People v. Salcedo, No. 96CA0880.

Docket NºNo. 96CA0880.
Citation985 P.2d 7
Case DateMay 14, 1998
CourtCourt of Appeals of Colorado

985 P.2d 7

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jose C. SALCEDO, Defendant-Appellant

No. 96CA0880.

Colorado Court of Appeals, Div. A.

May 14, 1998.


Rehearing Denied July 2, 1998.1 Certiorari Granted May 10, 1999.2

985 P.2d 8
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Jose C. Salcedo, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of unlawful possession with intent to distribute a controlled substance and unlawful possession of twenty-eight grams or more of cocaine. He also challenges the jury's determination that he was a special offender. We affirm in part and vacate in part.

On May 1, 1995, defendant arrived at Denver International Airport (DIA) on a flight from Los Angeles. A Denver Police detective and a Drug Enforcement Administration

985 P.2d 9
agent were watching the passengers deplane from defendant's flight in an effort to discover and arrest persons carrying illegal drugs. They followed defendant after he got off the plane because he was one of the few people not dressed in a business suit; he was not carrying a briefcase, garment bag, book, camera, or any other carry-on luggage; and he appeared very nervous

After defendant had picked up his suitcase from the baggage carousel, the detective and DEA agent stopped him and asked for his airline ticket and identification. According to the detective, as defendant looked though his wallet, his hands were trembling. While the detective was checking the identification tag on defendant's suitcase, defendant blurted out, "That's not my bag. I am just carrying it for someone. I don't know what's in there. You can take fingerprints. Mine aren't in there." The detective then asked if he could search defendant's suitcase, and defendant consented. Inside the suitcase were women's clothing and men's undergarments, a stuffed animal, and a giftwrapped package containing three kilograms of cocaine. When the cocaine was discovered, defendant was placed under arrest.

Defendant claimed that the suitcase was given to him by a friend just before he left Los Angeles and that he did not know that it contained cocaine. The prosecution leading to the convictions at issue here followed.

I.

Defendant contends that the trial court erred by allowing the detective to testify as an expert witness. Specifically, he asserts that the court improperly admitted testimony by the detective that defendant matched a drug courier profile as evidence that defendant knew his suitcase contained illegal drugs. Although we agree that such testimony was improper, we conclude that the error was harmless.

At trial, over defendant's objection, the trial court allowed the detective to testify as an expert as to indicators used to identify drug couriers. In addition, the court permitted him to give his opinion "that based on his experience, someone who exhibits these indicators is more likely than not to be a drug dealer."

Initially, the detective identified the following as indicators exhibited by defendant: (1) he arrived from a "source city" for drugs; (2) he was wearing a large cross; (3) he was acting very nervous; (4) he had no carry-on baggage; and (5) he did not carry a book or magazine.

Next, the detective explained the significance of these indicators by comparing defendant's actions to those of drug couriers in general. The detective stated, for example, that: (1) the cross defendant wore was the type of "disclaimer" often used by drug smugglers to make it appear as if they are religious and therefore not likely involved in illegal activities; (2) his nervousness was the type of behavior usually exhibited by someone carrying an illegal controlled substance; and (3) his not carrying a book or magazine was consistent with the profile because "the majority" of people carrying illegal drugs "are basically too nervous ... to read."

Additionally, the detective testified that, like the defendant here, most drug couriers purchased their tickets just prior to departure and paid in cash. He also said he was not surprised that defendant consented to a search of his suitcase because "99 percent of the time" drug smugglers give such consent. Also, the detective described the clothing found in the suitcase as "fill," which is commonly used to make the suitcase appear normal and keep the cocaine in one position.

At the end of the direct examination, the detective stated an opinion that, based on all the indicators defendant had exhibited, it was his expert opinion that it was "more likely that defendant was the person smuggling the cocaine."

In closing arguments, the prosecutor emphasized the detective's testimony. He argued that defendant exhibited the indicators of a drug courier and that, because he was found with cocaine, he was in fact a courier. At one point, the prosecutor commented:

[W]hat [the detective] talks about is indicators that he saw, that cause and effect indicators were there, and sure enough, as is [the detective's] experience, there were
985 P.2d 10
drugs in that man's [defendant's] suitcase. No doubt in [the detective's] mind what was going on. That man knew. That man was displaying the indicators the minute he stepped off that airplane. (emphasis added)

A trial court may admit expert testimony if it will assist the trier of fact in understanding the evidence or in determining a fact in issue. CRE 702; People v. Galimanis, 944 P.2d 626 (Colo.App.1997). The decision to admit expert testimony is within the discretion of the trial court, and its ruling will not be reversed on appeal unless it is manifestly erroneous. People v. Williams, 790 P.2d 796 (Colo.1990).

Under CRE 403, a trial court has discretion to exclude relevant expert testimony if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. People v. District Court, 869 P.2d 1281 (Colo.1994); People v. Galimanis, supra.

A division of this court has determined that use of a drug courier profile may be permissible to establish probable cause for an investigatory detention. People v. Perez, 852 P.2d 1297 (Colo.App.1992). However, whether expert testimony regarding drug courier profiles may be used as substantive evidence of a defendant's guilt is an issue of first impression in Colorado.

Most courts that have considered the issue have disapproved the use of such profiles to prove guilt. See United States v. Jones, 913 F.2d 174 (4th Cir.1990); United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir. 1983); Dean v. State, 690 So.2d 720 (Fla.Dist. Ct.App.1997); People v. Hubbard, 209 Mich. App. 234, 530 N.W.2d 130 (1995); but see United States v. Foster, 939 F.2d 445 (7th Cir.1991).

In United States v. Hernandez-Cuartas, supra, 717 F.2d at 555, the court pointed out that drug courier profiles "are inherently prejudicial" because innocent citizens as well as actual drug smugglers may fit the profile. The court stated further that:

Every defendant has a right to be tried based on the evidence against him or her, not on the techniques utilized by law enforcement officers in investigating criminal activity. Drug courier profile evidence is nothing more than the opinion of those officers conducting an investigation. Although this information is valuable in helping drug agents to identify potential drug couriers, we denounce the use of this type of evidence as substantive evidence of a defendant's innocence or guilt.

We agree that the use of drug courier profiles as substantive evidence of guilt is improper. The improper inference to be drawn from such testimony is that a defendant is a drug smuggler because his or her behavior or appearance was similar to that exhibited by drug smugglers who have been previously encountered. See Dean v. State, supra, 690 So.2d at 723 ("The jury is asked to infer that because defendant's behavior was similar to the behavior of other drug dealers that the officer had previously arrested or observed, defendant must likewise be guilty."). As was pointed out in United States v. Hernandez-Cuartas, supra, such profiles cast a net which may very well ensnare the innocent as well as the guilty.

Here, despite the People's argument to the contrary, the prosecution did use the detective's drug courier profile testimony as substantive evidence of defendant's guilt. The trial court's ruling on the admissibility of the detective's testimony, the substance of the testimony itself, and the prosecutor's closing argument all demonstrate that at least one purpose of the profile testimony was to establish defendant's knowledge of the contents of his suitcase.

Nevertheless, in light of the overwhelming independent evidence of defendant's guilt here, we conclude that the error was harmless. See United States v. Williams, 957 F.2d 1238 (5th Cir.1992); United States v. Quigley, 890...

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13 practice notes
  • Salcedo v. People, No. 98SC500.
    • United States
    • Colorado Supreme Court of Colorado
    • May 1, 2000
    ...courier profile evidence. The court of appeals affirmed Salcedo's conviction and sentence in a published opinion. See People v. Salcedo, 985 P.2d 7 (Colo.App. 1998). We granted certiorari on the following 1. Whether the testimony of a prosecution witness stating his opinion that petitioner ......
  • People v. Melillo, No. 98SC816.
    • United States
    • Colorado Supreme Court of Colorado
    • May 29, 2001
    ...grams or more of cocaine because that charge is not an offense but merely a mandatory sentencing provision); People v. Salcedo, 985 P.2d 7, 13-14 (Colo.App.1998) (same), rev'd on other grounds, 999 P.2d 833 (Colo. Sexual assault on a child, section 18-3-405(1), 6 C.R.S. (2000), is a crime, ......
  • People v. Tafoya, No. 97CA0564.
    • United States
    • Colorado Court of Appeals of Colorado
    • February 4, 1999
    ...must be vacated because no such offense exists. We agree. Another division of this court addressed the same issue in People v. Salcedo, 985 P.2d 7 (Colo.App. No. 96CA0880, May 14, 1998), decided after the convictions in question here. The division determined that § 18-18-405(3)(a), C.R.S.19......
  • People v. Griffin, No. 96CA2139.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 24, 1998
    ...to the defendant, we will not disturb on review a trial court's decision to grant or deny a motion for a mistrial. People v. Salcedo, 985 P.2d 7 (Colo. The mere reference to an accused's incarceration is not necessarily so prejudicial as to require a new trial. The circumstances of each cas......
  • Request a trial to view additional results
13 cases
  • Salcedo v. People, No. 98SC500.
    • United States
    • Colorado Supreme Court of Colorado
    • May 1, 2000
    ...courier profile evidence. The court of appeals affirmed Salcedo's conviction and sentence in a published opinion. See People v. Salcedo, 985 P.2d 7 (Colo.App. 1998). We granted certiorari on the following 1. Whether the testimony of a prosecution witness stating his opinion that petitioner ......
  • People v. Melillo, No. 98SC816.
    • United States
    • Colorado Supreme Court of Colorado
    • May 29, 2001
    ...grams or more of cocaine because that charge is not an offense but merely a mandatory sentencing provision); People v. Salcedo, 985 P.2d 7, 13-14 (Colo.App.1998) (same), rev'd on other grounds, 999 P.2d 833 (Colo. Sexual assault on a child, section 18-3-405(1), 6 C.R.S. (2000), is a crime, ......
  • People v. Tafoya, No. 97CA0564.
    • United States
    • Colorado Court of Appeals of Colorado
    • February 4, 1999
    ...must be vacated because no such offense exists. We agree. Another division of this court addressed the same issue in People v. Salcedo, 985 P.2d 7 (Colo.App. No. 96CA0880, May 14, 1998), decided after the convictions in question here. The division determined that § 18-18-405(3)(a), C.R.S.19......
  • People v. Griffin, No. 96CA2139.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 24, 1998
    ...to the defendant, we will not disturb on review a trial court's decision to grant or deny a motion for a mistrial. People v. Salcedo, 985 P.2d 7 (Colo. The mere reference to an accused's incarceration is not necessarily so prejudicial as to require a new trial. The circumstances of each cas......
  • Request a trial to view additional results

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