What type of police officer testimony regarding the common practices of drug dealers is admissible in the courtroom?

• Author: Greenberg, Michael C.
• Position: Trial Lawyers Forum

Mr. 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...