Court Says Officers Must Have More Than Hunch To Search Vehicles
What began as a minor traffic stop in eastern Montana became a drug bust three years ago. But a recent Montana Supreme Court ruling has overturned the conviction, and put more safeguards in place, saying a minor – nearly trifling – stop can’t transform into a search-and-seizure operation without clear probable cause.
The case, State of Montana vs. Noli, also was key because it leaned heavily on body camera footage which gave the five justices cause to doubt the testimony of the Montana Highway Patrol trooper.
As some states loosen the restrictions on searches of private property, Montana’s high court has ruled there must be more than a hunch to give law enforcement officers enough latitude to go beyond writing a ticket.
The case stems from a Feb. 22, 2019, traffic stop in which Trooper Barry Kilpela pulled over a van with two women and out-ofstate plates. Kipela stopped the vehicle because it was traveling in the passing lane without being in the process of passing another vehicle, a technical infraction of state law. When he pulled the van over about six miles from Glendive in Dawson County, the driver, Nicole Noli, complied with the request for documentation, including driver’s license and registration. Noli was traveling with her girlfriend, according to the documents, en route to pick up two children from North Dakota.
Kipela brought Noli back to his vehicle, and began asking her a number of questions, including their travel plans, where they stayed and where, specifically, they were going. Even though the registration and driver’s license were valid, he kept both the women detained, asking them questions. He eventually became suspicious that because they were from a larger city, driving a rental vehicle and couldn’t remember other places they’d passed through en route to eastern Montana, they may be transporting drugs and pressured Noli to search the vehicle, to which she eventually consented.
He also reported heavy cigarette use which he testified is “often used to mask the odors of drugs coming from the vehicle.” More than 20 minutes after the initial stop and after a lengthy back-and-forth conversation, Noli relented and allowed the trooper to search the vehicle.
Kilpela found an open alcohol container, 13 grams of suspected methamphetamine, two scales, plastic baggies with marijuana residue and 14 unidentified pills. Though Noli and her attorneys filed a motion to suppress the evidence, it was allowed and she was convicted. However, the state’s highest court said that the traffic stop was unreasonably long and veered from a generalized to a specific concern about drugs without enough probable cause to justify the search.
The case is key for Montana because it gives guidance to law enforcement about how a routine traffic stop can and should transform into a more “particularized” or specific search. In the unanimous ruling, the Supreme Court said two key things: First, a law enforcement officer cannot detain a resident for longer than the initial traffic stop violation unless there is “objectively reasonable particularized suspicion of additional criminal activity.”
The Supreme Court noted that Noli had provided valid paperwork the trooper asked for within 40 seconds of his request. It also noted that he took nearly a half-hour of questioning that was unrelated to the traffic stop. Instead, the court said without a more particularized suspicion of a criminal activity that Kilpela was obligated to write the ticket or warning, and release her.
“Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably should have been – completed,” the court ruled, citing a U.S. Supreme Court standard.
Pointing to previous court cases decided by the United States Supreme Court, Justice Dirk Sandefur, who wrote the opinion for the majority, said that while a law enforcement officer doesn’t have to be certain or even correct about criminal activity, “it does require, however, that the officer articulate ‘more than a mere generalized suspicion,’ or ‘undeveloped hunch of criminal activity.’” The court found that many of the reasons that Kilpela had used to justify the search could be shared by many other motorists, regardless of what cargo they were carrying: “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, behaviors or possesses are insufficient alone, whether individually or collectively, to support an objectively reasonable particularized suspicion of criminal activity.”
The Montana Supreme Court said that a general traffic stop cannot turn into a particular drug seizure without more justification during a short time.
“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 … without unnecessary delay,” the court order said.
The justices also found that Kilpela detaining her in his squad car for a traffic ticket was disconcerting.
“The trooper had already unnecessarily and measurably delayed completion of the lawful purpose and mission of the traffic stop for 9 to 10 minutes for extensive questioning as part of an unrelated illegal drug investigation,” the court opinion said. “Even then, however, as manifest by his even more pointed final round of questioning and cajoling of Noli upon her 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 circumstance that Noli was involved in illegal activity until several minutes later when he was finally able to induce her to equivocally admit there might be a marijuana ‘joint’ or ‘open beer’ in the mini-van.”
Jeavon C. Lang was the appellate attorney for Noli, assigned through the Montana Public Defenders Office. She handles plenty of appellate cases, and told the Daily Montanan this one didn’t only have a fact pattern that raised serious questions, but also felt wrongly decided.
“In my gut after reading through all the transcripts and court record, I felt like something went wrong,” Lang said.
She said the defenders are often the frontline of defending freedoms, especially when a lengthy jail sentences hangs in the balance.
Lang said two women of color riding in a vehicle for a minor traffic infraction seemed like a far cry from the eventual drug bust. Considering Montana’s right-to-privacy found in the state constitution, Lang spoke about how anyone from out-of-state, traveling a long distance, may be nervous, tired or confused.
Although Noli’s story seemed to fit with drug activity – for example, that Las Vegas is known for drugs or that North Dakota, including the Bakken Oil Field region, is known for being a destination for drug traffickers, those general facts are not enough for the specific search.
“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,” the decision said.
The order to reverse the district court’s decision and suppress the evidence was further exacerbated by the body camera footage, which gave the high court another reason to doubt the testimony.
“The District Court misapprehended the effect of the evidence by disregarding the conflicting facts manifest on the 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 suspected criminal activity beyond a collection of totally innocent, innocuous, and legal facts,” the court said.
The case was dismissed after the Montana Supreme Court reversed the decision about the admissibility of the evidence, and with that, they wiped away Noli’s felony conviction. However, for the past one-and-a-half years, Noli has been on supervised probation in Nevada, paying all the fees associated with that.
“We don’t convict people by violating their constitutional rights,” Lang said. “We’re the last line of defense, and it’s so important that we’re paid by the government to fight against the government when there’s overreach.”