People v. Hubbard

• Decision Date: 06 March 1995
• Docket Number: Docket No. 144861
• Citation: 530 N.W.2d 130,209 Mich.App. 234
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney Allen HUBBARD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 130

530 N.W.2d 130

209 Mich.App. 234

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rodney Allen HUBBARD, Defendant-Appellant.

Docket No. 144861.

Court of Appeals of Michigan.

Submitted Sept. 7, 1994, at Grand Rapids.

Decided March 6, 1995, at 9:50 a.m.

Released for Publication April 17, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Margaret Mary Chiara, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the people.

State Appellate Defender (by Ronald E. Steinberg), for defendant on appeal.

Before MacKENZIE, P.J., and RICHARD ALLEN GRIFFIN and TALBOT, ^* JJ.

RICHARD ALLEN GRIFFIN, Judge.

Following a jury trial, defendant was convicted of one count of carrying a concealed weapon in a motor vehicle, M.C.L. § 750.227; M.S.A. § 28.424, and one count of possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv). He was sentenced to concurrent prison terms of 237 days for the conviction of carrying a concealed weapon and 2 1/2 to 20 years for the conviction of possession with intent to deliver. Defendant now appeals as of right. We reverse. In doing so, we hold that expert testimony of drug profiles is not admissible as substantive evidence of a defendant's guilt.

I

On the evening of September 2, 1990, Dowagiac police officers Clinton Roach and Joseph Wheeler were approached by a confidential informant. The informant told the officers that a black male or several black males appeared to be "dealing drugs" from a red or maroon Chevrolet parked outside the Coney Island Lounge. The officers thereafter drove by the lounge, where they observed a vehicle matching the informant's description. They recorded the vehicle's license plate number and performed a Law Enforcement Information Network (LEIN) check. The LEIN check revealed that the license plate on the Chevrolet belonged to a different vehicle.

While Officers Roach and Wheeler were following the suspect vehicle later that evening, they noticed that the automobile was not equipped with outside "rearview" mirrors. After the officers stopped the vehicle, defendant and three other male occupants left the car and immediately started walking away. Defendant had been the driver. The four men returned to their vehicle only after being ordered to do so by the officers. The four suspects were then "pat searched" for weapons.

Defendant was arrested after a LEIN check disclosed that he did not have a driver's license. Defendant's hands were then handcuffed behind his back and he was placed in the back seat of the patrol car. While defendant was handcuffed in the back seat, Officer Wheeler observed defendant "moving up and down, side to side, and leaning his hips outward towards the back of the front seat."

Subsequently, the suspect vehicle was searched. During the search, Officer Wheeler discovered a gray bag underneath the driver's seat. The bag contained a loaded nine-millimeter semiautomatic pistol, a razor blade, and some change.

After defendant was taken to the Dowagiac Police Department, Officer Roach searched the back seat of the patrol vehicle. Officer Roach pulled up the seat and checked the floorboard. He discovered a gray lid to a container for thirty-five-millimeter film wedged between the top and bottom of the rear seat. During defendant's processing at the police station, $1,078 in cash and a quantity of cigarette rolling papers were found on defendant. Later, defendant was transported in the back seat of the patrol car, along with another prisoner, to the Cass County jail.

After the officers left the jail, Officer Wheeler continued to patrol with Officer Roach until approximately 1:30 a.m. Officer Wheeler then left to go home. Officer Roach continued to work at the police station until the next morning. At approximately 7:45 a.m., he returned to the patrol car to gather up his equipment at the end of his shift. On the passenger side floorboard of the back seat, he observed a container for thirty-five-millimeter film. Inside the container, Officer Roach found a clear sandwich bag that contained seventy-eight rocks of crack cocaine.

At trial, after testimony was introduced relating the basic facts as outlined above, the prosecution called Detective William Riley as an expert witness. Detective Riley testified that in his seven years of experience in law enforcement, he had participated in over five hundred drug cases. Further, Detective Riley testified that he had extensive contact with people involved in the sale and distribution of narcotics because of his work as an undercover officer for the prior two years.

After being qualified as an expert witness, Riley testified with regard to the street value of the cocaine seized in the present case. Detective Riley was then asked if he was aware of the "characteristics or indicators of people who are involved in the drug trade which are fairly consistent across the board." Over defense counsel's objection, Riley was permitted to testify to numerous "common characteristics" of drug dealers. These characteristics closely matched the facts of the present case. The trial court did not permit Detective Riley to express an opinion regarding defendant's guilt or innocence or to express an opinion about defendant's participation in other drug transactions.

As an expert witness, Detective Riley testified to a profile of drug dealers. According to Detective Riley, drug dealers (1) "usually never" use their own vehicle; (2) use vehicles with improper license plates and registration; (3) usually travel in groups of two to six people; (4) rarely carry identification; (5) generally use their "street names" to communicate with each other; (6) seldom carry the trunk key of the vehicle they are driving; (7) typically walk away from their vehicle once stopped by the police; (8) usually carry large amounts of cash; (9) commonly keep drugs and money together; (10) commonly carry weapons; and (11) usually carry razor blades to break up rocks of crack cocaine.

Later, the prosecutor attempted to prove defendant's guilt by arguing that defendant exhibited many of the drug dealer characteristics as identified by Detective Riley:

Ladies and gentlemen, he also told you about the varies [sic] indicators we talked about which were indicative of delivery or intent to deliver cocaine, and this defendant knew that, a whole lot of them. He had an unexplained amount of money. He lied about having it. He lied about where he was and why he was there. He lied about having it. He lied about where he was and why he was there. He lied about whether he had a driver's license or not. He, in fact, had no I.D. on him whatsoever.

Finally, in his theory of the case, the prosecutor referred to the profile evidence as circumstantial evidence of defendant's guilt.

II

Defendant's argument challenging the admission of the expert testimony regarding the "common characteristics" of drug dealers is dispositive. Defendant contends that the prosecution impermissibly used a "drug involvement profile" as substantive evidence of defendant's guilt. The admissibility of "drug courier" or "drug dealer" profile evidence is a question of first impression in Michigan. In United States v. McDonald, 933 F.2d 1519, 1521 (CA 10, 1991), cert. den. 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 222 (1991), the Tenth Circuit Court of Appeals defined "profile evidence" as follows:

What is "profile evidence"? Courts define it in varying terms such as an "informal compilation of characteristics often displayed by those trafficking in drugs," United States v. Campbell, 843 F.2d 1089, 1091 n. 3 (CA 8, 1988); "an 'abstract of characteristics found to be typical of persons transporting illegal drugs,' " United States v. Oyekan, 786 F.2d 832, 834 n. 2 (CA 8, 1986) (citation omitted); and "the collective or distilled experience of narcotics officers concerning characteristics repeatedly seen in drug smugglers," Florida v. Royer, 460 U.S. 491, 525 n. 6, 103 S.Ct. 1319, 1339 n. 6; 75 L.Ed.2d 229 (1983) (Rehnquist, J., dissenting). A profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity.

While courts generally have allowed expert testimony explaining the significance of seized contraband or other items of personal property, see, e.g., McDonald, supra at 1522; United States v. Gomez-Norena, 908 F.2d 497, 501-502 (CA 9, 1990), cert. den. 498 U.S. 947, 111 S.Ct. 363, 112 L.Ed.2d 326 (1990); United States v. Espinosa, 827 F.2d 604, 611-613 (CA 9, 1987), cert. den. 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); People v. Ray, 191 Mich.App. 706, 479 N.W.2d 1 (1991), the use of drug profiles as substantive evidence of a defendant's guilt has been widely condemned. See, e.g., United States v. Williams, 957 F.2d 1238, 1241-1242 (CA 5, 1992); United States v. Jones, 913 F.2d 174, 177 (CA 4, 1990), cert. den. 498 U.S. 1052, 111 S.Ct. 766, 112 L.Ed.2d 785 (1991); United States v. Carter, 901 F.2d 683, 684 (CA 8, 1990); United States v. Beltran-Rios, 878 F.2d 1208, 1210 (CA 9, 1989). But see United States v. Foster, 939 F.2d 445 (CA 7, 1991); United States v. Teslim, 869 F.2d 316 (CA 7, 1989).

The most often expressed view for the exclusion of drug profile evidence was stated by the Eleventh Circuit Court of Appeals in United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (CA 11, 1983), reh. den. 721 F.2d 822 (CA 11, 1983):

There is no doubt that most circuits have concluded that the use of drug courier profiles to establish reasonable suspicion should be viewed critically. We concur in this conclusion. Drug courier profiles are inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers. Generally, the admission of this evidence is nothing more than the introduction...