Page 24 - Texas Police Journal May June 2016

other specialized knowledge will help the trier of fact to In Gutierrez-Farias, although the expert witness did not
understand the evidence or to determine a fact in issue.” specifically reference the defendant, his testimony
However, “[i]n a criminal case, an expert witness must “presented the jury with a simple generalization: In
not state an opinion about whether the defendant did or most drug cases, the person hired to transport the drugs
did not have a mental state or condition that constitutes knows the drugs are in the vehicle.” Accordingly, this
an element of the crime charged or of a defense. Those court concluded that the expert testimony crossed the
matters are for the trier of fact alone.” In the case at bar, line between an explanation of the witness’s analysis of
the principal issue was whether Ramos knew that the the facts and an impermissible opinion on the ultimate
cocaine was in his truck’s hidden compartment. Thus, legal issue in the case. Thus, we must determine
Rule 704(b) prohibited Agent Sanchez from stating an whether Agent Sanchez’s testimony was an explanation
opinion as to whether Ramos knew that the drugs were of the facts of the case or an impermissible opinion
in the compartment. regarding whether Ramos knew that the cocaine was in
his vehicle.
Additionally, this court has explained that a drug
smuggler profile is “a compilation of characteristics that During Agent Sanchez’s direct examination, he testified
aid law enforcement officials in identifying persons who regarding several characteristics of drug couriers,
might be trafficking in illegal narcotics.” “In ‘pure including: (1) drug smugglers being matched to the type
profile evidence’ cases, law enforcement personnel seek of vehicle they drive (example of cowboy-type to a
to testify that because a defendant’s conduct matches pickup truck); (2) drug smugglers use the voids in the
the profile of a drug courier, the defendant must have vehicle to hide the drugs; (3) drug smugglers change
known about the drugs he was transporting.” This court license plates to avoid detection; (4) drug smugglers use
has made clear that “drug courier profile evidence is “burner” cell phones that have virtually no history or
inadmissible to prove substantive guilt based on personal information attached to the phone; and (5) the
similarities between defendants and a profile.” time line for the travel pattern of a drug smuggler from
Testimony regarding methods that are unique to the Mexico to a hub city in the United States and back to
drug business can help a jury understand the Mexico. A careful reading of Agent Sanchez’s testimony
importance and implications of evidence presented at indicates that it was an explanation of the facts of the
trial. On the other hand, testimony that a defendant fits case, and it made no assertion or generalization
a drug smuggler profile runs the risk of suggesting that regarding Ramos’s knowledge. Thus, we conclude that
an innocent person had knowledge of the illegal drug Sanchez’s testimony was not the “functional equivalent”
offense. “Our cases demonstrate that inadmissible drug of an opinion that Ramos knew he was transporting
courier profile testimony involves an agent drawing a drugs.
direct connection between a drug courier characteristic
(or characteristics) and the defendant in order to For the foregoing reasons, the district court’s judgment
establish the defendant’s guilt.” If, instead, an agent is AFFIRMED.
only testifies regarding certain characteristics of drug U.S. v. Ramos-Rodriguez, No. 14-50846, 5th Cir., Jan.
trafficking and does not draw a connection between the 5th, 2106.
characteristic(s) and the defendant, that testimony is
admissible.
SEARCH & SEIZURE, PROTECTIVE SWEEP.
The government contends that Agent Sanchez’s
testimony was properly admitted because he never This is an appeal by Defendant Ivan Garcia-Lopez
made any direct reference to Ramos and did not opine (“Garcia-Lopez”). Garcia-Lopez entered a conditional
as to Ramos’s knowledge or guilt regarding the cocaine. plea to a single firearm violation, and now appeals the
The government correctly contends that Sanchez never denial of his motion to suppress the firearms from which
referenced Ramos or his state of mind; however, that that violation and his resulting conviction flowed. For
does not completely resolve the issue. The proper the reasons set forth below, we AFFIRM.
inquiry is whether the expert’s “testimony is the
‘functional equivalent’ of an opinion that the defendant On the evening of February 5, 2014, Wharton County
knew he was carrying drugs.” Deputy Sheriff Raul Adam Gomez (“Deputy Gomez”)

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