People v. Gamboa-Jimenez

• Decision Date: 13 January 2022
• Docket Number: Court of Appeals No. 18CA1516
• Citation: 508 P.3d 263,2022 COA 10
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mario Antonio GAMBOA-JIMENEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

508 P.3d 263

2022 COA 10

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Mario Antonio GAMBOA-JIMENEZ, Defendant-Appellant.

Court of Appeals No. 18CA1516

Colorado Court of Appeals, Division V.

Announced January 13, 2022

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elyse Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1Defendant, Mario Antonio Gamboa-Jimenez, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of a controlled substance and possession with intent to distribute a controlled substance.He also appeals his designation as a special offender.We reverse and remand for a new trial.

I.Background

¶ 2 Around 5:30 a.m. on December 6, 2017, a state trooper was parked along I-70 about ten miles from the Utah border when he observed an eastbound driver commit a traffic infraction.¹As the car passed, the trooper saw its brake lights illuminate.He began to follow.When he caught up to the car, the trooper noticed it was traveling five miles per hour below the speed limit.After following the car for a few miles, the trooper activated his overhead lights and initiated a traffic stop.The driver pulled over.

¶ 3 The trooper then walked up to the car and peered through its windows: two men were sitting up front and discarded food wrappers and clothing were strewn across the back seats.As the trooper approached the front passenger side window, which was open, the passenger, Gamboa-Jimenez, sat up quickly, and the trooper smelled what he would later describe as an "overwhelming" scent of air fresheners coming from within the car.

¶ 4 The trooper then introduced himself to the car's occupants and explained why he had pulled them over.The driver apologized for committing the infraction.The trooper then requested the driver's license and asked the men about their travel plans.His hands shaking, the driver produced his license and told the trooper that he and Gamboa-Jimenez were on their way home to Virginia after spending three days in Las Vegas.The trooper then asked for the car's registration and proof of insurance.In response, the driver said something to Gamboa-Jimenez in Spanish and Gamboa-Jimenez rummaged through the glove box; eventually, the documents were located, and the driver handed them to the trooper.

¶ 5 While reviewing the car's Virginia registration, the trooper noticed that the driver did not own the car, so he asked who did.Following a short conversation with Gamboa-Jimenez, the driver replied that the car belonged to one of Gamboa-Jimenez's friends.Looking closer at the registration, the trooper noticed something else: it listed the car's mileage from when it was last purchased.The trooper then asked the driver for the car's current mileage, and the driver told him.With the current mileage, the trooper was able to calculate that the car had been driven more than 30,000 miles in less than a year.²Further, as he was chatting with the driver, the trooper noticed there were four cell phones in the car.

¶ 6 Concerned that something criminal might be afoot, the trooper nevertheless told the men he would be letting them off with a warning so long as the personal information they had provided checked out.The trooper then went to his patrol car, called for a cover officer, and ran the information the men had provided.

¶ 7 When the trooper returned, the information having not raised any red flags, he gave the men a verbal warning and a business card.And that might have been the end of the story, but as the trooper handed back the driver's license, he asked a question: Why had the men driven to Las Vegas instead of flying?The driver answered that they drove because flying was too expensive.The trooper countered that between gas and hotel rooms for a multi-day trip, surely flying was the cheaper option.The driver responded that they had not gotten a hotel room.

¶ 8 The trooper then told the men they were "good to go" and began walking back to his patrol car.Before taking more than a few steps, however, the trooper turned around and asked the driver if he would be willing to answer some more questions.The driver said that would be fine.First the trooper asked if there was anything illegal in the car, like narcotics.The driver said no.Then the trooper asked if he could search the car, advising the driver that he had the right to refuse the request.Again, the driver said no.

¶ 9 The trooper then instructed the men to get out of the car and stand on the side of the road so that he could walk his drug-detection dog around the car.The men complied.In getting out of the front passenger seat and grabbing a jacket from the back seats, Gamboa-Jimenez left both doors on the passenger side of the car wide open.The trooper retrieved his dog from his patrol car.

¶ 10 When the trooper came back, he started walking the dog around the car, beginning with the driver's door and moving counterclockwise.As the dog passed the open rear door on the passenger side of the car, he snapped his head, pulled on his leash, and jumped into the car.Once inside, the dog gave what the trooper would later describe as a "final alert" to the presence of narcotics under the front passenger seat by putting his nose on the source of the scent and staring.The trooper and the cover officer then searched the car by hand.In a compartment below the front passenger seat carpeting, they discovered a package that testing would later reveal contained just over a kilogram of cocaine.

¶ 11 Gamboa-Jimenez was arrested and charged with possession of a controlled substance, possession with intent to distribute a controlled substance, and a special offender designation for having introduced or imported more than fourteen grams of cocaine into Colorado.Before trial, he moved to suppress the evidence recovered from the car, arguing that it was obtained in violation of his constitutional right to be free from unreasonable searches and seizures.The trial court denied the motion after a hearing and the case proceeded to trial.At trial, Gamboa-Jimenez's defense was that he did not know there was any cocaine in the car.A jury convicted him as charged.

¶ 12 On appeal, he raises four contentions: (1)the court erred by denying his motion to suppress; (2)the court erred by allowing the trooper to offer drug courier profile testimony at trial; (3)the court erred by allowing the jury to consider evidence of prior drug trafficking; and (4) there was insufficient evidence for the jury to have found that he introduced or imported more than fourteen grams of cocaine into Colorado.We begin with the second.

II.Drug Courier Profile Testimony

¶ 13 The trial in this case was relatively brief, two days altogether, and only three witnesses testified: the trooper, the cover officer, and a forensic scientist from the Colorado Bureau of Investigation who had tested the cocaine found in the car.The latter two provided minimal testimony; nearly the entirety of the prosecution's case was presented through the trooper, who testified in two capacities: as an eyewitness and as an expert in "drug interdiction."

¶ 14 As is relevant on appeal, the trooper's expert testimony consisted of him detailing the "physical indicators" and "human behaviors" that he believes are associated with people involved in drug trafficking.In particular, he testified that the following things make him suspicious someone is a drug courier: the scrupulous obedience of traffic laws after law enforcement is observed, the smell of "masking odors" such as air fresheners, unusual travel plans, the use of a vehicle owned by or registered to a third party, travel from west to east across the United States along interstate highways, putting high mileage on a car in a short period of time, having multiple cell phones, and possessing religious iconography.

¶ 15 And the trooper matched each of those "indicators" and "behaviors" to Gamboa-Jimenez, testifying that he saw the car in which Gamboa-Jimenez was a passenger slow down and travel below the speed limit after it passed him, the car smelled overwhelmingly of air fresheners, the travel plans of the occupants did not make sense to him, the car was not registered to either of the occupants, they were stopped traveling eastbound on I-70, there was excessive mileage on the car for the period of time from its registration to the stop, he saw four cell phones in the car, and he noticed a prayer card in the car bearing the image of Saint Jude.

¶ 16 Despite not objecting to the trooper's expert testimony at trial, Gamboa-Jimenez now asserts that it constituted improper "drug courier profile testimony."As we will explain, we agree.What is more, we further conclude that admission of the testimony was not only erroneous, it was reversibly so.

A.Standard of Review

¶ 17 When a defendant does not contemporaneously object to testimony at trial, we review for plain error.Lehnert v. People , 244 P.3d 1180, 1184(Colo.2010);Crim. P. 52(b)."A plain error is one that is both ‘obvious and substantial.’ "People v. Sandoval , 2018 CO 21, ¶ 11, 413 P.3d 1274(quotingPeople v. Miller , 113 P.3d 743, 750(Colo.2005) ).An error is obvious when it contravenes a clear statutory command, a well-settled legal principle, or Colorado case law.Scott v. People , 2017 CO 16, ¶ 16, 390 P.3d 832.An error is substantial when it "so undermine[d] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction."Hoggard v. People , 2020 CO 54, ¶ 13, 465 P.3d 34(quotingPeople v. Weinreich , 119 P.3d 1073, 1078(Colo.2005) ).³

B.Law and Analysis

¶ 18 A drug courier profile is "an array of behaviors and characteristics that detectives believe indicate a person may be smuggling illegal...