Peo v. Jackson

Opinion

23CA2243 Peo v Jackson 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2243 Mesa County District Court No. 22CR272 Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Amber Lynn Jackson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE LUM Tow and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 4, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Christopher Gehring, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Amber Lynn Jackson, appeals her conviction for

drug distribution. We affirm.

I. Background

¶2 On February 19, 2022, Colorado State Patrol Trooper Jeffrey

Vrbas noticed a driver (Bobbie McGee)1 performing a “fake yawn,”

driving in the left lane for several miles without passing another

vehicle, and following too closely behind a truck. He also noticed

that Jackson, the passenger, was taking photos through the SUV’s

front window, even though there didn’t appear to be anything

interesting about the scenery. Vrbas initiated a traffic stop,

intending to give McGee a warning.

¶3 During the traffic stop, Vrbas learned that McGee and Jackson

didn’t have their names on the rental agreement for the SUV.

McGee told Vrbas that she and Jackson were traveling from

California to visit motorcycle clubs; however, Jackson didn’t have a

motorcycle endorsement on her driver’s license. When Vrbas

approached Jackson, she appeared to be nervous and fidgety even

though Vrbas was merely issuing a warning.

1 McGee is not a party to this appeal.

1 ¶4 From the passenger window, Vrbas saw several air fresheners

hung throughout the SUV and noticed the smell of “raw marijuana”

coming from inside. After acquiring McGee’s consent to search the

vehicle, Vrbas noticed fingerprints on the vehicle’s spare tire. When

he hit the tire, he heard a thud, which sounded like something was

hidden inside. When he opened the tire, he discovered seven

packages of cocaine.

¶5 Jackson was charged with possession with intent to

manufacture or distribute cocaine, with a special offender sentence

enhancer for possession of more than fourteen grams. A jury found

her guilty as charged, and she was sentenced to eighteen years in

the custody of the Colorado Department of Corrections.

II. Drug Courier Profile Testimony

¶6 Jackson argues that the trial court plainly erred by permitting

Vrbas to testify that her behavior was consistent with a “drug

courier profile.” We conclude that Jackson waived this issue.

A. Applicable Law

¶7 A drug courier profile is an “array of behaviors and

characteristics that detectives believe indicate a person may be

smuggling illegal narcotics.” Salcedo v. People, 999 P.2d 833, 837

2 (Colo. 2000). Such testimony is inadmissible as substantive

evidence of a defendant’s guilt because of the risk that the

characteristics described are “entirely subjective” and “personal to”

the observer rather than part of an “objective, widely recognized

profile.” People v. Gamboa-Jimenez, 2022 COA 10, ¶ 23. In

addition, drug courier profile testimony often relies on behavior and

characteristics that aren’t unique to drug couriers, making the

testimony irrelevant and unfairly prejudicial. Salcedo, 999 P.2d at

840-42.

¶8 Waiver is an “intentional relinquishment of a known right or

privilege” and may be express or implied. Forgette v. People, 2023

CO 4, ¶ 28 (quoting People v. Rediger, 2018 CO 32, ¶ 39). Waiver

extinguishes error and, therefore, appellate review. Id. at ¶ 30.

¶9 “A waiver . . . may be implied . . . when a party engages in

conduct that manifests an intent to relinquish a right or privilege or

acts inconsistently with its assertion.” Id. at ¶ 28. “If there is

evidence in the record that defense counsel made a conscious

decision to forego raising a claim for strategic or other reasons, we

will not hesitate to find an implied waiver.” Phillips v. People, 2019

CO 72, ¶ 22 n.4; see also People v. Garcia, 2024 CO 41M, ¶ 47

3 (explaining that courts find implied waiver in certain cases to

address the concern that a “defendant could intentionally forego

objecting to an error ‘as a strategic parachute to preserve an avenue

of attack on appeal’” (quoting Stackhouse v. People, 2015 CO 48,

¶ 16)). For instance, “in some situations defense counsel will

refrain from seeking the suppression of an article of evidence for

strategic or other reasons.” Phillips, ¶ 22 n.4. Except in a few

circumstances not relevant here, a defendant’s personal

participation in a waiver isn’t required and a defense counsel’s

statements and conduct may constitute waiver. Stackhouse, ¶¶ 15-

16.

B. Additional Facts

¶ 10 The prosecution called Vrbas to testify about his reasoning for

conducting the traffic stop and his search of the SUV. Shortly after

Vrbas took the stand, the prosecution asked him to “identify[] the

signs of an illegal drug transportation.” The court interrupted and

precluded Vrbas from testifying that signs of drug trafficking

included “air fresheners,” “third party cars,” and “unusual travel

plans,” concluding that such testimony would constitute drug

courier profiling under Gamboa-Jimenez and Salcedo. Defense

4 counsel said, “I was about to object” for the same reasons stated by

the court. The prosecutor said he would “move on.” The court

added that it would “be listening carefully” so as not to allow any

drug courier profile testimony to be admitted.

¶ 11 Vrbas was then qualified as an expert witness in the fields of

transporting illegal narcotics, concealment in motor vehicles,

distribution networks, and packaging and value of drugs. As

relevant here, he testified about the following topics: (1) McGee’s

fake yawn and traffic violations; (2) Jackson taking pictures

through the front window; (3) Jackson’s nervous demeanor during

the traffic stop; and (4) the existence of multiple air fresheners in

the rental SUV. Defense counsel didn’t object to any of the

testimony.

¶ 12 After testimony that day, the court noted that it had been

paying close attention to the drug courier profile issue and that the

testimony “perhaps . . . fl[ew] a bit close to the sun, but it hasn’t

gotten to the point where [the court] needed to interject, and [the

court] ha[s]n’t of course heard from [defense counsel] that he

believes an objection is warranted, primarily because the testimony

hasn’t been drug courier profile.” Defense counsel didn’t dispute

5 the court’s characterization of Vrbas’s testimony or raise any

further objection.

¶ 13 The next day, the prosecution completed its direct

examination of Vrbas, again without any objection from defense

counsel. During cross-examination, the defense asked Vrbas about

McGee’s fake yawn, Jackson’s photo taking, and the air fresheners.

¶ 14 Thereafter, the defense made two objections based on

concerns about the risk of drug courier profiling. First, during

Vrbas’s redirect examination, defense counsel objected to the

prosecution asking why a fake yawn was concerning as a “change

in behavior” and why such behavioral changes may indicate drug

smuggling. Second, citing Gamboa-Jimenez, defense counsel

objected to a juror question inquiring about Vrbas’s thought

process before conducting the vehicle search. The court sustained

both objections.

C. Analysis

¶ 15 Jackson contends that the court plainly erred by permitting

Vrbas to give drug courier profile testimony when he discussed

McGee’s fake yawn (or “change in behavior”), Jackson’s “nervous”

behavior, McGee’s statements that she and Jackson were travelling

6 from California, and the use of multiple air fresheners in the SUV.

We agree with the People that Jackson impliedly waived any

objection to the disputed testimony because the record reflects that

defense counsel was aware of the drug courier profile issue but

didn’t raise it.

¶ 16 First, on the first day of trial, defense counsel clearly heard the

court interrupt Vrbas’s testimony sua sponte to raise the drug

courier profile issue and said that he was “about to object” for the

same reason. Despite this awareness, defense counsel permitted

Vrbas to testify about the topics he now raises on appeal without

further objection. Moreover, counsel didn’t raise any issue with

Vrbas’s direct examination when the court said that it “fl[ew] . . .

close to the sun” but it didn’t constitute drug courier profiling. See

Garcia, ¶ 46 (“We have previously been willing to infer an intent to

waive when the record demonstrates that counsel was aware of the

grounds for an objection but failed to raise it.”).

¶ 17 Second, defense counsel cross-examined Vrbas about the fake

yawn, Jackson’s photography, and the air fresheners found in the

SUV. Combined with counsel’s awareness of the potential grounds

for an objection to such testimony and his choice to object on those

7 grounds during Vrbas’s redirect, it can be fairly assumed that

defense counsel wanted to cross-examine Vrbas on these topics and

therefore didn’t object for strategic reasons. Phillips, ¶ 22 n.4.

¶ 18 Because we conclude Jackson impliedly waived the drug

courier profile argument, appellate review of this issue is precluded.

Forgette, ¶¶ 28, 30.

III. Disposition

¶ 19 The judgment is affirmed.

JUDGE TOW and JUDGE MOULTRIE concur.