9.5Drug Dealer Profiles

Police officers may testify as experts in controlled substances cases. People v Murray, 234 Mich App 46, 53 (1999).

Drug dealer profiles, as testified to by a police officer, are generally not admissible as substantive evidence of a defendant’s guilt of an offense under Article 7 of the PHC. People v Hubbard, 209 Mich App 234, 240-241 (1995), citing United States v Hernandez-Cuartes, 717 F2d 552, 555 (CA 11, 1983). Because drug dealer profiles have a great potential for inculpating innocent citizens, particularly when presented as expert opinion by law enforcement officials, a profile’s probative value is generally outweighed by the danger of unfair prejudice under MRE 403. See People v Murray, 234 Mich App 46, 52-53 (1999); Hubbard, 209 Mich App at 241. However, drug dealer profiles may properly be used for the limited purposes of explaining the significance of items seized and the circumstances of the investigation of criminal activity. Murray, 234 Mich App at 53.

A court may consider the following factors to distinguish between the appropriate and inappropriate use of drug profile evidence when determining the admissibility of such evidence:

•the reason given and accepted for the admission of the profile testimony must only be for a proper use, such as to assist the jury as background or modus operandi explanation;

•the profile, without more, should not normally enable a jury to infer the defendant’s guilt;

•because the focus is primarily on the jury’s use of the profile, the court must make clear to the jury, through use of a jury instruction, what is and is not a proper use for the testimony; and

•the expert witness should not express his or her opinion, based on a profile, that the defendant is guilty, nor should he or she expressly compare the defendant’s characteristics to the profile in such a way that guilt is necessarily implied. Murray, 234 Mich App at 56-58.

M Crim JI 4.17 is applicable when drug profile evidence is used. M Crim JI 4.17 provides:

“You have heard testimony from [name witness(es)] about [his / her / their] training or experience concerning other drug cases. This testimony is not to be used to determine whether the defendant committed the crime charged in this case. This testimony may be considered by you only for the purpose of [state purpose for which evidence was offered and admitted].”

“Drug profile evidence” is “an informal compilation of characteristics often displayed by those trafficking in drugs.” People v Hines, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted). “[D]rug profile evidence is generally inadmissible as substantive evidence of guilt, but trial courts may admit it to explain the significance of other evidence.” Id. at ___. However, “there is often a very fine line between the probative use of profile evidence as background or modus operandi evidence and its prejudicial use as substantive evidence.” Id. at ___ (cleaned up). “Trial courts therefore must make a case-by-case determination to allow drug profile testimony that aids the jury in intelligently understanding the evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop short of enabling profile testimony that purports to comment directly or substantively on a defendant’s guilt.” Id. at ___ (quotation marks and citation omitted). Here, defendant’s argument focuses on “whether the drug profile testimony amounted to opinion testimony on his guilt.” Id. at ___.   In this case, “[defendant] was convicted on each count submitted to the jury: one count of possession with intent to deliver methamphetamine, one count of possession with intent to deliver less than 50 grams of fentanyl, and one count of possession with intent to deliver imitation controlled substances.” Id. at ___. Two drug task force officers who were qualified as expert witnesses “provided permissible drug profile testimony and testimony that crossed the line into impermissible comments on [defendant’s] guilt.” Id. at ___. One expert witness “testified that the police did not find pipes, needles, or items associated with drug use (as opposed to trafficking) during the search of [defendant’s] residence.” Id. at ___. Further, the expert witness “also vaguely opined that the quantity of drugs [defendant] had was not indicative of personal use.” Id. at ___. The other expert witness “opined that the 31 bindles^[1] of fentanyl recovered from [defendant] were indicative of packaging for delivery because of the number.” Id. at ___. “This likely crossed the line into opinion testimony because it directly linked general characteristics to the evidence identified in [defendant’s] case.” Id. at ___. “This was inadmissible because it was essentially an opinion of [defendant’s] guilt.” Id. at ___. “Likewise, [the expert witness’s] comment that a user might purchase more than one bindle but ‘you’re very rarely gonna [come] across users with 30 packets, 31 packets’ was impermissible.” Id. at ___. This comment “linked common traits directly to the facts of this case.” “Finally, [the expert witness] speculated on why [defendant] might not have money with him suggesting that he ‘recently re-upped,’” which was also impermissible. Id. at ___. The Court noted that “[s]eparate from the impermissible drug profile evidence, both [expert witnesses provided admissible drug profile evidence” and that it was “difficult to say that the impermissible drug profile evidence made a difference.” Id. at ___. “Though inadmissible, under the facts of this case, [the drug profile evidence] arguably made explicit connections a reasonable jury would have already made.” Id. at ___. Therefore, defendant “[could not] establish that the improper drug profile evidence affected the outcome of the trial.” Id. at ___.