THE USE OF PROFILING TESTIMONY IN DRUG DISTRIBUTION CASES
In October of 2017, in Com. v. Smith, the Massachusetts Appeals Court affirmed the conviction of a defendant for possession of a Class B substance (crack cocaine) with intent to distribute, rejecting the defendant’s argument that a police officer was improperly allowed at trial to offer “profiling” testimony on the characteristics of a drug dealer and a drug user that impinged on the jury’s role as sole fact-finder. The evidence at trial tended to show the following, namely:
In April of 2014, Brockton Police narcotics officers were observing an area in their city. At one point, one of the detectives observed a vehicle driving slowly, with the driver talking on a cellphone and leaning her head out of the window and looking around. After a while, the driver pulled into the parking lot of a business that was closed at the time. Although there were four people in the vehicle, nobody got out of the car.
After a few minutes, the officers spotted the defendant, who walked up to the vehicle and got into the front passenger seat. After a brief period of time, the vehicle drove a short distance and the defendant got out at an intersection and walked away. The officers pulled up next to the defendant in their unmarked cruiser and said “hey” to the defendant, simultaneously displaying their badges. The defendant then ran off.
Officers eventually caught up with the defendant, and a twenty-dollar bill was found in his pocket. In the area where the defendant had run, one officer found “a clear plastic bag containing two rocklike substances that were individually wrapped inside the corner of a bag and it was tied in a knot at the top.” Another officer found “a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped offwhite colored rocklike substances.” The substance in the bags was later determined to be cocaine.
At the jury trial, an officer testified as an expert witness regarding illegal drug distribution and use. He explained that the most common packaging of crack cocaine for street sales is for the “rock [to] be placed in the corner of a baggy, twisted, tied off and that’s how it’s individually wrapped”; the individual packets are then generally “held in one big sandwich bag.” He further stated that the most typical cash denomination in purchasing crack cocaine is a twenty-dollar bill. The officer also testified that there are basically three ways that drugs were sold in Brockton in 2014:
1. users purchase directly from the dealer’s home;
2. the dealer “flags over cars randomly on the corner” and then makes a quick sale; or
3. through a delivery service.
The officer testified that if an arrested person has cash in his possession in addition to individually packaged drugs and a cellular telephone, that is an indication to police that the arrestee may be a dealer. He went on: “[i]n my training and experience dealing with addicts, usually you don’t have much money on you. You’re spending it on the drugs. Where a dealer will have extra money on them because they’re selling the drugs.” He also testified that not having smoking paraphernalia one one’s person tends to indicate that the person is seller and not a user.
When defense counsel cross examined the police officer, the officer stated that, in his experience, a person purchasing a larger quantity of crack cocaine would not buy fifteen individual bags, but instead would buy in bulk, but that an addict may purchase one or two bags from a dealer without large quantities in order to feed their immediate needs. He also disagreed that it would be common for a dealer on the street selling drugs to have on his or her person a digital scale or empty plastic baggies.
After the jury returned a guilty verdict for possession of a Class A drug with intent to distribute, the defendant appealed. The Appeals Court upheld the verdict, finding that the introduction of the expert testimony was not improper for several reasons.
First, a trial judge has wide latitude when it comes to whether or not to admit expert testimony. Second, the role of an expert witness is to help jurors interpret evidence that lies outside of common experience, and third, the issue of whether drugs were possessed with the intent to distribute is not a matter within the common experience of jurors.
The Appeals Court differentiated another recent case, where it was held improper for a police officer to testify about physical characteristics of drug users. In that case, the expert police witness testified that “the majority of them you will notice them to be somewhat unkempt, very thin, physical appearances seem to be deteriorating, sometimes they’ll have rotted teeth or worn down teeth from constantly grinding their teeth based on the addiction that results from the crack use.”
The Smith case was different, said the Appeals Court, because the “profiling” evidence at issue described how drug dealers and addicts typically acted, rather than what they looked like.
Attorney Kevin D. Quinlan
Uxbridge, Worcester County, Massachusetts