State of Maine v. Abdirahmon A. Abdullahi

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 41
Docket: Cum-22-36
Argued: December 6, 2022
Decided: July 27, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.

STATE OF MAINE

v.

ABDIRAHMON A. ABDULLAHI a.k.a. ABDIRAHMON A. ADBULLAHI

HORTON, J.

[¶1] Abdirahmon A. Abdullahi1 appeals from a judgment of conviction of

unlawful trafficking in scheduled drugs (Class B), 17-A M.R.S. § 1103(1-A)(A)

(2023), and falsifying physical evidence (Class D), 17-A M.R.S. § 455(1)(A)

(2023), entered by the trial court (Cumberland County, Warren, J.) after a jury

trial.2 Abdullahi argues that the court erred in (1) denying his motion to

suppress evidence seized as the result of what Abdullahi contends was an

1 Abdullahi’s surname was spelled “Adbullahi” on his driver’s license, and the misspelling caused

confusion during the trial court proceedings. “Adbullahi” appears in our caption as an alternate
spelling because it is how Abdullahi’s surname appears in the trial court’s docket record. At oral
argument, it was confirmed that “Abdullahi” is the correct spelling.

2 The parties agreed that a forfeiture count would be tried to the court. After a hearing, the court

entered a forfeiture order regarding cash found in Abdullahi’s possession after his arrest.
See 15 M.R.S. § 5826 (2023). Abdullahi’s appeal focuses on the trafficking conviction and does not
separately contest either the falsification conviction or the forfeiture order, although both would
likely have to be set aside if we were to agree that his motion to suppress should have been granted.
2

unlawful arrest, (2) allowing law enforcement officers to testify as lay

witnesses at trial on matters that required expert testimony, (3) including in its

jury instructions an instruction on a permissible inference contained in the

applicable drug trafficking statute, and (4) denying his motions for a judgment

of acquittal and a new trial. We affirm the judgment.

I. BACKGROUND

[¶2] “Viewing the evidence admitted at trial in the light most favorable

to the State, the jury could rationally have found the following facts beyond a

reasonable doubt.” State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387. On

June 24, 2019, a Maine State Police corporal stopped a vehicle operated by

Abdullahi for speeding on the Maine Turnpike. As detailed below, in the course

of the traffic stop, the corporal discovered that Abdullahi had been in

possession of a bag containing individual packages of what appeared to be

cocaine base. After his arrest, Abdullahi was found to be in possession of $1,091

in cash.

[¶3] On June 26, 2019, the State charged Abdullahi by criminal complaint

with unlawful trafficking in scheduled drugs (Class B), 17-A M.R.S.

§ 1103(1-A)(A), falsifying physical evidence (Class D), 17-A M.R.S. § 455(1)(A),

and criminal forfeiture, 15 M.R.S. § 5826 (2023). The since-amended statute
3

under which Abdullahi was charged with trafficking provided that proof that a

person intentionally or knowingly possessed at least four grams of cocaine

base, a Schedule W drug, “gives rise to a permissible inference” that the person

was trafficking in cocaine base. 17-A M.R.S. § 1103(1-A)(A), (3)(B) (2018).3 On

October 11, 2019, a grand jury indicted Abdullahi for the same two offenses and

the forfeiture charged in the complaint. The record does not indicate that an

arraignment was held on the indictment.4

A. Motion to Suppress

[¶4] Abdullahi filed a motion to suppress the evidence that he was in

possession of cocaine base at the time of the traffic stop, and the trial court

(French, J.) held an evidentiary hearing on the motion. Only the Maine State

Police corporal testified at the suppression hearing. The court entered an order

in which it found the following facts, all of which are supported by competent

3Title 17-A M.R.S. § 1103 has since been amended. See P.L. 2021, ch. 396, § 3 (effective
Oct. 18, 2021) (codified at 17-A M.R.S. § 1103(3)(B) (2023)).

4 Abdullahi has not raised the lack of arraignment as an issue either in the trial court or on appeal,

nor, on this record, would it have availed him to do so. As long as an accused has notice of the charges
and an opportunity to prepare a defense, a conviction need not be reversed for lack of arraignment.
See Garland v. Washington, 232 U.S. 642, 646-47 (1914) (overruling a requirement of technical
enforcement of formal rights in criminal procedure); State v. Kovtuschenko, 576 A.2d 206, 207
(Me. 1990) (“Any failure to comply with the arraignment procedure . . . is not jurisdictional unless
the defendant has been prejudiced, and will not result in reversal if the issue is not raised prior to
trial.” (citation and quotation marks omitted)).
4

evidence in the record. See Athayde, 2022 ME 41, ¶ 7, 277 A.3d 387; State v.

Rosario, 2022 ME 46, ¶ 8, 280 A.3d 199.

[¶5] On June 24, 2019, the corporal stopped a vehicle being operated by

Abdullahi for traveling on the Turnpike at eighty-five miles per hour—a rate of

speed in excess of the posted speed limit. Because Abdullahi could not produce

a driver’s license, a vehicle registration, or proof of insurance (although he later

showed the corporal a photo of his license on his cell phone), the corporal

suspected that the vehicle might not belong to Abdullahi. After obtaining the

vehicle registration information through a dispatcher, the corporal spoke by

telephone with the owner of the vehicle, who told him that she did not know

who Abdullahi was and had not given him permission to use the vehicle. The

corporal testified that he decided to call a tow truck to take the car. He placed

Abdullahi in handcuffs for safety reasons because Abdullahi was acting nervous

and fidgety and because the corporal also needed to pay attention to cleaning

out his cruiser so he could give Abdullahi a ride off the Turnpike. Toward the

end of the stop, the corporal determined that Abdullahi had been in possession

of what appeared to be an illegal drug and placed him under arrest.

[¶6] The court denied Abdullahi’s motion to suppress. The court

determined that Abdullahi’s detention during the traffic stop was lawful
5

because, based on the information the corporal obtained from the vehicle

owner, he had probable cause to arrest Abdullahi when he placed Abdullahi in

handcuffs. The court also determined that the drug evidence would not have

been subject to suppression even if the arrest was unlawful because Abdullahi

had not demonstrated a “nexus between the improper police conduct and the

evidence seized.”

B. Trial and Motions for Judgment of Acquittal and New Trial

[¶7] The court (Warren, J.) held a three-day jury trial on the charges of

drug trafficking and falsifying evidence on July 22, 23, and 26, 2021.

[¶8] The evidence that was admitted included a police cruiser video

recording of the traffic stop. The video showed that, as Abdullahi was exiting

the vehicle he had been driving and before he was handcuffed, he threw an

object under the vehicle. The same video later showed that Abdullahi began

sliding toward the object after he was handcuffed and seated on the shoulder

of the road. However, the video showed the tow truck driver, who had been

called to the scene, noticing the object and picking it up before Abdullahi

reached it.

[¶9] The court heard testimony from three law enforcement officers,

including the corporal, and a chemist at the Maine Health and Environmental
6

Testing Laboratory. The corporal testified that the tow truck driver handed

him the object that Abdullahi had thrown under the car, that he seized it

because it appeared to be a plastic bag containing illegal drugs, and that he then

placed Abdullahi under arrest. At the State Police barracks, where the corporal

transported Abdullahi, the corporal requested assistance in identifying and

handling the contents of the bag from two State Police sergeants who had more

experience than the corporal in drug investigations. The three officers testified

at trial regarding the appearance and weight of the drugs and their experience

in handling drug trafficking investigations.5 The three officers determined that

the object the corporal had seized was a plastic bag weighing twenty-six grams

and containing forty-five smaller baggies, each of which contained what they

testified appeared to be cocaine base.

[¶10] On the second day of trial, the State sought to present the chemist

to testify as an expert witness on drug testing, to support its contention that the

forty-five baggies contained cocaine base in an amount sufficient to generate a

permissible inference that Abdullahi was trafficking in cocaine base.

17-A M.R.S. § 1103(3). Abdullahi objected to the chemist’s testimony, arguing

5 Abdullahi made a blanket objection to the testimony of one of the sergeants on the ground that

the State had not designated the witness as an expert. The court overruled the objection, noting that
the sergeant could still testify as a lay witness based on his experience. See infra n.11. Abdullahi did
not raise a similar objection to the testimony of the other officers.
7

that, because the chemist had tested and weighed fewer than four grams of the

substance contained in the baggies, his testimony could not be admitted to

support a permissible inference of trafficking. See 17-A M.R.S. § 1103(3)(B)

(2018). After the parties conducted a voir dire examination of the chemist

outside the presence of the jury, the court ruled that the chemist would be

permitted to testify about the tests he performed but would not be permitted

to testify that the forty-five baggies contained a total of four or more grams of

cocaine base. The chemist testified before the jury that, pursuant to what he

said was an accepted testing protocol, he randomly selected five of the

forty-five baggies for testing and measurement and concluded that all five

contained cocaine base having a total weight of 1.89 grams.

[¶11] After the State and defense had rested, Abdullahi moved for a

judgment of acquittal, and the court denied the motion. See M.R.U. Crim. P. 29.

The court provided proposed jury instructions to the State and Abdullahi,

including the permissible-inference instruction contained in 17-A M.R.S.

§ 1103(3). Abdullahi objected on the ground that the State’s evidence was

insufficient to permit a finding beyond a reasonable doubt that the forty-five

baggies contained at least four grams of cocaine base, and therefore the

permissible inference had not been generated for purposes of including it in
8

jury instructions. The court overruled the objection. After the State and

Abdullahi presented closing arguments, the court provided instructions to the

jury, including an instruction concerning the permissible inference. The jury

found Abdullahi guilty of both the trafficking count and the falsifying evidence

count.

[¶12] After the verdict, Abdullahi filed a renewed motion for a judgment

of acquittal and a motion for a new trial. The court held a hearing on the

motions. Abdullahi argued that the court erred when it provided the

permissible-inference instruction to the jury because the chemist’s testimony

was insufficient to generate the inference. He also argued that the court erred

by permitting the law enforcement officers to testify as lay witnesses about the

contents of the baggies. The court denied Abdullahi’s motions. The court then

entered a judgment on the verdict and sentenced Abdullahi to two years in

prison, with all but six months suspended, and two years of probation.

[¶13] Abdullahi timely appealed from the judgment of conviction.

See 15 M.R.S. § 2115 (2023); M.R. App. P. 2B(b)(1).
9

II. DISCUSSION

A. The Denial of Abdullahi’s Motion to Suppress

[¶14] Relying mainly on the Fourth Amendment to the United States

Constitution,6 Abdullahi contends that his motion to suppress should have been

granted because the bag that he threw under the vehicle he had been driving

would not have been discovered but for what he asserts was an illegal de facto

arrest. We review the motion court’s factual findings for clear error and its legal

conclusions de novo. State v. Fleming, 2020 ME 120, ¶ 25, 239 A.3d 648. We

conclude that the court did not err by denying the motion to suppress.7

[¶15] We have explained that the police need not have probable cause to

detain a suspect while investigating a suspected violation of law. See State v.

Langlois, 2005 ME 3, ¶¶ 6-11, 863 A.2d 913 (determining that an officer’s

6 Abdullahi’s brief also alludes to “section 5” of the Maine Constitution in support of his
suppression argument, but it does not develop any argument for construing the Maine Constitution’s
protection against unreasonable search and seizure more broadly than the protection embodied in
the Fourth Amendment to the United States Constitution. Accordingly, we limit our analysis to the
latter. See State v. Hemminger, 2022 ME 32, ¶ 8 n.4, 276 A.3d 33.

7The State has not challenged Abdullahi’s standing to seek suppression of the bag. To have
standing to challenge the legality of a search or arrest, the defendant’s own Fourth Amendment rights
must have been violated. Rakas v. Illinois, 439 U.S. 128, 130-31, 134 (1978). “[A]n illegal search only
violates the rights of those who have ‘a legitimate expectation of privacy in the invaded place.’”
United States v. Salvucci, 448 U.S. 83, 91-92 (1980) (quoting Rakas, 439 U.S. at 143). To make a
showing of a legitimate expectation of privacy, a defendant “must show that he had both a subjective
expectation of privacy and that society accepts that expectation as objectively reasonable.”
United States v. Vilches-Navarrete, 523 F.3d 1, 13 (1st Cir. 2008). Here, the bag was discovered on the
pavement where it landed after Abdullahi threw it under a vehicle he did not own. However, because
there was no contention or finding that Abdullahi had abandoned the bag, we do not address whether
Abdullahi had standing and consider the merits of his claim.
10

ordering of a person, at gunpoint, to lie down was not a de facto arrest but

rather an investigatory detention). In the course of an investigative stop, police

officers are also authorized “to take such steps as [are] reasonably necessary to

protect their personal safety and to maintain the status quo during the course

of the stop.” United States v. Hensley, 469 U.S. 221, 235 (1985); see, e.g., State v.

Kirby, 2005 ME 92, ¶¶ 12-17, 878 A.2d 499. However, a traffic stop or other

investigatory stop must not last longer than reasonably necessary to

investigate the suspected violation of law. Rodriguez v. United States, 575 U.S.

348, 354-55 (2015); Florida v. Royer, 460 U.S. 491, 500 (1983) (“The scope of

the detention must be carefully tailored to its underlying justification.”);

4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment,

§ 9.2(f) at 451 (6th ed. 2020). “[I]f a person is stopped on suspicion that he has

just engaged in criminal activity, but the suspect identifies himself satisfactorily

and investigation establishes that no offense occurred, there is no basis for

further detention, and the suspect must be released.” 4 Wayne R. LaFave,

Search & Seizure: A Treatise on the Fourth Amendment, § 9.2(f) at 443-44.

[¶16] When an investigative stop is prolonged beyond what is

reasonably necessary for an investigation of the suspected violation, then,

regardless of the officer’s intent or purpose, the stop may have evolved into a
11

de facto arrest that must be supported by probable cause. State v. Donatelli,

2010 ME 43, ¶¶ 11-18, 995 A.2d 238 (“Where police actions taken during the

detention exceed what is necessary to dispel the suspicion that justified the

stop, the detention may amount to an arrest and is lawful only if it is supported

by probable cause.” (quotation marks omitted)). An investigative stop that

amounts to a de facto arrest can constitute an unconstitutional seizure if it is

not supported by probable cause. United States v. Sharpe, 470 U.S. 675, 685-86

(1985). The United States Supreme Court has explained that the measure of

whether an investigative detention has evolved into an arrest does not depend

on a bright-line test but is instead based on common sense and human

experience. Id.

[¶17] “Probable cause exists where facts and circumstances within the

knowledge of the officers and of which they have reasonable trustworthy

information would warrant a prudent and cautious person to believe the

arrestee did commit or is committing the felonious offense.” State v. Lagasse,

2016 ME 158, ¶ 13, 149 A.3d 1153 (quotation marks omitted). Probable cause

has a very low threshold. Id. ¶ 14. The determination of probable cause is an

objective one and is not based on whether the officer believed there was

probable cause. State v. Forsyth, 2002 ME 75, ¶ 10, 795 A.2d 66.
12

[¶18] Abdullahi contends that the bag containing cocaine base would not

have been discovered but for the fact that his detention was unlawfully

prolonged to the point that it evolved into an illegal de facto arrest. We

conclude that Abdullahi’s detention was neither unreasonably prolonged nor

unreasonably restrictive. Abdullahi’s inability to produce the registration for

the vehicle he was driving justified the corporal’s further investigation into

whether Abdullahi had permission to use the vehicle. The corporal’s

conversation with a person he reasonably understood to be the vehicle’s owner

furnished probable cause for him to believe that Abdullahi’s use of the vehicle

constituted a violation of the law prohibiting unauthorized use of a motor

vehicle. See 17-A M.R.S. § 360(1)(A) (2023). In light of that conversation, the

corporal’s decision to have the vehicle towed, which was a major reason for the

extended duration of the stop, was appropriate. If this was a de facto arrest, it

was supported by probable cause. Moreover, the corporal’s decision to

handcuff Abdullahi while he attended to other tasks was independently

justified in terms of officer safety. The court did not err in denying Abdullahi’s

motion to suppress.
13

B. The Admission of Lay Opinion Testimony by Police Officers

[¶19] During the trial, the corporal and both sergeants testified about

their observations and opinions concerning the contents of the plastic bag

recovered at the scene of the stop. Although the extent of their experience with

drug investigations varied, each officer testified about his own experience with

drug trafficking investigations. The sergeants testified that the substance

inside the smaller bags within the large bag appeared to be “crack cocaine”—a

term sometimes used to describe cocaine base. One of the sergeants testified

that he determined, using a digital scale, that the large bag and its contents

weighed twenty-six grams. The sergeants also testified that in their experience

the manner by which the forty-five smaller bags were packaged inside the

larger bag, the fact that Abdullahi was not using his own vehicle, and the fact

that Abdullahi was found to be in possession of $1,091 in cash were all

indicative of drug trafficking.

[¶20] Abdullahi argues that the three police officers should not have

been allowed to give their testimony without being designated and qualified as

expert witnesses. The State did not designate the officers as expert witnesses,

so their testimony was admissible only if it qualified as lay opinion evidence

rather than expert opinion evidence. See M.R. Evid. 701. “We review challenges
14

to the admission of lay opinion testimony for an abuse of discretion.” State v.

Patton, 2012 ME 101, ¶ 20, 50 A.3d 544.

1. Lay Opinion and Expert Opinion Evidence

[¶21] Under Maine Rule of Evidence 701, lay witnesses may provide

testimony in the form of opinions or inferences as long as the testimony is

“(a) [r]ationally based on the witness’s perception; and (b) [h]elpful to clearly

understanding the witness’s testimony or to determining a fact in issue.” A

witness’s opinion must be “adequately grounded on personal knowledge or

observation just as would be the case with simple statements of fact.” Field &

Murray, Maine Evidence § 701.1 at 365 (6th ed. 2007). Lay opinion evidence is

appropriate when “the subject of inquiry is one which is plainly

comprehensible by the jury and of such a nature that unskilled persons would

be capable of forming correct conclusions respecting it.” Ginn v. Penobscot Co.,

334 A.2d 874, 883 (Me. 1975).

[¶22] An opinion is not admissible as lay witness testimony if it involves

“knowledge, skill, experience, training, or education” that is beyond the

comprehension of an ordinary person. See M.R. Evid. 702; State v. Woodburn,

559 A.2d 343, 346 (Me. 1989) (“[B]efore admitting expert testimony the trial

court must consider (1) whether the matter is beyond common knowledge so
15

that the untrained layman will not be able to determine it intelligently and

(2) whether the witness is qualified to give the opinion sought.”). If such an

opinion is admissible at all, it would be as expert opinion evidence pursuant to

Maine Rule of Evidence 702.

[¶23] The distinction between opinion testimony and fact testimony is

not always clear, because whether something is true as a matter of fact often

proves to be a matter of opinion. See State v. Cunningham, 1997 ME 60, ¶ 4, 691

A.2d 1219 (1997); see Cent. R.R. Co. of N.J. v. Monahan, 11 F.2d 212, 214

(2d Cir. 1926) (“The line between opinion and fact is at best only one of degree,

and ought to depend solely upon practical considerations, as, for example, the

saving of time and the mentality of the witness.”). Lay opinion evidence can be

admitted as a means of conveying a “short-hand rendering of the facts” that

underlie the opinion. Cunningham, 1997 ME 60, ¶ 4, 691 A.2d 1219; State v.

Bowen, 366 A.2d 174, 177 (Me. 1976) (explaining that lay opinion evidence may

include facts such as “[s]peed, identity, age, size, quantity, etc.”); Stacy v.

Portland Publ’g Co., 68 Me. 279, 285-86 (1878); M.R. Evid. 701 Advisers’ Note

to former M.R. Evid. 701 (Feb. 2, 1976).

[¶24] Although the line between admissible lay opinion evidence and

expert opinion evidence can be difficult to define, a lay opinion must be based
16

“wholly and solely” on the firsthand knowledge, perception, or observation of

the witness, Mitchell v. Kieliszek, 2006 ME 70, ¶ 13, 900 A.2d 719 (quotation

marks omitted), whereas an expert opinion may be based on information made

known to the expert. Lay opinion testimony is thus inadmissible if it is not

based on knowledge obtained through the witness’s own perception and

personal experience. See Chrysler Credit Corp. v. Bert Cote’s L/A Auto Sales, Inc.,

1998 ME 53, ¶¶ 21-22, 707 A.2d 1311; see also Cunningham, 1997 ME 60,

¶¶ 5-6, 691 A.2d 1219. In Chrysler Credit, we determined that a Subaru

marketing manager’s testimony about a dealership’s lost profits was not

admissible as lay opinion evidence because his analysis was drawn largely from

information he had analyzed about current and future sales trends in the

applicable motor vehicle market, not from his own experience, perceptions, and

observations. Chrysler Credit Corp., 1998 ME 53, ¶¶ 22-23, 707 A.2d 1311.

[¶25] On the other hand, the fact that a witness may have specialized

training or experience does not transform what is otherwise a lay opinion into

that of an expert. See United States v. Mast, 999 F.3d 1107, 1112 (8th Cir. 2021).

Thus, whether opinion testimony is admissible as lay opinion evidence or can

only be admitted as expert opinion evidence is primarily a function of two

variables—the extent to which the witness’s foundation for giving the opinion
17

consists of the witness’s own perceptions, observations, and experiences as

opposed to the knowledge and experiences of others; and whether the subject

of the opinion is so “specialized” as to place it beyond the ability of “unskilled

persons [to be] capable of forming correct conclusions respecting it.” Ginn,

334 A.2d at 883.

2. Police Officer Opinion Testimony

[¶26] As with the admissibility of opinion testimony by other fact

witnesses, the admissibility of opinion testimony by a police officer who has not

been designated as an expert witness depends on the extent to which the

opinion to be elicited is based on the officer’s own perception and knowledge

and is within an ordinary person’s capacity to understand.

[¶27] We recently upheld the admissibility of a police officer’s lay

opinion testimony “that in his experience—gained from many child sexual

assault investigations and interviews—a victim’s memory of traumatic events

was ‘[v]ery often’ fragmented.” State v. Hunt, 2023 ME 26, ¶ 46, 293 A.3d 423.

Similarly, although police officers often receive training in identifying

intoxication and bloodstains, we have upheld the admission of lay opinion

testimony by police officers on a person’s state of intoxication and on the

existence of bloodstains, based on our view that the knowledge necessary to
18

form the opinions is not a matter of “knowledge, skill, experience, training, or

education” beyond the ordinary person’s ability to understand without expert

guidance.8 See State v. Libby, 153 Me. 1, 7-8, 133 A.2d 877 (1957); State v.

Wilbur, 278 A.2d 139, 143 (Me. 1971). We have said specifically that the

statutes involving drug recognition experts “do not bar a nonexpert officer, or

even a layperson, from testifying to his or her observations of a driver’s

impairment or the conduct and results of a field sobriety test.” See State v.

Atkins, 2015 ME 162, ¶ 16, 129 A.3d 952 (emphasis added); see also State v.

Barnard, 2001 ME 80, ¶ 12 n.9, 772 A.2d 852; State v. Curtis, 2019 ME 100, ¶ 25,

210 A.3d 834.

[¶28] More to the point, we have similarly upheld the admission of police

officers’ opinion testimony about the identity of drugs based on experience

gained in law enforcement. Barnard, 2001 ME 80, ¶ 12 n.9, 772 A.2d 852 (“The

identity of a drug can be proved by evidence in the form of opinion testimony if

presented by someone who identifies the substance and who is sufficiently

experienced with the drug.”); accord Curtis, 2019 ME 100, ¶ 25, 210 A.3d 834

8Importantly, the requirement that lay opinion evidence be understandable to an ordinary
person, such as a juror, without expert guidance does not mean that an ordinary person must actually
have perceived, observed, or experienced the same matters covered in the witness’s opinion. Thus,
a person need not have experience with intoxicated persons or bloodstains in order to be qualified
to serve on a jury in a trial involving lay opinion testimony on those subjects. In fact, the opposite is
true: lay opinion testimony is not admissible if the jury is as capable as the witness at forming the
opinion. See State v. Peaslee, 2020 ME 105, ¶ 11, 237 A.3d 861.
19

(“In the absence of a chemical analysis, other direct and circumstantial evidence

can establish beyond a reasonable doubt the identity of drugs. That evidence

can include testimony of a witness who has experience based on familiarity

with the drugs through law enforcement, prior use, or trading.” (alteration and

quotation marks omitted)(emphasis added)).9 Although the issue of the

difference between lay and expert opinion testimony was not addressed in

those cases, neither Barnard nor Curtis states that either a drug user or a police

officer must be designated as an expert witness in order to testify as to the

identity of a drug. In fact, in Curtis, we quoted with approval a federal appeals

court holding that evidence of the identity of a drug may derive from “lay

9 The First Circuit, in United States v. Valdivia, has explained that a law enforcement officer may

be qualified as both a lay witness and expert witness in the same case, and there are no bright line
rules to differentiate between the two types of testimony. 680 F.3d 33, 49-51 (1st Cir. 2012).
Specifically, an officer need not have scientific or technical expertise to testify as a lay witness in drug
cases, as long as the testimony is based on personal knowledge acquired through the officer’s own
perceptions and observations through experience with prior drug cases. Id.; see United States v.
Ayala-Pizarro, 407 F.3d 25, 28-29 (1st Cir. 2005) (allowing an officer to testify as a lay witness
because the testimony was based on knowledge that he obtained by virtue of his position as a police
officer); United States v. Moon, 802 F.3d 135, 147-48 (1st Cir. 2015) (upholding lay opinion testimony
in a drug case by an officer with significant experience identifying controlled substances when
purchasing drugs undercover). Other circuits have ruled differently. See United States v. Watson,
260 F.3d 301, 307-08 (3d Cir. 2001) (“[T]he operations of narcotics dealers have repeatedly been
found to be a suitable topic for expert testimony because they are not within the common knowledge
of the average juror.”) (collecting cases); United States v. Johnson, 617 F.3d 286, 293 (4th Cir. 2010)
(“At bottom, Rule 701 forbids the admission of expert testimony dressed in lay witness clothing.”)
(alteration and quotation marks omitted)); United States v. Oriedo, 498 F.3d 593, 603 (7th Cir. 2007)
(explaining that one agent’s testimony was expert in nature because “he brought the wealth of his
experience as a narcotics officer to bear on [his] observations and made connections for the jury
based on that specialized knowledge”); United States v. Figueroa-Lopez, 125 F.3d 1241, 1244-46
(9th Cir. 1997) (concluding that the agents’ testimony was expert in nature because they used their
“training and experience” to testify about behaviors consistent with “an experienced drug trafficker”
(quotation marks omitted)).
20

experience based on familiarity through prior use, trading, or law

enforcement.” Curtis, 2019 ME 100, ¶ 25, 210 A.3d 834 (quotation marks

omitted).

[¶29] Abdullahi concedes that drug users who are sufficiently familiar

with a drug may give lay opinion testimony about the appearance and

characteristics of the drug but contends that police officers must qualify as

expert witnesses in order to give identical opinion testimony. If individuals

who use and traffick in drugs may provide lay opinion testimony about drugs

and drug trafficking based on their personal perceptions, observations, and

experiences, we see no reason to prohibit police officers from giving lay opinion

testimony on the same topics based on their own personal perceptions and

observations gained through different means.

[¶30] Whether opinion evidence may be given only by a qualified expert

depends more on the complexity of the opinion rather than the identity of the

witness. Just as whether a person is intoxicated is a subject fit for lay opinion

testimony, what cocaine base looks like is not a matter about which only

persons who have specialized “knowledge, skill, experience, training, or

education” can form an opinion. M.R. Evid. 702. Similarly, a witness need not
21

have specialized training and experience to form an opinion about common

practices in drug trafficking.

[¶31] We emphasize that although the precise line between lay and

expert opinion evidence may not be sharp, we are not suggesting that the line

cannot be drawn. As we have said, “[t]he two categories of expert and lay

opinion testimony are thus mutually exclusive.” Mitchell, 2006 ME 70, ¶ 14,

900 A.2d 719; cf. Ragland v. State, 870 A.2d 609, 620 (Md. 2005)(“[B]y

permitting testimony based on specialized knowledge, education, or skill . . . ,

parties may avoid the notice and discovery requirements of our rules and blur

the distinction between the two rules. Accordingly, we . . . hold that Md. Rules

5-701 and 5-702 prohibit the admission as ‘lay opinion’ of testimony based

upon specialized knowledge, skill, experience, training or education.”). In the

case of police testimony, it is important that officers be designated as experts

when they are expected to offer opinions based on their “knowledge, skill,

experience, training, or education” that is beyond the comprehension of an

ordinary person. See M.R. Evid. 702; M.R.U. Crim. P. 16(a)(2)(G); Woodburn,

559 A.2d at 346.
22

3. The Admissibility of the Police Officers' Testimony Here

[¶32] At trial, the corporal testified that his experience included

“approximately six years of experience on the road dealing with . . . drug cases

on traffic stops and in residences.” He testified that he identified that the drugs

seized during the course of the traffic stop “appeared to be cocaine.” The

corporal explained that the package of narcotics seized at the site of the traffic

stop was consistent with what he had seen in other circumstances for

packaging of cocaine base for resale. On cross-examination, the corporal

testified that he was “not a drug guy,”10 which is why he sought assistance from

the two other state officers who testified at trial.

[¶33] The sergeants gave more extensive testimony about the cocaine

base in the bag that Abdullahi had tossed under the car, based on their more

extensive experience in drug trafficking investigations. They testified that,

based on their observations and experience, they were of the opinion that

certain circumstances surrounding the stop—including the manner in which

the forty-five smaller baggies were packaged, Abdullahi’s use of a vehicle he did

not own, and the large amount of cash he was carrying—were indicative of drug

10 The corporal testified that he did not have any “special expertise or training or experience in

narcotics investigations” and had only some “experience” with drug and drug trafficking
investigations.
23

trafficking. One sergeant testified that he weighed the large bag at twenty-six

grams and that the smaller baggies inside it each contained what appeared to

be a gram or a half gram of cocaine base.

[¶34] It is noteworthy that when eliciting the opinions, the State’s

foundational questions pointedly emphasized the officers’ training and special

expertise. For example, the State questioned one of the sergeants without

objection as follows:

Q: And in the course of your experience in law enforcement, do
you have particular experience in narcotics investigations?

A: Yes.

Q: Have you had specialized training in that area?

A: Yes.

Q: About how many investigations would you roughly say
you’ve been involved in involving crack cocaine?

A: Two dozen or so at least, involving just specifically crack
cocaine.

Q: And based on your training and your experience, what did
those little ties appear to be to you?

Emphasizing a police officer’s specialized expertise, particularly if it was

acquired as a result of training or study rather than observation, as a preface to

opinion questions, may be inconsistent with proffering the officer as a lay
24

witness.11 Qualifying any witness to give lay opinion testimony as if the witness

were an expert risks impermissibly bolstering the reliability of the witness’s

opinion. See Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903

(“Determinations of witness credibility are uniquely within the fact–finder’s

authority, and the fact-finder is free to discount or entirely ignore testimony the

fact-finder finds incredible.” (quotation marks omitted)); State v. Black,

537 A.2d 1154, 1156 (Me. 1988) (improper bolstering of a witness’s credibility

“can have a profound impact on the outcome of the trial, particularly, as in the

present case, when the prosecution offers the evidence to establish its case in

chief.”); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553

(Tex. 1995) (“Expert witnesses can have an extremely prejudicial impact on the

jury, in part because of the way in which the jury perceives a witness labeled as

an expert. To the jury an expert is just an unbridled authority figure, and as

such he or she is more believable.” (alteration and quotation marks omitted));

11 During a colloquy with counsel outside the hearing of the jury, the court made the same point:

I think [the State is] limited to asking [the officer,] rather than as to his training [and
his opinion about] consistency with trafficking, just in his experience do—is the
packaging of these items something that’s done for—for—in connection with sales of
illegal things. And—and in his—in his experience do people carrying drugs
sometimes drive someone else’s car.

....

. . . If he just sticks to his experience . . . I think he’s entitled to testify about that.
25

People v. Stewart, 55 P.3d 107, 123 (Colo. 2002) (“Officer testimony becomes

objectionable when what is essentially expert testimony is improperly

admitted under the guise of lay opinions.”).

[¶35] Nonetheless, although the two sergeants in particular indicated

that they had specialized training and expertise in drug investigations,

Abdullahi did not object to much of the testimony he now contends on appeal

should have been excluded. When objections were made, the court sustained a

number of them and might have sustained more. Further, all three officers

indicated that their testimony that the drugs seized during the traffic stops

“appeared to be cocaine” and that carrying large amounts of cash and driving

someone else’s vehicle could be indicative of drug trafficking was based on their

experience.12 See M.R. Evid. 701. We conclude that the court did not err or

abuse its discretion in its rulings on Abdullahi’s objections to the officers’

testimony. As to the testimony admitted without objection, Abdullahi does not

contend that the court committed obvious error nor, in light of the clearly

admissible evidence of Abdullahi’s guilt, do we see any. State v. White, 2002

ME 122, ¶ 8, 804 A.2d 1146 (“For obvious error to require the reversal of a

12 The officers’ testimony that the seized materials “appeared” to be cocaine are simply statements

of their perceptions at the scene. Confirmation of the actual chemical composition of particular
substances requires scientific testing and expert testimony.
26

judgment, the error must deprive the party of a fair trial or result in such a

serious injustice that, in good conscience, the judgment cannot be allowed to

stand.”).

C. The Court’s Permissible-Inference Instruction

[¶36] Abdullahi argues that, because the evidence was insufficient to

allow the jury to find that Abdullahi possessed four grams or more of cocaine

base, the court should not have instructed the jury that, if it made such a finding,

it could infer that Abdullahi was engaged in trafficking.13 The State contends

that the instruction was proper because it had presented evidence sufficient to

support a finding beyond a reasonable doubt that Abdullahi possessed at least

four grams of narcotics. We review preserved challenges to jury instructions

for prejudicial error.14 State v. Hanscom, 2016 ME 184, ¶ 10, 152 A.3d 632.

Abdullahi also argues, for the first time on appeal, that the statutory permissible inference is
13

unconstitutional as applied to him because the four-gram threshold at which the inference is
permitted as to cocaine base has an unconstitutional discriminatory effect against persons of color.
We review arguments not preserved in the trial court for obvious error. M.R.U. Crim. P. 52(b); State
v. Nisbet, 2018 ME 113, ¶ 16, 191 A.3d 359. Because the argument is based on data and other
information outside this record, we do not reach the merits of the argument.

The State also argues that Abdullahi did not preserve this argument for appellate review. To
14

preserve an objection to jury instructions, “a party must object before jury deliberations begin.”
Clewley v. Whitney, 2002 ME 61, ¶ 9, 794 A.2d 87. “A generalized citation to a group of requested
instructions is insufficient to properly preserve objections to a particular point in the court’s jury
instructions. . . . [A]n objecting party must state distinctly to the trial court the grounds for the
objection to the jury instructions and point to the specific claimed inadequacy in the instructions
given by the trial court.” Id. Here, Abdullahi specifically objected to the permissible-inference
instruction prior to jury deliberations. Therefore, his argument is preserved.
27

[¶37] The proper inquiry here is whether the State provided or

generated evidence sufficient to justify the permissible-inference instruction.

See State v. Caouette, 462 A.2d 1171, 1175 (Me. 1983); State v. Tibbetts, 379

A.2d 735, 737-38 (Me. 1977). This is true regardless of whether the State or

defendant proposes an instruction. See State v. Benson, 155 Me. 115, 123, 151

A.2d 266 (1959). The evidence in the record necessary to support an

instruction depends on the charge at issue. See Caouette, 462 at 1175. Here, to

warrant the permissible-inference instruction, the State was required to

present evidence that a reasonable juror could find sufficient to prove beyond

a reasonable doubt that Abdullahi intentionally or knowingly possessed four or

more grams of cocaine base. See 17-A M.R.S. § 1103(3)(B) (2018).15

15 Section 1103 further provides, as is relevant here,

Proof that the person intentionally or knowingly possesses [four grams or more of
cocaine base] gives rise to a permissible inference under the Maines Rules of
Evidence, Rule 303 that the person is unlawfully trafficking in scheduled drugs[.]

17-A M.R.S. § 1103(3), (3)(b) (2018). Maine Rule of Evidence 303(b) explains:

The court may not direct a verdict against an accused based on a presumption or
statutory provisions that certain facts are prima facie evidence of other facts or of
guilt. The court may permit a jury to infer guilt or a fact relevant to guilt based on a
statutory or common law presumption or prima facie evidence, if the evidence as a
whole supports guilt beyond a reasonable doubt.

The rule provides a safeguard in regard to permissible inferences in that it “require[s] the court to
evaluate the inference as a matter of fact and mention it only if in fact the inference is justified in
general terms beyond a reasonable doubt.” Field & Murray, Maine Evidence § 303.4 at 88 (6th ed.
2007).
28

[¶38] The evidence presented by the State that Abdullahi possessed four or

more grams of cocaine base included the following:

• The testimony of the law enforcement officers identifying the substance
recovered as cocaine base;

• The testimony of law enforcement officers that the plastic bag seized
weighed twenty-six grams and contained forty-five individual baggies
containing cocaine base;

• Photographs of the forty-five individual baggies inside the bag that was
seized; and

• The testimony of a chemist that five baggies randomly selected from the
forty-five all contained cocaine base weighing a total of 1.89 grams.

[¶39] We have previously endorsed the use of random sampling to

establish the identity and quantity of illegal drugs. See State v. Arbour, 2016

ME 126, ¶ 24, 146 A.3d 1106 (allowing chemical testing evidence that five

randomly selected packets out of 1,252 packets seized contained heroin “was

sufficient for the jury to find beyond a reasonable doubt that 270 or more of the

packets . . . contained heroin”). Here, the chemist’s testimony that five

randomly selected baggies all contained cocaine base weighing a total of

1.89 grams, coupled with the officers’ testimony that all forty-five baggies

appeared to contain quantities of cocaine base, was sufficient to support an

inference that the bag seized from Abdullahi contained a total of at least four

grams of cocaine base.
29

[¶40] In sum, the record evidence was sufficient to justify the

permissible-inference instruction.16 17-A M.R.S. § 1103(1-A)(A), (3).

D. The Court’s Denial of Abdullahi’s Motion for New Trial and for
Judgment of Acquittal

[¶41] Abdullahi’s contention that the court erred in denying his motion

for judgment of acquittal and motion for a new trial rests on the same

arguments he presents here regarding his motion to suppress, the lay opinion

testimony by police officer witnesses, the chemist’s testing testimony, and the

court’s decision to give the jury an instruction regarding a permissible

inference of trafficking. “We review the denial of a motion for judgment of

acquittal by viewing the evidence in the light most favorable to the State to

determine whether a jury could rationally have found each element of the crime

proven beyond a reasonable doubt.” State v. Adams, 2015 ME 30, ¶ 19, 113 A.3d

583 (quotation marks omitted). “We review the trial court’s decision on a

motion for a new trial for an abuse of discretion and any findings underlying its

decision for clear error.” State v. Bilodeau, 2020 ME 92, ¶ 15, 237 A.3d 156

(quotation marks omitted). As previously explained, the State’s evidence was

16 Although Abdullahi has not directly contested the sufficiency of the evidence that he possessed

the bag containing cocaine base intentionally or knowingly, the evidence that he had physical
possession of the bag before throwing it under the car in an attempt to hide it from the corporal was
sufficient to support a finding that he intended to possess the bag and knew what it contained.
See 17-A M.R.S. § 1103(1-A).
30

sufficient to support a finding that Abdullahi intentionally or knowingly

possessed at least four grams of cocaine base. Likewise, although Abdullahi has

not specifically challenged them, we see no error or abuse of discretion in the

court’s rulings regarding his falsification conviction and forfeiture order.

The entry is:

Judgment affirmed.

Kristine C. Hanly, Esq. (orally), Hanly Law, Portland, for appellant Abdirahmon
A. Abdullahi

Jonathan Sahrbeck, District Attorney, and Carlos Diaz, Asst. Dist. Atty. (orally),
Cumberland County District Attorney’s Office, Portland, for appellee State of
Maine

Cumberland County Unified Criminal Docket docket number CR-2019-3332
FOR CLERK REFERENCE ONLY