Salcedo v. People

Citation999 P.2d 833
Decision Date01 May 2000
Docket NumberNo. 98SC500.,98SC500.
PartiesJose SALCEDO, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtSupreme Court of Colorado

David Kaplan, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, Elizabeth Rohrbough, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

This case concerns the conviction of petitioner Jose Salcedo (Salcedo) for unlawful possession of a controlled substance (cocaine) with intent to distribute in violation of section 18-18-405, 6 C.R.S. (1999), and the use of socalled drug 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 issues:

1. Whether the testimony of a prosecution witness stating his opinion that petitioner was smuggling drugs, because his behavior and characteristics were consistent with the behavior and characteristics of drug transporters, constituted prejudicial error.
2. Whether the trial court erred in excluding testimony of a defense expert witness which would have provided explanations based on petitioner's culture and lifestyle for the behavior and characteristics of petitioner which prosecution expert witness testified indicated that petitioner was smuggling drugs.

We hold, as did the court of appeals, that the trial court erred by permitting a detective to testify as an expert witness that Salcedo knowingly possessed illegal drugs because Salcedo's behavior and characteristics resembled those of previously observed drug couriers. However, we reject the court of appeals' conclusion that admission of this testimony was not reversible error. We conclude that there is a reasonable probability that this error contributed to the defendant's conviction. Accordingly, we remand the case for a new trial.

Because the drug courier profile evidence will not be admissible at the new trial, we need not address the second issue concerning expert testimony that Salcedo sought to introduce to rebut the prosecution's drug courier profile evidence.

I.

A.On May 1, 1995, Salcedo arrived at Denver International Airport (DIA) on a United Airlines flight from Los Angeles. This was Salcedo's first trip to Denver and, in fact, his first time aboard an airplane.

Dennis Petersohn (Petersohn), a plainclothes detective with the Denver police department, observed Salcedo and the other passengers as they disembarked and entered the DIA concourse. Like many detectives with his experience and training in drug interdiction, Petersohn had developed a loose profile of behaviors and characteristics that he found were frequently exhibited by persons smuggling drugs on airplanes. For instance, Petersohn believed that, when deplaning, drug couriers often display religious symbols, such as crosses or bibles, to dispel police suspicion; they rarely wear wristwatches because they have no concept of time other than day and night; they seldom carry books or magazines because they are too nervous to read; they purchase one-way tickets with cash on the day of their flight to avoid leaving a paper trail; and they typically arrive from "source cities" like Los Angeles, San Diego, El Paso, Phoenix, and Tucson.

When Petersohn worked in law enforcement efforts to interdict illegal drugs at DIA, he positioned himself at a gate and watched for any passenger whose actions or appearance fit the profile that he had developed. If Petersohn spotted a person fitting the profile, he continued surveillance or identified himself and interviewed the suspect. Some of Petersohn's investigations resulted in arrests for possession of illegal narcotics.

On May 1, 1995, Salcedo fit Petersohn's profile. He had just stepped off a plane from a source city. He wore a cross around his neck but not a watch on his wrist. He carried no books or magazines. Unlike many other passengers on the plane, Salcedo dressed in a shirt and jeans, not a business suit. He had no briefcase, garment bag, or other carry-on luggage. He appeared nervous as he entered the concourse, scanning the crowd of people but making eye contact with no one.

Petersohn pointed out Salcedo to Special Agent Vincent Sanchez (Sanchez) of the Drug Enforcement Administration, a rookie undercover narcotics detective whom Petersohn was training. Petersohn and Sanchez decided to follow Salcedo to the baggage claim area.

As Salcedo proceeded from the concourse to the baggage claim area, he continued to look from side to side. In the baggage claim area, while waiting for the luggage to arrive, Salcedo paced back and forth. When the luggage finally arrived, Salcedo grabbed a black suitcase and headed for the exit. Petersohn and Sanchez stopped Salcedo immediately before he exited the terminal.

Sanchez identified himself as a federal agent and asked to see Salcedo's identification and plane ticket. Salcedo's hands trembled as he removed his identification from his wallet. Petersohn and Sanchez learned that Salcedo had purchased his one-way ticket from Los Angeles to Denver earlier that day for $140 in cash. As Petersohn began to match Salcedo's name and ticket information to the identification tag and baggage claim strip on the suitcase, Salcedo exclaimed, "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." Salcedo was breathing heavily.

Salcedo consented to a search of the suitcase. The search netted women's clothing, men's underwear, a stuffed animal, and three kilograms of uncut, 95.9% pure cocaine packaged in pink Barbie wrapping paper topped with a purple bow. The street value of the cocaine was approximately $750,000.

Petersohn arrested Salcedo and advised him of his Miranda rights.1 During a subsequent interrogation, Salcedo told Petersohn that he recently had befriended a man named Jose Lujan. According to Salcedo, Lujan's brothers needed emergency help for one month at a dairy farm in Colorado. All necessities, including clothing, would be provided. Salcedo accepted the offer of employment with the intent of returning to his home in California at the end of the month. Lujan drove Salcedo to the Los Angeles airport. At the airport, Lujan asked Salcedo to deliver the black suitcase to his brothers. Out of courtesy and to return Lujan's favor, Salcedo agreed.

B.

At his jury trial, Salcedo claimed that he did not know the black suitcase contained cocaine. To rebut this claim, the prosecution sought to establish that Salcedo was a drug courier and not an innocent victim of a drug smuggling operation. Over Salcedo's objections, the trial court qualified Petersohn as "an expert in the area of narcotics interviews."

Petersohn first testified about the "indicators," or behaviors and characteristics, that constitute his profile of a drug courier. He then testified to aspects of Salcedo's behavior and appearance that conformed to the profile. Finally, Petersohn testified that, in his expert opinion, Salcedo knew the suitcase contained cocaine because Salcedo's behavior and characteristics fit the drug courier profile.

Prosecutor: Your expert opinion is all the evidence here, that is all the evidence combined is consistent with what you found in the past that makes it more likely that this person was the person smuggling the cocaine? Petersohn: Yes, it is. Prosecutor: Why—would you describe for the jury what goes in that opinion, how you have formed that opinion? Petersohn: His actions, his nervousness, his dress the disclaimer of the cross around his neck, his airline ticket, indicating that he would come from a source city, it was a cash ticket, one way, purchased the day of travel, carrying a bag which he then, when I looked at the tag, said that's not my bag, even though it had two different claim checks on there or claim indicators that said it belonged to him.

To rebut Petersohn's testimony, Salcedo sought to qualify Dr. M.J. Phillipus as an expert in Mexican culture. According to Salcedo, Dr. Phillipus would help the jury understand how Salcedo's Mexican heritage provided an innocent explanation for the behavior and characteristics that led Petersohn to identify Salcedo as a drug courier. The trial court declined to qualify Dr. Phillipus as an expert because it found that his proffered testimony was a matter of common sense and would not advance the jurors' understanding of the case.

The jury subsequently convicted Salcedo of unlawful possession of a controlled substance with intent to distribute. The trial court sentenced Salcedo to twenty-four years in the Department of Corrections. The court of appeals affirmed the conviction and sentence.

II.

We first address Salcedo's claim that the trial court committed reversible error by accepting Petersohn as "an expert in the area of narcotics interviews," by allowing him to testify to the behavior and characteristics of previously observed drug couriers, and by permitting him to opine that Salcedo knowingly possessed cocaine because his behavior and characteristics conformed to a drug courier profile. The court of appeals agreed with Salcedo that the trial court erred; however, it concluded that overwhelming independent evidence of guilt rendered the trial court's error harmless. The People urge us to follow the court of appeals' reasoning and reach the same result.

A.

We have not previously addressed the admissibility of drug courier profiles as substantive evidence of a defendant's guilt. Although the parties agree that the trial court erred by admitting the drug courier profile evidence, we find the analysis of why the trial court erred...

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