Law Enforcement Experts Relying On Experience Must Explain How That Experience Is A Sufficient Basis For Their Opinion

Court: United States District Court for the District of New MexicoJurisdiction: FederalCase Name: United States v. ThomasCitation: 2018 U.S. Dist. LEXIS 209241

Facts

The defendant was accused of possession with intent to distribute 50 grams or more of methamphetamine. The defendant was traveling on a Greyhound bus through Albuquerque. While waiting for the bus to depart from Albuquerque, the defendant allowed a Drug Enforcement Administration (DEA) Special Agent to conduct a search of his belongings. The special agent found an allegedly controlled substance, methamphetamine, in the neck pillow.

The Expert

The government filed a notice of intent to offer the opinion testimony of the special agent. The special agent had 20 years of law enforcement experience with the DEA and was involved in more than 1,500 narcotics investigations.

The notice provided that the special agent’s testimony would include specialized knowledge and experience regarding narcotics investigations, including interdiction operations derived from his education, training, and professional experience. The special agent was set to testify that the amount of methamphetamine seized in this investigation was consistent with distribution, and would offer an opinion as to the street value of the seized narcotics. The special agent’s testimony would also include his knowledge of methamphetamine, its manufacturing origins, its properties and nature, drug terminology, and how it was packaged for distribution. The special agent would also opine as to the general drug trafficking geographical routes and patterns.

The government also submitted a notice of intent to call an officer of the Albuquerque police department who had 20 years of experience and 7 years of experience with the Pojoaque Tribal Police. The officer’s testimony offered the opinion that various indicia are not consistent with personal use, but are consistent with distribution.

Court Discussions

The defendant sought to exclude expert opinion testimony of both the special agent and the law enforcement officer.

The defendant argued that the government had not shown that the special agent and officer were qualified as experts or that their testimony was reliable. The defendant asserted that there was nothing in the expert notices detailing their experience, knowledge, or training. The defendant also argued that the court should not admit the special agent’s or officer’s expert testimony solely on the basis of their experience and training, but must analyze the Daubert factors.

Initially, the court noted that the proposed areas of expert testimony were generally areas in which the Tenth Circuit had allowed officers and agents to testify about as expert witnesses. The Tenth Circuit in United States v. Blake, 284 F. App’x 530, 540 (10th Cir. 2008) had stated that the modus operandi of drug organizations, the value of drug quantities, the language of narcotics dealers, and the tools of the narcotics trade were not subjects with which most jurors were familiar. More specifically, testimony regarding the significance of a quantity of drugs in possession constitutes specialized knowledge which can assist the jury in understanding a fact at issue.

The court allowed the officers to testify as experts in these areas if their experience and training indicated that they were qualified in those areas and their expert testimony would be reliable. However, witnesses “relying solely or primarily on experience…must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Here, there was nothing in the expert notices or the record to satisfy those requirements such that the court could determine whether this expert testimony was reliable.

The defendant argued that the proposed experts were not qualified to discuss drug addiction. The court agreed, however, the government noted that nothing in the expert notices indicated that they would testify about addiction. Rather, the officer would testify about the physical symptoms of drug use. The court had no doubt that the experts could identify physical indicia of drug use using their 20+ years of narcotics work.

The defendant appeared to assert that the court must apply the Daubert factors above to determine the reliability of the testimony. The court disagreed here. The proposed experts were law enforcement officers working drug interdiction. Their expert testimony was not based on any new scientific theory and their methodologies were neither complex nor unusual. Therefore, the court might make a reliability determination based on their testimony describing their experience and training.

The defendant alleged that much of the proposed expert testimony on areas such as drug interdiction operations, the street value of methamphetamine, methamphetamine’s origins, properties and nature, and drug terminology, was irrelevant. Here, the court agreed with the government that the proposed expert testimony as specified in the expert notices was relevant. Specifically, the majority of the proposed expert testimony went to assist the jury in understanding an element of the charges, such as whether the defendant intended to distribute methamphetamine.

Similarly, the defendant argued that the allegedly irrelevant expert testimony would result in unfair prejudice. Here, the court found that the probative value of the proposed expert testimony was not outweighed by unfair prejudice. It appeared that any expert testimony related to assisting the jury in determining whether the defendant intended to distribute the drugs he allegedly possessed. To the extent the experts wander into a discussion of the deleterious effects of methamphetamine on the community, the court would consider any objections.

Held

For these reasons, these motions were denied in part. However, the court would hear testimony at the pretrial conference, to be set by the courtroom deputy, to hear testimony from the special agent and officer regarding their experience and training. Thereafter, the court would determine whether they were qualified and whether their expert testimony was reliable.