencing a California case that had embraced that theory. Id. at 330 n. 8, 594 P.2d at 701 n. 8 (citing People v. Barraza, 591 P.2d 947 (Cal. 1979)). The objective theory looks only to the conduct of the police and therefore views the predisposition of an accused as irrelevant. But even under the objective theory of entrapment Oliver and Moreland find no harbor, as can be seen from the court’s holding in Barraza:
[W]e hold that the proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.
591 P.2d at 955 (footnote omitted). The decoy operations in Oliver and Moreland would not rise to the level of entrapment under the objective test because there was no badgering, cajoling, importuning or other acts that *85could reasonably be viewed as overbearing. It therefore appears that our Oliver and Moreland precedents represent some form of hybrid approach that tends to invalidate police efforts based upon a judicially perceived lack of prudence or practical worth. As previously noted, I seriously question whether our hybrid is worthy of an extended life.