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Appeals Court Rules Drug Dealer Profiling Evidence Admissible


In a recent decision – Commonwealth v. Smith – the Appeals Court affirmed the defendant’s conviction of possession with intent to distribute cocaine, the Appeals Court rejected the defendant’s contention that the testimony of a police expert on drug use and distribution “was admitted improperly because it was based on hearsay and profiling characteristics of drug sellers and users.”

The background was as follows. Police officers in a narcotics unit were conducting surveillance when they observed a “Volvo driving slowly” “back and forth through [an] intersection, [before coming] to a stop in the parking lot of a nearby liquor store that was closed…. A few minutes later, the officers saw the defendant” approach the Volvo and get into the front passenger seat. “About one minute later, the Volvo drove out of the parking lot” and travelled “a short distance from the original pick up location; the defendant got out of the car there. [Detective] Mercurio drove his unmarked police car past the Volvo,” stopped near the defendant, “and identified himself as a police officer; the defendant then stepped back and started running down the driveway of a house.” “Mercurio chased the defendant down the driveway, and observed the defendant’s hands go to the front of his pants as he was running…. As soon as the defendant turned the corner of the house, Mercurio lost sight of him.” After another officer detained the defendant, “Mercurio … went back to the area behind [the house] where he had lost sight of the defendant …; he found a clear plastic bag containing two rocklike substances that were individually wrapped ‘inside the corner of a bag and it was tied in a knot at the top.’ Approximately three feet away, another officer found ‘a second plastic bag and inside that plastic bag [were] thirteen more individually wrapped off-white colored rocklike substances.’…. The bags were tested and the substance was determined to be cocaine. At trial, an officer who had not participated in the investigation, Detective Keating, testified as an expert, based on his training and experience, regarding illegal drug distribution and drug use. Keating provided for the jury an overview of the consistency and street cost of crack cocaine generally in the [local] market…. He explained that the most common packaging of crack cocaine for street sales is for the ‘rock [to] be placed in the corner of a baggy, twisted, tied off and that’s how it’s individually wrapped’; the individual packets are then generally ‘held in one big sandwich bag.’” Keating opined that “the amount of drugs possessed by the defendant [and its packaging in fifteen individual bags] was not consistent with personal use but was consistent with an intent to distribute.”

In its decision, the Appeals Court saw “no error in allowing Keating to testify” as to his opinion, which “was supported by previously admitted evidence,” on the issue of use versus distribution. In the Court’s view, Keating’s “‘testimony … was beyond the ken of the jurors and appropriately explanatory, and did not intrude on the fact-finding function of the jury.’ Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 636-637 (2005).”

If you or a loved one is charged with drug distribution, it’s extremely important that you have a skilled attorney who is familiar and up to date with the relevant case law, and who can do everything in his or her power to make sure that the Commonwealth is precluded from introducing and prejudicial evidence against you. Attorney Daniel Cappetta has successfully handled numerous drug cases and well versed in the law. He will help you get the best possible outcome in your case. Call him for a free consultation today.

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