Case Information
*1 IN THE
A RIZONA C OURT OF A PPEALS
D IVISION O NE
STATE OF ARIZONA, Appellee , v.
GILBERTO GARCIA-QUINTANA, Appellant .
No. 1 CA-CR 12-0565 Appeal from the Superior Court in Maricopa County No. CR2012-103830-003 The Honorable Susanna C. Pineda, Judge AFFIRMED AS MODIFIED; VACATED IN PART COUNSEL
Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix By Tennie B. Martin
Counsel for Appellant
OPINION
Presiding Judge Andrew W. Gould delivered the opinion of the Court, in which Judge Peter B. Swann and Judge Jon W. Thompson joined.
G O U L D , 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 History [1] 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. 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 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
,
limine and Defendant did not object at trial, Defendant has “not properly
preserved these issues for appeal absent fundamental, prejudicial error.”
State v. Perez
,
Discussion 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. 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. 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] 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
“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,
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
,
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
,
intensive inquiry, and the trial judge must carefully consider the facts of each case. We stress that modus operandi testimony is, at its core, generalized expert testimony about the patterns of a criminal organization, rather than testimony about the conduct of a defendant in a particular case. Thus, by way of example, a qualified officer may testify that a gang of professional pickpockets typically assigns one member of the gang to distract the victim by staging an argument or bumping into the victim. This might help a jury understand why a defendant, who created the distraction but did not actually pick the victim’s pocket, was a participant in the crime. In contrast, if the officer opined that the defendant’s young age, clothes, demeanor and gestures at the scene of the crime showed that he fit the profile of a pickpocket, such testimony would be inadmissible profile evidence.
II. Analysis of Expert Testimony The State elicited testimony from several law enforcement
witnesses concerning the methods used by drug trafficking organizations to transport marijuana across the desert. Agents Dawson and Curiel testified about the routes used by drug traffickers to cross the desert. Agent Curiel testified that his unit regularly watches the area where Defendant was found, because he and his fellow officers have observed a significant amount of foot sign in the area. [4] Agent Dawson testified that drug traffickers often use the area to avoid Border Patrol. Agent Dawson testified that drug traffickers are aware that the area is used as a military bombing range, and that Border Patrol agents will not enter this range during live bombing, which occurs approximately five days a week. In addition, Agent Dawson testified that the path through the subject area allows drug traffickers to avoid a nearby Border Patrol checkpoint. Agent Curiel testified about the methods drug traffickers use to avoid being tracked by Border Patrol. Agent Curiel testified that drug traffickers will often wear “carpet booties” to disguise their foot sign in the desert. These booties consist of pieces of carpet slipped over a shoe, and have the effect of leaving little or no foot sign. Agent Solosabal testified that the tracks leading both to the marijuana bundles and Defendant included tracks made by carpet booties. Agent Curiel explained that in his experience drug
traffickers carrying marijuana in backpacks most often travel in groups of 2-20 people. This experience was one of the factors he relied upon in determining that the group of 11 people he observed walking across the desert may have been drug traffickers. Agents Solosabal and Curiel testified about the typical
backpacks used by drug traffickers and the usual contents of these backpacks. When Agent Curiel first spotted the group, he observed that in contrast to the infrared heat signatures emitting from their bodies, there were large rectangular “cold spots” on their backs. The “cold spots” indicated the men were carrying large backpacks. Agent Curiel explained that the size and shape of the backpacks he observed indicated the men were carrying drugs because people who are carrying food and water will typically use smaller “school-style backpacks.” He testified that the packs the agents found, which were made of blankets and ropes tied around bundles of marijuana, are typical of those used by drug traffickers. ¶20 Agent Solosabal also testified that in his experience, people who are not trafficking drugs will be found with small backpacks containing food, water, and personal belongings, but drug traffickers will be found without anything, having abandoned their backpacks to distance themselves from the illegal contraband. Agent Solosabal explained that drug backpacks typically weigh 50 pounds, and one member of the group is usually designated to carry a backpack containing food and water for the group.
¶21 Maricopa County Sheriff’s Office detectives also testified that the types of bundles recovered in this case are typical of the types of bundles found in drug trafficking cases. Detective DeSimone testified that he did not fingerprint the bundles because, in his experience, “people generally backpacking the marijuana bales coming across the border are not the same individuals who packaged the marijuana.” Finally, Agent Dawson explained that he photographed Defendant and the three men found with him because subjects who are apprehended trafficking narcotics into the United States will frequently have marks on their bodies from carrying marijuana laden backpacks/bundles. The evidence in this case was properly admitted as modus
operandi evidence because the agents’ testimony served to educate the
jury about the methods and operations of drug trafficking organizations.
The agents’ testimony about how drug trafficking organizations package
and transport drugs in backpacks across the desert assisted the jury in
understanding the methods used by drug trafficking organizations to
smuggle drugs into the United States. Similarly, explaining the routes
trafficking groups use to avoid being caught and that drug traffickers
oftentimes wear carpet booties to disguise their foot sign in the desert
explained the techniques used by drug smuggling organizations to avoid
detection by Border Patrol.
Cordoba
, 104 F.3d at 229 (“If specialized
knowledge will assist the trier of fact in understanding the evidence or
determining an issue, a qualified expert witness may provide opinion
testimony on the issue in question.”) (quoting Fed. R. Evid. 702).
Additionally, the testimony in this case does not present the
risk warned of in
Lee
: “the assumption that because someone shares
characteristics – many of them innocent and commonplace – with a certain
type of offender, that individual must also possess the same criminal
culpability.”
Lee
,
¶25
Defendant argues, however, that Agent Curiel’s testimony
that he was apprehended in a high drug traffic area was improperly
admitted as profile evidence. We disagree. Agent Curiel’s testimony
simply explained, by way of background, the reason why he was
watching the area when he first observed Defendant’s smuggling group.
See Lee
,
¶26 Additionally, Defendant contends Agent Dawson’s testimony that “marks” are frequently found on drug traffickers he has arrested was also inadmissible profile evidence. We conclude there was no error. Agent Dawson’s testimony provided background as to why he took photographs of Defendant, which in turn led to his observation that Defendant had marks on his shoulders and back that were consistent with carrying “something very heavy.” This evidence was not profile evidence, nor was it modus operandi evidence. It was simply circumstantial evidence that Defendant may have been carrying one of the abandoned marijuana backpacks. Accordingly, we find no error in admitting the agents’
testimony, and conclude that Defendant has not met his burden of
showing the trial court committed fundamental reversible error.
See
Henderson
,
III. Closing Argument In his closing argument, the prosecutor emphasized that the
area where Defendant was found is a well-known drug trafficking area. He reiterated that the types of packs initially shown on the infrared equipment and eventually found by the agents are unique to people trafficking drugs. He also stated that individuals found in the desert who are not transporting drugs are typically found with personal belongings such as food and water. The prosecutor did not argue in his closing that a drug-
courier profile existed, nor did he make any comparison between a drug
courier profile and Defendant. However, he did describe how the actions
of Defendant fit into the modus operandi of a drug trafficking
organization. We find no error in this argument. While the agents
themselves could not, in the context of their expert testimony, make such a
comparison, there was nothing improper about the prosecutor arguing
reasonable inferences to the jury based on the expert testimony of the
officers.
State v. Bible
, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993)
(holding that prosecutors “may summarize the evidence, make submittals
to the jury, urge the jury to draw reasonable inferences from the evidence,
and suggest ultimate conclusions”);
see also United States. v. Sanchez-
Hernandez
, 507 F.3d 826, 833 (5th Cir. 2007) (“Our cases criticize the
admission of direct testimony of this type [profile evidence], but we have
not held that the government cannot argue this inference when a
defendant is entrusted with illicit drugs or is given a role in their
distribution and claims that he did not know that the drugs were present
or was duped into playing a role in their movement.”);
cf. State v. Loney
,
Cost of DNA Testing Defendant argues he should not have been required to pay
the cost of his DNA testing. The State concedes that the court’s order requiring Defendant to pay for his DNA testing was erroneous and must be vacated. See State v. Reyes , 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013). We agree and vacate the portion of the sentencing order requiring Defendant to pay for his DNA testing.
Conclusion For the reasons discussed above, we affirm Defendant’s
conviction and sentence as modified to vacate the portion of the court’s sentencing order requiring Defendant to pay for his DNA testing.
Notes
[1] “We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant.” State v. Greene , 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998) (citation omitted).
[2] Agent Curiel testified that “foot sign” is a tracking term that refers to any disturbances on the ground or the physical environment, such as footprints or broken branches, that do not occur naturally.
[3] During his trial testimony, Defendant admitted the marks were from carrying a very heavy backpack containing food and water across the desert from Mexico. However, Defendant denied carrying a backpack containing marijuana.
[4] On cross-examination, defense counsel asked Agent Curiel if he had “ever apprehended anyone who was walking into the United States” or “this area” that didn't have drugs on them, to which Agent Curiel answered, “I don’t recall” and “I don’t know.” Agent Curiel also testified, however, that the area is also a high traffic area for non-drug traffic, including persons who have illegally crossed the border.