Objecting to drug expert testimony: inadmissible profile evidence

I know we all think drug sales expert testimony is absurd. Really, drug dealers always possess cash in totally normal denominations that must indicate sales? Lame. I think a valid objection is that their opinion testimony is improper profile evidence. There are great cases on this, and I did not win this in an appeal many years ago, but the appellate court took great lengths to explain why this did not make the evidence inadmissible….i.e., they knew it was a problem they had to get around. AG didn’t address it his brief, typical, and still won. Feel free to email for briefing on my specific facts but the law is below. Remember, as always, object on due process/fair trial, in addition to 352, relevance generally, and sometimes improper propensity evidence–theory being he must be the type of guy who is a drug dealer because random innocuous conduct is what drug dealers do. ALWAYS FEDERALIZE FOLKS.

 “Profile” evidence is testimony about typical behavior of persons unlawfully carrying narcotics introduced to prove that the defendant is involved in drug trafficking.  (People v. Covarrubias (2011) 202 Cal.App.4th 1, 14.)  Profile evidence is irrelevant, “inherently prejudicial,” and inadmissible under Evidence Code sections 351, 352, and 1101.  (Id. at p. 6; People v. Robbie (2007) 92 Cal.App.4th 1075, 1085, 1088; People v. Martinez (1992) 10 Cal.App.4th 1001, 1008; United States v. Vallejo (9th Cir. 2000) 237 F.3d 1008, 1017.)

The California Supreme Court recognizes that evidence of uncharged drug activity is especially prejudicial.  In People v. Cardenas (1982) 31 Cal.3d 897, 907, the high Court stated that the introduction of evidence involving narcotics has a “catastrophic” impact on the jury and “[i]t cannot be doubted that the public is generally influenced with the seriousness of the narcotics problem . . . and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent.”

Reviewing courts have consistently held that profile evidence is irrelevant, “inherently prejudicial,” and therefore inadmissible under Evidence Code sections 351, 352, and 1101.  (People v. Robbie (2007) 92 Cal.App.4th 1075, 1085, 1088; People v. Martinez (1992) 10 Cal.App.4th 1001, 1008; United States v. Vallejo (9th Cir. 2000) 237 F.3d 1008, 1017 [adopted in People v. Covarrubias (2011) 202 Cal.App.4th 1, 16].)  Drug profile evidence is testimony about typical behavior of persons unlawfully carrying narcotics introduced to prove that the defendant is involved in drug trafficking.  (Covarrubias, supra, 202 Cal.App.4th at p. 14 [quoting Vallejo, supra, 237 F.3d at p. 1017] [internal quotation marks omitted].)  Profile evidence is irrelevant because a defendant has the right to be tried on the evidence against him, not on evidence that is “nothing more than the opinion of those officers conducting an investigation.”  (People v. Robbie, supra, 92 Cal.App.4th at p. 1084.)

Transporting Drugs:

Testimony about how drug traffickers use hidden compartments in cars to transport drugs is identical to that in People v. Covarrubias, supra, 202 Cal.App.4th at p. 5, 8, 11, where the Court of Appeal ultimately held that law enforcement testimony was drug profile evidence.  In that case, the law enforcement agent similarly testified that that drugs are often hidden in compartments in cars to conceal their presence, and there was evidence that narcotics found in the car the defendant drove had drugs concealed therein.  (Id. at p. 8, 10; See also United States v. Lui (9th Cir. 1991) 941 F.2d 844, 848 [testimony about the way in which drug profilers smuggle narcotics was inadmissible profile evidence].) 

Living in a house that is concealed from view means it is a stash house

Background in my case: officer testified that my guy lived next to an alley so cops wouldn’t see his house and he could flee quickly. Really?! Living in a home near an alley is entirely consistent with innocent behavior, but the testimony implored the jury to believe that [my client] was a drug dealer simply because the officer believed that drug homes are typically located near alleys.  Such evidence should not have been admitted.  (See People v. Robbie, supra, 92 Cal.App.4th at 1086 [profile evidence is prejudicial because it “implies that criminals, and only criminals, act in a given way.  In fact, certain behavior may be consistent with both innocent and illegal behavior”].)

Weapon in house means it is a stash house

99% of stash houses have weapons, and officers “typically” find weapons in stash houses. Really dude? You keep a log of the number of stash houses and have run the numbers? If so, crunch them again.

Such testimony is nearly identical to that in People v. Martinez, supra, 10 Cal.App.4th at p. 1008, where the Court of Appeal reversed a conviction for possession of a stolen vehicle because profile evidence was erroneously admitted.  In that case, the officer testified that “95%” of stolen cars that law enforcement had recovered drove on the same freeway on which the defendant drove.  (Id. at p. 1005.)  In Martinez, and here, the law enforcement officer’s conclusion about criminal activity was based statistical on patterns of those who committed similar crimes.  If such testimony was irrelevant profile evidence in Martinez, then the similar testimony here also lacked probative value.

Must be stash house because he has two homes

Testimony was my guy had two homes and “stash house” was sparsely furnished. This testimony is similar to that in People v. Covarrubias, supra, 202 Cal.App.4th at p. 171, where the Court of Appeal stated that the law enforcement officer’s testimony about narcotics traffickers was inadmissible profile evidence in part because it suggested that the defendant “was connected to a large drug trafficking organization[.]”  Implying that [my client] was engaged in a “high-quantity” level of narcotics trade because he purportedly had a separate residence to store drugs similarly informed the jury that because of these characteristics of the residence, they could conclude that he was connected to a large trafficking organization.  Accordingly, the evidence was irrelevant.

Testimony about counter-surveillance driving

Testimony that when cops followed me guy (if my memory is right it was in an unmarked car), he was doing “counter surveillance driving” elaborating that [my client] “was driving in patterns like that they’re looking to see if they affect who’s following them.” He further stated: “none of the suspects we follow ever drive directly to a location.” This testimony is profile evidence because it is a description of “characteristics believed to be typical of persons unlawfully carrying narcotics[.]”  (People v. Covarrubias, supra, 202 Cal.App.4th at p. 14-15 [quoting Vallejo, supra, 237 F.3d at p. 1017].)  The use of the phrase “they” is an explicit reference to how narcotics traffickers typically drive.  And, stating that “none” of the suspects that officers follow “ever” drive directly to a location—besides being inherently implausible—can only be described as a description of typical traits of persons carrying narcotics.  Accordingly, the evidence lacked probative value.

Way your client is interacting with someone must be a drug transaction

Detective Busk testified that my client’s activities in the parking lot with Mr. Ochoa were “consistent with” a narcotics transaction.  (2 RT 363.)  This is profile evidence pursuant to People v. Robbie, supra, 92 Cal.App.4th at p. 1081, 1085, where the Court of Appeal reversed a conviction because of the admission of profile evidence.  Part of the profile evidence in that case was testimony that the defendant acted in a way that was “consistent” with how a person who committed the same crime would act.  (Id.)  Accordingly, concluding testimony that my client’s activities were “consistent with” narcotics transactions was inadmissible drug profile evidence and irrelevant.

Way package is wrapped and exchanged means it must be drugs

Cop testified that he saw my client carry a package in the parking lot that was “kilo sized,” that cocaine is “generally” smuggled in a kilo form, and that, in his opinion, the package was the “standard form” of cocaine packaging. This testimony is akin to that in People v. Covarrubias, supra, 202 Cal.App.4th at p. 5, where the Court of Appeal held that the law enforcement agent’s testimony about typical behavior of drug traffickers was inadmissible profile evidence.  The officer in Covarrubias testified that drug dealers package marijuana in specific ways.  (Id. at p. 5.)  He also testified that he believed that the person charged in that case was involved in drug trafficking because of the way the marijuana found near him was packaged.  (Id. at p. 5, 12.)  Testifying that my client was holding an object that was consistent with a package containing cocaine communicated to the jury that Mr. Hernandez was involved in drug trafficking simply from the fact that other people involved in drug trafficking possessed drugs in objects similar to the object that my client possessed.  Such testimony is no different from the officer’s conclusion in Covarrubias that a particular type of packaging could establish that a person was involved in drug trafficking.  Accordingly, the evidence lacked probative value.

Conversations that were not about drugs must have been about drugs

Cop estified that the phone calls played to the jury involved a discussion about narcotics, even though there was no reference to narcotics.  He based this opinion on the fact that conversations about drug transactions “never” involve references to drugs, and instead “they” use code terms.  [facts in my case about nature of conversation/”code words” used]… cop testified that the use of the word cars is “very common” language regarding drug transactions.  This is drug profile evidence because it is a description of “characteristics often displayed by those trafficking in drugs[.]”  (People v. Martinez, supra, 10 Cal.App.4th at p. 1006, fn. 2.)  The use of the terms “they” and “very common,” as well as the claim that a drug trafficker “never” discusses drugs explicitly, is testimony of how a drug trafficker “typical[ly]” acts and is therefore profile evidence.  (Id.)  Therefore, this evidence was also irrelevant.

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