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
Jon W. Thompson delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie
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). For the reasons that follow, we affirm.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
About ten or fifteen minutes later, Detective Sinn arrived
and read Escalante his Miranda 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.
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"
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.
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).
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
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.
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
Whether the officers' testimony was proper modus
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
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)).
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.
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
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.
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).
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. Under those circumstances, what drug
trafficking organizations do is relevant. This is not that
kind of case.
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 ...