January 13, 2022
2022 COA 10. No. 18CA1516. People v. Gamboa-Jimenez. Evidence—Expert Testimony—Drug Courier Profile Testimony—Fourth Amendment—Investigatory Traffic Stop.
A state trooper was parked along I-70 about 10 miles from the Utah border when he observed a driver commit a traffic infraction. The trooper conducted a traffic stop during which he discovered that the car was owned by a third party. He also noticed, among other things, that the driver’s behavior was suspicious, and there were several air fresheners and several cell phones plainly visible in the car. After issuing a verbal warning, the trooper began walking back to his patrol car. He then turned and asked the driver if there was anything illegal, like narcotics, in the car, and if he could search the car. The driver answered no to both questions. The trooper then instructed the driver and defendant, who was the passenger, to exit the vehicle so he could walk his drug-detection dog around it. This led to discovery of a package that contained just over a kilogram of cocaine in a compartment below the front passenger seat carpeting.
Defendant was arrested and charged with possession of a controlled substance, possession with intent to distribute a controlled substance, and a special offender designation for having introduced or imported more than 14 grams of cocaine into Colorado. Before trial, he moved to suppress the evidence recovered from the car, arguing it was obtained in violation of the Fourth Amendment. The trial court denied the motion after a hearing, and defendant was convicted as charged.
On appeal, defendant argued that the court erred by allowing the trooper to offer drug courier profile testimony at trial. A drug courier profile is “an array of behaviors and characteristics that detectives believe indicate a person may be smuggling illegal narcotics.” While such profiles may have some utility, they are inadmissible as substantive evidence of a defendant’s guilt. Here, the prosecution’s case was presented almost entirely through the trooper. The court allowed him to testify as an expert witness to describe how defendant met the profile based on his subjective observations without reference to any objective, widely recognized drug courier profile. Therefore, it was error to admit the testimony. Further, this error so undermined the fundamental fairness of defendant’s trial as to cast serious doubt on the reliability of the judgment of conviction.
Defendant also argued that the trial court should have granted his motion to suppress the evidence recovered from the car. Defendant did not dispute that the trooper had reasonable suspicion to pull the car over for a traffic infraction nor argue that the trooper took too long to investigate the infraction. Rather, he contended that the trooper did not develop additional reasonable suspicion during his investigation of the infraction to support his instructing the men to get out of the car. However, based on the facts and the transcript of the suppression hearing, the trooper had reasonable suspicion of criminal activity to justify detaining the men beyond the time it took to investigate the underlying traffic infraction. Therefore, the trial court did not err in denying the suppression motion.
The order denying the motion to suppress was affirmed. The judgment of conviction was reversed and the case was remanded for a new trial.
2022 COA 11. No. 19CA0529. People v. Rodriguez. Traffic Stop—Evidence—Chain of Custody—Testimony—Authentication—Jury Instructions—Prosecutorial Misconduct.
Defendant was a passenger in a car stopped by Officer Gardner. During the stop, defendant jumped out of the vehicle and ran along the side of the highway. Officer Gardner and another officer gave chase, and during the pursuit, defendant threw down a small plastic bag containing a white powdery substance. The officers apprehended defendant, and Officer Gardner recovered the bag that defendant discarded during the chase. At trial, the prosecution sought to establish that the substance in the plastic bag recovered from the scene was the same substance that a chemist tested and determined was cocaine (Exhibit 1). Defendant was convicted of possession with intent to distribute a controlled substance and obstruction of a peace officer.
On appeal, defendant argued that the trial court erred by admitting a bag of cocaine allegedly recovered during the traffic stop because the prosecution failed to establish a sufficient chain of custody and therefore failed to authenticate it. Here, Officer Gardner testified that after he retrieved the bag of cocaine, he gave it to Sergeant Manzanilla at the scene. After this point, Officer Gardner did not see the bag again until he purportedly identified it at trial; he did not have any personal knowledge of how the substance from the plastic bag recovered at the scene supposedly ended up in Exhibit 1. Sergeant Manzanilla did not testify. The police chemist testified that he had no knowledge of the circumstances under which Exhibit 1 was created, including who had previously handled the substance or who had prepared and sealed the exhibit bag. Therefore, the chain of evidence was broken, and the jury had no basis to determine that the powder in Exhibit 1, whose origin was unknown, was the same powder that defendant had possessed before discarding it during the traffic stop. Accordingly, the trial court erred by admitting the evidence, and the error was not harmless.
Defendant also contended that the trial court committed two errors that required reversal of his conviction for obstructing a peace officer. First, defendant claimed that the jury instruction misstated the law and violated his constitutional right to a trial by jury. Here, the court did not tell the jurors that they did not have the power to nullify; the court told the jurors that they had a duty to follow the law, which was not an error. Second, defendant argued that the prosecutor’s comments in closing argument misstated the law by equating a knowing mens rea with mere voluntary conduct. To prove the charge of obstructing a peace officer, the prosecutor had to show that defendant knowingly obstructed, impaired, or hindered a peace officer’s enforcement of the law. Here, the prosecutor’s references to sleepwalking and being awake were merely dramatic ways of emphasizing that, to act knowingly, defendant only needed to know what he was doing. While the comments were a bit hyperbolic, they were not so improper as to constitute plain error.
The conviction for possession with intent to distribute a controlled substance was reversed and the case was remanded for a new trial on that charge. The conviction for obstruction of a peace officer was affirmed.
2022 COA 12. No. 20CA1724. People in the Interest of E.W. Termination of the Parent–Child Legal Relationship—Jurisdiction—Home State under the Uniform Child-custody Jurisdiction and Enforcement Act.
The juvenile court adjudicated 9-month-old E.W. dependent and neglected and adopted a treatment plan for the child’s parents. The child was placed with family-like kin providers in Montana through an Interstate Compact on the Placement of Children. Parents later moved to Montana, and the juvenile court subsequently terminated their rights.
Parents argued on appeal that the judgment must be reversed because the juvenile court lost jurisdiction under the Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a Colorado court has jurisdiction to make an initial child-custody determination if Colorado is the child’s “home state” when the proceeding is commenced. A “home state” is the state where the child has lived with a parent for at least 182 consecutive days immediately before the proceeding’s commencement. The court that makes an initial child-custody determination generally retains exclusive, continuing jurisdiction. A court may lose jurisdiction if the child and no parent presently reside in the home state. Losing continuing jurisdiction requires another state to acquire jurisdiction from the Colorado court. Here, parents agreed that Colorado was the child’s home state when the case was initiated and the Colorado court had jurisdiction to make the initial child-custody determination. Because Montana didn’t seek to exercise jurisdiction under the UCCJEA, and termination is not a new child-custody proceeding or a modification of a child-custody determination that requires the juvenile court to reassess its jurisdiction, the Colorado court maintained its exclusive, continuing jurisdiction.
Father also contended that the juvenile court erred by finding there were no less drastic alternatives to termination. Here, the juvenile court considered an allocation of parental responsibilities but determined there were no less drastic alternatives to termination that would meet the child’s needs, and the record supports the court’s findings.
The judgment was affirmed.