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Date: 12-05-2018

Case Style:


Case Number: 2018 MT 268

Judge: Mike McGrath


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana
Kelsie Harwood, Blaine County Attorney

Defendant's Attorney: Jeremy S. Yellin


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The relevant facts are not in dispute. On June 21, 2016, at approximately 5:06 p.m.
Montana Highway Patrolman Cody Smith(“Smith”), whilein his marked patrol car on the
eastbound shoulder of U.S. Highway 2 near Chinook, Montana, observed an eastbound
2013 Chrysler LX with a North Dakota license plate approaching from the rear. According
to Smith, the occupants of the vehicle looked at Smith’s patrol car and then immediately
looked away. Smith found this behavior suspicious. He ran the North Dakota license plate,
which showed that the vehicle’s registration had expired. Smith initiated a traffic stop.
¶4 Smith approached the driver’s side of the vehicle and informed the driver of the
reason for the stop. The driver, later identified as Scott Dean Paramore, seemed surprised
to learn that the registration had expired. Smith noted that Paramore was trembling and
that the passenger, Johnathan Wilson, appeared nervous and avoided eye contact with
Smith. Smith found their nervousness unusual. Smith then noticed a rental sticker in the
rear passenger window, a suitcase in the back seat, and that the vehicle had a “somewhat
lived in appearance.”
¶5 Paramore informed Smith that he had borrowed the vehicle from a work
acquaintance. Paramore could not locate his wallet or driver’s license and told Smith he
must have left them at a gas station. Smith asked Paramore to step out of the vehicle and
instructed him to sit in the front passenger seat of his patrol car. As they walked to the
patrol car, Paramore handed Smith an expired insurance card and placed an unlit cigarette
in his mouth. Smith found this odd considering“he knew he was going to go into my car,
and he had a cigarette in his mouth.”
¶6 In the patrol car, Paramore informed Smith that he and Wilson were returning home
to North Dakota from Paramore’s wedding in Sandpoint, Idaho. Smith found it suspicious
that Paramore, a newlywed, was travelingwithout his wife and asked Paramore and Wilson
about the arrangement five separate times. Each time, Paramore informed Smith that his
wife needed to arrive early to Idaho to get the wedding set up, that he only had a limited
number of vacation days available, and that his wife needed a separate vehicle to transport
their three children. Smith noted that Paramore’s nerves had not subsided because he was
breathing heavily and avoiding eye contact with Smith.
¶7 Smith ran Paramore’s license and learned that Paramore had a valid Idaho license
showing several driving infractions. Smith asked Paramore how long he had known the
vehicle’s owner, to which he responded about four or five months. Smith found it
suspicious that a person would loan their vehicle to someone whom the person knew for
less than six months, especially for an interstate trip lasting several days.
¶8 Smith exited the patrol car to see if Wilson could locate valid proof of insurance.
As he did so, Paramore asked Smith if he could step out of the car to smoke his cigarette.
Smith interpreted this as nervousness and indicative of Paramore’s desire to get out of the
patrol car.
¶9 As Smith approached the vehicle’s passenger’s side door he noted that Wilson did
not appear nervous. He observed old food items on the floor and the overall messiness of
the vehicle. He asked Wilson if he could find valid proof of insurance, which Wilson was
unable to locate. Wilson corroborated the plans Paramore discussed with Smith: they were
returning from Paramore’s wedding in Idaho, the bride traveledseparately, and the vehicle
belonged to Paramore’s coworker. Smith returned to the patrol car with Wilson’s driver’s
¶10 Back in the patrol car, dispatch checked Paramore and Wilson’s criminal history
and informed Smith that Paramore had a history of prior drug charges. Smith asked
Paramore if he had ever been on probation, to which Paramore responded that he was on
probation two years ago for marijuana.
¶11 At approximately 5:24 p.m., about twenty minutes after the stop was initiated, Smith
exited the vehicle to call and request that Nicolas Ost, a border patrol agent and K-9
handler, bring his dog to assist in the investigation. As Smith was on the radio, Paramore
opened the patrol car door. Smith interpreted this as Paramore’s attempt to “listen to what
[he] was doing.” According to Smith, “[t]his continued to make me suspect that Paramore
was extremely nervous.”
¶12 At approximately 5:27 p.m., Smith issued Paramore citations for failure to provide
proof of insurance and for operating a vehicle with expired registration.
¶13 Smith asked Paramore if he was “good to go” and Paramore responded
affirmatively. However, before Paramore could exit the vehicle, Smith requested that
Paramore stay for further questioning. Smith informed Paramore that U.S. Highway 2 is a
known drug trafficking corridor and asked whether there were any drugs in the vehicle.
Paramore denied that any drugswere in the vehicle.
¶14 Smith asked Paramore if he could search the vehicle. Paramore refused. Smith
asked Paramore if he would be willing to wait for a K-9 unit to arrive. Paramore stated
that he would prefer not to wait. Smith responded that a canine search of the vehicle was
going to take place and that they needed to wait for the K-9 unit to arrive.
¶15 At 5:51 p.m., approximately 45 minutes after Paramore and Wilson were initially
stopped, the K-9 unit arrived. After the canine sniff of the vehicle, Agent Ost notified
Smith that the dog detected drugs in the car. Smith informed Wilson and Paramore that,
due to the dog’s alerts, Smith would be applying for a warrant to search the vehicle.
¶16 Smith asked about the bar code in the rear window of the vehicle and Paramore
explained that he believed the sticker was there because it used to be rental car. Smith
found the sticker “really weird” and stated that it reinforced his suspicions.
¶17 At 6:02 p.m., Wilson and Paramore were permitted to leave the scene on foot while
Smith awaited the warrant.
¶18 A search warrant was issued and officers recovered a small bag of marijuana and a
pipe from the vehicle’s center console, and a large bag containing two bags of marijuana
in the trunk for a total of 262.2 grams of marijuana. Paramore and Wilson were later
arrested in Havre, Montana, and transported to Hill County Detention Center.
¶19 Wilson was charged with Criminal Possession of Dangerous Drugs with Intent to
Distribute, a felony, in violation of § 45-9-103, MCA; Criminal Possession of Dangerous
Drugs, a felony, in violation of § 45-9-102(1), MCA; and Criminal Possession of Drug
Paraphernalia, a misdemeanor, in violation of § 45-10-103, MCA. Wilson filed a motion
to suppress the evidence gathered from the vehicle. The District Court denied the motion
on the basis that Smith had sufficient facts to expand the traffic stop into a drug
investigation and particularized suspicion to justify a canine search of the vehicle’s
¶20 On September 12, 2017, Wilson pleaded No Contest to Criminal Possession of
Dangerous Drugs, a felony, and the District Court imposed a one-year deferred sentence
and a $2,295.13 fine.
STANDARD OF REVIEW ¶21 We review a district court’s grant or denial of a motion to suppress to determine
whether the court’s findings are clearly erroneous and whether those findings were applied
correctly as a matter of law. State v. Gill, 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60.
A district court’s finding that particularized suspicion exists is a question of fact which we
review for clear error. Gill, ¶ 10 (citing City of Missoula v. Moore, 2011 MT 61, ¶ 10, 360
Mont. 22, 251 P.3d 679). A finding is clearly erroneous if it is not supported by substantial
evidence, if the lower court has misapprehended the effect of the evidence, or if our review
of the record leaves us with the firm conviction that a mistake has been made. Gill, ¶ 10. DISCUSSION
¶22 Did the District Court err when it denied Wilson’s motion to suppress based on its determination that the drug investigation was supported by particularized suspicion?
¶23 Wilson asserts that the circumstances did not justify a canine sniff of the vehicle
because there was no particularized suspicion of narcotics activity.
¶24 The State argues that Trooper Smith’s extension of the traffic stop into a drug
investigation, and the accompanying delay, were lawful because Smith had particularized
suspicion to believe that Wilson and Paramore were engaged in illegal drug activity.
¶25 The Fourth Amendment to the United States Constitution and Article II, Section 11
of the Montana Constitution protect persons against unreasonable searches and seizures,
including brief investigatory stops such as traffic stops. State v. Elison, 2000 MT 288,¶15,
302 Mont. 228, 14 P.3d 456. 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. State v. Hoover, 2017 MT 236, ¶ 14,
388 Mont. 533, 402 P.3d 1224 (citing State v. Clayton, 2002 MT 67, ¶ 11, 309 Mont. 215,
45 P.3d 30). To initiate a traffic stop, a law enforcement officer must have particularized
suspicion that the occupant of the vehicle is or has been engaged in unlawful behavior.
Section 46-5-401, MCA. A traffic stop may not last longer than is necessary to effectuate
the purpose of the stop. Section 46-5-403, MCA. However, a stop may be prolonged and
the scope of the investigation may be broadened if the investigation remains within the
limits created by the facts and the suspicions from which they arose. State v. Meza, 2006
MT 210, ¶ 23, 333 Mont. 305, 143 P.3d 422; Rodriguez v. United States, 575 U.S. ___,
135 S. Ct. 1609, 1614-15 (2015). The justification for a stop may change as officers acquire
additional information. State v. Estes, 2017 MT 226, ¶ 15, 388 Mont. 491, 403 P.3d 1249
(citing State v. Carlson, 2000 MT 320, ¶ 21, 302 Mont. 508, 15 P.3d 893).
¶26 A canine sniff of a vehicle constitutes a search under Article II, Sections 10 and 11
of the Montana Constitution. Meza, ¶ 22; State v. Tackitt, 2003 MT 81, ¶ 22, 315 Mont.
59, 67 P.3d 295. However, due to the minimally intrusive nature of a canine sniff, it does
not require the issuance of a warrant. Instead, only particularized suspicion is a
prerequisite. Tackitt, ¶ 31.
¶27 Smith had particularized suspicion to make the initial traffic stop when dispatch
notified him that the vehicle’s registration had expired. Estes, ¶17.
¶28 However, before Smith could extend the stop and conduct a canine search, he
needed particularized suspicion that Paramore or his vehicle were involved in narcotics
activity. Particularized suspicion is objective data from which an experienced police
officer can make certain inferences and a resulting suspicion that the occupant of the
vehicle is or has been engaged in wrongdoing. Elison, ¶ 15. Relevant considerations
include the quantity, substance, quality, and degree of reliability of information known to
the officer. Hoover, ¶ 17. Whether particularized suspicion exists is a question of fact
determined by examining the totality of the circumstances, but the related question of
whether the circumstances indicated activity thatwas illegal is a question of law. Hoover,
¶ 17; Meza, ¶ 25. This standard does not require that an officer be certain, or even correct,
that a person is engaged in criminal activity. Hoover, ¶ 18. However, particularized
suspicion requires more than mere generalized suspicion or an undeveloped hunch of
criminal activity. Hoover, ¶ 18.
¶29 The State argues that the District Court’s finding of particularized suspicion should
be upheld because the facts of this case are indistinguishable from those in Estes. We
¶30 In Estes, we held that an officer had particularized suspicion to expand a routine
traffic stop into a drug investigation. In that case, the officer noticed that the driver had
food wrappers and energy drink bottles strewn around and a sleeping bag in the back seat
covering a cardboard box—which suggested to the officer that the driver wanted to get
from point A to point B quickly. The driver also had two cell phones, even though he was
the only person in the vehicle, as well as cash in the center console. Estes, ¶ 18. The officer
further detected an overwhelming odor from multiple air fresheners as he approached the
vehicle, a common tactic used to mask the scent of narcotics according to his experience.
Further, the driver appeared unusually nervous for an expired registration stop which
occurred late at night in a known “source and destination” area for drug traffic. Estes, ¶18.
In light of the officer’s considerable experience and his ability to point to conduct that
appeared objectively suspicious, we affirmed the district court’s finding of particularized
suspicion. Estes, ¶ 20.
¶31 We agree that that there are similarities between Estes and this case: Smith noted
the disheveled nature of Paramore’s vehicle and Paramore was nervous and sometimes
shaky. He avoided making eye contact and had a prior criminal history involving drugs.
However, there are significant differences in the facts.
¶32 Smith testified that Paramore’s nerves were “at a different level” than what he
typically sees during a traffic stop. Smith noted that Paramore was breathing heavily and
found it strange that Paramore brought an unlit cigarette into Smith’s squad car. The State
emphasizes that Paramore and Wilson avoided prolonged eye contact with Smith
throughout the duration of the stop and that the vehicle was borrowed from someone
Paramore had only known for several months.
¶33 The State also relies upon Paramore’s “bizarre” travel plans to substantiate
particularized suspicion. We do not find the fact that Paramore was travelingwithout his
wife peculiar, nor do we believe that these plans can be used to develop particularized
suspicion in this instance. Following repeated questioning from Smith, Paramore stated
that he and his wife traveled in separate vehicles because she needed to arrive at the
wedding early to set up, he had to return to work early, and because she was travelingwith
theirchildren. Wilson also independently corroborated these facts to Smith.
¶34 Smith testified that during the stop he was “compounding . . . indicators on top of
each other.” Although a driver’s post-stop behavior may, in combination with more
objectively incriminating behavior, amount to particularized suspicion, this conduct alone
did not meet the minimum threshold. A messy vehicle, a nervous driver with an unlit
cigarette, daylight use of a Montana highway, using a borrowed vehicle, and the fact that
newlyweds aren’t traveling together following their wedding does not amount to
particularized suspicion. Our review of Smith’s indicators reveals only a generalized
hunch and not an articulation of specific facts demonstrating criminal behavior.
¶35 Significantly, Smith failed to identify details that were objectively indicative of
illegal drug activity. In Estes, the officer noted the overwhelming smell of numerous air
fresheners, and observed in plain view two cell phones and a stack of cash in the console.
Estes, ¶ 18. Smith did not identify similarly incriminating conduct. We find that Estes is
not sufficiently analogous and is factually distinguishable here.
¶36 In Montana, an investigative stop “may not last longer than is necessary to effectuate
the purpose of the stop.” Section 46-5-403, MCA. Our function as an appellate court is to
interpret statutes according tothe plain meaning of the words used. State v. Madsen, 2013
MT 281, ¶ 8, 372 Mont. 102, 317 P.3d 806.
¶37 Here, the purpose of the stop was to ticket Paramore for expired registration and
failure to provide proof of insurance. Smith issued these citations at 5:27 p.m., just over
twenty minutes after the stop was initiated. The stop should have ended there. However,
Paramore and Wilson were kept at the scene for an additional thirty-five minutes until the
canine sniff was finished and they were permitted to leave. Smith lacked the requisite
particularized suspicion to extend the stop into a drug investigation; § 46-5- 403, MCA,
required their release after the citations were issued.

Outcome: Smith lacked the particularized suspicion required to extend the traffic stop into a drug investigation and the stop violated § 46-5-403, MCA. The extension of the stop to request a search by a K-9 unit violated the constitutional shield against unreasonable search.

The conviction is reversed.

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