Swainson, J.
Defendant Thomas Patterson Turner was bench tried and convicted of the sale1 and possession2 of heroin. He was sentenced to 20 to 30 years in prison for the sale of heroin and 4 to 10 years in prison for the possession of heroin. The Court of Appeals reversed his conviction on the count of sale and affirmed as to the count of possession. 38 Mich App 479; 196 NW2d 799. We granted leave to appeal. 387 Mich 776.
Defendant contends on appeal that he was entrapped into the possession of the heroin. In order to determine the validity of this assertion, we must look closely at the facts of this case. In 1967, Thomas Patterson Turner was introduced to undercover agent Melbourne Owen Partridge. At this time, Mr. Turner was employed at the Ford Motor Company, and also was an antique dealer. With the exception of one arrest as a juvenile, Mr. Turner did not have a criminal record. Mr. Partridge was a part-time sheriffs deputy and a truck driver employed by the Tecumseh Corrugated Box Company. Approximately six months after their initial introduction, Partridge complained to [12]*12Turner of drowsiness while driving on long trips. Turner sold him some pills to help him stay awake. Partridge turned these pills, which he believed were narcotics, over to the county sheriff who apparently did not act on this information. More pills were obtained approximately four months later and Partridge flushed them down his toilet.
Partridge testified that Turner visited with him on a regular basis, averaging about once a month over a period of three years. Partridge believed that Turner considered him a friend but he testified that he did not consider Turner a friend. Partridge obtained pills about a dozen times over a period of two years. He swallowed them on two occasions and destroyed them the other times. Partridge testified that he considered filing a criminal complaint against defendant but failed to do so.
.Partridge discussed the matter of Turner’s actions with a Tecumseh police officer, Officer Don Rodehaver in the fall of 1969. Officer Rodehaver introduced Partridge to Trooper James Ewers. Partridge informed the trooper that he believed that Turner was selling narcotics and Partridge and Ewers planned to find out if Turner was dealing in narcotics and make a purchase from Turner if at all possible.
Partridge introduced Ewers to Turner as a co-truck driver. Ewers and Partridge visited Turner at least six times in the fall of 1969 and bought stag movies and pills. Partridge testified that one purpose in going to defendant’s house was to see if he could get any information on dope and buy dope if possible. On one occasion that the pills were tested, they were found to contain caffeine. The agents were unable to buy either narcotics or [13]*13drugs from Turner and the case was closed prior to December, 1969.
In February, 1970, Ewers told Partridge that he wanted to investigate Mr. Turner further. He asked for Partridge’s help and a new investigation was commericed. At the time, Turner had quit his job of 21 years at the Ford Motor Company in order to devote himself full time to the antique business. In order to gain Turner’s confidence, Ewers feigned interest in the antiques and potential purchases from Turner. Partridge also inferred that he would haul some antiques for Turner from Pennsylvania to Michigan thus saving Turner the freight charges. He testified that he wanted to convey to Turner the impression that he would haul back the antiques. Turner testified that on one occasion Partridge had brought a girl friend to the shop who had purchased some antiques from Turner.
Before February 22, 1970, Partridge had requested narcotics from Turner on at least one and probably several other occasions. Turner testified that when Partridge had asked him for narcotics he informed him that he didn’t know anything about them and didn’t want anything to do with them. On February 22, 1970, Ewers and Partridge visited Turner. Turner asked them if they wanted some pills and Partridge said yes and also asked him for some hard stuff. Partridge testified that Turner informed him of the harmful effects of heroin and that it was a bad idea to use either marijuana or heroin. Partridge told him that it was for his girl friend in Monroe County who was an addict and very good looking and who would quit dating him if he didn’t find some heroin for her. In fact, no such person existed and Partridge testified that he invented the story about the [14]*14addict girl friend so Turner would believe it. Turner agreed to help out his friend who he believed was "in a little of a spot” and to obtain some heroin from a friend of his in Detroit who had become addicted to heroin.
The next morning Partridge gave Turner $20 with which to make the purchase. Early in the morning of February 24, 1970, Turner brought Partridge the requested pills, marijuana and heroin. He asked Partridge for an additional $17 since the heroin alone had cost $20.
Ewers had arrived at Partridge’s house earlier to set up two tape recorders which recorded the ensuing conversations. He was present during the entire transaction. After Turner had left, Ewers and Partridge took the tape recorders and drove them to the state police post in Clinton. Turner was not arrested, apparently because the police were interested in his source of supply of the heroin.
Ewers and Partridge subsequently tried to obtain more heroin by using the girl friend story. Turner did not have any heroin and was unwilling to obtain any, but he did agree to introduce them to a Mr. Cope in Detroit from whom he had obtained the heroin that he had given to Partridge.
On March 3, 1970, Turner drove Ewers and Partridge to Detroit where they purchased heroin from Cope. Ewers wore a concealed transmitter which relayed the conversations during the trip to the Detroit police.
On March 11, 1970, Turner was arrested and charged with sale and possession of heroin. Ewers, on this date, interrogated Turner and asked him to become an informer. He told Turner that if he cooperated, the prosecution would be notified.
[15]*15On April 7, 1970, a preliminary examination was held in Adrian, Michigan. The court denied a defense motion to release Turner on the ground that he was entrapped as a matter of law. Turner was bench tried in late June and early July of 1970. The trial court denied defense counsel’s motion to quash the information on' the grounds of entrapment and misstatements of the examining magistrate. The trial court also denied a defense motion to sequester Ewers during Partridge’s testimony or alternatively to reverse the order in which the two witnesses testified. Partridge was permitted to testify first while Ewers was present in the courtroom.
The defense of entrapment, now accepted throughout the United States, appears to have originated in an early Michigan case, Saunders v People, 38 Mich 218 (1878).3 In People v Sinclair, 387 Mich 91, 116-120; 194 NW2d 878 (1972), I discussed the defense of entrapment and the split of authority over whether an objective or subjective test should apply. In this time of growing concern over the illegal and immoral use of the power of the government to gain convictions, the warnings of our Supreme Court almost a century ago should not be forgotten. As was stated in the Sinclair case, supra, 116-120:
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Swainson, J.
Defendant Thomas Patterson Turner was bench tried and convicted of the sale1 and possession2 of heroin. He was sentenced to 20 to 30 years in prison for the sale of heroin and 4 to 10 years in prison for the possession of heroin. The Court of Appeals reversed his conviction on the count of sale and affirmed as to the count of possession. 38 Mich App 479; 196 NW2d 799. We granted leave to appeal. 387 Mich 776.
Defendant contends on appeal that he was entrapped into the possession of the heroin. In order to determine the validity of this assertion, we must look closely at the facts of this case. In 1967, Thomas Patterson Turner was introduced to undercover agent Melbourne Owen Partridge. At this time, Mr. Turner was employed at the Ford Motor Company, and also was an antique dealer. With the exception of one arrest as a juvenile, Mr. Turner did not have a criminal record. Mr. Partridge was a part-time sheriffs deputy and a truck driver employed by the Tecumseh Corrugated Box Company. Approximately six months after their initial introduction, Partridge complained to [12]*12Turner of drowsiness while driving on long trips. Turner sold him some pills to help him stay awake. Partridge turned these pills, which he believed were narcotics, over to the county sheriff who apparently did not act on this information. More pills were obtained approximately four months later and Partridge flushed them down his toilet.
Partridge testified that Turner visited with him on a regular basis, averaging about once a month over a period of three years. Partridge believed that Turner considered him a friend but he testified that he did not consider Turner a friend. Partridge obtained pills about a dozen times over a period of two years. He swallowed them on two occasions and destroyed them the other times. Partridge testified that he considered filing a criminal complaint against defendant but failed to do so.
.Partridge discussed the matter of Turner’s actions with a Tecumseh police officer, Officer Don Rodehaver in the fall of 1969. Officer Rodehaver introduced Partridge to Trooper James Ewers. Partridge informed the trooper that he believed that Turner was selling narcotics and Partridge and Ewers planned to find out if Turner was dealing in narcotics and make a purchase from Turner if at all possible.
Partridge introduced Ewers to Turner as a co-truck driver. Ewers and Partridge visited Turner at least six times in the fall of 1969 and bought stag movies and pills. Partridge testified that one purpose in going to defendant’s house was to see if he could get any information on dope and buy dope if possible. On one occasion that the pills were tested, they were found to contain caffeine. The agents were unable to buy either narcotics or [13]*13drugs from Turner and the case was closed prior to December, 1969.
In February, 1970, Ewers told Partridge that he wanted to investigate Mr. Turner further. He asked for Partridge’s help and a new investigation was commericed. At the time, Turner had quit his job of 21 years at the Ford Motor Company in order to devote himself full time to the antique business. In order to gain Turner’s confidence, Ewers feigned interest in the antiques and potential purchases from Turner. Partridge also inferred that he would haul some antiques for Turner from Pennsylvania to Michigan thus saving Turner the freight charges. He testified that he wanted to convey to Turner the impression that he would haul back the antiques. Turner testified that on one occasion Partridge had brought a girl friend to the shop who had purchased some antiques from Turner.
Before February 22, 1970, Partridge had requested narcotics from Turner on at least one and probably several other occasions. Turner testified that when Partridge had asked him for narcotics he informed him that he didn’t know anything about them and didn’t want anything to do with them. On February 22, 1970, Ewers and Partridge visited Turner. Turner asked them if they wanted some pills and Partridge said yes and also asked him for some hard stuff. Partridge testified that Turner informed him of the harmful effects of heroin and that it was a bad idea to use either marijuana or heroin. Partridge told him that it was for his girl friend in Monroe County who was an addict and very good looking and who would quit dating him if he didn’t find some heroin for her. In fact, no such person existed and Partridge testified that he invented the story about the [14]*14addict girl friend so Turner would believe it. Turner agreed to help out his friend who he believed was "in a little of a spot” and to obtain some heroin from a friend of his in Detroit who had become addicted to heroin.
The next morning Partridge gave Turner $20 with which to make the purchase. Early in the morning of February 24, 1970, Turner brought Partridge the requested pills, marijuana and heroin. He asked Partridge for an additional $17 since the heroin alone had cost $20.
Ewers had arrived at Partridge’s house earlier to set up two tape recorders which recorded the ensuing conversations. He was present during the entire transaction. After Turner had left, Ewers and Partridge took the tape recorders and drove them to the state police post in Clinton. Turner was not arrested, apparently because the police were interested in his source of supply of the heroin.
Ewers and Partridge subsequently tried to obtain more heroin by using the girl friend story. Turner did not have any heroin and was unwilling to obtain any, but he did agree to introduce them to a Mr. Cope in Detroit from whom he had obtained the heroin that he had given to Partridge.
On March 3, 1970, Turner drove Ewers and Partridge to Detroit where they purchased heroin from Cope. Ewers wore a concealed transmitter which relayed the conversations during the trip to the Detroit police.
On March 11, 1970, Turner was arrested and charged with sale and possession of heroin. Ewers, on this date, interrogated Turner and asked him to become an informer. He told Turner that if he cooperated, the prosecution would be notified.
[15]*15On April 7, 1970, a preliminary examination was held in Adrian, Michigan. The court denied a defense motion to release Turner on the ground that he was entrapped as a matter of law. Turner was bench tried in late June and early July of 1970. The trial court denied defense counsel’s motion to quash the information on' the grounds of entrapment and misstatements of the examining magistrate. The trial court also denied a defense motion to sequester Ewers during Partridge’s testimony or alternatively to reverse the order in which the two witnesses testified. Partridge was permitted to testify first while Ewers was present in the courtroom.
The defense of entrapment, now accepted throughout the United States, appears to have originated in an early Michigan case, Saunders v People, 38 Mich 218 (1878).3 In People v Sinclair, 387 Mich 91, 116-120; 194 NW2d 878 (1972), I discussed the defense of entrapment and the split of authority over whether an objective or subjective test should apply. In this time of growing concern over the illegal and immoral use of the power of the government to gain convictions, the warnings of our Supreme Court almost a century ago should not be forgotten. As was stated in the Sinclair case, supra, 116-120:
"Our Court has long recognized the defense of entrapment and the public policy behind this rule. In Saunders v People, 38 Mich 218 (1878), the Court reversed Saunders’ conviction for breaking and entering by night a court room not connected with a dwelling and 'taking therefrom certain recognizances described as contracts in force and public records’. The Court held:
"'Decoying, or conniving with persons suspected of [16]*16criminal designs, for the purpose of arresting them in the commission of the offense, is denounced by the Supreme Court.’ (Syl 1.)
"Justice Cooley, writing for the Court, reversed on the grounds that the testimony of a witness named Dunnebacke, should not have been excluded. Two of the Justices held that the conviction should be reversed because of impermissible police conduct. Justice Marston stated (pp 221-222):
" T cannot, however, silently permit the extraordinary course adopted by the police officers in this case to pass unnoticed and uncondemned. * * *
" 'The course pursued by the officers in this case was utterly indefensible. Where a person contemplating the commission of an offense approaches an officer of the law, and asks his assistance, it would seem to be the duty of the latter, according to the plainest principles of duty and justice, to decline to render such assistance, and to take such steps as would be likely to prevent the commission of the offense, and tend to the elevation and improvement of the would-be criminal, rather than to his farther debasement. Some courts have gone a great way in giving encouragement to detectives, in some very questionable methods adopted by them to discover the guilt of criminals; but they have not yet gone so far, and I trust never will, as to lend aid or encouragement to officers who may, under a mistaken sense of duty, encourage and assist parties to commit crime, in order that they may arrest and have them punished for so doing. The mere fact that the person contemplating the commission of a crime is supposed to be an old offender can be no excuse, much less a justification for the course adopted and pursued in this case. If such were the fact, then the greater reason would seem to exist why he should not be actively assisted and. encouraged in the commission of a new offense which could in no way tend to throw light upon his past iniquities, or aid in punishing him therefor, as the law does not contemplate or allow the conviction and punishment of parties on account of their general bad or criminal conduct, irrespective of their guilt or innocence of the particular offense charged and for which they are being tried. Human nature is frail enough at best, and requires no [17]*17encouragement in wrong-doing. If we cannot assist another and prevent him from violating the laws of the land, we at least should abstain from any active efforts in the way of leading him into temptation. Desire to commit crime and opportunities for the commission thereof would seem sufficiently general and numerous, and no special efforts would seem necessary in the way of encouragement or assistance in that’ direction.’
"Chief Justice Campbell stated (p 223):
" '[T]he encouragement of criminals to induce them to commit crimes in order to get up a prosecution against them, is scandalous and reprehensible.’
“Two theories have been advanced concerning the issue of entrapment. The first view was articulated by Chief Justice Hughes in Sorrells v United States, 287 US 435, 451; 53 S Ct 210; 77 L Ed 413 (1932), when he stated:
" '[T]he defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. * * * The predisposition and criminal design of the defendant are relevant. But the issues raised and thé evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.’
“In Sherman v United States, 356 US 369; 78 S Ct 819; 2 L Ed 2d 848 (1958), the majority of the Court adopted the position of Chief Justice Hughes in Sorrells, supra. Thus, according to the majority view, whenever the defense of entrapment is raised, the court must look at 1) the conduct of the police, and 2) the predisposition [18]*18of the defendant. The second view was stated by Justice Roberts in Sorrells (pp 458-459):
" Tt has been generally held, where the defendant has proved an entrapment, it is permissible for the government to show in rebuttal that the officer guilty of incitement of the crime had reasonable cause to believe the defendant was a person disposed to commit the offense. This procedure is approved by the opinion of the court. The proof received in rebuttal usually amounts to no more than that the defendant had a bad reputation, or that he had been previously convicted. Is the statute upon which the indictment is based to be further construed as removing the defense of entrapment from such a defendant?
" 'Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. He has committed the crime in question, but, by supposition, only because of instigation and inducement by a government officer. To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction. It is to discard the basis of the doctrine and in effect to weigh the equities as between the government and the defendant when there are in truth no equities belonging to the latter, and when the rule of action cannot rest on any estimate of the good which may come of the conviction of the offender by foul means. The accepted procedure, in effect, pivots conviction in such cases, not on the commission of the crime charged, but on the prior reputation or some former act or acts of the defendant not mentioned in the indictment.’
"In Sherman, supra, Justice Frankfurter, writing for four justices of the Court, adopted the views advanced by Justice Roberts in Sorrells, supra.
"The factual situation confronting us here demonstrates the practical problems that arise when the majority test is employed. The basis of the entrapment defense is that the methods used by the police are [19]*19repugnant to fair play and justice. As the court stated in United States v Chisum, 312 F Supp 1307, 1312 (DC Cal, 1970):
" 'Entrapment is indistinguishable from other law enforcement practices which the courts have held to violate due process. Entrapment is an affront to the basic concepts of justice. Where it exists, law enforcement techniques become contrary to the established law of the laind as an impairment to due process.’
"In an attempt to discourage these practices and uphold 'public confidence in the fair and honorable administration of justice’ (Sherman v United States, supra, p 380 [Frankfurter, J.]), courts refuse to allow convictions based on entrapment.”
Since that time, again by a one vote margin, the United States Supreme Court has reaffirmed support for a subjective test of entrapment. While the opinion of the United States Supreme Court is deserving of consideration, we are not bound by its holding in this matter. Continental Motors v Muskegon Twp, 365 Mich 191; 112 NW2d 429 (1961); Mack v Reo Motors, Inc, 345 Mich 268; 76 NW2d 35 (1956). We believe that. Justice Stewart’s dissenting opinion in United States v Russell, 411 US 423, 441-445; 93 S Ct 1637; 36 L Ed 2d 366 (1973) persuasively articulates why the objective test should be adopted in Michigan.
"In my view, this objective approach to entrapment advanced by the concurring opinions in Sorrells and Sherman is the only one truly consistent with the underlying rationale of the defense. Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was 'predisposed’ or 'otherwise innocent.’ I find it impossible to believe that the purpose of the defense is to effectuate some unexpressed congressional intent to exclude from its criminal statutes persons who com[20]*20mitted a prohibited act, but would not have done so except for the Government’s inducements. For, as Mr. Justice Frankfurter put it, 'the only legislative intention that can with any show of reason bé extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged.’ Sherman v United States, supra, at 379. See also Sorrells v United States, supra, at 456 (Roberts, J., concurring). Since, by definition, the entrapment defense cannot arise unless the defendant actually committed the proscribed act, that defendant is manifestly covered by the terms of the criminal statute involved.
"Furthermore, to say that such a defendant is 'otherwise innocent’ or not 'predisposed’ to commit the crime is misleading, at best. The very fact that he has committed an act that Congress has determined to be illegal demonstrates conclusively that he is not innocent of the offense. He may not have originated the precise plan or the precise details, but he was 'predisposed’ in the sense that he has proved to be quite capable of committing the crime. That he was induced, provoked, or tempted to do so by government agents does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person—which, of course, would not entitle him to cry 'entrapment.’ Since the only difference between these situations is the identity of the temptor, it follows that the significant focus must be on the conduct of the government agents, and not on the predisposition of the defendant.
"The purpose of the entrapment defense, then, cannot be to protect persons who are 'otherwise innocent.’ Rather, it must be to prohibit unlawful governmental activity in instigating crime. * * *
"Moreover, a test that makes the entrapment defense depend on whether the defendant had the requisite predisposition permits the introduction into evidence of all kinds of hearsay, suspicion, and rumor—all of which would be inadmissible in any other context—in order to prove the defendant’s predisposition. It allows the prosecution, in offering such proof, to rely on the defendant’s bad reputation or past criminal activities, including even rumored activities of which the prosecution [21]*21may have insufficient evidence to obtain an indictment, and to present the agent’s suspicions as to why they chose to tempt this defendant. This sort of evidence is not only unreliable, as the hearsay rule recognizes; but it is also highly prejudicial, especially if the matter is submitted to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative not simply of the defendant’s predisposition, but of his guilt of the offense with which he stands charged.
"More fundamentally, focusing on the defendant’s innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved. Stated another way, this subjective test means that the Government is permitted to entrap a person with a criminal record or bad reputation, and then to prosecute him for the manufactured crime, confident that his record or reputation itself will be enough to show that he was predisposed to commit the offense anyway.
♦ * *
"In my view, a person’s alleged 'predisposition’ to crime should not open him to government participation in the criminal transaction that would be otherwise unlawful.
* * *
"But when the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then—regardless of the character or propensities of the particular person induced—I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.”
This case demonstrates why an objective test is preferable to a subjective one. During the course of [22]*22the trial, Trooper Ewers was very careful to insist that defendant offered to sell narcotics to him and insisted that he had never offered to buy any. In response to a question by defendant’s counsel he stated that this was because he did not want to entrap the defendant. The use of the subjective test leads to a battle of semantics at trial over who said what first—the defendant concerned about admitting any evidence of "predisposition” and the undercover agent afraid that stating the wrong phrase at the wrong time will lead to a finding of entrapment. It fails to focus on the real concern in these cases—whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand.
We agree with the position of Justices Roberts, Frankfurter, and Stewart of the United States Supreme Court and the view articulated by Justices Marston and Campbell of our Supreme Court and adopt an objective test of entrapment in Michigan.
In this case, we hold that defendant was entrapped as a matter of law. The investigation of Turner was precipitated by the actions of undercover agent Partridge. Partridge cooperated in an investigation of a man who he had known for three years. The only thing that Turner had done over this period was to become a friend of Partridge and after discovering that Partridge felt drowsy on cross-country trips, gave him some pep pills on a few occasions. The investigation was undertaken during the fall of 1969 and the only items that were obtained after three months were caffeine pills. Caffeine pills are not illegal under Michigan or Federal law. The investigation then was closed. It was reopened a couple of months [23]*23later, not based bn any new information, but at the insistence of Trooper Ewers. Ewers then feigned interest in Turner’s antique business and Partridge inferred that he would bring back by truck a load of antiques for Turner, which would save Turner considerable expense in freight charges. Finally, to insure success, Partridge invented the story of an addict girl friend to play on Turner’s sympathy as a friend. Partridge admits that Turner told him that heroin was bad. Finally, Turner helped out a friend and obtained heroin for Partridge on one, and only one, occasion. The trial judge, after an extensive presentence investigation and report, determined that Turner was not a dealer in drugs.
Thus, despite the fact that there was no intimation at all that Turner was dealing in heroin when the investigation began; the fact that the first investigation turned up nothing; the sale only occurred after the invention of a fictitious girl friend to play on the sympathy of a friend; and Turner was not found to be a dealer in drugs by the trial court, defendant was sentenced to 20 years in jail for his crime.
This is the type of overreaching by the police condemned by our Court in Saunders v People, 38 Mich 218 (1878), and this is a case in which entrapment occurred.
The actions of the state in this case cannot be permitted to go unchallenged by our Court. The judgment should be reversed and the defendant discharged.
T. M. Kavanagh, C. J., and T. G. Kavanagh and Levin, JJ., concurred with Swainson, J.
Williams, J.
(for reversal). The legal authorities and detailed facts are adequately set forth in the [24]*24opinions of my colleagues. It is sufficient for this opinion to emphasize two points. First, despite intensive and extensive investigation, no evidence was developed that defendant had engaged in the sale of heroin or even "soft” drugs. Second, the police through a sympathy-provoking deceit caused defendant to engage in what there is no evidence he had previously engaged in or that he would at that time have engaged in except for the action of the police, namely sell or procure heroin.
This situation in my mind falls squarely within the standard set by Sorrells: "[T]he defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials.”11 would therefore reverse. However, I do not entirely accept Justice Swainson’s new rule and I would modify the rule relied on by Justices T. E. Brennan and M. S. Coleman.
As in so many cases that come before this Court, reason and equity are not all on one side. The tension here is between two very valid reasons and equities. Justice Swainson, on the one hand, is rightly concerned about a rule which permits general evidence of defendant’s "bad reputation” to justify reprehensible police action. Justice T. E. Brennan, on the other, correctly observes that without some artifice the police seldom, if ever, would make the "buy” necessary to prove the sale of heroin. I am sympathetic with both their concerns.
It seems to me that Justice Swainson’s major objective could be achieved without looking only to the character of the police conduct, which I feel overlooks the fact that in most instances police [25]*25conduct must be measured with respect to the conduct of the defendant. The police here in my mind would not have looked so bad if they had been coping with a known heroin pusher, let us say. What makes them look so bad is that they seem to have taken advantage of a rather unsophisticated "innocent”.
In my opinion it would be well to construe the phrase "person otherwise innocent” more narrowly to refer to a person otherwise innocent of the specific type of crime charged. This would mean that police would have to prove, if properly challenged, that the defendant either had a prior record of crimes of the specific nature charged, had in this case for example made an offer to sell, actually had heroin, or some other matter destroying the concept that defendant was a person otherwise innocent of this type of crime.
This proof may not be the easiest to get, but our common-law system has been able to work out most similar challenges or to change the rules accordingly.
While this will require a higher standard of justification for otherwise questionable police practice, I believe it will not prohibit the making of "buys” that concern Justices T. E. Brennan and M. S. Coleman and myself—-for that matter, I am sure, all the Court.