What Type of Police Officer Testimony Regarding the Common Practices of Drug Dealers Is Admissible in the Courtroom?
M r. Smith was charged with possession of heroin, cocaine, and marijuana with the intent to distribute. Narcotics detectives observed Mr. Smith pacing back and forth between two apartment complexes and meeting with various subjects who would give him money. Mr. Smith would then walk behind one of the buildings where a large cup with a fast food logo was on the ground. Mr. Smith would retrieve an item in a plastic baggie from the cup and deliver the baggie to the subject who had given him money.
The detectives followed one subject who received a baggie from Mr. Smith to a parking lot two blocks away. They found him sitting on the ground preparing to shoot himself up with heroin, a partially empty baggie beside him. A second subject who received a baggie from Mr. Smith was detained and found in possession of crack cocaine. When the detectives arrested Mr. Smith and recovered the fast food cup, the cup contained baggies filled with heroin, crack cocaine, and marijuana.
At trial, the prosecutor asked one of the detectives why the drugs were kept in a fast food cup in a separate location. The detective testified it was common practice for drug dealers to hide their stash away from them to prevent losing their drugs in a rip-off or the use of the drugs as evidence against them if they were arrested. On appeal, Mr. Smith claimed that the court erred in allowing testimony concerning the “common practices” of drug dealers. Did the trial court err when it allowed the detective’s testimony as to the common practices of drug dealers? If so, why isn’t such testimony admissible? Finally, is all such testimony regarding the common practices of drug dealers taboo? This article will answer these questions and more as it explores the rules regarding what is admissible, whether inadmissible testimony is always reversible error, who can testify, and alternatives to having a witness testify regarding the common practices of drug dealers.
Why Testimony Regarding Common Practices Is Generally Inadmissible
Testimony concerning the common practices of drug dealers is unfairly prejudicial to a defendant because he or she is not being judged for his or her behavior, but for someone else’s. One of the earliest Florida cases mentioning the proposition of being judged for someone else’s criminal behavior was Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990). In Nowitzke, the defendant, who had been previously found to be incompetent to stand trial due to schizophrenia, was charged with the murder of his mother and stepbrother and the attempted murder of his stepfather. At trial, in an apparent attempt to discredit the defendant’s insanity defense, the prosecutor elicited testimony from a detective that he knew drug addicts who stole from their families to support their drug habits and committed homicides.1
On appeal, the court noted that such testimony was improper: “Testimony concerning past crimes that did not involve the defendant cannot be introduced to demonstrate that the defendant committed the crimes at issue in the present case. The only purpose of such testimony is to place prejudicial and misleading inferences in front of the jury.”2
Almost 11 months later, the Third District Court of Appeal echoed the rationale of Nowitzke in the drug case of Lowder v. State, 589 So. 2d 933 (Fla. 3d DCA 1991).3 In Lowder, a detective conducting surveillance saw a suspect walk to an area next to an apartment building, place a brown paper bag on the ground, and walk away. He later saw the suspect return to the paper bag, take out an item, hand it to another individual, and take back something in exchange. After observing several repeats of the routine, the detective ordered a back-up team to make an arrest based on a description of the suspect’s clothes. Another unit was directed to confiscate the brown bag. Based on his attire, Lowder was singled out for arrest. Officers found over $1,200 in Lowder’s pocket and cocaine in the brown paper bag.4
Lowder denied he was the person seen making transactions from the bag. He claimed he was visiting friends in the area and that he had the large amount of cash because his girlfriend gave him money to buy a used car. He claimed he won the rest at jai alai that evening.5
During trial, the detectives testified that the area where Lowder was found was known for narcotic sales, thus, inferring that he must have been the suspect dealing drugs because no law abiding person would be found there. A detective also testified that based on his experience, there was a correlation between carrying large amounts of cash and selling illegal drugs, inferring that it must have been Lowder selling the drugs because he had so much money in his possession.6
In reversing Lowder’s convictions, the court found that both areas of testimony were improper because they did not address the issue of identification, but attempted to establish guilt by inference:
It is well settled that reference to the area in which a defendant is arrested as a location known to be inhabited by drug dealers is prohibited because such reference is irrelevant to the issue of guilt. Evidence of this type, impugning the area’s reputation, is introduced only to show bad character or propensity, and may unduly prejudice the jury. In a prosecution for possession of illegal drugs, the fact that a police officer knows that an arrest scene is a reputed narcotics area does not prove anything in issue and is patently prejudicial.
On the second point, we hold that every defendant has the right to be tried based on the evidence against him, not on the characteristics or conduct of certain classes of criminals in general. Florida courts have frequently criticized the use of testimony from police officers regarding their experience with other criminals as substantive proof of a particular defendant’s guilt or innocence.7
Post- Lowder Application — or Misapplication? — of the Proposition
Post- Lowder, the Fourth District Court of Appeal handed down a series of opinions prohibiting testimony regarding the common practices of drug dealers.
In Shelton v. State, 654 So. 2d 1295 (Fla. 4th DCA 1995), the defendant was accused of selling rock cocaine to an undercover officer. Neither the officer’s marked $20 bill nor any drugs were found on the defendant. The state elicited testimony from the undercover officer that it was common not to recover the money or drugs after these types of drug deals. On appeal, the court reversed Shelton’s conviction on the basis of Lowder.8
In Thomas v. State, 673 So. 2d 156 (Fla. 4th DCA 1996), the court held that permitting an officer to testify regarding the procedures common among drug sales was reversible error. In Thomas, the defendant was accused of brokering the sale of rock cocaine. When the undercover officer advised he wanted to buy drugs, Thomas called over a third party to deliver the drugs. She accepted the money from the officer. The state elicited testimony from the detective regarding common practices used by drug dealers to protect themselves from robberies, including the use of third parties to hold the drugs, receive the money, and transfer the drugs. On appeal, the court reversed Thomas’ conviction based on Lowder and Shelton.9
In Dean v. State, 690 So. 2d 720 (Fla. 4th DCA 1997), the court held that the admission of a detective’s testimony concerning the general behavior of drug dealers was reversible error. In Dean, the defendant was accused of transporting multi-kilo quantities of cocaine in his luggage as he traveled by train from Florida to the Northeast. During Dean’s encounter with police at the train station, he was unable to produce identification confirming the name on his train ticket and gave detectives consent to search his suitcases where the cocaine was found. Dean’s defense was that he must have been unaware of the cocaine in his luggage, because otherwise he would not have given consent for the search. The prosecution elicited testimony from the detectives about their past experience with the general behavior of drug traffickers, including that 1) people often consent to a search of their luggage, even when it contains contraband, and 2) people traveling with a false name on their tickets generally are involved in illegal activity. The appellate court reversed Dean’s conviction on the basis of Lowder.10
Harmless Error Versus Reversible Error
Not all cases in which testimony involving common practices of dealers was admitted into evidence resulted in a reversal on appeal. In some cases courts have recognized the use of such testimony as error, but concluded the error was harmless. In determining whether the error was harmless or reversible, the appellate courts have looked to the amount of other evidence against the defendant and whether the testimony attacked a critical aspect of the defendant’s case. In Dunning v. State, 695 So. 2d 473 (Fla. 4th DCA 1997), for example, a detective testified that Dunning participated in a drug sale, and Dunning admitted that he had participated in the sale. The marked money for the drug deal was found on Dunning. Dunning’s only defense was that he merely provided pebbles, not cocaine. Although the detective testified that in his experience it was not uncommon for drug dealers to bury their drugs, the court found that such testimony was harmless given the overwhelming evidence against Dunning.11
Exceptions to the Exclusion of Common Practices Testimony
The courts have allowed some exceptions to the rule excluding a detective’s testimony about drug dealers’ common practices. The most notable exception is that testimony regarding how drug dealers commonly package their drugs and the quantity of drugs that usually indicates the drugs were intended for sale (not personal use) are admissible to show the defendant intended to sell drugs found in his or her possession.
In K.M. v. State, 545 So. 2d 464 (Fla. 3d DCA 1989), in a decision that predated the above cases by the Fourth District Court of Appeal (and has since been followed by other courts), the Third District Court of Appeal held that it was proper for the state to present an officer’s expert testimony regarding the packaging of the drugs to demonstrate that the drugs seized were intended for sale.12
In Baten v. State, 579 So. 2d 764 (Fla. 5th DCA 1991), a police officer was permitted to testify that it was not uncommon for dealers to carry rocks of cocaine in baggies, not individually wrapped, and that the amount of cocaine the defendant had was more than most cocaine “users” would carry. The testimony was relevant to establish the defendant’s intent to sell the cocaine.13
In addition to permitting common practices evidence to establish a defendant’s intent to sell drugs, Florida courts have allowed common practice testimony regarding the use of code words and jargon and their meanings,14 the identity and weight of a drug,15 and the value of a drug.16
Federal courts have also allowed expert witness testimony of the common practices of dealers regarding furtive exchanges in conducting drug deals17 and testimony regarding counter surveillance activities.18 A lthough there is no state case law regarding expert witness testimony concerning those areas, this federal precedent can be relied upon to support similar propositions in the state courts.19
What Qualifies as Expert Testimony and Who Qualifies as an Expert Witness
The common practices of drug dealers is a proper subject for expert testimony under the general principles that expert testimony is admissible if it meets the ordinary test of relevance and is sufficiently beyond ordinary experience as to render the testimony of probable assistance to the jury. F.S. §90.702, regarding testimony by experts, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.
In Cali v. State, 111 So. 2d 703 (Fla. 2d DCA 1959), a member of vice squad who had been a member of the police department for nearly five years, was acquainted with Bolita from his youth, had participated in a number of investigations of Bolita violations, had bought it, and had talked with Bolita operators, was found by the court to be competent to testify as an expert in the “Bolita field,” to identify a blackboard with numbers written on it with chalk, and found in possession of defendant as Bolita paraphernalia.20
Of course, the issue presented in this article involves the common practices of drug dealers and not Bolita operators. But the decision in Cali to permit the detective’s expert testimony to assist the jury in understanding the evidence against Bolita dealers can be applied by analogy to permit similar expert testimony to explain evidence regarding the common practices of drug dealers.
Thus, under §90.702, the common practices of drug dealers is a proper subject for expert testimony under the general principles that expert testimony is admissible if it meets the ordinary test of relevance and is sufficiently beyond ordinary experience as to render the testimony of probable assistance to the jury.
Police officers, like others who have special knowledge about a subject matter, may be qualified to render expert opinions about the common practices of drug dealers.
In accordance with the general rule that to qualify as experts, witnesses must have acquired such special knowledge of the subject matter about which they are about to testify, either by study of the recognized authorities or by practical experience, that they can be of assistance to the jury in providing guidance in solving a problem which they cannot solve themselves, many witnesses who have qualified as experts on the common practices of criminals have been law enforcement officers with their qualifications usually consisting of practical experience in a law enforcement organization.21
And police officers are not the only persons qualified to testify as experts regarding the common practices of drug dealers. In Brooks v. State, 762 So. 2d 879, 891 (Fla. 2000), the court affirmed a conviction where the expert witness was a gang member.22
Alternate Solutions for Prosecutors
Although a police officer may not be able to testify regarding the common methods used by drug dealers, alternate methods may exist to enlighten a jury. In Reyes v. State, 700 So. 2d 458 (Fla. 4th DCA 1997), a prosecutor argued in closing argument:
The fact that the money that was given to the Defendant by the agent was not found on him. Let’s talk about that a little bit. Use your common sense. Could he have got the money, could he have handed it off, passed it to some of those other people that were milling about? Could he have gone somewhere and put it — ditched it or given it to someone? Could he have changed it? What is a drug dealer likely to do? Is he going to hold on to this money? Is he going to sit there like a sitting duck waiting for the officer or somebody that just engaged a transaction that could be an undercover officer to come back and find them with the evidence on him? This money goes quick. It is passed from one hand to another. It is got to be rid of.23
The defendant sought reversal on appeal and asserted that the closing argument was an impermissible comment on what other drug dealers do. The court acknowledged that testimony regarding the common practices of drug dealers is generally inadmissible, but found that line of precedents inapposite:
Here, however, the prosecutor is simply hypothesizing about reasons why a drug dealer may not have marked money or drugs on him at the time of arrest. Judges have discretion to allow attorneys wide latitude in making legitimate arguments to the jury, including assertions of logical inferences. Merely arguing a conclusion that can be drawn from evidence is permissible fair comment in closing.24
Thus, an alternative to having an expert witness provide impermissible testimony would be to include similar inferences in closing argument to let the jury draw its own conclusions, as the prosecutor did in Reyes.
In Nowitzke, it was blatantly misleading when the detective testified that in his experience drug users and dealers killed family members to create the inference that the murders were due to his being a drug addict rather than to his schizophrenia. It was similarly misleading in Lowder when the detective testified that Lowder was found in an area known for drug sales with a large amount of money, creating inferences that he was there to sell drugs, when the real issue was simply whether Lowder was the same suspect seen earlier selling drugs.
In the other Fourth District Court of Appeal cases resulting in reversal, however, there was no intent to mislead the jury with irrelevant evidence. In Shelton, the detective’s testimony sought to explain why no money or drugs were found on Shelton, a natural question that the jury would have since they did not have an intimate knowledge of drug selling activities. Similarly, in Thomas and Moore, the detectives’ testimony explained why drug dealers often worked in pairs with one holding the drugs and the other holding the money. Again, this testimony illustrated a practice with which a jury would not be familiar. Finally, in Dean, the detective’s testimony — that in previous cases suspects provided consent to search when they were in possession of drugs — was in response to Dean’s claim that he must not have known there was cocaine in the suitcases, because he provided consent to search them.
The state should not be precluded from presenting expert testimony that would refute claims made by defendants. If the defendant is opening the door in relying on a particular defense, the state should be provided the opportunity to rebut that claim — especially in situations where the inference created would not be misleading.
In Lowder, the court noted that “every defendant has the right to be tried based on the evidence against him, not on the characteristics or conduct of certain classes of criminals in general.”25 That proposition applied in Lowder, where a misleading inference existed. But that proposition has been expanded beyond its original purpose in Shelton, Thomas, Dean, and their progeny. In those subsequent cases, the defendants raised defenses and claims of innocence that an officer with expertise in investigating drug crimes could refute. Under those circumstances, the state should be permitted to counter the defense through expert testimony of drug dealer’s practices.26
1 Nowitzke, 572 So. 2d at 1355.
2 Id. at 1355-36 (citations omitted).
3 the author believes that Lowder is the first case dealing with the narrow issue of police officers using their experience with drug dealers as proof of a particular defendant’s guilt or innocence. Although the Lowder opinion cites Hargrove v. State, 431 So. 2d 732 (Fla. 4th D.C.A. 1983); Osario v. State, 526 So. 2d 157 (Fla. 4th D.C.A. 1988); and Kellum v. State, 104 So. 2d 99 (Fla. 3d D.C.A. 1958), those cases are distinguishable in their facts.
4 Lowder, 589 So. 2d at 934.
6 Id. at 934-35.
7 Id. at 935 (some internal quotations and citations omitted). In his dissenting opinion Judge Gersten opined there was no error as to the second issue: “The issue is not the credibility or weight afforded the officer’s assertions, but rather the admissibility of his opinion testimony. An officer with specialized knowledge can express his opinion on the relationship between large amounts of cash and drug transactions.” Id. at 936 (Gersten, J., dissenting) (citations omitted).
8 Shelton, 654 So. 2d at 1296.
9 Thomas, 673 So. 2d at 157-58. See also White v. State, 730 So. 2d 715, 715-16 (Fla. 4th D.C.A. 1999).
10 Dean, 690 So. 2d at 720-23. See also Dunning v. State, 695 So. 2d 473,474 (Fla. 4th D.C.A. 1997); Moore v. State, 711 So. 2d 1185, 1186-87 (Fla. 4th D.C.A. 1998); Lawrence v. State, 766 So. 2d 250, 250-51 (Fla. 4th D.C.A. 2000); Griffin v. State, 872 So. 2d 998, 999-1000 (Fla. 4th D.C.A. 2004) (missing cocaine believed to have been swallowed); and Armalin v. State, 884 So. 2d 458, 459-60 (Fla. 4th D.C.A. 2004) (testimony regarding common practice of keeping rock cocaine in dealer’s mouth was harmless).
11 Dunning, 695 So. 2d at 474. See also Armalin, 884 So. 2d at 460 (testimony was not regarding a critical aspect of the case or defense).
12 K.M., 545 So. 2d at 464.
13 Baten, 579 So. 2d at 765. See also Bruce v. State, 616 So. 2d 504 (Fla. 3d D.C.A. 1993); Scarlett v. State, 704 So. 2d 615 (Fla. 4th D.C.A. 1997); Prescott v. State, 753 So. 2d 568, 569 (Fla. 4th D.C.A. 1998); Ramos v. State, 798 So. 2d 4, 5 (Fla. 4th D.C.A. 2001); Damen v. State, 793 So. 2d 106, 108-09 (Fla. 2d D.C.A. 2001); and Siprien v. State, 812 So. 2d 536, 539-40 (Fla. 4th D.C.A. 2002).
14 Smith v. State, 7 So. 3d 473, 495-96 (Fla. 2009).
15 Brooks v. State, 762 So. 2d 879, 891-94 (Fla. 2000).
16 See Baten, 579 So. 2d at 764.
17 United States v. Carson, 702 F.2d 351 (2d Cir. 1983).
18 United States v. Parra, 402 F.3d 752 (7th Cir. 2005).
19 See Fla. Jur.,
Courts §198 (“Although state courts do not consider themselves bound by federal decisions on substantive questions pertaining to local nonfederal law, they do regard them as persuasive and may follow them although there are domestic precedents to the contrary”); Miami Home Milk Producers Ass’n v. Milk Control Bd., 169 So. 541, 544 (Fla.1936) (state supreme court is not bound by U.S. Supreme Court precedent on matters of state law, but decisions of that tribunal on analogous questions have always been considered as strongly persuasive).
20 Cali, 111 So. 2d at 706.
21 3 1A
Am. Jur. 2d, Expert and Opinion Evidence §368.
22 H owever, while expert witnesses may be asked whether a certain person’s actions fit within the modus operandi of a certain crime, they may not be asked questions requiring the giving of an opinion as to the guilt or innocence of that person.
23 Reyes, 700 So. 2d at 459-60.
24 Id. at 460-61 (internal quotations and citations omitted).
25 Lowder, 589 So. 2d at 935.
26 No such bar exists in the federal courts. Federal case law permits the use of expert witness testimony regarding the common methods of drug dealers. See United States v. Thomas, 676 F.2d 531 (11th Cir. 1982); United States v. Desper, 45 F. App’x. 213 (4th Cir. 2002); and United States v. Gastiaburo, 16 F.3d 582 (4th Cir. 1994).
Michael C. Greenberg is a retired special agent from the Florida Department of Law Enforcement (FDLE) and is presently an assistant attorney general in the criminal appeals section of the office’s criminal division in Miami. He is also a member of The Florida Bar’s Appellate Rules Committee and an executive committee member of the Board of Governors of the Shepard Broad Law Center at Nova Southeastern University.
This column is submitted on behalf of the Trial Lawyers Section, Clifford C. Higby, chair, and D. Matthew Allen, editor.