(concurring in part, dissenting in part) — The United States Supreme Court has never overturned a criminal conviction based on the defense of outrageous government conduct. Neither has any Washington court. That is so because the threshold for proving outrageous conduct is high: it must be " 'shocking to the universal sense of justice.’ ” United States v. Russell, 411 U.S. 423, 432, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973) (quoting Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S. Ct. 297, 4 L. Ed. 2d 268 (1960)) (emphasis added); State v. Myers, 102 Wn.2d 548, 551, 689 P.2d 38 (1984). The facts of this case, while disturbing, do not cross that bar.
Defendant Lively became romantically involved with a police informant whom she met at an Alcoholic Anonymous/Narcotics Anonymous meeting. Eventually, he asked her to sell drugs for him and she did. Her defense at trial was entrapment. The jury, who heard the testimony and saw the witnesses, convicted her.
The defense of outrageous conduct was raised for the first time on appeal. By reversing Lively’s conviction, the majority substitutes its judgment for that of the jury. The consequences to our criminal justice system are enormous. Therefore, I dissent.
The United States Supreme Court has discussed a possible defense based on outrageous government conduct only twice. In United States v. Russell, 411 U.S. 423, an undercover agent for the Federal Bureau of Narcotics and Dangerous Drugs supplied the defendant with an essential ingredient used in producing methamphetamine (speed). The defendant argued that the agent’s involvement "was so high that a criminal prosecution for the drug’s manufacture violates the fundamental principles of due process.” Russell, 411 U.S. at 430. The Court rejected this contention, in part because the ingredient was legal and the de*29fendant could have secured it without the agent’s help. Russell, 411 U.S. at 431-32.
Nonetheless, Justice Rehnquist, writing for the majority, remarked that "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Russell, 411 U.S. at 431-32. He went on to explain that the behavior of law enforcement in Russell "stops far short of violating that 'fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment.” 411 U.S. at 432 (quoting Kinsella, 361 U.S. at 246). These few phrases have become the basis for the so-called doctrine of outrageous conduct. This doctrine would allow a defendant to assert a due process violation where government engages in conduct that "shocks the conscience.” See generally Richard Lawrence Daniels, Note, United States v. Simpson: "Outrageousness!” What Does it Really Mean? — An Examination of the Outrageous Conduct Defense, 18 Sw. U. L. Rev. 105 (1988).
In Hampton v. United States, 425 U.S. 484, 96 S. Ct. 1646, 48 L. Ed. 2d 113 (1976), the United States Supreme Court revisited this issue. Justice Rehnquist, writing for a plurality, withdrew from his earlier position. He stated that a defendant who fails to prove entrapment may not in its place argue that government conduct violated due process. He concluded that "[t]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant.” Hampton, 425 U.S. at 490. The dissent insisted that where a defendant is prevented from relying on the defense of entrapment because of a predisposition to commit the crime, he or she should nonetheless be permitted to argue that government conduct violated due process if "the conduct of law enforcement authorities is sufficiently offensive.” Hampton, 425 U.S. at 497 (Brennan, J., dissenting). Even so, a *30majority of the Supreme Court has never endorsed the outrageous conduct defense. Danny R. Veilleux, Annotation, Actions by State Official Involving Defendant as Constituting "Outrageous" Conduct Violating Due Process Guaranties, 18 A.L.R.5th 1, 25 (1994).
Judge Wiggins of the Washington Court of Appeals authored a well-reasoned opinion regarding the doctrine of outrageous conduct. State v. Rundquist, 79 Wn. App. 786, 905 P.2d 922 (1995). He emphasized that we have never applied this doctrine to overturn a conviction.
Washington courts have repeatedly rejected the outrageous conduct defense in cases in which police were engaged in illegal activities. Our courts have declined to find outrageous conduct where police informants engaged in acts of prostitution and attempted to recruit new prostitutes, or engaged the services of a prostitute. Our courts have also declined to find outrageous conduct where the police themselves established an elaborate operation for the purchase and sale of stolen goods or set up a phony job recruiting center and solicited the purchase of marijuana from a potential job applicant.
Rundquist, 79 Wn. App. at 795-96 (citations omitted).
The judiciary does not have carte blanche to define appropriate police conduct. As Judge Wiggins pointed out, the Legislature codified the entrapment defense in response to public concern over potential law enforcement abuses. Moreover,
"[t]he execution of the federal laws under our Constitution is confined primarily to the Executive Branch of the Government, subject to applicable constitutional and statutory limitations and to judicially fashioned rules to enforce those limitations.”
Rundquist, at 796-97 (quoting Russell, 411 U.S. at 435). The judiciary must be circumspect as it wields its power to shape police conduct. Where police conduct violates explicit rights, such as the Fourth Amendment protection against unwarranted searches and seizures, it is highly appropriate for the judiciary to proscribe the behavior. *31However, notions of "fundamental fairness” are debatable, and we should act cautiously when overturning convictions on this principle. Judge Wiggins surmised:
Governmental misconduct must somehow impact the defendant’s own rights before it rises to the level of outrageousness that will justify dismissing a prosecution. Our supreme court has repeatedly held that the court should not dismiss a criminal prosecution unless the governmental misconduct prejudices the defendant and materially affects the right to a fair trial. Absent some violation of the defendant’s own rights, the legislative and executive branches, not the judicial branch, should establish the parameters of acceptable police investigation and the extent to which the police may themselves violate the law in order to detect and prevent crime.
Assuming without deciding that the due process clause incorporates some doctrine of outrageous conduct by governmental agents separate and apart from the entrapment defense, we hold that the doctrine must be sparingly applied and used only in the most egregious situations.
Rundquist, at 797 (citation omitted; emphasis added).
The majority completely overlooks Rundquist and, in doing so, concocts a five-part test to determine if police conduct is so outrageous as to require reversal of a conviction based on a violation of due process. Majority, at 22. While the majority relies on United States v. Harris, 997 F.2d 812 (10th Cir. 1993), State v. Shannon, 892 S.W.2d 761 (Mo. Ct. App. 1995), United States v. Corcione, 592 F.2d 111 (2d Cir.), cert. denied, 440 U.S. 975 and 440 U.S. 985 (1979), United States v. Jensen, 69 F.3d 906 (8th Cir. 1995), cert. denied, 116 S. Ct. 1571 (1996), and People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978) to further its analysis, it fails to discuss these cases in any detail. This omission probably stems from the fact that these cases lend little or no support for the majority’s five-part test. In fact, these cases by and large reject the outrageous conduct defense. The Tenth Circuit in Harris found no outrageous conduct where law enforcement compensated the defendant, a drug addict, with *32cocaine instead of cash for participation in drug transactions. Harris, 997 F.2d at 818. In Shannon, the court rejected the outrageous conduct defense even though police furnished the defendant with money to purchase illicit drugs, provided him with transportation to facilitate the transaction, suggested he negotiate a lower price, and permitted him to sample the drugs in exchange for successfully obtaining them. Shannon, 892 S.W.2d at 766. In Corcione, Drug Enforcement Administration agents transported heroin into the United States to assist a drug transaction. The Second Circuit characterized this as "an example of effective law enforcement work,” and found no due process violation. Corcione, 592 F.2d at 115. And, in Jensen, the Eighth Circuit found no outrageous government conduct where an IRS agent told the defendant, a car salesman, that he would be purchasing a vehicle with illegal drug money. Jensen, 69 F.3d at 910.
As for the decision of the New York Court of Appeals, that case rests on a faulty interpretation of due process rights. In Isaacson, police brutally beat an informant and deceived him into thinking he would face a stiff prison sentence if he did not engage in a drug buy with the defendant. On the basis of this and other facts,6 the Court found police had violated defendant’s due process rights. Isaacson, 378 N.E.2d at 84-85. Isaacson stands for the novel proposition that a defendant can assert an informant’s due process rights when challenging his or her own conviction. This argument has no foundation in either the Due Process Clause or in any other provision of the Constitution. By following Isaacson, the majority necessarily adopts the view that a defendant can challenge a conviction whenever police allegedly mistreat an informant. Due process rights are personal, and in such situations the informant, and not the defendant, should assert them.
*33Even if this court were to accept an outrageous conduct defense, the facts of this case do not demonstrate "the most egregious situation.” Rundquist, 79 Wn. App. at 797. First, the jury squarely rejected Lively’s entrapment defense. In discussing the entrapment defense, the majority holds there is sufficient evidence to support the jury verdict and admits that such a verdict would not be sustainable if Lively had lacked a predisposition to sell drugs. See majority at 9, 10. Conversely, in its discussion of the outrageous conduct defense, the majority argues that Lively had no predisposition to commit the crime. Majority at 26. This inconsistency is inexplicable, and suggests the majority’s analysis is purely result-driven. As Justice Rehnquist indicated in Hampton, it makes no sense that a defendant should succeed in showing outrageous conduct where he or she failed to prove entrapment. Hampton, 425 U.S. at 490. By reversing Lively’s conviction on the basis of the outrageous conduct defense, the majority necessarily anoints itself factfinder while usurping the role of the jury. This simply is not the function of an appellate court.
Second, the police investigation in this case was entirely on the level. While the majority states the police commenced their investigation "to lure recovering drug addicts,” majority at 23 (emphasis added), and that "there is no allegation of illegal activity occurring at AA/NA meetings,” majority at 23, these characterizations are not born out in the record. The record establishes that police had information regarding "repeaters” who both used and sold drugs while attending Alcoholics Anonymous/ Narcotics Anonymous meetings. Given this, it is not "shocking” that an investigation would ensue. The majority, however, makes much of the fact that Lively became emotionally involved with the informant, as if this amounts to outrageous conduct on the part of police. An affair with a paid informant simply does not rise to the level of fundamental unfairness "shocking to the universal sense of justice.”
Moreover, unlike the facts of the cases the majority *34cites, see, e.g., People v. Isaacson, 44 N.Y.2d 511, the police here had limited knowledge of the informant’s activities. While the majority, in an attempt to find outrageous conduct on the part of police, characterizes the Defendant’s relationship with the informant as one of "emotion[al] relianfce]” and "emotional dependence,” majority at 26, police testified at trial that they had very little information regarding the nature of the informant’s relationship with the Defendant. Report of Proceedings at 20-21. Thus, even if Lively was emotionally involved with the informant, this is no reason to find police misconduct.
The trial court in Lively acted appropriately. Following a jury conviction for delivery of cocaine, the trial court acknowledged that mitigating circumstances existed, and thus departed downward from the standard sentencing range. It did not dismiss the prosecution, as the majority would have trial courts do after today’s decision.
The majority has haphazardly created a test for evaluating police conduct based on a tenuous interpretation of due process rights. Our courts previously have rejected the outrageous conduct defense. Moreover, the decisions of the United States Supreme Court do not support the majority’s position. While I agree with the majority that the Defendant in this case failed to prove entrapment, I must dissent as to its analysis of the doctrine of outrageous conduct.
Johnson, Alexander, and Talmadge, JJ., concur with Durham, C.J.
For example, the informant, with the help of police, then tricked the defendant into unwittingly crossing the border from Pennsylvania so that the sale of the controlled substance would take place in New York. Isaacson, 378 N.E.2d at 84.