A Colorado state trooper told a Mesa County jury that the defendant matched the profile of a drug courier because, among other things, he had air freshener and a religious symbol in his car. Prosecutors made that testimony a central part of their case, effectively asking jurors to believe the defendant was guilty because his behavior lined up perfectly with the trooper’s profile.

Now, the Court of Appeals has ordered a new trial for Mario Antonio Gamboa-Jimenez because there was no evidence the trooper’s profile had any data behind it.

The prosecution, wrote Judge David J. Richman for a panel of the appeals court, “essentially asked the jury to trust the trooper’s profile even if it found the evidence did not on its face indicate that Gamboa-Jimenez had a criminal state of mind.”

The major flaw, in the appeals court’s view, was that Colorado State Patrol Trooper Shane Gosnell first testified about all of the characteristics that, in his experience, indicated drug trafficking. Then, testifying as the officer who performed the traffic stop, Gosnell demonstrated that each of those factors was present when he pulled over Gamboa-Jimenez 10 miles east of the Utah border on Interstate 70.

Such testimony was “used to prime the jury,” Richman added, when the things Gosnell observed could easily have been part of “innocent travel.” Mesa County District Attorney Daniel P. Rubinstein acknowledged the appeals court’s findings.

A retrial of Gamboa-Jimenez, Rubinstein said, would involve “changing the order of the testimony, and having a separate expert from the trooper – who was also the eyewitness to the crime – [to] allow us to present the expert opinions the jury needs to understand the evidence, without risking unfair prejudice to the defendant.”

While the decision requires a more rigorous means of presenting expert evidence to a jury, some defense lawyers viewed the ruling as an overall endorsement of law enforcement’s use of benign behaviors as justification for investigating drivers.

Gosnell was parked on I-70 on the morning of Dec. 6, 2017, when he saw a car driving continuously in the left lane, which is a traffic infraction. When the car passed Gosnell, it slowed down, continuing at five miles per hour below the speed limit. Gosnell pulled the vehicle over.

Over the course of his interaction with the driver and Gamboa-Jimenez, who was in the passenger’s seat, Gosnell made several observations: food wrappers and clothing were in the back seat. There was an “overwhelming” scent of air freshener. The car had driven 30,000 miles in the last year. The men were on a long-distance trip between Virginia and Las Vegas, but not staying in a hotel. There were four cell phones in the car.

Finally, Gosnell spotted a “little card” with the image of St. Jude.

Gosnell ran the occupants’ information and found nothing amiss. He told them they were “good to go.” But after taking a few steps, the trooper turned around and asked if there was anything illegal in the vehicle. The driver said no.

Gosnell asked if he could search the vehicle. The driver also said no.

At that point, Gosnell instructed the driver and Gamboa-Jimenez to get out. He retrieved his drug-detection dog, Mason, who alerted to a scent inside the car. Gosnell and another officer discovered 2.7 pounds of cocaine.

Although Gamboa-Jimenez maintained he did not know about the cocaine, a jury convicted him of drug possession and he received a 12-year sentence.

Prosecutors made Gosnell’s testimony a prominent part of their case, even listing on PowerPoint slides the characteristics – “nervousness,” “overly compliant with the law,” “religious icons” – that Gosnell testified were indications of drug trafficking.

“A lot of these items are pretty common in day-to-day life. You may see one air freshener in a car. You may see a religious icon somewhere. You might even see someone being nervous to encounter law enforcement,” the prosecutor said during closing arguments. “But, what about all of these being present in one case? And that’s what we have here.”

In appealing his conviction, Gamboa-Jimenez relied upon a Colorado Supreme Court case from 22 years ago that the Court of Appeals found “strikingly similar.” A plainclothes Denver detective observed Jose Salcedo arrive on a flight at Denver International Airport in 1995. Salcedo fit many of the characteristics the detective ascribed to drug couriers at the time: no wristwatch, no books or magazines, wearing a cross and “dressed in a shirt and jeans, not a business suit.”

The detective and a narcotics officer confronted Salcedo at baggage claim, where they found $750,000 worth of cocaine in Salcedo’s suitcase. Salcedo, like Gamboa-Jimenez, contended he did not know the cocaine was inside.

The Supreme Court reasoned that the detective’s testimony about Salcedo fitting the profile of a drug courier was unhelpful to the jury because it was subjective and possibly misleading.

“Law-abiding citizens frequently wear crosses, do not wear wristwatches, travel in blue jeans, and decide not to bring books, magazines, or carry-on luggage on planes,” wrote then-Chief Justice Mary Mullarkey. “The fact that drug couriers also display such commonplace behaviors and characteristics does not tend to make it more or less probable that a person displaying those behaviors and characteristics is a drug courier.”

The Court of Appeals, in assessing Gamboa-Jimenez’s case, found the same basic problem existed: there was no evidence presented that the law enforcement officer was relying on some widely-accepted rubric of drug courier behaviors.

“In fact, as in Salcedo, it appears that the trooper’s profile was entirely subjective and may have even been personal to him,” Richman wrote in the Jan. 13 opinion.

The appellate panel sided against Gamboa-Jimenez, however, on another of claims, finding the extension of the traffic stop for Gosnell to deploy his drug-detection dog was permissible. Gamboa-Jimenez argued Gosnell did not have reasonable suspicion to detain the occupants of the car after telling them they were “good to go,” and that the trooper fell far short of demonstrating the probable cause needed for a warrantless search of the vehicle.

The Court of Appeals disagreed. Although Richman was uncertain why Gosnell had said the men were “good to go” well after his suspicions were aroused, “the trooper did not need to learn anything new during the consensual encounter to justify instructing the men to get out of the car.”

Many of the factors Gosnell said were indicators of drug trafficking – which the panel believed to be improper testimony in front of a jury – were, instead, perfectly acceptable for establishing reasonable suspicion. Combined with the drug-sniffing dog’s alert, the officers had probable cause to search the car, Richman wrote.

The Colorado Supreme Court endorsed that logic in the 2018 decision of People v. Bailey, which also involved Gosnell and his dog Mason. (In fact, the police encounter there took place one day after the traffic stop of Gamboa-Jimenez.) Even though law enforcement had observed the same benign behaviors of nervousness, long-distance travel and “overwhelming” air freshener, those factors combined provided reasonable grounds to search the defendants car, said the court.

Sarah Schielke, a criminal defense attorney, said the Court of Appeals had made a careful distinction between observations that an officer can use to detain a person and the use of those same observations to establish guilt at trial.

“Basically, what this opinion says is that in Colorado, police can detain and search you for having too many fast-food wrappers in your car, but police can’t tell the jury at your trial that those same fast-food wrappers are proof that you’re a drug trafficker,” she said.

For Colleen Kelley, also a defense lawyer, the decision is “terrifying.” She believed the characteristics Gosnell saw as fitting the profile of a drug courier can all easily apply to the average person.

“The lesson here: if you take a road trip in someone else’s car and have all of these ‘nefarious’ characteristics, the police can and will stop and search because you are suspicious,” Kelley said.

The case is People v. Gamboa-Jimenez.