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State v. Escalante

Court of Appeals of Arizona, First Division

May 11, 2017


         Appeal from the Superior Court in Yavapai County No. V1300CR201580042 The Honorable Michael R. Bluff, Judge

          Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee

          Yavapai County Public Defender's Office, Prescott By John David Napper, Michelle DeWaelsche, Nicole S. Murray Counsel for Appellant

          Judge Jon W. Thompson delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie joined.


          THOMPSON, Judge

         ¶1 Erick Antonio Escalante (Escalante) appeals from his convictions for transporting a dangerous drug (methamphetamine) for sale, a class 2 felony (count 1), possession or use of drug paraphernalia (methamphetamine related), a class 6 felony (count 2), tampering with physical evidence for disposing of methamphetamine, a class 6 felony (count 3), misconduct involving weapons during the commission of the felony alleged in count 1, a class 4 felony (count 5), and various misconduct involving weapons charges due to his status as a prohibited possessor, all class 4 felonies (counts 4, 6, 7, and 8).[1] For the reasons that follow, we affirm.


         ¶2 In April 2014, an informant told Detective Sinn that Escalante was one of multiple people suspected of selling drugs in the Verde Valley. In November of that year, Sergeant Braxton-Johnson contacted Detective Sinn, reporting he had received calls from concerned citizens suggesting ongoing illegal drug activity at Escalante's apartment in Cottonwood and that Escalante had installed a camera outside the apartment. Detective Sinn confirmed there was a camera outside Escalante's apartment. Neither the informants nor any of the concerned citizens testified at trial.

         ¶3 The same month, the detective and the sergeant began conducting surveillance on Escalante's apartment. Detective Sinn testified that during their surveillance they noticed a high volume of short-duration vehicle and foot traffic going to and from Escalante's residence. He also reported receiving "several" concerned citizen tips reported to various officers-including Sergeant Braxton, Detective Scott, Officer Scarim and Detective Dominguez-between November 2014 and January 2015, about Escalante and his likely drug activity. Detective Sinn used these tips and the information gleaned from surveilling Escalante's home to secure a warrant on January 13, 2015, allowing him to place a tracking device on Escalante's truck. Sinn attached the device the next day and monitored Escalante's truck for the next seven days. On January 21, officers stopped a vehicle leaving Escalante's home for speeding. The driver consented to a search of his vehicle; no drugs or indicia of drugs were found, but the driver had $940 in his wallet.

         ¶4 Later that night, the tracking device alerted that Escalante's truck traveled on Interstate 17 (I-17) to Phoenix, to an address near 35th Avenue and Indian School Road. The vehicle stayed for about 15 to 20 minutes before heading back in the direction of Yavapai County. Detectives decided to follow Escalante's truck once it returned to the Camp Verde area and then to conduct a traffic stop if they saw any traffic violation.

         ¶5 Yavapai County Sheriff Sergeant Rumpf eventually observed a truck northbound on I-17 matching the description of Escalante's truck exit from the freeway toward Cottonwood with an illegal blue license-plate light. Sergeant Rumpf and another officer followed. Escalante traveled west on Highway 260, but before reaching Cottonwood, took a right turn onto Prairie Lane and headed into a residential area, eventually taking "a sharp left across both lanes of traffic and stopp[ing] in the middle of the road." At that point, officers stopped the truck.

         ¶6 Sergeant Rumpf informed Escalante he was stopped for having an illegal license-plate light. He observed a firearm in Escalante's driver door. Deputy Jeff Bowers subsequently arrived with a canine. The canine alerted to the odor of narcotics near Escalante's driver door, but no narcotics were found in the truck or on Escalante's person. Neither were drugs found outside the truck after an initial search of the roadway and surrounding area.

         ¶7 About ten or fifteen minutes later, Detective Sinn arrived and read Escalante his Miranda[2] rights. When Detective Sinn asked Escalante where he was coming from, Escalante responded "Camp Verde, " but would not respond to specific questions as to what he was doing in Camp Verde, asserting that had no relevance to the situation. Escalante also mentioned he knew the officers were following him as he drove.

         ¶8 Officers arrested Escalante and his vehicle was taken to be searched. The search resulted in the discovery of, among other items, a loaded magazine belonging to the firearm in the driver's-side door, confirmed to be a .380 caliber semi-automatic hand-gun; various knives, including a 3- or 4-inch pocket knife; a machete; and a "flip" cellphone.

         ¶9 Approximately two hours after Escalante was stopped, Deputy Bowers returned to the scene to search the roadway further. The deputy traveled eastbound on Highway 260 and made a left onto Prairie Lane where Escalante had been driving. Just after Deputy Bowers turned left onto the lane, he "saw what appeared to be a [bag with] white substance laying on . . . the yellow double yellow line." The substance was later confirmed to be roughly 47.8 grams (the equivalent of 0.105381 pounds) of methamphetamine. Police officers subsequently searched the truck again and found a digital scale bearing methamphetamine residue.

         ¶10 Escalante was charged with the eight counts noted above. At his request, the court severed the various counts into two trials-a jury heard counts 1, 2, 3 and 5, and a bench trial ensued on counts 4, 6, 7 and 8. Escalante was found guilty on all counts. He timely appealed to this court. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2016), 13-4031 (2010) and -4033(A) (2010).


         ¶11 On appeal, Escalante argues the trial court erred by allowing the officers to give "drug courier profile" testimony. Because Escalante failed to object to this alleged error at trial, we review his claim for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). On fundamental error review, Escalante "bears the burden to establish that '(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.'" State v. James, 231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185 (App. 2013) (citations omitted). Fundamental error review involves a fact-intensive inquiry, and the showing required to establish prejudice "therefore differs from case to case." Henderson, 210 Ariz. at 568, ¶ 26, 115 P.3d at 608.

         ¶12 At trial, the state called multiple police officers to testify. Much of their testimony focused on drug trafficking methods, drug traffickers and drug trafficking organizations as informed by their experiences and drug interdiction training. The officers testified about "source cities, " reportedly including metropolitan Phoenix - and identified the area around 35th Avenue and Indian School Road to which Escalante had traveled as a "known active drug area." The officers testified about drug corridors used for trafficking drugs, which they said include the I-17, which Escalante took to Phoenix. The officers stated drug traffickers sometimes use surveillance equipment outside their residences, presumably like the camera found outside Escalante's apartment. They talked about the presence of high-volume, short-term traffic outside homes used for drug dealing. They identified "heat-runs" as counter-surveillance driving techniques used by drug traffickers and testified Escalante also used such techniques. One officer testified that in assisting with the initial search of Escalante's vehicle, based on his training and experience, he observed "several vehicle indicators as far as - or what is consistent with drug trafficking or drug activity." Officers testified drug traffickers usually carry weapons while transporting drugs-as one testified "there's a direct nexus between weapons, violence and drugs." They stated that drug traffickers use scales to weigh the drugs for sale and purchase, and that the type of cellphone found in Escalante's truck was commonly used by drug dealers.

         ¶13 Citing authority from several other jurisdictions, the state argues this testimony was not improper drug courier profile evidence, but rather admissible modus operandi evidence. We disagree with the state because even if the officers' testimony constituted modus operandi evidence, it was improper because the operation of drug trafficking organizations was largely irrelevant to the charges against Escalante. See State v. Gonzalez, 229 Ariz. 550, 551, ¶ 1, 278 P.3d 328, 329 (App. 2012) (holding that "expert testimony as to the modus operandi of a drug organization may, depending upon the facts of the case, be admitted as evidence") (emphasis added).

         I. Whether the officers' testimony was proper modus operandi evidence

         ¶14 The principles distinguishing drug courier profile evidence from modus operandi evidence guide our analysis of the officers' testimony, particularly as to Escalante's conviction for transport of a dangerous drug for sale, in violation of A.R.S. § 13-3407 (2016) (count 1).

         ¶15 Drug courier profile evidence informally or abstractly describes characteristics "displayed by persons trafficking in illegal drugs." State v. Lee, 191 Ariz. 542, 544, ¶ 10, 959 P.2d 799, 801 (1998) (citations omitted). This evidence is "a loose assortment of general, often contradictory, characteristics and behaviors . . . ." Id. (citing Mark J. Kadish, The Drug Courier Profile: In Planes, Trains, and Automobiles; And Now in the Jury Box, 46 Am. U. L. Rev. 747, 748 (1997)). The use of this evidence as substantive proof of guilt has been condemned, id. at 545, ¶ 12, 959 P.2d at 802 (citing State v. Walker, 181 Ariz. 475, 481, 891 P.2d 942, 948 (App. 1995)), even though it may be "offered in the context of suppression and probable cause hearings, where law enforcement's justifications for a stop, arrest, or confiscation is at issue, " id. at 545, ¶ 11 (emphasis added). In agreeing that drug courier profile evidence is impermissible as substantive proof, we have concluded 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." Gonzalez, 229 Ariz. at 553, ¶ 12, 278 P.3d at 331 (quoting State v. Cifuentes, 171 Ariz. 257, 257, 830 P.2d 469, 469 (App. 1991)).

         ¶16 We have previously stated that Lee "in broad terms, prohibits the prosecution from introducing 'drug courier profile' evidence to prove that [a] defendant was trafficking in drugs" or from presenting evidence and tying it "to what other drug couriers do." Beijer v. Adams ex rel. Cty. of Coconino, 196 Ariz. 79, 82-83, ¶¶ 14, 23, 993 P.2d 1043, 1046-47 (App. 1999). In Beijer, this court found that testimony about an officer's specialized training in drug interdiction was "irrelevant and went a long way toward creating an impermissible inference, " and when coupled with testimony about why the officer's suspicions were aroused, in effect, told the jury that "the Defendant fit the drug courier profile." Id. at 83, ¶ 20, 993 P.2d at 1047. We noted that Lee expressly forbids testimony about where drugs originate and where drugs are distributed. Id. at ¶ 21, 993 P.2d at 1047.

         ¶17 We also recognized circumstances in which similar evidence may be admissible as modus operandi evidence. See Gonzalez, 229 Ariz. at 554, ¶ 13, 278 P.3d at 332 (citing United States v. Cordoba, 104 F.3d 225, 230 (9th Cir. 1997)) (reaffirming that modus operandi evidence is "properly admitted to assist [a] jury in understanding the modus operandi of a drug trafficking organization" in a case where the defendant and another individual were found with three plastic containers containing a total of 2.5 pounds of methamphetamine, and defendant denied knowing the drugs were in the car); see State v. Salazar, 27 Ariz.App. 620, 624-25, 557 P.2d 552, 556-57 (1976) (holding admissible expert testimony describing the common counter-surveillance techniques used by narcotics dealers in a case where four co-defendants were charged with conspiracy to sell and transport heroin).

         ¶18 In Gonzalez, where the defendant had denied knowing drugs were in his car, this court affirmed the trial court's admission as modus operandi evidence of a police sergeant's testimony that provided circumstantial evidence of the defendant's knowledge of the drugs. 229 Ariz. at 551, 554, ¶¶ 1, 15, 278 P.3d at 329, 332. The sergeant testified "that drug-trafficking organizations, like legitimate businesses, have a profit motive, and do not 'typically' entrust $112, 000 worth of their drugs to an 'unknown transporter.'" Id. at 553, ¶ 8, 278 P.3d at 331.

         ¶19 There, the sergeant's testimony was not offered to show the defendant "was guilty because he fit the characteristics of a certain drug courier profile[, ]" but was instead offered to establish general facts about drug trafficking organizations that served to undercut the asserted defense theory. Id. at 554, ¶ 15, 278 P.3d at 332 (quoting Cordoba, 104 F.3d at 229-30). This court concluded that, given the facts of that case and considering the asserted defense, the "testimony was proper because it was limited to the general practices of drug organizations." Id. at ¶ 16; see also State v. Garcia-Quintana, 234 Ariz. 267, 269-70, 273, ¶¶ 7, 29, 321 P.3d 432, 435-36, 438 (App. 2014) (holding that testimony regarding common counter-surveillance techniques used by drug trafficking organizations to smuggle drugs into the country was admissible to show "how the actions of Defendant fit into the modus operandi of a drug trafficking organization[, ]" where the defendant claimed he was not part of a drug trafficking organization and that he had not carried the several backpacks full of marijuana he was found lying near in the desert).

         ¶20 As demonstrated, case law suggests that modus operandi testimony typically is admissible only when a defendant was found with large quantities of drugs and asserts, in defense, that he had no knowledge of the drugs.[3] Under those circumstances, what drug trafficking organizations do is relevant.[4] This is not that kind of case.

         ¶21 As Escalante points out, at no point did the state allege he was transporting drugs as part of a drug trafficking organization. Further, as a factual matter, Escalante was not found with drugs on his person, or in his vehicle. Additionally, the amount of the methamphetamine found on the road that led to the charge in count 1 is small by comparison to the large quantities of drugs that ordinarily may permit modus operandi drug trafficking testimony, as shown in the cited cases. Nor did Escalante assert a lack of knowledge defense, as in Gonzalez and the other cited cases, that might allow the supposed modus operandi evidence offered by the state. Moreover, unlike in Salazar, see supra ¶ 17, Escalante was not charged with drug conspiracy. See United States v. Varela-Rivera,279 F.3d 1174, 1179 ...

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