State v. Noli

05/16/2023

DA 20-0461
Case Number: DA 20-0461

IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 84

STATE OF MONTANA,

Plaintiff and Appellee,

v.

NICOLE ABENICIA NOLI,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DC-19-032
Honorable Olivia C. Rieger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Jeavon C. Lang, Assistant Appellate
Defender, Missoula, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant
Attorney General, Helena, Montana

Brett Irigoin, Dawson County Attorney, Glendive, Montana

Submitted on Briefs: October 12, 2022

Decided: May 16, 2023

Filed:

Vir-6A.-if
__________________________________________
Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1 Nicole Abenicia Noli appeals from her July 2020 convictions in the Montana

Seventh Judicial District Court, Dawson County, on the offenses of felony criminal

possession of dangerous drugs (methamphetamine) and misdemeanor criminal possession

of drug paraphernalia. She asserts that the District Court erroneously denied her motion to

suppress the subject drug evidence discovered as the fruit of a warrantless investigative

traffic violation stop. She asserts that the investigating Montana Highway Patrol (MHP)

trooper unlawfully sidetracked and prolonged an initially lawful lane violation traffic stop

into an unrelated illegal drug possession investigation without additional objectively

reasonable particularized suspicion that she was or was about to be engaged in illegal drug

activity. We address the following issue:

Whether the District Court erroneously concluded that the justification for the
initial warrantless traffic violation stop ripened into a particularized suspicion of
illegal drug activity within the lawful confines of the justification for the stop?

We reverse.

FACTUAL AND PROCEDURAL BACKROUND

¶2 On February 22, 2019, MHP Trooper Barry Kilpela (Trooper) was on patrol

monitoring traffic from a stationary position in the median between the east and westbound

lanes of Interstate 94 (I-94), about six miles outside of Glendive, Dawson County,

Montana.1 At the time, the Trooper was accompanied by his trained drug-detection dog

1
As pertinent here, I-94 is a four-lane interstate highway, with two eastbound lanes and two
westbound lanes, running east-west between Billings, Montana, and the Montana-North Dakota
border.
2
and was assigned to the MHP Eastern Montana Drug Interdiction Team. He was a

seven-year MHP veteran with specialized training and experience in the field of illegal

drug interdiction and was a certified drug-detection dog handler. At the subsequent

suppression hearing in this matter, the Trooper testified that the mission and method of

MHP Drug Interdiction Team members is to conduct:

high volume traffic stops . . . . [W]e’re trained on various different indicators
and factors that we look at during the stop[s] [a]nd then . . . we combine that
with . . . what the subjects say, the manner in which they say it, and the totality
of all circumstances, to either dispel or . . . confirm, any suspicions that may
arrive during that time. . . . We contact people a lot, a lot of days, every day,
and [] then we look for various vehicle and subject indicators.

. . .

[W]hen it comes to criminal interdiction, [an indicator] can be a seemingly
innocent thing in and of itself. But, [] when combined with either traffic
patterns of your area, what the subjects say, and different things you see
throughout the stop, and then of course, the officer’s training and experience,
it can lead them to reasonable suspicion [of illegal drug activity]. . . . So, like
a subject indicator possibly could be . . . different physiological responses and
their nervousness, their inability to [] directly answer questions, [] their
breathing rate, and different things like that. Maybe conflicting stories . . .
with one driver [] telling you one thing and a passenger is saying something
else . . . could possibly be an indicator. And then, [a] physical indicator[]
[regarding] the vehicle . . . could be . . . a third-party vehicle . . . or a rental
vehicle that’s used to kind of distance themself from the [suspected] criminal
activity that’s taking place.

The Trooper testified that he typically makes “700 or 800” stops a year in furtherance of

his illegal drug interdiction mission and method. He candidly acknowledged at hearing,

however, that such “indicators” “are not” necessarily indicative of “illegal” activity and

“[c]ould [] all have innocent explanations.”

3
¶3 On the day at issue, the Trooper saw a black Dodge Caravan mini-van traveling in

the left lane (i.e., passing lane) of the two eastbound lanes on I-94. Seeing that it was not

engaged in a passing maneuver, and that “no other vehicles were really close to it,” the

Trooper pursued the mini-van, activated his patrol car emergency lights, and stopped it on

the dry, paved shoulder of I-94 for unlawfully driving in the left lane in violation of

§ 61-8-321(3)(a), MCA (vehicles must generally “be driven in the right-hand lane” on “all

roadways having two or more lanes for traffic moving in the same direction”). On foot

approach at the passenger side window, the Trooper encountered two adult females—the

driver later identified as Noli and her passenger later identified as Noli’s girlfriend. When

the Trooper explained the reason for the stop, Noli immediately acknowledged the

violation and explained that she was from Las Vegas, Nevada, and was thus not aware of

that particular Montana law because driving in the left lane on a freeway is not illegal in

Nevada.

¶4 As admitted into evidence at the suppression hearing, the audio-video recording

made by the Trooper’s front-facing patrol car dash camera system manifests that the

Trooper then asked Noli for her vehicle registration and proof of insurance.2 On

ascertaining that the mini-van was a rental, he asked for her copy of the rental contract.3

Noli produced the requested documents and then, approximately 40 seconds into the stop,

2
The dash cam video system imprints an elapsed time counter on the resulting recording.
3
The patrol car dash cam system apparently includes an integrated officer-worn body microphone
for remote audio capture when the Trooper is out of the patrol car.

4
the Trooper told her that he would “give [her] a warning” for the left lane violation “as

long as everything checks out.” But “make sure you’re only using the left lane to pass,

ok.”

¶5 The Trooper later testified that he immediately suspected that the two women may

be transporting illegal drugs in the mini-van. He testified that the first suspicious thing he

noticed was “a very strong” and “heavy odor of cigarette smoke coming from the vehicle”

when he spoke with them at the passenger side window. “Based on [his] training and

experience,” he asserted that heavy cigarette smoke was suspicious because cigarette

smoking is “often used to mask the odors of drugs coming from the vehicle.” He testified

that the next suspicious thing that he saw was that, when the driver reached across the

center console and passenger to hand him the vehicle rental contract, “her whole arm

seemed to be shaking.” He said that, when she “kind of braced it” or “rested it” on the

console, he saw a small pack of cigarette rolling papers on the center console. He testified

that the rolling papers caused him to suspect marijuana use because “a lot of times rolling

papers are used to smoke marijuana.” He testified further that Noli’s shaking arm was

suspicious because, even though “most people[] or a lot of people[] are nervous when they

get stopped by the police,” “her nervousness . . . seemed to be heightened compared to the

average person.” He admitted, however, that he was “not sure” whether she put her arm

down on the console merely to “brace” it or to “cover” the rolling papers from his view.

(Emphasis added.) On cross-examination, he further conceded that rolling papers are also

often used for smoking lawful substances, such as tobacco—they “can be used to . . .

consume anything” “depend[ing] on what you put in [th]em.”

5
¶6 He asserted that the fact that Noli was driving a rental car was also suspicious

because it is “common for somebody that is [] trafficking drugs . . . to drive a rental

vehicle.” He explained:

a lot of times rental vehicles . . . can be an indicator of drug trafficking and
other criminal activity[] because . . . rental vehicles are new and they are
reliable. But it, there’s a number of other reasons . . . as well. If the smuggler
or trafficker gets caught with a load of drugs and they’re in a rental vehicle,
then law enforcement does not try to forfeit the vehicle, cuz it belongs to the
rental company, so they don’t lose their own car. If you haul drugs in your
own car, and the police seize it or impound it or forfeit[] it, you lose your car.
If you do it in a rental car, [] you don’t have to worry about losing your car.
You’re using somebody else’s vehicle. And then, also, it[] distances
themselves somewhat from anything in the car.

At the scene, upon examining the provided rental car contract document, the Trooper said

that he would “try to look up” the rental car registration and insurance. He then directed

Noli to “grab your [driver’s] license and then you can just hop in my front seat of my car,

[and] I’ll fill you out a warning.” When asked on cross-examination whether at that point

he had particularized suspicion that Noli was involved in some type of illegal drug activity,

the Trooper candidly answered, “[a]bsolutely not.”

¶7 At hearing, he explained that he told Noli to join him in his car so that he could

“easier” “fill out the appropriate enforcement action on [his patrol car] computer” and

because he “think[s] it creates a better environment for everybody, and [he] can [then] talk

to the people about the violation and their travels.” In response to a leading question from

the prosecutor, he also cited “safety concerns,” to wit:

[Then,] I don’t have to stand . . . alongside a busy highway. And then, as
well, the person that I stopped can come back and sit inside of [] a car. . . .
This also, [] is nice cuz we can obviously if they’re a driver, is not in the
driver’s seat of the vehicle [sic], they’re not gonna be able to flee. Not gonna

6
 [sic] be able to drive away. . . . We’re able to separate them from the
passengers. So, if there’s multiple people in a vehicle, th- [sic] so they can’t
conspire or anything like that.

He did not explain, however, how it would be warmer or safer for a person, who is already

safely sitting and waiting in the person’s own warm vehicle for mere issuance of a traffic

warning, to get out and walk along the highway in the cold to wait in a patrol car, and then

have to again go back out in the cold and walk along the highway to return to his or her

vehicle after receiving a simple traffic violation warning. Nor did he explain why, on a

simple lane violation traffic stop, it was necessary to prevent Noli or her passenger from

fleeing, or to “separate them” so they couldn’t “conspire.” On cross-examination, the

Trooper acknowledged that having the driver “come back to [his] vehicle” on a traffic stop

was not “necessary . . . to effectuate” issuance of a “traffic citation,” it’s just “something

that I do.” “I try to have dialog with pretty much anyone that I stop,” and “when [] they

come back to my patrol car, that’s when the conversations usually begin.” Consistent with

his earlier description of the MHP Drug Interdiction Team methodology, the Trooper

acknowledged on cross-examination that he commonly engages in “high volume [traffic]

contacts looking for drugs” and “drug trafficking,” and thus uses the unrelated traffic stop

as an opportunity to engage the driver in conversation designed to develop additional

information upon which to confirm any preliminary suspicion that the occupants may be

transporting illegal drugs.

¶8 As he turned away from the passenger side window to walk back to his patrol car,

the Trooper stopped, put his face and hands up to the rear window of the mini-van and

searchingly peered into the backseat area before proceeding on. Meanwhile, Noli

7
compliantly exited on the driver’s side, walked back and sat down in the front seat of the

patrol car as directed, and then patiently waited for the Trooper to check her driver’s

license, rental car registration, and insurance and then issue her a left-lane violation

warning as represented.

¶9 At the suppression hearing, the Trooper testified that, when he peered through the

rear window of the mini-van, he saw some blankets or pillows, and some unspecified and

unquantified “trash” in the backseat. He testified that those items were suspicious in his

experience because they “can be indicative of . . . hard travel.” (Emphasis added.) He

explained that:

hard travel is of note in a drug trafficking world because, usually when
you’re traveling long distances or things like that, especially if you have
drugs, you’re trying to get . . . [there] as quickly as possible. And oftentimes
that may include sleeping in the vehicle or spending long periods of time . . .
on the road. Cuz you’re trying to get from Point A to Point B as quick as
you can and spend as least amount of time on the road as you can, because
then your chances, they believe, are [] less, I guess, of being caught by law
enforcement.

(Emphasis added.) Based on his training and experience, he said that the fact that the two

women were traveling from Las Vegas was further suspicious because:

Las Vegas, Nevada[,] is a major source of illegal drugs[,] [e]specially
methamphetamine. In fact, just the prior week before that happened, I
stopped a vehicle driving from Las Vegas, Nevada, to the state of North
Dakota and it ended up being a large quantity of methamphetamine that the
driver of that traffic stop was hauling from Las Vegas.

He correspondingly noted that North Dakota is a common illegal drug “destination.”

¶10 The rear-facing patrol car dash cam recording manifests that, after Noli sat down

and was waiting in the patrol car as directed, the Trooper did not immediately call- or

8
type-in any request for verification of her driver’s license, registration, wants/warrants, or

vehicle status. Instead, he immediately began extensively questioning her regarding

matters wholly unrelated to the observed left-lane violation or her driver’s license,

registration, wants/warrants, or vehicle status. Inter alia, he asked her about when she left

Las Vegas and where they were going (answers: yesterday morning and “North Dakota”),

where in North Dakota they were going (answer: “Willington,” i.e., Williston), “what is

that by” (answer: “I have no idea, [but] I know it’s not too far in[to]” North Dakota),4 for

what purpose they were going there (answer: to pick up her two sisters and young nephew

who were there with their dad), how long they would be there (Trooper: to “just pick ‘em

up and head back?”—answer: “yeah”), how the weather was along the way (answer:

wintery—“we went into a snow blizzard [and] I couldn’t see in front of us, that was scary”),

and numerous other trip details. Noli said, “then we went through, ah, Idaho Falls,” Idaho,

“into, I think like, Wyoming,” or wherever Google Maps “took us, ah, into the mountains,

that was pretty scary because the roads were all icy, that was kinda scary so, but other than

that it’s been pretty good”). The dash cam recording indicates that the Trooper did not

make or request common driver’s license, vehicle registration, and wants/warrants/vehicle

status checks until after he had been questioning Noli about unrelated matters for almost

two minutes. The Trooper then asked whether they had been “driving straight through,

4
Williston, North Dakota, is located approximately 98 miles northeast from the intersection of
I-94 and Montana Highway 16 at Glendive, Montana. The most direct route to Williston from the
subject traffic stop location was to proceed east approximately 6 miles to Glendive, then northeast
from Glendive on Montana Highway 16 to Sidney, Montana, then northeast on Montana Highway
200 to its intersection with U.S. Highway 2, and then east on U.S. Highway 2 into Williston.

9
switching drivers,” if and where they “spen[t] the night” along the way (answer: in a motel

“right before Idaho Falls, so I don’t know what little city that was,” and then “we woke up

this morning and came back up”), “how is your driving record” and “have you had any

tickets” or been “arrested for anything” (answer: yes, in Las Vegas), and what (answer: “ah

. . ., I had a DUI back in like 2012”).

¶11 After the requested law enforcement database checks revealed no issues or

problems, the Trooper subjected Noli to a new round of questioning regarding matters

manifestly unrelated to the issuance of a traffic violation warning as represented. Pointing

her to her vehicle ownership history that he had pulled up on his patrol car computer

monitor, he asked whether she owned or had owned all of the listed vehicles, why she

didn’t drive her own car on the trip (answer: because she didn’t want to put the extensive

trip mileage on her own car, i.e., “I’m not taking that all the way out here [pauses, looks at

Trooper, and smiles], yeah, so we rented a vehicle, [it’s] a 19 hour drive, 20 hour drive”),

how much sleep they had during the long drive from Las Vegas to Williston (Trooper: “you

guys must have not got too much sleep, huh, if you rented [the mini-van] at 8:00 a.m.

yesterday?”—answer: “yeah . . ., we got to the room at like 9:00-9:30” or “10:00 last

night”). Non-sequitur, the Trooper then advised Noli to “make sure you get” her passenger

“listed as a driver” on the rental car contract “if she drives” the rental car.

¶12 He then asked whether they were “going to spend the night” in North Dakota or

drive “straight back” (answer: spend the night in a Williston “hotel/motel,” start back

tomorrow, and then probably rent another motel room tomorrow night) and what she “[did]

for work” in Las Vegas (answer: “I was at Auto Zone” and then “I recently quit” and “now

10
I’m doing like on-call for security, I’ve done security prior in a [Las Vegas] casino, that

was pretty cool”). Noli compliantly answered all questions asked.

¶13 The Trooper later testified that he viewed Noli’s statement that they had been on the

road for “a couple [of] days” as inconsistent with the fact that the rental contract indicated

that she rented the mini-van in Las Vegas around 8:00 a.m. the day before. He explained

that her “confusion” was an indication that she:

was maybe experiencing heightened stress and was being deceptive at this
time. Her mind seemed to be elsewhere rather than just . . . being able to
answer a basic question such as, hey, when did you guys leave Las Vegas?

(Emphasis added.)

¶14 He testified that he also found suspicious what he characterized as Noli’s lack of

attention, inability to directly “answer simple questions,” and extraordinary nervous

behavior while in his patrol car. As the bases for those characterizations, he cited, inter

alia, what he viewed as extraordinarily nervous behavior, pensive pauses, indefinite or

indirect answers, and her choppy manner of speaking, to wit:

she seemed to be, like, breathing heavily, like kinda through her stomach,
short breaths, and I interpreted that as, you know, nervousness more so than
most people that I come in contact with. And I also sh- [sic] her, she seemed
to be totally avoiding eye contact with me, and her anxiety or stress seemed
to kind of be heightened that she couldn’t answer basic questions. And she
just repeatedly would say I believe it was, uh, I think sh- [sic] what she would
answer, saying something like, absolutely, or something like that, I ca- [sic]
or definitely, that’s what she would say. She’d say, I’d ask something, and
she’d say, [“]definitely, definitely, definitely.[”] I, bu- [sic] I interpreted this
behavior and what she said as well as the places and short-term trip that she
was going to is, I think she was being deceptive to me. When she was trying
to mask any of the nervousness and play it cool.

. . .

11
 Ms. Noli’s overall demeanor[,] . . . and her behavior, . . . especially the
manner in which she would answer questions, and repeatedly saying,
definitely, and trying to sp- [sic] play it cool and the shallow breaths and
avoiding almost any and all eye contact, and you know, rubbing her face and
things like that, that’s a pretty heavy indicator, to me, that the person’s being
deceptive and possibly involved in additional criminal activity, other than
just a traffic violation she was stopped for.

(Emphasis added.) He reiterated that those “indicators” were suspicious because they

were:

sign[s] [often] of what I see as deception, and [that] there’s something that
the person is trying to hide or not tell me. And her stress level seemed real[ly]
high for someone that was just receiving a warning for a left lane violation.

(Emphasis added.)

¶15 After the extensive questioning regarding matters unrelated to the justification for

the stop seemingly ceased, the Trooper asked Noli to verify her address and phone number

for issuance of the written traffic warning. However, the unrelated questioning then

resumed. Inter alia, the Trooper asked “who is up there” in North Dakota (answer: “my

little sisters, I have two of them up there”), “who do they live with” and where/with whom

they were “staying” (answer: they live/are staying with their father), and whether there was

“enough room” for her and her passenger to stay at the home of her sisters’ father instead

of getting a motel room (answer: probably but they were going to stay at a motel). After

next asking, apparently in regard to the written warning, whether Noli had “brown eyes,”

a fact plainly listed on her driver’s license, the Trooper asked several unrelated questions

about her passenger including, inter alia, “what is your relation to her” (answer: “my

girlfriend”), “how long have you guys been together” (answer: “about a year”), “is she

working” (answer: “ah, she’s also security”), “still or not, not now” (answer: “she is,

12
yeah”), “what is this thing here, a Caravan” or “Grand Caravan” (answer: “yeah”), how

much Noli paid to rent the mini-van “for a few days,” and whether she would get her rental

deposit back. Doubling-back, he again asked, “and then you’re bringing her back with

you, what is [she], your sister,” “are you bringing multiple people back or just her,” and

“do you guys know how to get to where you’re going.” On cross-examination, the Trooper

acknowledged that nearly all of the questions posed to Noli in his patrol car were unrelated

to the issuance of a traffic violation warning. He asserted that they were merely questions

asked in “general conversation” while he was completing his “[traffic] enforcement

action.” (Emphasis added.)

¶16 The Trooper then stated, “I gotta check the VIN number, here, on the vehicle

[inaudible] get it returned,” “you must be tired, how many hours have you been driving

today,” and “I gotta check the VIN number and then I’ll give this” (i.e., the vehicle rental

contract) “back up to her” (i.e., Noli’s passenger). He explained at hearing that he needed

to check the actual vehicle VIN plate against the rental contract to make sure that the rental

company rented the correct vehicle to Noli. He did not explain, however, why it was

necessary to ensure that the rental company’s contract information was in order after his

vehicle status database check on the rental indicated no registration or ownership issue or

discrepancy. As he opened his patrol car door to get out, Noli asked if she should come

along. The Trooper ignored the question and said only that he would “be right back.” At

that point, Noli had been patiently waiting in his patrol car for over 9 minutes while the

Trooper extensively questioned her about a myriad of matters almost exclusively unrelated

to the reason for the traffic stop.

13
¶17 After walking up to the driver’s side of the mini-van and quickly glancing at the

dashboard VIN plate, the Trooper walked around to the other side and began speaking with

the passenger. He handed her the rental contract and then warned, “just make sure you

guys aren’t driving in the left lane, ok, unless you’re passing someone.” At hearing, he

gave no explanation as to why it was necessary to warn the passenger about driving in the

left lane, or to return the rental contract to her rather than simply giving it back to Noli

when he returned her driver’s license. Revealing the true unrelated investigatory purpose

of his return to the mini-van, he then asked the passenger a series of questions previously

asked of and answered by Noli, “where’re you, how far are you guys going to go” (answer:

North Dakota), “what part” (answer: Williston), “how long are you gonna be up there for”

(answer: “straight there” and “then right back”), “what’s the reason for the trip then”

(answer: inaudible), and “so you head up there [to Williston] and go back” (answer: “yep”).

Unquestionably indicating the ulterior purpose of his extensive unrelated questioning, the

Trooper then finally asked directly, “what all do you guys got for luggage then” (answer:

“it’s in the back”), “no, I said what do you have for luggage” (answer: “just a change of

clothes”), “anything illegal in the car” (answer: no), and “any issue with me searching the

vehicle today” (answer: no—“you’ll have to ask her”). (Emphasis added.) The Trooper

acknowledged at hearing that he questioned the passenger in order to “confirm or dispel”

his suspicion that the two women were involved in illegal drug activity.

¶18 The Trooper asserted at hearing that questioning the passenger revealed two

additional suspicious facts indicative of the suspected illegal drug activity. First, in contrast

to Noli’s statement that the couple would be staying overnight in Williston and then leave

14
to drive back to Las Vegas in the morning, he asserted that the passenger inconsistently

told him that they were going to Williston to “pick[] up some people” and then

“immediately turning around” to return to Las Vegas. He said that inconsistency was

suspicious because it caused him to “believ[e] that one[] or both[] of them were probably

not telling [him] the truth of what was going on.” (Emphasis added.) He acknowledged

on cross-examination, however, that he did not ask the passenger any follow-up questions

to clarify whether she was in fact saying something different than Noli or not. Second, the

Trooper asserted that, when he asked about “what they had for luggage in the vehicle,” the

passenger was suspiciously “avoiding eye contact” and “immediately began to put a

cigarette in[to] her mouth,” so she could “begin smoking to calm her nerves.” He asserted

that she then “lit the cigarette” and suspiciously “took a big, long drag off of it” in response

to his asking whether “there was anything illegal in the car.” The Trooper explained that

this behavior was suspicious because he:

believe[d] [it] was her way of trying to cope with her nerves at that time . . .
[and that it is] very unusual . . . [for a] passenger [who] doesn’t have anything
to do with the traffic violation . . . [to act like that because,] if there’s not any
additional criminal activity, they have no reason to be nervous or display
any type of behavior like that. . . . [W]hen I saw that type of behavior out of
a passenger . . ., I suspected the two subjects were involved in additional
criminal activity other than just driving in the left lane.

(Emphasis added.) He stated that, when he asked the passenger for consent to search the

vehicle, she said “you’ll have to ask the driver.” The Trooper did not, however,

acknowledge any correlation between the passenger’s purported extraordinarily nervous

reaction to his patently extraordinary questioning of an isolated passenger, in the context

of a simple lane violation traffic stop, regarding various unrelated matters, whether there

15
was anything illegal in the vehicle, and whether the passenger had an issue with him

searching their vehicle.

¶19 The Trooper testified that, with the addition of the passenger’s responses and his

observation of her suspicious “nervous” behavior, he then had particularized suspicion that

the couple were engaged in illegal drug activity, i.e., that there were illegal drugs present

in the vehicle. He testified that his asserted particularized suspicion was based on: (1) the

“heavy masking odor of cigarette smoke” often used to conceal the odor of illegal drugs;

(2) the presence of “rolling papers” often used to smoke marijuana; (3) the driver’s attempt

“to cover up” the rolling papers by “bracing her shaking arm on the center console”; (4) the

indication of “hard travel” in a short-term rental vehicle as often associated with illegal

drug trafficking; (5) the fact that the couple was “traveling from” an illegal drug “source

area” to an illegal drug “destination area” with intent to return “almost immediately”;

(6) the driver’s extraordinarily nervous behavior (i.e., avoidance of eye contact, “shallow

breaths,” “elevated” “stress level,” and inability “to answer simple questions”) indicating

“deception” and consciousness that she was “guilty” of something other than merely

“traveling in the left lane” of the freeway; (7) the inconsistent statements of the driver and

passenger as to whether they intended to stay the night in Williston or immediately return

to Las Vegas; and (8) the passenger’s unusually nervous “demeanor” in response to a

general question about the contents of their luggage and whether there was anything illegal

in the vehicle.

¶20 Upon returning to his patrol car after questioning the passenger, the Trooper sat

down and, as he was unfolding/opening his patrol car laptop computer, oddly said, “ok, I

16
wonder why my printer is not working.”5 He then asked Noli, “what all [do] you guys got

for luggage in the vehicle” (answer: “um, just some clothes” and “got a couple blankets”).

At hearing, he elaborated that when:

she told me that they [were traveling with] clothes and blankets [in the
vehicle,] . . . her head was shaking back and forth like she’s saying no. So,
I interpreted this as [] deceptive behavior cuz she’s telling me, I have, we
have blankets and, uh, clothing in the car, but she’s shaking her head no the
whole time she’s saying it. I interpretated that as there was something else
in the vehicle, other than just clothing and blankets.

(Emphasis added.) The dash cam recording manifests that the Trooper then said “usually

I would print this for ya but my printer’s not working, so that’s just for driving in the left

lane, just a warning, ok.”6 Noli responded “ok” and he said, “so as far as the traffic stop,

you’re good to go there, you got your stuff back, right.” Noli responded “yeah.”

¶21 However, without pause and before Noli could even move to start to get out of the

patrol car, the Trooper then immediately subjected her to yet another round of questioning

regarding illegal drug activity, to wit:

[Trooper]: And, can I ask you, is there anything illegal in the car today?
[Noli]: No.
[Trooper]: Any marijuana?
[Noli]: No.
[Trooper]: Any cocaine?
[Noli]: No.
[Trooper]: Any methamphetamine, any heroin?
[Noli]: No.
[Trooper]: Guns? Anything like that?

5
The Trooper’s statement was odd because he made the statement as he was opening his laptop
without having placed his fingers on the keyboard in an attempt to activate it.
6
The Trooper’s dash cam recording manifests that his printer was working fine when he later used
it to print out a vehicle search consent form for Noli’s consideration.

17
[Noli]: No.
[Trooper]: Do you have any issue with me searching the vehicle today?
[Noli]: No.
[Trooper]: No problem? Ok, then I’ll do that quick, . . . ok? Sound good?
[Noli]: Why are you going to search it?
[Trooper]: Well, I just think it’s a crazy trip, that’s why I was just asking you if you
had any problem with it and you said no. Is that right? Are you
responsible for everything in the vehicle? And, I’ll tell you [that] if you
have like a [marijuana] joint or something like that, that’s not what I’m
looking for. . . . Is that what’s in the car, or what? . . . If that’s all it is,
I’m not worried about a joint.
[Noli]: I don’t feel comfortable with you searching the car, though. I don’t
understand why you would have to search it.
[Trooper]: Just cuz what you guys are doing. It’s a quick trip and stuff like that, so,
just something I do out here. [Inaudible] all you have is a joint? . . . I’m
asking you?
[Noli]: No. . . . I don’t have a joint in there. I just don’t understand why you
would [interrupted by Trooper]
[Trooper]: I thought that’s what you just told me?
[Noli]: No. I did say, you did, yes. . . . But I was just trying to question you
about, to find out why you were gonna [interrupted by Trooper]
[Trooper]: No, no, I just think it’s a quick trip and it’s something I do out here, some
things don’t really make a lot of sense to me. . . . And so it’s just
something that I asked you. But like I said, I’m not worried about a joint
or something like that or a little bit of weed. . . . So, is there something
more than that, or that’s it?
[Noli]: No, it was just an open beer.
[Trooper]: I’m not worried about an open beer.
[Noli]: Ok, then that’s it, no.
[Trooper]: Ok, so can I search the car or not?
[Noli]: Yeah.
[Trooper]: Ok, then I can, ok, I’ll have this, you understand why I’m asking you all
this, what I just asked you?
[Noli]: I do understand.
[Trooper]: Ok . . .[,] [a]re you responsible for everything else in the vehicle or was,
did anybody give you something else that doesn’t belong to you? . . .
Hang on, just a second [printer sound]. So this, I have a printout, . . . .
All this says is that you are giving me your consent to search this vehicle
today. Ok, and then if there is any illegal items, then I’m gonna take
‘em. . . . Does that make sense to you?
[Noli]: It does, but I don’t understand why though.
[Trooper]: [Inaudible] read it? [Inaudible] Why, do you not like to sign forms?

18
[Noli]: I do not, like, it was a traffic violation. . . . It was a warning that you
were pulling me over for.
[Trooper]: Yeah, but you told me [pause] a couple of times that there was a joint in
the car. Now you tell me there’s an open beer in the car. What, I don’t
understand what you’re saying anymore.
[Noli]: The fact that you’re asking me to search my car when you’re pulling me
over for a warning.
[Trooper]: Right, right, but what I’m saying is, I’m asking you, did you or did you
not tell me there’s a joint in the car?
[Noli]: I did and it was false, yes.
[Trooper]: Did you or did you not tell me that there was an open container in the
car?
[Noli]: Yes.
[Trooper]: Ok, are either of those things in the car?
[Noli]: Yes.
[Trooper]: One or both of them?
[Noli]: One.
[Trooper]: Ok, what is in the car?
[Noli]: The beer.
[Trooper]: Ok, . . . I don’t think that you’re drunk or impaired right now. . . . [S]o if
there’s an open container in the car, I am going to dump that out.
[Noli]: Ok.
[Trooper]: But what I’m asking, the rest of the vehicle and everything in the vehicle,
are you responsible for everything else in the vehicle?
[Noli]: Yes.
[Trooper]: And can I search the rest of the vehicle?
[Noli]: Yes.
[Trooper]: I can?
[Noli]: Yes.
[Trooper]: Ok, so what this says is that you are offering your consent for me to
search this vehicle today and if there’s any illegal items in the vehicle,
then I am going to seize said items.
[Noli]: Ok.
[Trooper]: So what I’m asking you, do you want to sign this that gives your consent?
[Noli]: No, I don’t want to sign it.
[Trooper]: Ok, but I understand you right that I can search your vehicle and you’re
giving me your verbal consent to search the car, yes or no?
[Noli]: No.
[Trooper]: So, can I, or can I not, search the car?
[Noli]: No.
[Trooper]: Ok, so what I am going to do is, I am going to, [the passenger] is going
to get out of the car and then I’m gonna deploy my narcotics-detecting
dog around the car [interrupted by Noli]

19
 [Noli]: You can search the car. If you’re gonna do all that, go ahead and search
the car.
[Trooper]: Well, . . . I don’t want you to feel that I’m coercing you [interrupted by
Noli]
[Noli]: I understand, I’ll sign it, that’s fine.
[Trooper]: You don’t have to sign it if you don’t want to. But I just want to make
sure you understand what I’m, cause you’re, we’re kind of going around
and around in circles [interrupted by Noli]
[Noli]: Right, I understand.
[Trooper]: So, I’m simply asking you, can I, with your consent, search this vehicle
that you’re driving today for any and all contraband, including
marijuana, cocaine, methamphetamine, or heroin?
[Noli]: Yes.

. . .

[Trooper]: And you understand that you do not have to give that consent?
[Noli]: Right.
[Trooper]: So what this says is, like I explained, ok, this is, we are in the county,
Dawson County, ok, that is me. Ok, and I’m asking to search this vehicle
and remove any of the illegal items that I may find in the vehicle, ok,
and the rest of it is all explained there. So, do you want to sign this form
or not? If you do not want to, you don’t have to.
[Noli]: What’s going to be the difference if I do or not?
[Trooper]: If you sign this?
[Noli]: Yeah.
[Trooper]: This is called a written consent, . . . meaning that you have read this and
then you’re still good with the search.
[Noli]: Ok.
[Trooper]: [Do] you want to read it or have you? Can you see it?
[Noli]: I don’t know.
[Trooper]: Ok, so I’ll put this away . . ., [but] you are good with me searching this
vehicle?
[Noli]: Yeah.
[Trooper]: Ok.

(Emphasis added.) Over 20 minutes after the initial stop, Noli finally acquiesced and gave

him unequivocal verbal consent for the requested vehicle search.

¶22 Upon searching the vehicle, and containers located therein, the Trooper found, as

pertinent, an open alcoholic beverage container, a plastic bag containing 13 grams of

20
suspected methamphetamine, some empty plastic bags with suspected marijuana residue,

two scales commonly used to weigh illegal drugs, and pill bottles containing 14

unidentified pills. The Trooper then arrested Noli and took her to jail. The State ultimately

charged her by Information with felony possession of dangerous drugs (methamphetamine)

and misdemeanor possession of drug paraphernalia.

¶23 Noli later filed a motion for suppression of all evidence found in the vehicle search

based on her assertion that it was the direct result of an unlawfully prolonged warrantless

seizure of her person, i.e., an unlawfully expanded and prolonged traffic stop. She asserted

that her eventual acquiescent consent to the search resulted from the Trooper’s unlawful

expansion of the scope and duration of the traffic stop from a traffic offense warning to an

illegal drug possession investigation without objectively reasonable particularized

suspicion of such additional criminal activity. Based on the Trooper’s hearing testimony,

and the front-facing and rear-facing dash cam recordings admitted into evidence, the

District Court denied the motion to suppress, however, based on the following reasoning:

[Noli] was unable to identify the location she had stayed the night before,
thought she maybe went through the mountains of Wyoming on the trip but
was not sure, she obtained a two day rental of a vehicle that was due back to
Las Vegas, Nevada; her version of the events did not match up with the
passenger regarding the time that would be spent in “Willington” and her
nervous mannerisms (rubbing face, avoiding eye contact, shaking, escalated
breathing); her deceptive actions; escalating stress throughout the encounter
even after being told she would receive a warning; the signs of travel in the
vehicle (blankets, pillows, [and her] indicati[on] she was tired) led [the]
Trooper [] to believe that criminal activity was afoot.

. . .

[The] Trooper . . . [suspected that other] criminal activity [was] afoot . . .
[based] on the totality of what he physically saw, the things he smelled, the

21
 things that [Noli] said to him, and the manner in which those things were
said. The circumstances presented, coupled with the training and experience
of the Trooper, indicate[d] that [she] was engaged in [other illegal] activity.

Noli subsequently entered into a plea agreement with the State under which she pled guilty

to the charged offenses in return for a jointly-recommended probationary sentence and

reservation of her right to appeal the adverse suppression ruling. The District Court

accordingly imposed a three-year deferred imposition of sentence on the felony, a

suspended six-month jail term on the misdemeanor, and related fines, fees, and probation

conditions. Noli timely appeals.

STANDARD OF REVIEW

¶24 The standard of review of a lower court denial of a motion to suppress evidence in

a criminal case is whether the court’s pertinent findings of fact are clearly erroneously and

whether it correctly interpreted and applied the applicable law to those facts. State v.

Hoover, 2017 MT 236, ¶ 12, 388 Mont. 533, 402 P.3d 1224 (citations omitted). Lower

court findings of fact are clearly erroneous if not supported by substantial evidence, the

court misapprehended the effect of the evidence, or upon our independent review of the

record we are firmly convinced that the court was otherwise mistaken. Hoover, ¶ 12

(citation omitted). Whether a lower court correctly interpreted and applied the pertinent

law to the facts at issue is a question of law subject to de novo review. Hoover, ¶ 12

(citation omitted).

DISCUSSION

¶25 Whether the District Court erroneously concluded that the justification for the
initial warrantless traffic violation stop ripened into a particularized suspicion of
illegal drug activity within the lawful confines of the justification for the stop?

22
¶26 The Fourth Amendment to the United States Constitution and Article II, Section 11,

of the Montana Constitution similarly guarantee people the right to be free from

“unreasonable searches and seizures” of their “persons, houses, papers, and effects.” U.S.

Const. amend. IV;7 Mont. Const. art. II, § 11. As procedural components of those

protections, government searches and seizures are generally constitutionally unreasonable,

and thus unlawful, unless conducted in accordance with a judicial warrant issued on

probable cause. Hoover, ¶ 14 (citations omitted); see also U.S. Const. amend. IV (“no

Warrants” for search or seizure “shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized”) and Mont. Const. art. II, § 11 (“[n]o warrant to search any place, or

seize any person or thing shall issue . . . without probable cause”). The fundamental

purpose of the Fourth Amendment and Article II, Section 11 is to “protect the privacy and

security of individuals from unreasonable government intrusion or interference.” Hoover,

¶ 14 (internal punctuation and citations omitted). Accord United States v. Martinez-Fuerte,

428 U.S. 543, 554, 96 S. Ct. 3074, 3081 (1976); Schmerber v. California, 384 U.S. 757,

767, 86 S. Ct. 1826, 1834 (1966).

¶27 As referenced in the Fourth Amendment and Article II, Section 11, a “search” is a

means employed by government agents of gathering items of evidence or information

which “substantially infringes or intrudes into or upon one’s home, person, or other area

7
The Fourth Amendment applies to the States through the Fourteenth Amendment’s Due Process
Clause. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961).

23
or thing in regard to which he or she has a reasonable expectation of privacy.” State v.

Zeimer, 2022 MT 96, ¶ 24, 408 Mont. 433, 510 P.3d 100 (citations omitted). As pertinent

here, a constitutional “seizure” is “government action that deprives an individual of

dominion over his or her person or property.” Zeimer, ¶ 24 (internal punctuation and

citation omitted). A person is constitutionally “seized” if “a government officer in some

way restrains [the] person’s liberty,” however briefly, “by means of physical force” or

exercise or “show of authority” which “under the totality of the circumstances[] would

cause an objectively reasonable person to feel not free to leave the presence of the

government officer.” Hoover, ¶ 15 (internal punctuation and citations omitted).

¶28 Apart from the privacy protection implicit in the Fourth Amendment and similar

language of Article II, Section 11, the Montana Constitution specifically protects

“individual privacy” from government intrusion absent “showing of a compelling state

interest.” Mont. Const. art. II, § 10. While we have recognized that it does not provide

any “new or heightened level of protection for any particular privacy interest” beyond those

traditionally protected under the Fourth Amendment and Article II, Section 11 search and

seizure protections, the express Article II, Section 10 privacy protection is nonetheless

“broader in the sense that,” in addition to the protection of privacy in a person’s home and

things as referenced in the Fourth Amendment and Article II, Section 11, the express

Article II, Section 10 protection further “encompasses” both privacy in “information and

activities.” State v. Nelson, 283 Mont. 231, 242-43, 941 P.2d 441, 448-49 (1997) (noting,

for example, Fourth Amendment protection of the sanctity of persons, homes, and effects

and broader Article II, Section 10 protection encompassing both “autonomy privacy” and

24
“informational privacy”). In the context of the search and seizure protections provided by

the Fourth Amendment and similar provisions of Article II, Section 11, we have also

applied the express protection provided by Article II, Section 10 to “recognize[] a broader

range” of expectations of privacy that are objectively reasonable in society than recognized

under the Fourth Amendment, thus resulting in corresponding recognition of a range of

warrant and probable cause exceptions to Article II, Section 11 that is somewhat narrower

than those recognized under the Fourth Amendment. State v. Peoples, 2022 MT 4, ¶ 13,

407 Mont. 84, 502 P.3d 129 (citations omitted). Similar to the threshold test for whether a

constitutional “search” occurs under the Fourth Amendment and Article II, Section 11, the

broader Article II, Section 10 privacy protection is implicated when the government action

at issue infringes or intrudes upon a person’s subjective expectation of privacy that is

objectively reasonable in society under the totality of the circumstances. State v. Staker,

2021 MT 151, ¶ 11, 404 Mont. 307, 489 P.3d 489 (citations omitted). When implicated in

a particular case, we construe the Article II, Section 11 protection against unreasonable

searches and seizures in accordance with the greater range of privacy protection provided

by Article II, Section 10. Peoples, ¶ 13 (citations omitted).

A. Investigative “Terry” Stop Standards.

¶29 However brief, investigative stops of persons by police, including traffic or vehicle

stops, are constitutional “seizures” subject to the warrant and probable cause requirements

of the Fourth Amendment and Article II, Section 11. Hoover, ¶ 15 (citation omitted);

United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694 (1981). Unless “conducted

in strict accordance” with one of “certain recognized and narrowly limited exceptions” to

25
the Fourth Amendment and Article II, Sections 10-11 warrant and probable cause

requirements, warrantless searches and seizures are per se unreasonable and thus unlawful.

Zeimer, ¶¶ 25-26 and 32 (citations omitted); Hoover, ¶ 14 (citations omitted).8 Because

warrantless searches and seizures are presumed constitutionally unreasonable, and thus

unlawful, the State has the burden of affirmatively showing on challenge that the subject

search or seizure was conducted in strict accordance with an applicable recognized

exception to the warrant and probable cause requirements of the Fourth Amendment and

Article II, Section 11, and as pertinent in a particular case, the broader privacy protection

provided by Article II, Section 10. Zeimer, ¶ 26 (citing State v. Goetz, 2008 MT 296, ¶ 40,

345 Mont. 421, 191 P.3d 489); Hoover, ¶ 17 n.5 (citations omitted).

¶30 As pertinent here, a temporary investigative stop, or Terry stop, is a recognized

exception to the Fourth Amendment and Article II, Section 11 warrant and probable cause

requirements. Hoover, ¶ 17 (citations omitted); State v. Gopher, 193 Mont. 189, 192-94,

631 P.2d 293, 295-96 (1981) (recognizing and applying temporary investigative stop

exception first enunciated in Terry v. Ohio, 392 U.S. 1, 15-16, 88 S. Ct. 1868, 1876-77

(1968), and further developed in Cortez); Cortez, 449 U.S. at 417-22, 101 S. Ct. at 694-97);

Terry, 392 U.S. at 15-16, 88 S. Ct. at 1876-77. Under this narrow exception, “a law

enforcement officer may stop and temporarily detain a person for investigative purposes

without probable cause for an arrest if, based on specific and articulable [objective] facts

8
See also State v. Laster, 2021 MT 269, ¶ 35, 406 Mont. 60, 497 P.3d 224 (in re “exclusionary
rule”/“fruit of the poisonous tree” doctrine generally rendering inadmissible in subsequent
proceedings evidence obtained as a result of constitutionally invalid search or seizure—citations
omitted).
26
known to the officer,” including reasonable inferences made by the officer thereon, that he

or she has an objectively reasonable suspicion that the particular subject is or is about to

be engaged in criminal activity. Hoover, ¶ 17 (original emphasis and citations omitted);

Gopher, 193 Mont. at 192-94, 631 P.2d at 295-96; Cortez, 449 U.S. at 417-22, 101 S. Ct.

at 695-97. The “demand for specificity in the information upon which police action is

predicated” is the central requirement of the investigative Terry stop exception to the

Fourth Amendment warrant and probable cause requirements. See Terry, 392 U.S. at 21

n.18, 88 S. Ct. at 1880 n.18. “Relevant considerations include,” inter alia, the “quantity,

substance, quality, and degree of reliability of information known to the officer” at the

time. Hoover, ¶ 17 (citing State v. Pratt, 286 Mont. 156, 161, 951 P.2d 37, 40 (1997);

Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). A warrantless traffic

stop is generally a seizure of a vehicle, the driver, and any passengers for temporary

investigative purposes and thus must be conducted by police in strict accordance with the

limitations of the temporary investigative stop exception. See Zeimer, ¶¶ 26-32 (citations

omitted); Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 1609, 1614 (2015);

Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979); Cortez, 449 U.S. at

417-22, 101 S. Ct. at 694-97; United States v. Nault, 41 F.4th 1073, 1077-78 (9th Cir. 2022)

(citations omitted).

¶31 On subsequent challenge, the State has the burden of affirmatively proving and

demonstrating that the subject officer(s) had the requisite particularized suspicion of

criminal activity based on specific and articulable objective facts known to, and reasonable

inferences made by, the officer(s) under the totality of the circumstances of record.

27
Hoover, ¶ 17 n.5 (citations omitted); Gopher, 193 Mont. at 194, 631 P.2d at 296 (applying

Cortez). The reviewing court must assess the sufficiency of the officer’s asserted

justification and rationale for the stop and its related duration and scope based on

“common[]sense” “probabilities,” rather than “hard certainties,” from the perspective of

“those versed in the field of law enforcement” rather than “in terms of library analysis by

scholars.” Cortez, 449 U.S. at 418, 101 S. Ct. at 695. However, any specialized law

enforcement-specific inferences drawn from the articulated objective facts must

themselves still be objectively reasonable under the totality of the circumstances. See

Hoover, ¶ 17 (citations omitted); Gopher, 193 Mont. at 192 and 194, 631 P.2d at 295-96

(applying Cortez); Cortez, 449 U.S. at 418 and 421-22, 101 S. Ct. at 695 and 697.9 The

Terry “particularized suspicion standard does not require that an officer be certain, or even

ultimately correct, that [the subject] is engaged in” the suspected criminal activity. Hoover,

¶ 18 (citations omitted). It does require, however, that the officer articulate “more than [a]

mere generalized suspicion” or “undeveloped hunch of criminal activity.” Hoover, ¶ 18

(citing Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 676 (2000), and Terry,

392 U.S. at 27, 88 S. Ct. at 1883).

9
The Terry investigative stop exception, as further developed in Cortez, is codified in Montana at
§§ 46-5-401 and -403, MCA (authorizing temporary stop of a person “to obtain or verify an
account of the person’s presence or conduct or to determine whether to arrest the person” upon
observing the person “in circumstances that create a particularized suspicion that the person . . .
has committed, is committing, or is about to commit an offense”). See State v. Bar-Jonah, 2004
MT 344, ¶ 42, 324 Mont. 278, 102 P.3d 1229 (noting Montana codification of constitutional
principles); Comments of Commission on Criminal Procedure §§ 20.01-20.03 (Jan. 10, 1989), File
No. 88-559, in the collection of the Clerk of the Montana Supreme Court.

28
¶32 In that regard, we have recognized that, depending on the case-specific

circumstances, “otherwise perfectly legal or innocuous conduct or behavior may be a

contributing factor in giving rise to a particularized suspicion of criminal activity in

conjunction with other specific indicia of criminal activity.” Zeimer, ¶ 50 (emphasis

added—citations omitted). However, in the absence of some specific officer-articulated

facts or inferences that are objectively indicative of some particular criminal activity,

merely inconsistent accounts of a person’s conduct, presence, or plans, unusually nervous

or defensive behavior when monitored, stopped, confronted, or questioned by police,

failure to make or maintain eye contact with police, use of a borrowed or rented vehicle, a

messy, cluttered, or disheveled vehicle interior, presence at the scene of a crime, use of a

highway commonly used for drug trafficking or other illegal activity, traveling to or from

a city or area generally known as a source, destination, or situs of/for illegal drugs or other

illegal contraband or activity, the desire to avoid contact with police, or other perfectly

legal or innocuous conduct, behavior, or possessions are insufficient alone, whether

individually or collectively, to support an objectively reasonable particularized suspicion

of criminal activity. Zeimer, ¶ 50 (citations and parentheticals omitted). “When the only

bas[es] for suspecting a specific person of wrongdoing [are] inferences that could be drawn

from the conduct of virtually any law-abiding person, the resulting suspicion cannot, by

definition, be particularized,” but rather is more akin to mere generalized suspicion or an

“inarticulable hunch[]” of criminal activity. State v. Reeves, 2019 MT 151, ¶ 13, 396 Mont.

230, 444 P.3d 394 (noting that drawing “inferences of nefariousness” from no more than

29
inarticulable hunches “subject[s] drivers to the perils of profiling and other impermissible

motives for initiating traffic stops”).

B. Limited Duration/Scope of Lawful Investigative Stop – Expansion on
Development of New Particularized Suspicion of Other Criminal Activity.

¶33 Even when justified on particularized suspicion of criminal activity, the

investigative stop exception permits no more than a reasonably brief interference with

personal liberty, and limited intrusion into the personal privacy, of the subject in reasonable

relation to the particularized suspicion that justified the stop. Florida v. Royer, 460 U.S.

491, 500, 103 S. Ct. 1319, 1325-26 (1983) (Terry stop exception permits only a “limited

intrusion on the personal security of the [subject]”—officer must “employ[ ] . . . the least

intrusive means reasonably available to verify or dispel” the predicate particularized

suspicion “in a short period of time”); Terry, 392 U.S. at 18-20, 88 S. Ct. at 1878-79

(investigative stop must be “reasonably related in scope to the circumstances which

justified the interference in the first place”—internal punctuation and citations omitted). A

“seizure that is lawful at its inception” becomes unlawful “if its manner of execution

unreasonably infringes interests protected by the [Fourth Amendment],” Illinois v.

Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 837 (2005), “by virtue of its intolerable

intensity and scope.” Terry, 392 U.S. at 18, 88 S. Ct. at 1878. For example, as pertinent

here, a “seizure that is justified solely by the interest in issuing a warning ticket to the driver

can become unlawful if it is prolonged beyond the time reasonably required to complete

that mission.” Caballes, 543 U.S. at 407, 125 S. Ct. at 837. Accord Rodriguez, 575 U.S.

at 354, 135 S. Ct. at 1614. Police must therefore act with reasonable diligence to quickly

30
confirm or dispel the particularized suspicion of criminal activity that justified the initial

stop, and any subsequent expansion in duration or investigative inquiry based on new or

additional particularized suspicion of other criminal activity developed within the lawful

scope or duration of the initial stop. Zeimer, ¶ 29 (citing, inter alia, United States v. Sharpe,

470 U.S. 675, 686, 105 S. Ct. 1568, 1575 (1985); Royer, 460 U.S. at 500, 103 S. Ct. at

1325-26 (duration and scope of an investigative stop must be carefully limited to its

“underlying justification” and the “investigative detention must be temporary and last no

longer than is necessary to effectuate the purpose [that justified] the stop”); Terry, 392 U.S.

at 18-20, 88 S. Ct. at 1878-79 (scope and duration of the stop “must be strictly tied to and

justified by the circumstances which rendered its initiation permissible”—internal

punctuation and citations omitted)). On a valid traffic violation stop, “the tolerable

duration of police inquir[y]” is thus limited to the justified purpose or mission of the stop:

“to address the [subject] traffic violation that warranted the stop and attend to [any] related

safety concerns.” Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614 (internal punctuation and

citations omitted). “Because addressing the infraction is the purpose of the stop,” the stop

“may last no longer than is necessary to effectuate that purpose.” Rodriguez, 575 U.S. at

354, 135 S. Ct. at 1614 (internal punctuation and citations omitted). See similarly Caballes,

543 U.S. at 407, 125 S. Ct. at 837. “Authority for the seizure thus ends when tasks tied to

the traffic infraction are—or reasonably should have been—completed.” Rodriguez, 575

U.S. at 354, 135 S. Ct. at 1614 (citation omitted—emphasis added). On subsequent judicial

review, the question is “whether the police diligently pursued a means of investigation that

was likely to confirm or dispel” the particularized suspicion, purpose, or mission of the

31
stop “quickly” without unnecessary delay. Sharpe, 470 U.S. at 686, 105 S. Ct. at 1575; see

Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614; Royer, 460 U.S. at 500, 103 S. Ct. at 1325-

26; Terry, 392 U.S. at 18-20, 88 S. Ct. at 1878-79.10

¶34 In that regard, upon a lawful investigatory traffic stop, police may generally request

identification, and/or any available proof of identification, of the subject of the

particularized suspicion, his or her present address, and “an explanation of the person’s

actions” regarding the particularized suspicion that justified the stop. Section 46-5-

401(1)-(2), MCA; Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177, 185-86, 124 S. Ct. 2451,

2457-58 (2004); Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647 (1985); United

States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680 (1985). The officer may also

attempt to verify information provided by the subject, and ask for other related information,

as long as the additional inquiry is both reasonably related in scope to the particularized

suspicion and purpose that justified the stop and does not unreasonably prolong its duration

under the totality of the circumstances at issue. Michigan v. Summers, 452 U.S. 692, 700

n.12, 101 S. Ct. 2587, 2593 n.12 (1981) (discussing various “investigative techniques

which may be utilized effectively in the course of a Terry-type stop”—internal punctuation

and citation omitted); Royer, 460 U.S. at 500, 103 S. Ct. at 1325-26; Terry, 392 U.S. at

10
The fact that the officer could have accomplished or completed the predicate purpose of the stop
by some other means that was quicker or less intrusive does not alone render the duration or scope
of the stop unreasonable if the failure to use the less intrusive means was reasonable under the
totality of the circumstances at issue. United States v. Sharpe, 470 U.S. 675, 687, 105 S. Ct. 1568,
1576 (1985) (citations omitted).
32
18-20, 88 S. Ct. at 1878-79.11 Moreover, in furtherance of government’s generally

compelling interest in highway safety regulation, routine police database checks (i.e.,

checks for outstanding wants/warrants, driver’s license and vehicle registration status, and

stolen/missing vehicle reports) are “ordinary inquiries incident to” lawful investigative

traffic stops and thus permissible as long as conducted in a reasonably quick and diligent

manner. Rodriguez, 575 U.S. at 350 and 354-57, 135 S. Ct. at 1612 and 1614-16 (citations

omitted). See similarly § 46-5-401(1)-(2), MCA (on valid traffic stop officer may demand

the driver’s operating license and proof of vehicle registration and insurance). Such

reasonably brief inquiries are thus encompassed within the lawful purpose and mission of

a valid traffic stop. See Rodriguez, 575 U.S. at 350-51 and 354-57, 135 S. Ct. at 1612 and

1614-16.

¶35 If “based on additional specific and articulable facts observed or discovered during

the lawful scope and duration of the initial stop,” police may also “lawfully expand or

prolong the scope or duration of an investigative stop beyond its initial justification upon

development of a new or expanded particularized suspicion of criminal activity.” Zeimer,

¶ 30 (citing Hulse v. Mont. Dep’t of Justice Motor Veh. Div., 1998 MT 108, ¶¶ 40-42, 289

11
See similarly Hoover, ¶ 23 (within the limits of constitutional reasonableness, the compelling
government interest in effective law enforcement demands that officers in the field have reasonable
latitude to reach, follow up on, and confirm or dispel the particularized suspicion of criminal
activity that lawfully justified an initial or extended investigative stop—citing State v. Sharp, 217
Mont. 40, 47, 702 P.2d 959, 963 (1985)). However, “the mere fact that law enforcement may be
made more efficient can never by itself justify disregard” of constitutional protections against
unreasonable searches and seizures—“investigation of crime would always be simplified” and
more efficient if constitutional warrant and probable cause requirements, and strict compliance
with their narrowly recognized exceptions, were not necessary. Mincey v. Arizona, 437 U.S. 385,
390 and 393, 98 S. Ct. 2408, 2412 and 2414 (1978).

33
Mont. 1, 961 P.2d 75; State v. Sharp, 217 Mont. 40, 46, 702 P.2d 959, 963 (1985)). But,

an investigative stop cannot lawfully ripen into new or additional particularized suspicion

of criminal activity justifying expansion of the scope or duration of the initial stop unless

the officer observed or acquired the new or additional objective indicia of other criminal

activity, and formed an objectively reasonable new or additional particularized suspicion,

before he or she dispelled or completed, or reasonably should have dispelled or completed,

the initial particularized suspicion, purpose, or mission with reasonable diligence and

without unnecessary delay. Hoover, ¶ 23 (citing Hulse, ¶¶ 40-42); Rodriguez, 575 U.S.

at 354, 135 S. Ct. at 1614.12 At the point that the officer has “dispelled the predicate

particularized suspicion that justified the initial stop within its lawful scope and duration,”

“failed to observe or discover additional specific and articulable facts justifying expansion

of the scope or duration of the stop based on a new or expanded particularized suspicion

of criminal activity,” and completed or reasonably should have completed the valid purpose

or mission of the stop, “the stop must end without further delay.” Zeimer, ¶ 31 (citations

omitted); State v. Meza, 2006 MT 210, ¶ 23, 333 Mont. 305, 143 P.3d 422; Rodriguez, 575

U.S. at 354, 135 S. Ct. at 1614; United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.

Ct. 2574, 2580 (1975). In turn, like the limited scope and duration of the initial valid stop,

12
See similarly § 46-5-403, MCA (investigative stop “may not last longer than is necessary to
effectuate the purpose of the stop”); State v. Meza, 2006 MT 210, ¶ 23, 333 Mont. 305, 143 P.3d
422; State v. Martinez, 2003 MT 65, ¶ 29, 314 Mont. 434, 67 P.3d 207; Hulse, ¶¶ 40-42 (citing
Terry, 392 U.S. at 21-22 and 29, 88 S. Ct. at 1879-81 and 1883-84); Sharpe, 470 U.S. at 686, 105
S. Ct. at 1575; Royer, 460 U.S. at 500, 103 S. Ct. at 1325; Terry, 392 U.S. at 19-20, 88 S. Ct. at
1879.

34
the scope and duration of investigation of any new or additional particularized suspicion

of criminal activity that arose during the lawful scope and duration of the initial stop may

not exceed that reasonably necessary to confirm or dispel that new or expanded suspicion

and complete the purpose or mission of the extended stop. Zeimer, ¶ 30 (citing Hulse, ¶ 40;

State v. Martinez, 2003 MT 65, ¶¶ 27-29, 314 Mont. 434, 67 P.3d 207; Royer, 460 U.S. at

500, 103 S. Ct. at 1325-26; and Terry, 392 U.S. at 19-20, 88 S. Ct. at 1878-79).

¶36 While not per se unreasonable under the Fourth Amendment and Montana

Constitution Article II, Sections 10-11, incidental police questioning of the driver or any

occupant(s) of the subject vehicle and supplemental vehicle inspection for the purpose of

detecting or investigating other criminal activity unrelated to the particular purpose that

justified the stop is constitutionally permissible only if and to the extent that the unrelated

inquiry does not infringe or intrude upon the privacy or security of the subject, or prolong

the duration of the stop to any measurable degree, beyond that reasonably necessary to

quickly accomplish or complete the justified purpose of the stop with reasonable diligence.

Zeimer, ¶ 45 (citations omitted); Rodriguez, 575 U.S. at 350 and 354-57, 135 S. Ct. at 1612

and 1614-16; Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 788 (2009);13 see also

Royer, 460 U.S. at 500, 103 S. Ct. at 1325-26; Terry, 392 U.S. at 18-20, 88 S. Ct. at

1878-79.

13
Accord, e.g., Laster, ¶¶ 3-4, 6, 40, and 48-49 (permissible duration or scope of initially lawful
traffic stop not unlawfully expanded or prolonged by single incidental request for consent for
unrelated vehicle search while waiting for extraction of vehicle from snow bank). See similarly
State v. Clark, 2008 MT 419, ¶¶ 7-9 and 22-25, 347 Mont. 354, 198 P.3d 809; State v. Snell, 2004
MT 269, ¶¶ 3-5 and 16-17, 323 Mont. 157, 99 P.3d 191.
35
¶37 In Rodriguez, a Nebraska K-9 officer accompanied by his trained drug dog validly

stopped a vehicle just after midnight after seeing it “veer slowly onto the shoulder” of the

highway in violation of the Nebraska traffic code. Rodriguez, 575 U.S. at 351, 135 S. Ct.

at 1612. At the passenger side door, the officer encountered two male occupants, explained

the reason for the stop, and asked why the driver was driving on the shoulder. Rodriguez,

575 U.S. at 351, 135 S. Ct. at 1613. When the driver replied that he swerved to avoid a

pothole, the officer demanded his driver’s license, registration, and proof of insurance, and

then returned to the patrol car. Rodriguez, 575 U.S. at 351, 135 S. Ct. at 1613. After

standard traffic stop records checks revealed no issues, the officer returned to the vehicle,

asked the passenger for his driver’s license, “and began to question him about where the

two men were coming from and where they were going.” Rodriguez, 575 U.S. at 351, 135

S. Ct. at 1613. The passenger explained that they were returning to Norfolk, Nebraska,

after looking at a car for sale in Omaha. Rodriguez, 575 U.S. at 351, 135 S. Ct. at 1613.

The officer then returned to his patrol car, ran a records check on the passenger, called for

another officer, and began writing a warning ticket to the driver on the traffic violation.

Rodriguez, 575 U.S. at 351, 135 S. Ct. at 1613. The officer then completed the traffic

enforcement purpose of the stop by returning to the vehicle, returning all documents to

both men, and handing the driver a written traffic violation warning with explanation of

the warning. Rodriguez, 575 U.S. at 352, 135 S. Ct. at 1613. With “all the reasons for the

stop” then “out of the way,” the officer:

asked for permission to walk his [drug] dog around [the driver’s] vehicle.
[The driver] said no. [The officer] then instructed [him] to turn off the
ignition, exit the vehicle, and stand in front of the patrol car to wait for the

36
 second officer. . . . [After the second officer arrived, the first officer
conducted a walk-around dog sniff search upon which] [t]he dog alerted to
the presence of drugs . . . . All told, seven or eight minutes had elapsed from
the time . . . [of issuance of] the written warning until the dog indicated the
presence of drugs. A [subsequent] search of the vehicle [yielded] a large bag
of methamphetamine.

Rodriguez, 575 U.S. at 352, 135 S. Ct. at 1613 (internal punctuation and citations omitted).

On subsequent appeal, the United States Court of Appeals affirmed the resulting drug

possession conviction on the stated ground that the additional 7-8 minute delay for the drug

dog sniff was only a “de minimis intrusion” which did not unreasonably exceed or prolong

the scope of the lawful purpose of the unrelated traffic stop under the investigative Terry

stop exception. Rodriguez, 575 U.S. at 353, 135 S. Ct. at 1614 (emphasis original).14

¶38 On certiorari, however, the Supreme Court rejected the government’s de minimis

intrusion theory of Fourth Amendment reasonableness and reversed. Rodriguez, 575 U.S.

at 354-57, 135 S. Ct. at 1614-16. The Court held that, in contrast to the “ordinary” traffic

safety and enforcement “inquiries” justified as a “routine” incident of most traffic stops

(i.e., brief checks for outstanding wants/warrants, driver’s license and vehicle registration

14
Under the Fourth Amendment, an exterior dog “sniff test” around a person, vehicle, or container
in a public place by a trained drug-detection dog is not a constitutional “search” requiring probable
cause or particularized suspicion of criminal activity because it constitutes only a brief and
minimal intrusion on any individual privacy interest in those areas. City of Indianapolis v.
Edmond, 531 U.S. 32, 52-53, 121 S. Ct. 447, 460 (2000) (Rehnquist, C.J., dissenting) (citing
United States v. Place, 462 U.S. 696, 706-07, 103 S. Ct. 2637, 2644-45 (1983)). However, in
contrast, such dog sniff tests are a constitutional search at least requiring an objectively reasonable
particularized suspicion of the presence of illegal drugs under the greater individual privacy
protection provided by Montana Constitution Article II, Sections 10-11. State v. Tackitt, 2003 MT
81, ¶¶ 20-22 and 31, 315 Mont. 59, 67 P.3d 295 (citing State v. Elison, 2000 MT 288, ¶¶ 49-51,
302 Mont. 228, 14 P.3d 456 (motor vehicle occupants have reasonable expectation of privacy
under Montana Constitution Article II, Sections 10-11 regarding items concealed from view
“behind or underneath seats, in trunks or glove boxes, or [by] other methods”)).

37
status, and stolen/missing vehicle reports), other “measure[s] aimed at detecting evidence

of ordinary criminal [activity]” unrelated to the constitutional justification for the stop

(such as illegal drug activity) “lack[] the same close connection to roadway safety as the

ordinary inquiries,” and are thus “not fairly characterized as part of the officer’s traffic

mission” that justified the initial traffic enforcement stop. Rodriguez, 575 U.S. at 355-56,

135 S. Ct. at 1615-16. Noting the Circuit Court’s reliance on Pennsylvania v. Mimms, 434

U.S. 106, 110-11, 98 S. Ct. 330, 333 (1977) (government’s “legitimate and weighty”

interest in officer safety outweighs the de minimis additional intrusion of requiring a driver

already lawfully stopped to exit the vehicle), the Supreme Court noted that:

[u]nlike a general interest in criminal enforcement, . . . the government[]
officer safety interest [recognized in Mimms] stems from the mission of the
stop itself. [Because] [t]raffic stops are especially fraught with danger to
police officers, . . . an officer may need to take certain negligibly
burdensome precautions in order to complete his mission safely[,] . . . [such
as criminal record and outstanding warrant checks]. On-scene investigation
into other crimes, however, detours from that mission. So too do safety
precautions taken in order to facilitate such detours. Thus, even assuming
that the imposition here was no more intrusive than the exit order in Mimms,
the dog sniff could not be justified on the same basis. Highway and officer
safety are interests different in kind from the Government’s endeavor to
detect crime in general or drug trafficking in particular.

Rodriguez, 575 U.S. at 356-57, 135 S. Ct. at 1616 (internal punctuation and citations

omitted—emphasis added).

¶39 Further instructive here, the Supreme Court similarly rejected the government’s

argument that it is constitutionally reasonably for an officer to “incrementally prolong a

stop” to investigate an unrelated matter “[as] long as the officer is reasonably diligent in

pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains

38
reasonable in relation to the duration of other traffic stops involving similar

circumstances.” Rodriguez, 575 U.S. at 357, 135 S. Ct. at 1616. The Court reasoned that:

[t]he Government’s argument, in effect, is that by completing all traffic-
related tasks expeditiously, an officer can earn bonus time to pursue an
unrelated criminal investigation. . . . The reasonableness of a seizure,
however, depends on what the police in fact do. . . . [T]he Government
acknowledges that an officer always has to be reasonably diligent. . . . How
could diligence be gauged other than by noting what the officer actually did
and how he did it? If an officer can complete traffic-based inquiries
expeditiously, then that is the amount of time reasonably required to
complete the stop’s mission. . . . [We] reiterate today[] [that] a traffic stop
prolonged beyond that point is unlawful. The critical question, then, is not
whether the [unrelated investigation] occurs before or after the officer issues
a ticket [related to the reason for the stop], . . . but whether conducting [the
unrelated investigation] prolongs—i.e., adds time to—the stop.

Rodriguez, 575 U.S. at 357, 135 S. Ct. at 1616 (internal punctuation and citations omitted—

emphasis added).

¶40 Similarly, in Zeimer, we held that an investigating deputy sheriff unlawfully

prolonged an initially valid DUI-based traffic stop when, instead of diligently proceeding

to standard field sobriety testing to attempt to confirm or dispel the initial particularized

suspicion that justified the stop, deputies extensively questioned the out-of-town driver at

length for the purpose of investigating and attempting to develop or confirm their only

generalized suspicion or hunch that he may or was about to be involved in an illegal drug

transaction based on what they viewed as his suspicious overnight stay in his vehicle at an

interstate truck stop and his odd and deceptive post-stop answers to their questions.

Zeimer, ¶¶ 5-6, 8-12, 37, 40, 44, 46-47, and 50-52. The deputies based their only

generalized suspicion or hunch on the defendant’s “odd, inconsistent, and seemingly

deceptive account of” his prior activities and his presence at the truck stop, the primary

39
deputy’s perception that he “seemed nervous” and “suspiciously kept looking away and

back at his truck for long periods of time” during questioning, and prior knowledge of his

involvement in some other unspecified case. Zeimer, ¶¶ 37, 44, and 47. While we

recognized “that otherwise perfectly legal or innocuous conduct or behavior may be a

contributing factor in giving rise to a particularized suspicion of criminal activity in

conjunction with other specific indicia of criminal activity,” we further recognized,

however, that “merely inconsistent accounts of a person’s conduct or presence, nervous or

defensive behavior when monitored or confronted by police, or the desire to avoid or evade

oncoming police are insufficient [alone] to support a reasonable particularized suspicion

of . . . criminal activity” without some more specific objective indicia “of some particular

criminal activity.” Zeimer, ¶ 50 (emphasis added—citations omitted).

¶41 Similarly, in State v. Carrywater, 2022 MT 131, 409 Mont. 194, 512 P.3d 1180, an

experienced deputy sheriff’s sergeant (deputy) saw a man he recognized pull into the

parking lot of a Harlem, Montana, casino around 1:00 a.m. and walk in with his male

passenger. Carrywater, ¶ 2. While waiting for dispatch confirmation of his belief that the

driver (Grant) was the subject of an active Fort Belknap Indian Reservation warrant and

did not have a valid driver’s license, the deputy saw the two men shortly leave the casino

with a woman, get into the car, and drive to a nearby ATM. Carrywater, ¶¶ 2-3. After

briefly losing sight of the vehicle as he turned around to follow, the deputy saw that the

vehicle was no longer at the ATM, and then later saw it turn onto U.S. Highway 2 toward

the Reservation. Carrywater, ¶ 3. The deputy immediately pursued and stopped the

vehicle based on his belief that the driver (Grant) was the subject of an arrest warrant and

40
driving without a valid license. Carrywater, ¶¶ 3, 16, and 22. However, before the deputy

exited his patrol car, dispatch advised that the Reservation warrant was not extraditable

and, on his approach on foot, the deputy found to his surprise that the former passenger

(Carrywater), not Grant, was driving the car. Carrywater, ¶¶ 4 and 25. On further

investigation, he then discovered that Grant’s car was not insured, but that vehicle

registration was valid, and Carrywater had a valid driver’s license. Carrywater, ¶¶ 3-4.

¶42 Instead of proceeding to cite or arrest Grant for earlier driving with a suspended

license, and citing either or both for driving without proof of liability insurance, the deputy

detoured into an illegal drug investigation based on the fact that the men had suspiciously

switched drivers, his awareness of “prior drug-related concerns” regarding both men from

when he was a tribal police officer more than two years earlier, the suspicious nature of

their late night in-and-out trip to the casino, his perceptions that both men appeared

“nervous, fidgety, [and] a little uneasy,” and his view that Carrywater’s protruding “lower

jaw” was a possible indicator of prior methamphetamine use. Carrywater, ¶¶ 5-6 and 21

(internal punctuation omitted).15 Based on his undeveloped suspicion that the men were

possibly involved in an illegal drug transaction, he returned to the vehicle, separated the

men from each other, and separately questioned them about “where they were coming from

and where they were going” and the purpose of their late night 60-mile round trip between

15
Having apparently abandoned the traffic enforcement purpose that justified the stop, the deputy
testified at hearing that his only “reason for remaining on the stop” after confirming that
Carrywater had a valid driver’s license was because the men had earlier “switched drivers” and
the other asserted facts, supra, that were “possibly indicative” of illegal drug activity. See
Carrywater, ¶¶ 4-5 (internal punctuation omitted).

41
Hays, Montana, and the Harlem casino. Carrywater, ¶ 6 (internal punctuation omitted).

Finding their accounts suspicious and inconsistent with his observations, the deputy asked

one of them “if there were any drugs, drug paraphernalia, or weapons in the vehicle.”

Carrywater, ¶¶ 6-7. After one denied the presence of any weapon, but the other said there

was a gun in the car, the deputy stated that he wanted “to make sure nothing’s being

trafficked” and that “the pistol’s legit,” and then asked for and obtained Grant’s consent to

search his vehicle. Carrywater, ¶¶ 7 and 21. Subsequent non-consensual pat-down

searches of both men, and a consensual vehicle search, yielded $3,000 in cash, a small bag

of marijuana, a bag of methamphetamine, a handful of pills, and a marijuana pipe.

Carrywater, ¶¶ 7-8.

¶43 In reversing the district court denial of a motion to suppress the drug evidence and

Carrywater’s resulting drug offense conviction, we held that the facts and resulting

inferences articulated by the deputy were insufficient to establish the “particularized

suspicion” of illegal drug activity required to justify expansion of the scope and duration

of the initially valid stop for investigation of his undeveloped suspicion of illegal drug

activity. Carrywater, ¶¶ 24 and 26-27. We held that the criminal inferences drawn by the

deputy based on his articulated facts were “not the building blocks of particularized

suspicion” of illegal drug activity, but merely “inferences based on inarticulable hunches

attaching nefariousness to conduct entirely consistent with a law-abiding person” and

lacking in any articulated facts that were “objectively” indicative of the suspected illegal

activity. Carrywater, ¶¶ 26-27 (internal punctuation and citations omitted).

42
¶44 In State v. Wilson, 2018 MT 268, 393 Mont. 238, 430 P.3d 77, an MHP trooper

stopped on the eastbound shoulder of U.S. Highway 2 in Blaine County, Montana, saw an

oncoming eastbound car with a North Dakota plate pass by and the occupants

“suspicious[ly]” “look[] away” immediately as they passed by. Wilson, ¶ 3. As in this

case, the trooper was highly experienced with specialized illegal drug interdiction training

and experience. Wilson, ¶ 42 (Rice, J., dissenting). As in this case, the trooper stopped the

vehicle on a highway that spanned Montana from east-to-west upon observing a

non-drug-related traffic offense (expired North Dakota vehicle registration). Wilson, ¶ 3.

As in this case, the trooper asserted the U.S. Highway across Montana was a “known drug

trafficking corridor.” Wilson, ¶ 13. Like here, the trooper became further suspicious of

illegal drug activity because: (1) the men were traveling across Montana between Idaho

and North Dakota; (2) the driver supposedly was returning to North Dakota after getting

married in Idaho, but oddly without his new wife; (3) the trooper’s perception that the

newlywed’s explanation as to why he was traveling without his wife was odd or suspicious;

(4) the driver was “suspicious[ly]” driving a car borrowed from a man he had known for

less than 6 months with the driver surprised to learn that the registration was expired;

(5) the vehicle had a “really weird” sticker on the rear window indicating that it may

previously have been a rental car; (6) both men appeared to be extraordinarily nervous, the

driver was “trembling” and “breathing heavily,” and both were “avoiding eye contact;”

(7) the interior of the vehicle appeared “somewhat lived in” and messy with “old food

items” lying about; (8) a suitcase was visible in the back seat; (9) the driver “odd[ly]”

“placed an unlit cigarette in[to] his mouth” as he walked back to the patrol car as directed

43
by the trooper; and (10) the driver “nervous[ly]” asked if he could get out of the patrol car

and smoke while the trooper returned to the vehicle to ask the passenger to assist in locating

an insurance card. Wilson, ¶¶ 4-9, 13, and 16. The passenger “corroborated” the driver’s

account of the trip details and why his new wife was separately returning to North Dakota,

but criminal history checks and further questioning revealed that the driver had a history

of prior drug charges and had most recently been on probation “for marijuana” two years

prior. Wilson, ¶¶ 9-10. After exiting his patrol car and summoning a K-9 drug dog unit to

the scene, the trooper returned and issued the driver two traffic citations (no insurance and

expired vehicle registration) for violations discovered after the initial stop, and thus

indicated that he was “good to go.” Wilson, ¶¶ 11-13.

¶45 Like here, however, before the driver could get out of the patrol car, the trooper

began questioning him further as to whether there were any drugs in the car (answer: no),

for consent to search the vehicle (answer: no), and whether he would consent to an exterior

drug dog sniff search around the vehicle (answer: no). Wilson, ¶¶ 13-14. Finding that all

of the above-referenced circumstances were “compounding indicators” that illegal drugs

were likely present in the car, the trooper detained the vehicle and, upon arrival of the K-9

unit, authorized an exterior drug dog sniff search which “alert[ed]” to the presence of illegal

drugs in the vehicle. Wilson, ¶¶ 15 and 34 (internal punctuation omitted). Upon obtaining

a search warrant, the trooper ultimately found two bags of marijuana in the trunk of the car

(262.2 grams) and a small bag of marijuana and pipe in the center console. Wilson, ¶ 18.

In subsequently reversing the district court’s denial of a motion to suppress, we again

recognized that, “[a]lthough a driver’s post-stop behavior may, in combination with more

44
objectively incriminating behavior,” contribute to an objectively reasonable particularized

suspicion of criminal activity, the “compounding indicators” cited by the trooper were

insufficient bases upon which to prolong the traffic stop for an unrelated drug investigation.

Wilson, ¶¶ 34-35 (internal punctuation omitted—emphasis added). We noted that

conspicuously lacking in the trooper’s articulated factual observation and resulting

inferences was any objective indication of the suspected presence of illegal drugs in the

vehicle beyond nefarious inferences drawn by the trooper from the perfectly innocuous and

legal conduct and circumstances articulated. Wilson, ¶¶ 34-35. Regardless of the nefarious

inferences resulting from the trooper’s specialized drug interdiction training and

experience, we held that the articulated facts (“messy vehicle,” extraordinarily nervous

driver, odd or suspicious travel details, suspicious use of a borrowed vehicle, nervous use

of unlit cigarette and desire to smoke, and “daylight use of a Montana highway”

characterized as a “known drug trafficking corridor”) were sufficient for no more than a

generalized subjective “hunch” that illegal drugs may be present in the vehicle. Wilson,

¶¶ 13 and 34-35. We thus held that the trooper unlawfully expanded the scope and duration

of the unrelated traffic stop beyond that reasonably necessary to complete its lawful

purpose with reasonable diligence, i.e., the issuance of citations for the predicate traffic

violations. See Wilson, ¶¶ 36-37 (citing § 46-5-403, MCA).

C. Analogous Noli Traffic Stop and Detour Into Illegal Drug Investigation.

¶46 Here, as in Rodriguez, Zeimer, Carrywater, and Wilson, the Trooper lawfully

stopped Noli upon observation of a simple traffic code violation (left lane violation). As

in Rodriguez, Zeimer, and Wilson, the lawful purpose and mission of the stop was thus

45
limited to checking for proof of insurance, conducting brief routine database checks (i.e.,

checks for driver’s license and vehicle registration status and any law enforcement

wants/warrants or stolen/missing vehicle reports), and issuance of a corresponding

citation(s) or warning(s) on the subject traffic violation, and any related violation revealed

by those routine checks.16 Absent incidental observation or discovery of facts, and

objectively reasonable officer inferences, sufficient for an objectively reasonable

particularized suspicion of other criminal activity made in the course of performing and

completing those tasks in a reasonably diligent manner without unnecessary delay, the

lawful scope and duration of the traffic violation stop was limited to that necessary to

perform and complete those tasks in a reasonably diligent manner without unnecessary

delay. See Zeimer, ¶¶ 31 and 51-52; Carrywater, ¶ 27; Wilson, ¶¶ 37-38 (citing § 46-5-403,

MCA); Hoover, ¶ 23 (citing Hulse, ¶¶ 40-42); Meza, ¶ 23; Rodriguez, 575 U.S. at 354 and

357, 135 S. Ct. at 1614 and 1616; Johnson, 555 U.S. at 333, 129 S. Ct. at 788; Sharpe, 470

16
Subject to the broader protections of Montana Constitution Article II, Section 10, as may be
applicable in a particular case, we recognize that “[t]raffic stops can be initiated based on probable
cause or reasonable suspicion,” and that “a stop based on probable cause affords an officer
considerably more leeway” to make a “warrantless arrest of the driver” for the traffic violation,
and then warrantless searches of the driver and vehicle under the search incident to arrest
exceptions discussed in Arizona v. Gant, 556 U.S. 332, 335 and 339-44, 129 S. Ct. 1710, 1714 and
1716-19 (2009) (citations omitted). Rodriguez, 575 U.S. at 365-66, 135 S. Ct. at 1621 (Thomas,
J., dissenting). Compare Collins v. Virginia, 584 U.S. ___, ___, 138 S. Ct. 1663, 1669-70 (2018)
(noting multiple justifications for automobile search exception, authorizing warrantless search of
automobile regardless of arrest upon probable cause that vehicle contains illegal contraband, as
recognized in Carroll v. United States, 267 U.S. 132, 153-62, 45 S. Ct. 280, 285-88 (1925), and
California v. Carney, 471 U.S. 386, 392-94, 105 S. Ct. 2066, 2069-71 (1985)). Here, however,
the State does not assert that the Trooper’s articulated observation of probable cause, beyond mere
particularized suspicion, of the subject traffic violation afforded him any additional constitutional
leeway to expand or prolong the scope or duration of the stop to subject Noli, or her passenger, to
a series of unrelated questions that might possibly be “indicators” of unrelated illegal drug activity.

46
U.S. at 686-87, 105 S. Ct. at 1575-76; Royer, 460 U.S. at 500, 103 S. Ct. at 1325-26;

Brignoni-Ponce, 422 U.S. at 882, 95 S. Ct. at 2580; Terry, 392 U.S. at 18-20, 88 S. Ct. at

1878-79. Those constitutional requirements and limitations thus limited the lawful scope

and duration of the initial traffic violation stop regardless of the State’s generally

compelling interest in the detection or investigation of unrelated illegal drug activity on

Montana highways, the Trooper’s purported desire to engage subjects in cordial

conversation for the purpose of making it a better experience, or when he actually got

around to conducting the routine database checks and issuing the subject traffic citation or

warning. See Zeimer, ¶¶ 31 and 51-52; Carrywater, ¶ 27; Wilson, ¶¶ 37-38 (citing

§ 46-5-403, MCA); Hoover, ¶ 23 (citing Hulse, ¶¶ 40-42); Meza, ¶ 23; Rodriguez, 575 U.S.

at 354 and 357, 135 S. Ct. at 1614 and 1616; Johnson, 555 U.S. at 333, 129 S. Ct. at 788;

Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76; Royer, 460 U.S. at 500, 103 S. Ct. at

1325-26; Mincey v. Arizona, 437 U.S. 385, 390 and 393, 98 S. Ct. 2408, 2412 and 2414

(1978); Brignoni-Ponce, 422 U.S. at 882, 95 S. Ct. at 2580; Terry, 392 U.S. at 18-20, 88

S. Ct. at 1878-79. Any measurable time taken by the Trooper for unrelated investigation

or attempt to detect or develop facts sufficient for particularized suspicion of illegal drug

activity was thus unlawful. See Rodriguez, 575 U.S. at 354 and 357, 135 S. Ct. at 1614

and 1616 (internal citations omitted). See similarly Zeimer, ¶¶ 31 and 51-52; Carrywater,

¶ 27; Wilson, ¶¶ 37-38 (citing § 46-5-403, MCA); Hoover, ¶ 23 (citing Hulse, ¶¶ 40-42);

Meza, ¶ 23; Sharpe, 470 U.S. at 686-87, 105 S. Ct. at 1575-76; Royer, 460 U.S. at 500, 103

S. Ct. at 1325-26; Brignoni-Ponce, 422 U.S. at 882, 95 S. Ct. at 2580; Terry, 392 U.S. at

18-20, 88 S. Ct. at 1878-79.

47
¶47 From the moment that Noli produced her driver’s license, the rental documentation,

and compliantly joined him in his patrol car less than a minute into the stop, the Trooper,

in accordance with his specialized illegal drug interdiction training and experience,

detoured from the lawful traffic enforcement purpose and mission of the stop to investigate

whether she may be transporting illegal drugs in her rented mini-van. After only brief

pauses to complete routine database checks ordinarily incident to traffic stops, and then

issue the contemplated left lane violation warning, the Trooper detoured from the lawful

purpose and mission of the stop to subject Noli to multiple rounds of unrelated questioning,

and then walk back to the mini-van to similarly question her isolated passenger, all for the

manifest and acknowledged purpose of trying to observe and develop facts sufficient for a

particularized suspicion of unrelated illegal drug activity. Despite the Trooper’s hearing

characterization of his unrelated patrol car questioning as merely “general conversation”

to pass time while he completed his traffic violation enforcement action, Noli was not

voluntarily sitting in his patrol car to engage in general conversation. She was sitting there

at the direction of a uniformed law enforcement officer, manifestly not free to leave, and

for the narrow purpose of receiving a traffic violation warning after he ran routine traffic

stop database checks.17 The record thus clearly manifests that, even if, arguendo, we

17
Trooper Kilpela was recently engaged in similar “cordial conversation” as a means to detain a
Vietnamese man suspected of being involved in illegal drug activity based on the Trooper’s
characterization of his behavior as extraordinarily nervous upon encountering law enforcement
officers in a roadside gas station store, the man’s mispronunciation of his purported destination
city (Butte), and his prior involvement in illegal drug trafficking along the same highway. State
v. Pham, 2021 MT 270, ¶¶ 4, 6, and 8-9, 406 Mont. 109, 497 P.3d 217. We held, however, that
those articulated facts, and the Trooper’s resulting nefarious inferences of illegal drug activity,
were insufficient alone to establish an objectively reasonable particularized suspicion that the man
was in fact then involved in illegal drug activity as suspected. Pham, ¶¶ 22-23 (noting that, while
48
agreed that he had particularized suspicion of illegal drug activity upon his return to the

patrol car after questioning Noli’s passenger, the Trooper had already unnecessarily and

measurably delayed completion of the lawful purpose and mission of the traffic violation

stop for 9-10 minutes for extensive questioning as part of an unrelated illegal drug

investigation. Even then, however, as manifest by his even more pointed final round of

questioning and cajoling of Noli upon return to the patrol car, the Trooper was not able to

develop any objective indication, beyond his subjective nefarious inferences drawn from

perfectly innocuous and legal behavior and circumstances, that Noli was involved in illegal

activity until several minutes later, when he was finally able to induce her to equivocally

admit that there might be a marijuana “joint” or “open beer” in the mini-van.18 Thus, as in

Rodriguez, Zeimer, Carrywater, and Wilson, the Trooper unlawfully detoured and

measurably extended the scope and duration of the traffic violation enforcement purpose

and mission of the stop to conduct a wholly unrelated illegal drug investigation without an

objectively reasonable particularized suspicion that Noli was transporting illegal drugs as

suspected.

¶48 Citing Zeimer, ¶ 45, the State asserts that the Trooper’s unrelated patrol car

questioning of Noli was nonetheless lawful because unrelated questioning regarding other

“[s]everal lawful instruments exist for officers to investigate potential crimes,” “use of [those]
devices without adequate cause” allows police “to target [citizens] in an arbitrary manner” and
“risk[s] treating [them] as second-class citizens”—internal punctuation and citation omitted).
18
As manifest in the foregoing patrol car colloquy, the Trooper induced her to equivocally admit
that there might be a marijuana “joint” or “open beer” in the mini-van by telling her that he would
not be concerned about a “joint,” “a little bit of weed,” “or something like that.”

49
criminal activity is permissible as long as it does not substantially prolong the duration or

completion of the purpose of the initial lawful stop. Zeimer recognized that:

[u]pon a valid investigative traffic stop, unrelated questioning, including
requests for proof of identification and checks for warrants, driver’s license,
vehicle registration, and insurance, inter alia, do not exceed the purpose, and
reasonably-related scope and duration of the investigation of the underlying
purpose of the stop as long as the unrelated questioning or checking does not
substantially prolong the duration of the stop beyond that reasonably
necessary to diligently dispel or exhaust the predicate particularized
suspicion of criminal activity that justified the stop.

Zeimer, ¶ 45 (citing State v. Laster, 2021 MT 269, ¶ 49, 406 Mont. 60, 497 P.3d 224, and

Rodriguez, 575 U.S. at 354-57, 135 S. Ct. at 1614-16—internal punctuation omitted).

However, Zeimer, ¶ 45, was underpinned by Laster, ¶ 49, where we recognized that a single

“incidental question about an unrelated matter, or request for consent to conduct an

unrelated search” “neither unlawfully expands the permissible duration or scope” of an

initially lawful stop, “nor effects a new seizure of the subject, as long as the unrelated

question or request itself does not substantially prolong the duration of the stop.” Laster,

¶ 49 (citations omitted—emphasis added). Here, the Trooper’s extensive questioning of

Noli regarding unrelated matters far exceeded in scope and duration the single incidental

request for consent to search at issue in Laster.

¶49 Moreover, the cited language from Zeimer, ¶ 45, expressly referred to the type of

routine checks ordinarily associated with traffic stops (e.g., “checks for warrants, driver’s

license, vehicle registration, and insurance, inter alia”)—not the extensive unrelated drug

investigation questioning later held in Zeimer to have unlawfully extended the scope and

duration of the initially justified DUI stop regarding other criminal activity. Zeimer, ¶¶ 45

50
and 51-52. The cited language from Zeimer was also underpinned by Rodriguez which

clearly distinguished between the type of permissible routine checks ordinarily associated

with traffic stops from the investigation of unrelated criminal activity that is impermissible

without independent particularized suspicion. Rodriguez, 575 U.S. at 354-57, 135 S. Ct.

at 1614-16. Zeimer thus provides no support for the State’s proposition here.

¶50 In response to defense criticism of the Trooper’s asserted officer safety justification

for directing Noli to join him in his vehicle as a ruse to isolate her for investigation of

unrelated drug activity, the State cites State v. Bailey, 2021 MT 157, ¶ 37, 404 Mont. 384,

489 P.3d 889 (citing Mimms, 434 U.S. at 111, 98 S. Ct. at 333 (holding that the

government’s “legitimate and weighty” interest in officer safety outweighs the de minimis

additional intrusion of requiring a driver already lawfully stopped to exit the vehicle)), as

“instructive” authority justifying this practice. In Bailey, on a dark and cold winter night

on a snow-packed and rutted remote two-lane road, an investigating MHP trooper

responded to a single-vehicle roll-over accident report, in which the caller reported seeing

vehicle damage and beer cans strewn about the scene, the trooper observed the damaged

vehicle attempting to leave the scene, and noted circumstances inconsistent with the

driver’s subsequent account of the accident. Bailey, ¶¶ 2-5. On appeal, we recognized that

he initially had sufficient particularized suspicion to justify the initial traffic stop to

investigate and address an apparent traffic code violation and possible DUI. See Bailey,

¶¶ 6 and 36. We recognized further that directing the driver to temporarily sit in the patrol

car for questioning regarding the accident and possible DUI was a reasonable restriction of

his liberty within the lawful scope and purpose of the stop based on the trooper’s

51
particularized suspicion regarding those matters, and his secondary desire to get himself

and the driver out of the cold into an environment more conducive to those purposes. See

Bailey, ¶¶ 6, 25-26, 29, and 36-37 (citing Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614

(noting officer’s mission during traffic stop is to address the reason that warranted the stop

and “attend to related safety concerns”), and Mimms, 434 U.S. at 111, 98 S. Ct. at 333

(holding that the government’s “legitimate and weighty” interest in officer safety

outweighs the de minimis additional intrusion of requiring a driver already lawfully stopped

to exit the vehicle)).

¶51 However, unlike here, the distinct focus of our pertinent holding in Bailey was on

whether the demand for the driver to sit in the locked backseat area of the patrol car for

questioning regarding the lawful purposes of the stop was effectively, or tantamount to, a

formal arrest, thus rendering the patrol car questioning an un-Mirandized custodial

interrogation. See Bailey, ¶¶ 32-39. While we implicitly recognized the validity of the

officer/driver safety justification recognized in Rodriguez, 575 U.S. at 356, 135 S. Ct. at

1615-16, and Mimms, 434 U.S. at 111, 98 S. Ct. at 333, supra, for directing the subject of

a lawful stop to exit the subject vehicle, and even join the officer in the patrol car, for

questioning related to the lawful purpose of the stop, we did so under the particular factual

circumstances at issue in that case—in the context of a valid investigative stop on

particularized suspicion of a traffic violation and DUI which justified related investigative

questioning of the driver, and articulated officer safety concerns regarding outside,

roadside questioning of the driver under the described inclement weather and road

conditions. See Bailey, ¶¶ 2-5 and 37-39.

52
¶52 In contrast, here, the patrol car video clearly manifests that the subject stop occurred

in only sparse traffic on a bright, sunny, and clear February day where the Trooper stopped

Noli on a bare, dry, lined, and paved shoulder on a relatively remote segment of Interstate

94 between Terry and Glendive, Montana. Other than a passing reference to the safety of

himself and Noli in response to the prosecutor’s leading question at hearing, the Trooper

offered no particular safety justification for directing Noli to join him in his patrol car.

Moreover, the patrol car dash cam recording and hearing transcript clearly manifest that,

unlike in Bailey, the Trooper did not ask Noli to join him for patrol car questioning

regarding the lawful purpose of the lane violation stop, but for the purpose of engaging her

in unrelated questioning or “conversation” intended to reveal facts that might eventually

support a particularized suspicion of illegal drug activity. Moreover, aside from the point

of law that purported “safety precautions taken in order to facilitate” unrelated investigative

“detours” from the lawful purpose of a traffic stop exceed the lawful scope and duration of

the purpose or “mission” that justified the stop, Rodriguez, 575 U.S. at 356-57, 135 S. Ct.

at 1616, Noli does not assert that the Trooper unlawfully directed her to sit in his patrol car

regarding the stated purpose of the demand, i.e., to run standard database checks ordinarily

associated with traffic stops and issue her a warning on the traffic violation. Unlike in

Bailey, the issue here is whether what occurred after Noli sat in the patrol car unlawfully

prolonged the stop for investigation of an unrelated matter. Thus, neither Bailey, nor

Mimms, are instructive or of any other consequence here.

¶53 Without analysis or affirmative endorsement, the State further puts forth the District

Court’s reasoning that “the facts in this case” are more analogous “to those in State v.

53
Hurlbert, 2009 MT 221, 351 Mont. 316, 211 P.3d 869, and State v. Estes, 2017 MT 226,

388 Mont. 491, 403 P.3d 1249, than those in Wilson,” supra. The District Court noted

Hurlbert and Estes as examples of cases where we have affirmed lower court findings that

nefarious illegal drug activity inferences drawn by MHP drug interdiction officers from

daisy-chained collections of post-stop observations of lawful behavior and circumstances

were sufficient to support a particularized suspicion of illegal drug activity. See Hurlbert,

¶¶ 7-8 and 22-23 (affirming district court finding of particularized suspicion of illegal drug

activity where driver stopped for speeding appeared “nervous,” was “definitely shaking,”

“sweating quite a bit,” “constantly moving around” and “uneasy,” “rapidly smoking a

cigarette,” “would open up his wallet and just stare at it,” and “had been visiting his parents

in Bozeman” but “could not provide an address” for their home—internal punctuation

omitted); Estes, ¶¶ 3, 18, and 20 (affirming district court finding of particularized suspicion

of illegal drug activity where driver stopped for expired North Dakota vehicle registration

did not own the vehicle, was traveling alone, appeared “inordinately nervous” and “visibly

shaking” disproportionate to expired registration violation, had “food wrappers and energy

drink bottles strewn around” the vehicle indicating that he “wanted to get from point A to

point B quickly,” and had “numerous air fresheners” in the vehicle which are “often used

to mask illicit drug odors”).

¶54 However, we have twice distinguished Estes as having at least two objective indicia

of illegal drug activity in addition to the increasingly common laundry list, or MHP

profiling, of otherwise innocuous and perfectly legal post-stop behavior and circumstances

asserted as contributing “indicators” of illegal drug trafficking activity (such as

54
messy/“hard travel,” extraordinary nervousness, eye contact avoidance, odd travel details,

and other lawful behavior generally perceived as suspicious, deceptive, or evasive): a

driver traveling alone with 2 cell phones and cash clearly visible on the center console with

an uncommon number of vehicle air fresheners in the vehicle. See Carrywater, ¶¶ 20 and

26 (citing Estes, ¶¶ 3 and 18); Wilson, ¶¶ 29-31 and 35 (citing Estes, ¶¶ 18-20). In

comparison to the facts at issue in Zeimer, Carrywater, and Wilson, supra, those

distinguishing facts in Estes were at least minimally sufficient as at least some objective

indicia of illegal drug activity due to the common illegal use of such articles in

combination, and in contrast to their uncommon combined occurrence in ordinary life.19

¶55 As to Hurlbert, we recognize that our analysis, perhaps anomalously, was

completely lacking in identification of any objective indicia of illegal drug activity beyond

subjective officer inference assigning criminal intent or affect to perfectly innocuous and

legal behavior and circumstances. See Hurlbert, ¶¶ 22-23. We have nonetheless more

consistently recognized that, while “[s]imply attaching inferences of nefariousness” to a

19
See similarly State v. Roy, 2013 MT 51, ¶¶ 17-18, 369 Mont. 173, 296 P.3d 1169 (post-stop
observations by highly experienced illegal drug interdiction officer of indications of “a long road
trip, such as clothing, luggage, and garbage strewn throughout the vehicle,” and “a heavy odor of
vehicle deodorizer” commonly used as marijuana masking agent sufficient for objectively
reasonable particularized suspicion of illegal marijuana possession where accompanied by police-
corroborated informant tip that similar vehicle with particular sticker in window was enroute to
Billings on Interstate 90 to arrive around 10:00 p.m.); State v. McMaster, 2008 MT 294, ¶¶ 15-23,
345 Mont. 408, 191 P.3d 443 (a series of odd but innocent actions at Town Pump store sufficient
to contribute to a particularized suspicion of illegal drug activity in conjunction with articulated
police knowledge that subject was a major out-of-town drug dealer, the store “was a location
known for drug deals,” experienced officer observations of defendant’s “erratic driving” like he
was looking to meet somebody outside of town, multiple individuals outside their vehicles
“rubber-necking” at or for police before exchanging a box).

55
string of otherwise innocuous and legal conduct, behaviors and circumstances may be

sufficient to support a generalized, undeveloped, inchoate, or subjective suspicion or

hunch, it is insufficient by definition to support an objective particularized suspicion of any

particular criminal activity “[w]hen the only basis for suspecting a specific person of

wrongdoing is inferences that could be drawn from the conduct of virtually any law-abiding

person.” Reeves, ¶ 13; see also, e.g., Zeimer, Carrywater, Wilson, and Estes, supra.20

Further, here, not even the Trooper asserted that he had particularized suspicion of illegal

drug transportation until after he returned to his patrol car after questioning Noli’s

girlfriend. By that time, regardless of the fact that he had yet to issue the contemplated left

lane violation warning to Noli, he had extensively questioned her and her passenger for at

20
See similarly State v. Harning, 2022 MT 61, ¶¶ 2-9, 19-26, and 28-29, 408 Mont. 140, 507 P.3d
145 (“sealed cardboard boxes” in truck bed, smell of marijuana smoke, admission to prior use of
marijuana in town 80 miles away without indication of impairment, suspicious refusal to roll
window down more than 3-4 inches suggesting “evasive” behavior and attempt to hide something,
appearance of extraordinary nervousness and discomfort, “hemm[ing] and haw[ing],” pensive
thought before answering questions and careful picking of words “not normal of someone being
honest,” and that people stopped for traffic violations “don’t act like that” insufficient for
particularized suspicion that vehicle contained illegal drugs absent articulation of some other
“objective” indicia that illegal drugs were present in vehicle); State v. Broken Rope, 278 Mont.
427, 428-33, 925 P.2d 1157, 1157-60 (1996) (subjects lingering and “moving around in [a
convenience] store’s parking lot” on police arrival, “staring at” police, appearing “nervous” when
watched by police, and using pay telephone not “inherently suspicious” or objectively indicative
of illegal drug activity—“many law-abiding citizens may well be nervous” when police are
watching “their activities”); United States v. Santiago, 310 F.3d 336, 337-39 and 342 (5th Cir.
2002) (shaking hands and “extreme nervousness” on Louisiana Interstate 20 traffic violation stop,
odd and conflicting accounts of reason for the trip, apparent difficulty in recalling name of
accompanying woman purported to be his wife, vehicle registered to driver and a different woman
purported to be ex-wife, driver resided near a Mexican border location known to officer as a
methamphetamine source, Atlanta destination was known methamphetamine destination point,
and resulting officer suspicion that driver and female passenger were “trying to conceal
something” and were in possession of illegal drugs insufficient for objective particularized
suspicion of illegal drug activity).

56
least 9-10 minutes about unrelated matters manifestly and admittedly related to an illegal

drug activity investigation. As clearly proscribed in Rodriguez, the Trooper substantively

detoured from and measurably prolonged the stop beyond the lawful purpose and mission

that justified it, even before the point at which he asserted that he developed sufficient

information to support a particularized suspicion that illegal drugs may be present in the

mini-van. No similar delay was at issue in Hurlbert. Hurlbert is thus clearly

distinguishable and of no consequence here.

¶56 Finally, even if we assume, arguendo, that the Trooper’s extensive questioning

regarding an unrelated drug investigation did not earlier sidetrack and unreasonably expand

and prolong the lane violation traffic stop, his high quality rear-facing dash cam recording

largely contradicts his subjective hearing recollections regarding Noli’s appearance and

behavior. It manifests that, up until after he began more pointedly questioning her about

whether there were any illegal drugs in her vehicle after finally warning her for the lane

violation and telling her she was “good to go,” Noli was calmly sitting in the patrol car

passenger seat, looking forward at oncoming and passing freeway traffic, slightly leaning

on her right elbow at the base of the passenger side window, and with her head at times

resting on the extended fingers of her right hand on her right temple. Aside from an

expression of aggravated impatience on her face, and occasional relocation and

stroking/rubbing of the area on or around her left eyebrow, left side of her face, and the top

of her head, the recording indicates no lack of attention, shortness of breath, accelerated

breathing, excited or extraordinary speech pattern or tone, or other indication of nervous

behavior, much less extremely nervous behavior. Contrary to the Trooper’s hearing

57
characterization, the recording manifests that Noli frequently turned to face him and make

eye contact when speaking to him or he was speaking to her, particularly when he looked

up and at her from making notes or looking at his computer. The recording further

manifests, contrary to the Trooper’s hearing testimony, Noli speaking in a calm, deliberate,

articulate, and thoughtful manner, attentively listening and interactively responding to his

extensive questioning. The recording also manifests that the oft-informal manner of Noli’s

speech, and often incomplete or choppy sentence structure, was no worse than that

exhibited by the Trooper.

¶57 Except for her mispronunciation of “Williston” as “Willington,” uncertainty as to

what other North Dakota communities were near Williston, reliance on Google Maps for

navigation of the apparently unfamiliar route between Las Vegas and Williston, and

occasional thoughtful pauses in answering the Trooper’s questions, the recording manifests

no indication of uncertainty or confusion, whether as to her prior criminal record, her

current or prior employment, whether and where she and her partner intended to stay the

night in Williston, where they were going, why they were going there, when they left Las

Vegas, where they stayed overnight along the way, how long they had been on the road, or

when they planned on leaving Williston to return to Las Vegas. Contrary to the District

Court’s finding that “[she] was unable to identify the location she had stayed the night

before,” the dash cam recording manifests that she told the Trooper that they stayed at a

motel in a “little city” “right before Idaho Falls,” Idaho, before getting up and back on the

road the next morning (i.e., the day of the stop). The recording also clearly manifests that,

contrary to the Trooper’s testimony and District Court findings, Noli was more than able

58
and willing to clearly answer simple questions, compliant and cordial, not confused about

any significant detail, and did not appear to be extremely nervous or under extreme,

“heightened,” or “escalating stress.”

¶58 Further, while the Trooper testified that he found it suspicious that Noli put her arm

down over the rolling papers on the center console as she reached across to hand him her

driver’s license, he admitted under further questioning that he was “not sure” whether she

put her arm down to conceal the rolling papers or merely to “brace” herself as she reached

across the center console. Noli’s statement to the Trooper of their intent to stay overnight

in Williston, North Dakota, and then start driving back to Las Vegas the next day, was not

patently or necessarily inconsistent with her passenger’s statement that they were going

straight there and then right back. At most, the passenger’s statement was vague or

ambiguous in comparison to Noli’s statement, and the Trooper did not ask the passenger

to clarify or elaborate.

¶59 Moreover, the Trooper’s reliance on the asserted fact that drug traffickers often use

rental cars to transport illegal drugs to infer that Noli may have been transporting illegal

drugs did not contradict her perfectly reasonable, uncontradicted, and unchallenged

assertion, as acknowledged by the Trooper, that she used a short term car rental to allow

her and her girlfriend to drive from Las Vegas to North Dakota to bring back two younger

siblings without putting undue mileage on her own car. Nor did the Trooper state at hearing

that he had any particular reason, beyond subjective inference from innocuous facts, to

believe that her statement was not truthful. Nor is the presence of blankets, pillows, and

unspecified and unquantified “trash” in the back seat of Noli’s mini-van necessarily, or

59
even likely, more indicative of drug trafficking related “hard travel,” rather than the simple

and common fact that such items are common to people engaged in long distance highway

travel. Likewise, the presence of cigarette rolling papers acknowledged by the Trooper to

be a legal commodity commonly used for smoking both tobacco and marijuana. While he

testified to smelling a heavy odor of tobacco smoke, and seeing Noli’s girlfriend smoking

a commercial cigarette in the mini-van, he did not smell any marijuana odor or smoke. Nor

did he see or notice any other indicia of marijuana or marijuana use. The State further

made no assertion, much less showing, as to whether or to what extent the possession of

small quantities of marijuana were even then illegal in Nevada, Montana, or other States

traversed by Noli along the way.

¶60 Similarly weak is the asserted probative value of the heavy odor of cigarette smoke

noticeable at the open passenger side window of the mini-van as an “indicator” of the

presence of an illegal quantity of marijuana or other unspecified illegal drug. We have

recognized and accept as true experienced officer testimony that drug traffickers often use

uncommonly large numbers of vehicle air fresheners, or uncommonly strong air freshener

odor, to mask the smell of large quantities of marijuana or other illegal drugs in vehicles.

See Estes and Roy, supra. However, heavy cigarette smoke odor in a vehicle interior is a

different matter. It is irrefutably common in our society for heavy or frequent smokers, or

multiple persons, to smoke in vehicles while in highway transit. Consequently, unlike

uncommonly strong vehicle air freshener odors, heavy cigarette smoke odor is no more an

uncommon occurrence or objective “indicator” of the presence of illegal drugs in a vehicle

stopped on a long road trip than fast food wrappers, paper sacks, and soft drink cups. For

60
the same reason, as in Wilson, ¶¶ 5, 8, and 34-35, the Trooper’s subsequent observation of

Noli’s girlfriend beginning to smoke, taking a long “drag” on her cigarette, and not

maintaining eye contact with him when he returned to the vehicle to speak with her alone

were no more an objective manifestation of consciousness of illegal drug possession than

that she was a regular or heavy smoker and fearful, apprehensive, or uncomfortable about

being questioned alone by a police officer about illegal matters unrelated to a purported

traffic violation stop.

¶61 Lastly, as recognized in Wilson, ¶¶ 13 and 34-35, the Trooper-asserted facts that Las

Vegas is a known illegal drug source, North Dakota is a known illegal drug destination,

and the highway route between them is therefore a known illegal drug trafficking corridor

is unfortunately not uncommon to Las Vegas, North Dakota, or any particular highway

across Montana or other state in the Union. Those asserted facts, and the Trooper’s asserted

inference, could commonly apply to almost any highway across Montana between almost

any major urban area south, west, or east of Montana and any location in Montana, North

Dakota, or neighboring rural states.

¶62 Once again, we recognize that “otherwise perfectly legal or innocuous conduct or

behavior may be a contributing factor” in support of “a particularized suspicion of criminal

activity,” but only “in conjunction with other specific indicia of criminal activity.” Zeimer,

¶ 50 (citations omitted); Wilson, ¶ 34. An objectively reasonable particularized suspicion

of criminal activity sufficient to initiate or prolong a warrantless investigative stop requires

at least “some objective manifestation” that the subject “is, or is about to be, engaged in

criminal activity.” Cortez, 449 U.S. at 417, 101 S. Ct. at 695 (citing Terry, 392 U.S. at

61
16-19, 88 S. Ct. at 1877-79, inter alia—emphasis added); see also Hoover, ¶ 17 (citations

omitted). “[T]his demand for specificity in the information upon which police action is

predicated” is the essential justification and requirement for the Terry investigative stop

exception. See Cortez, 449 U.S. at 418, 101 S. Ct. at 695 (quoting Terry, 392 U.S. at 21

n.18, 88 S. Ct. at 1880 n.18—emphasis added). An objective particularized suspicion of

criminal activity thus requires even a highly trained and experienced officer to articulate

some objective fact manifesting under the totality of the circumstances that a particular

person is or is about to be engaged in some particular criminal activity. Hoover, ¶ 17

(citations omitted); Cortez, 449 U.S. at 417, 101 S. Ct. at 695 (citing Terry, 392 U.S. at

16-19, 88 S. Ct. at 1877-79, inter alia). Here, not until after further extensive unrelated

questioning, well after he had already expanded and delayed completion of the lane

violation purpose of the stop for at least 9-10 minutes, did the Trooper eventually induce

Noli to make a statement, albeit equivocal, constituting the first objective manifestation or

indication of illegal drug activity. Until then, as in Zeimer, Carrywater, Wilson, and

Santiago, supra, the specially trained and experienced drug interdiction Trooper’s

articulated suspicion of illegal drug transportation was no more than a chain of nefarious

inferences, subjectively drawn from a collection of articulated behavior and circumstances

that were all perfectly innocuous and legal in nature, but for his own highly subjective

nefarious inferences. The articulated facts and circumstances, and resulting nefarious

inferences drawn by the Trooper, were thus sufficient for no more than a generalized and

as yet undeveloped suspicion or hunch, based on his specialized drug interdiction training

and experience, that Noli was transporting illegal drugs. The fact that the Trooper later

62
found illegal drug evidence in the vehicle has no legal bearing on whether he had legal

justification to detain Noli on a traffic violation stop long enough to extensively question

her to try to confirm that undeveloped suspicion. See State v. Harning, 2022 MT 61, ¶ 24,

408 Mont. 140, 507 P.3d 145 (noting temptation “to forgive an officer’s illegal extension

of a stop” when it leads to discovery of evidence of illegality, but that such temptation

“belies the basic principle at the heart of search and seizure jurisprudence”—citation

omitted); State v. Ribera, 183 Mont. 1, 6, 597 P.2d 1164, 1167 (1979) (if constitutional

justification for the seizure or search was lacking, “no evidence discovered as a result of a

search of defendant can be used to justify the [antecedent seizure or search]”—citation

omitted).

¶63 To the extent that it narrowly focused on whether the Trooper articulated sufficient

particularized suspicion of illegal drug activity justifying expansion of the scope and

duration of the stop after he returned to the patrol car from questioning Noli’s passenger,

the District Court erroneously applied the pertinent law and failed to assess whether he

earlier unlawfully extended the duration and scope of the lane violation stop to conduct an

unrelated drug investigation. Even to the extent that it found that the Trooper eventually

developed particularized suspicion of illegal drug activity, the District Court

misapprehended the effect of the evidence by disregarding the conflicting facts manifest

on the high quality dash cam recording, and erroneously applied the law by failing to

recognize that particularized suspicion of criminal activity requires at least some objective

manifestation or indicia of the suspected criminal activity beyond a collection of totally

innocent, innocuous, and legal facts. Under the particular record circumstances in this

63
case, we hold that the Trooper detoured into an unrelated illegal drug investigation without

objective particularized suspicion of such activity and which measurably, and thus

unlawfully, extended the scope and duration of the stop beyond that necessary to

investigate and complete the lawful purpose and mission of the traffic violation that

justified the initial stop.

CONCLUSION

¶64 We hold that the District Court erroneously denied Noli’s motion to suppress the

illegal drug evidence discovered pursuant to a subsequent consent search of her vehicle.

The District Court’s 2019 order denying Noli’s motion to suppress evidence, and resulting

2020 judgment of conviction and sentence on the offenses of criminal possession of

dangerous drugs and criminal possession of drug paraphernalia, are hereby reversed.

/S/ DIRK M. SANDEFUR

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON

64