State v. Garcia-Quintana

• Decision Date: 25 March 2014
• Docket Number: No. 1 CA–CR 12–0565.,1 CA–CR 12–0565.
• Parties: STATE of Arizona, Appellee, v. Gilberto GARCIA–QUINTANA, Appellant.
• Court: Arizona Court of Appeals

234 Ariz. 267

321 P.3d 432

683 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Gilberto GARCIA–QUINTANA, Appellant.

No. 1 CA–CR 12–0565.

Court of Appeals of Arizona, Division 1.

March 25, 2014.

Arizona Attorney General's Office By Robert A. Walsh, Phoenix, Counsel for Appellee.

Maricopa County Public Defender's Office By Tennie B. Martin, Phoenix, Counsel for Appellant.

Presiding Judge ANDREW W. GOULD delivered the opinion of the Court, in which Judge PETER B. SWANN and Judge JON W. THOMPSON joined.

OPINION

GOULD, Judge.

¶ 1 Gilberto Garcia–Quintana (“Defendant”) appeals from his conviction and sentence for sale or transportation of marijuana, a class two felony. Defendant argues the court improperly admitted drug courier profile evidence. Because we conclude the evidence was properly admitted as modus operandi evidence, we affirm as modified, vacating the order Defendant pay for the cost of DNA testing.

Facts and Procedural History¹

¶ 2 Shortly before midnight, Border Patrol agents using infrared equipment spotted 11 men walking in the desert near Gila Bend, Arizona. A short time later, agents started tracking the group's foot sign,² which eventually led to ten makeshift backpacks abandoned in the desert. The backpacks each contained approximately 50 pounds of marijuana, for a total of 477 pounds. The agents continued to track the group, and about a mile from the backpacks they discovered Defendant and three other men hiding under a blanket.

¶ 3 Defendant was arrested and charged with one count of sale or transportation of marijuana. Defendant was tried and convicted, and sentenced to a presumptive term of imprisonment of 3.5 years. Defendant timely appeals.

Standard of Review

¶ 4 Prior to trial, Defendant filed a motion in limine requesting the court to preclude evidence of the usual practices of drug dealers and whether Defendant fit a drug courier profile. The motion did not identify any specific evidence or testimony to be precluded. At oral argument, the prosecutor explained that he planned to elicit testimony about the general modus operandi of drug trafficking organizations. Remarking on the distinction between inadmissible drug courier profile evidence and admissible modus operandi evidence, the court stated, “Until I hear the question, however, I won't know whether or not a question actually fits into asking for drug courier profiling, which is not admissible, and [modus operandi], which is.” Accordingly, the court reserved any ruling until trial, and stated that it would rule on “a question-by-question basis.” However, during trial Defendant did not object to any of the testimony he now claims was inadmissible drug courier evidence.

¶ 5 “[W]here a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial.” State v. Anthony, 218 Ariz. 439, 446, ¶ 38, 189 P.3d 366, 373 (2008) (quoting State v. Burton, 144 Ariz. 248, 250, 697 P.2d 331, 333 (1985)). However, when the court does not rule on a motion in limine, the motion does not preserve a defendant's objection(s) if he fails to subsequently object at trial. State v. Lujan, 136 Ariz. 326, 328, 666 P.2d 71, 73 (1983) (holding that failing to make a record as to the disposition of the motion in limine and failing to object at trial waived any error).

¶ 6 Because the court never ruled on Defendant's motion in limine and Defendant did not object at trial, Defendant has “not properly preserved these issues for appeal absent fundamental, prejudicial error.” State v. Perez, 233 Ariz. 38, 43–44, ¶ 21, 308 P.3d 1189, 1194–95 (App.2013). We therefore review for fundamental error only. State v. Henderson, 210 Ariz. 561, 567–68, ¶¶ 19–20, 115 P.3d 601, 607–08 (2005). Under a fundamental error standard, the defendant must demonstrate not only that fundamental error occurred, but also that the error prejudiced the defendant. Henderson, 210 Ariz. at 567–68, ¶ 20, 115 P.3d at 607–08.

Discussion

¶ 7 At trial, Defendant asserted he had never carried any of the marijuana backpacks and was not part of the drug smuggling group. Rather, his defense was that the agents apprehended him while he was crossing the desert to find work in the United States.

¶ 8 Because Defendant was not found in actual, physical possession of the marijuana, the State's case against him was largely circumstantial. The agent observing the suspected smuggling group radioed the group's GPS coordinates to nearby agents. Within 20 minutes, the agents arrived at the GPS location. Using a tracking dog, they started tracking a group of 11 men. After following the trail for approximately five miles, the agents discovered the ten abandoned bundles of marijuana. They also observed a trail leading away from the marijuana.

¶ 9 The agents and the tracking dog continued to follow the trail for about a mile, when the dog led them to Defendant, who was hiding under a blanket with three men. Two of the four men—the agents could not recall which of the four—were wearing shoes that matched the foot sign on the trail. The agents did not compare the foot sign with the shoes Defendant was wearing. The group had no food, water, or personal items. The agents later took pictures of Defendant showing that he had marks on his shoulders and lower back that were consistent with him carrying something very heavy, e.g., one of the makeshift backpacks.³

¶ 10 During its case-in-chief, the State also presented expert testimony from several agents and law enforcement officers about the methods used by drug trafficking organizations to smuggle drugs across the desert. Defendant argues this expert testimony was inadmissible drug courier profile evidence.

I. Modus Operandi and Drug Courier Profile Evidence

¶ 11 “A drug courier profile is a loose assortment of general, often contradictory, characteristics and behaviors used by police officers to explain their reasons for stopping and questioning persons about possible illegal drug activity.” State v. Lee, 191 Ariz. 542, 544, ¶ 10, 959 P.2d 799, 801 (1998). The profiles consist of an “ ‘informal compilation of characteristics' or an ‘abstract of characteristics' typically displayed by persons trafficking in illegal drugs.” Id. at 544–45, ¶ 10, 959 P.2d at 801–02 (internal citations omitted). The profiles are based on the experience of officers who have investigated illegal drug activity, and consist of a wide variety of factors, such as an individual's age, clothing, jewelry, luggage, use of cash to make purchases, nervous or unusually calm behavior, and plane travel from “drug source” cities. See Jay M. Zitter, Annotation, Admissibility of Drug Courier Profile Testimony in Criminal Prosecution, 69 A.L.R. 5th 425 (1999 & Cum.Supp.) (compiling cases discussing drug courier profiles); Kimberly J. Winbush, Annotation, Propriety of Stop and Search by Law Enforcement Officers based Solely on Drug Courier Profile, 37 A.L.R. 5th 1 (1996 & Cum.Supp.) (same).

¶ 12 While drug courier profile evidence may be admissible “in the context of suppression and probable cause hearings, where law enforcement's justification for a stop, arrest, or confiscation is at issue,” it is not admissible as substantive proof of guilt at trial. Lee, 191 Ariz. at 545, ¶ 11, 959 P.2d at 802. Courts have generally precluded police officers from testifying at trial that, based on their training and experience, a particular defendant “fits” the profile of a drug dealer or drug trafficker. Such testimony is inherently prejudicial because it suggests to the jury that “because someone shares characteristics—many of them innocent and commonplace—with a certain type of offender, that individual must also” be guilty. Id. at 545, ¶¶ 12, 14, 959 P.2d at 802;see also State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App.1991) (stating that the “use of profile evidence to indicate guilt ... creates too high a risk that a defendant will be convicted not for what he did but for what others are doing”).

¶ 13 “Unlike drug courier profile evidence, modus operandi evidence is ... properly admitted to assist the jury in understanding the modus operandi of a drug trafficking organization.” State v. Gonzalez, 229 Ariz. 550, 554, ¶ 13, 278 P.3d 328, 332 (App.2012). Modus operandi evidence focuses on the usual patterns or methods used by a criminal gang or organization to commit a crime. See, e.g., United States v. Sepulveda–Barraza, 645 F.3d 1066, 1069 (9th Cir.2011) (testimony that drug traffickers do not typically use unknowing drivers to transport drugs was admissible to show the methods and techniques employed by drug trafficking organizations); United States v. Murillo, 255 F.3d 1169, 1178 (9th Cir. 2001) (testimony that drug trafficking organizations do not entrust thousands of dollars in drugs to unknowing couriers was admissible as evidence concerning the structure and operation of such organizations), overruled on other grounds as recognized in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir.2007). Because crimes involving a criminal organization may be complex and involve multiple individuals, the role each person plays in committing the crime is most likely beyond the knowledge of the average juror. United States v. Montes–Salas, 669 F.3d 240, 250 (5th Cir.2012) (stating that testimony about how a trafficking operation works, the roles of guides, drivers, etc. is “legitimate background testimony”). Thus, a qualified law enforcement officer may provide expert opinion testimony regarding the modus operandi of a criminal organization to explain how a person's actions may indicate their active participation in a crime. United States v. Cordoba, 104 F.3d 225, 229 (9th Cir.1997) (A qualified expert witness may provide opinion testimony regarding the operation of drug trafficking organizations if it “will assist the trier of fact in understanding the evidence or determining an issue.”).

¶ 14 While expert testimony...