State v. N. Hunt

2025 MT 122

Opinion

06/17/2025

DA 23-0444 Case Number: DA 23-0444

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 122

STATE OF MONTANA,

Plaintiff and Appellee,

v.

NICOLE LEE HUNT,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 22-58 Honorable Jennifer B. Lint, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Tammy A. Hinderman, Appellate Defender Division Administrator, Joshua James Thornton, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana

William E. Fulbright, Ravalli County Attorney, David Lakin, Deputy County Attorney, Hamilton, Montana

Submitted on Briefs: February 19, 2025

Decided: June 17, 2025

Filed:

__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Nicole Lee Hunt appeals from the judgment of conviction entered by the

Twenty-First Judicial District Court, Ravalli County, for felony criminal possession of

dangerous drugs with intent to distribute. Hunt challenges the District Court’s denial of

her suppression motion and the admission of rebuttal evidence during her trial. We address

the following issues:

Issue 1: Did the District Court err by finding particularized suspicion existed to expand the scope of a traffic stop into a drug investigation and conduct a canine sniff?

Issue 2: Did the District Court err by allowing the State to offer rebuttal evidence of Hunt’s prior bad acts on the basis that Hunt’s testimony opened the door?

¶2 We affirm in part, reverse in part, and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 19, 2022, Detective Nicholas Monaco of the Ravalli County Sheriff’s

Office observed a silver BMW sedan with no license plates parked outside Apartment 1 of

a complex located behind the Rustic Hut in Florence. Detective Monaco testified that,

prior to this time, he had received “some drug intelligence” relating to Apartment 1. He

recalled that he also encountered “folks associated with drugs from that apartment” during

previous law enforcement engagements. Detective Monaco clarified on cross-examination

that the intelligence indicated “there was illegal drug activity, specifically the trafficking

of methamphetamine from that specific apartment [Apartment 1].” He conceded the silver

BMW was “not specifically associated” with the intelligence, but he saw that car parked in

2 front of Apartment 1 and recalled the intelligence “specifically name[d] Nicole Hunt as

someone involved in the drug activity.” Detective Monaco stated he knew Hunt to be a

resident of Apartment 1.

¶4 At 4:31 p.m., approximately thirty minutes after he observed the parked BMW,

Detective Monaco initiated a traffic stop of that vehicle for driving on a public road without

license plates. The stop occurred a few blocks from Apartment 1. Hunt was the sole

occupant of the car. Hunt opened the driver’s side door as Detective Monaco approached

on foot. When Detective Monaco explained the reason for the stop, Hunt acknowledged

the violation, stating that she recently purchased the car and had not yet registered or

insured it. Hunt provided her driver’s license. Detective Monaco asked her if she had any

documents proving her ownership of the vehicle. Hunt did not, but she stated the title was

at her house “right there”—indicating Apartment 1. Detective Monaco asked Hunt if she

had anything to drink that day, which she denied. Hunt stated she had been working all

day and was returning to work from her home when Detective Monaco stopped her.

¶5 Detective Monaco testified his initial impression of Hunt was that “she seemed in

a hurry.” He noted that Hunt’s eyes were glassy and red. Detective Monaco observed a

large black purse and a wallet on the front passenger seat.

¶6 Detective Monaco returned to Hunt’s vehicle after providing her information to

dispatch. Hunt said she was late for work at the Bear’s Lair restaurant and bar. Detective

Monaco asked about her shifts that day, and Hunt responded that she worked from 9:00 to

3:30 and from 5:00 to 9:00. Hunt stated that a party started at 4:30. Hunt explained,

unprompted, that she left her first shift earlier “at 3:00” because she had a chiropractor

3 appointment and needed to return to work by 4:30 instead of 5:00. When Detective

Monaco asked Hunt whether she had consumed any shift drinks or took any medications,

Hunt responded she had not. Detective Monaco testified that Hunt’s speech was “rapid

and almost non-stop chatter,” which he inferred as nervousness exhibiting “something to

be concealed.”

¶7 Hunt offered to participate in sobriety testing. Detective Monaco asked whether

there was anything illegal in the vehicle, including paraphernalia, which Hunt denied. Hunt

said she had not driven the vehicle because she “didn’t want to get in trouble,” and then

said, “go figure, I get pulled over right down the street from my house.” Detective Monaco

stated he wanted to complete the sobriety tests “if [Hunt was] willing to participate,”

because he “wanted to make sure [Hunt] was not impaired at any level,” and Hunt seemed

“really nervous.” Hunt stepped out of the vehicle and explained she gets nervous around

law enforcement due to past interactions. Hunt offered again to submit to sobriety testing.

¶8 Hunt called her boss to advise that she would be late. Although he only heard Hunt’s

side of the conversation, Detective Monaco testified his impression was that Hunt’s boss

either was unaware of her absence or was “ultra-disappointed in the extended delay.”

¶9 Detective Monaco administered a horizontal gaze nystagmus test. He testified he

did not detect the presence of nystagmus and did not believe Hunt was under the influence

of alcohol. Detective Monaco repeated his observation to Hunt that she seemed extremely

nervous, and said he was getting “some indicators” that there was possible drug activity.

He again asked if Hunt possessed anything illegal in the vehicle, which she denied. Hunt

revealed she had a “dab pen” in her jacket pocket but asserted she used it for marijuana.

4 ¶10 Approximately seventeen minutes into the stop, Detective Monaco asked Hunt if it

would be “alright if [he] did a quick search” of her vehicle. Hunt initially agreed and

unlocked her trunk, but then quickly reversed course. Hunt said she would “rather not”

consent and asked whether there would be consequences if she refused. Detective Monaco

explained her rapid speech and nervousness indicated possible drug activity, and he

requested her “consent to search based on that suspicion.” After Hunt equivocated for

several minutes about whether she would consent, Detective Monaco returned Hunt’s

license. Hunt acknowledged her vehicle would have to be towed for lack of registration

and insurance. She provided her contact information to Detective Monaco, including her

address: Apartment 1.

¶11 Detective Monaco told Hunt she was free to go, but stated he had “particularized

suspicion on the vehicle, though.” Discovering that she would not be able to remove her

purse or other items from the car, Hunt initiated another discussion about consenting to a

search. Detective Monaco repeated to Hunt that she was free to leave, but Hunt signed the

consent to search form and remained present during the search. As Detective Monaco - searched the car, Hunt reacted to his discovery of a yellow manila-style shipping envelope

in her purse. Without being asked, Hunt stated the envelope was not hers. Detective

Monaco testified Hunt became “extremely agitated” when she intervened, and based on his

training and experience, inferred from her change in demeanor that Hunt was concealing

“something illegal.” At this point, Detective Monaco considered Hunt’s consent revoked

and stopped the search without opening the package or seeing its contents. Hunt walked

away from the scene shortly thereafter.

5 ¶12 Before the car was towed to the Ravalli County Sheriff’s Office’s secure storage

facility, Detective Monaco called for a canine unit. A sniff search of the exterior of Hunt’s

vehicle indicated the presence of illegal drugs. Detective Monaco obtained a search

warrant and executed a search of Hunt’s vehicle. The manila envelope recovered in the

search was addressed to Trent Parker at an address not associated with Hunt, and the return

address was in Victorville, California. Inside the envelope was a clear plastic bag filled

with a white crystalline substance weighing approximately one pound that later tested

positive for methamphetamine.

¶13 The State charged Hunt with criminal possession of dangerous drugs with the intent

to distribute in violation of § 45-9-103, MCA. Hunt moved to suppress the State’s evidence

as the product of an illegal extension and expansion of the initial traffic stop. After

conducting a hearing, the District Court denied Hunt’s motion to suppress on the grounds

that Detective Monaco had particularized suspicion of illegal drug activity, which justified

extending the scope and duration of the traffic stop to engage in a drug investigation and

conduct a canine sniff. The court deemed the following facts sufficient to create

particularized suspicion of drug activity: Hunt’s rapid speech, inconsistent statements,

glassy red eyes, jittery movements, and Hunt and the vehicle’s association with

Apartment 1, a known drug activity location.

¶14 Trent Parker testified during the defense’s case-in-chief at the jury trial. The State

declined to cross-examine Parker. Hunt testified on her own behalf. Hunt admitted she

knew the manila envelope found in her car contained drugs but denied she intended to

6 distribute those drugs.1 Hunt testified the drugs belonged to her dealer and friend, Parker,

to whom the envelope was addressed and from whom she planned to purchase 3.5 grams

for personal use. Parker had keys to Apartment 1, previously lived there with Hunt, and

often walked her dog. According to Hunt, on the day she was stopped, she invited Parker

to Apartment 1 so he could sell her drugs and perform mechanical work on her car, but she

needed to leave for work and did not have time to complete the purchase. As to how she

came to possess the drug-filled envelope, Hunt testified that Parker put it in her car and

said he would pick up the car from her workplace after he finished walking her dog. On

direct, the following exchange occurred between Hunt and her counsel regarding the drugs:

COUNSEL: What would have happened if you at any point had attempted to sell those [drugs]?

HUNT: I mean a lot of things could’ve happened. With law enforcement, with [Parker], with -- You know, it is a lot of drugs. I don’t want to really think of the consequences of that.

COUNSEL: Did you have the authority to sell them?

HUNT: No. I didn’t have the authority –

COUNSEL: Did you have the intention to sell them?

HUNT: No, I did not.

¶15 At the end of Hunt’s cross-examination by the State, the State asked:

STATE: But as I understand your testimony, it’s that you’re a drug user and that you do not sell drugs.

HUNT: Correct.

1 Prior to trial, Hunt stipulated to the fact that she “knowingly possessed” 435 grams of methamphetamine. 7 STATE: You’ve never sold drugs in Montana?

HUNT: No, I have not.

¶16 After the defense rested, the State called Katrina Conway as a rebuttal witness. Hunt

objected, and the District Court heard arguments without the jury present. The State

asserted Hunt’s cross-examination testimony that she never sold drugs in Montana opened

the door to rebuttal evidence, via Conway’s testimony, of the “countless times” Hunt sold

Conway drugs before the events at issue in this case. Hunt disputed that her testimony

opened the door to Conway’s testimony and argued the evidence was unfairly prejudicial

and irrelevant to the issue of whether she intended to sell the drugs found in her car on

January 19, 2022. The court overruled the objection and permitted the State to call Conway

as a rebuttal witness, but it also agreed to consider a M. R. Evid. 404(b) limiting instruction

for the jury. The jury did not receive the instruction before Conway testified.

¶17 Conway testified that she was a recovering addict who formerly bought meth from

Hunt. Conway estimated she and her ex-fiancé, Kory Babineau, made “a lot more” than

one or two purchases. She claimed, during some periods, they met with Hunt every other

day, and she estimated the last buy occurred in December 2021 or early January 2022.

Conway stated the sales often took place at Apartment 1, where Hunt kept a “black

lockbox” under her bed containing paraphernalia, drugs, and “a lot of” cash. Conway

asserted she overheard Hunt tell Babineau that Hunt drove her truck to California to pick

up drugs and bring them back to Montana. Hunt’s counsel recalled Hunt as a witness.

Hunt admitted she used drugs with Conway and Babineau and witnessed the pair buy drugs

from Parker. Hunt asserted she neither sold them drugs nor drove her truck to California.

8 After the close of evidence, Hunt moved for a mistrial based on this Court’s holding in

State v. Torres, 2021 MT 301, 406 Mont. 353, 498 P.3d 1256.2 Hunt argued the State “set

the trap” for Hunt to open the door to Conway’s rebuttal testimony, which resulted in the

admission of unfairly prejudicial prior bad acts evidence without an analysis of the

evidence’s admissibility under M. R. Evid. 403 or M. R. Evid. 404(b). The District Court

denied the motion, ruling “the questioning by the state was legitimate exploration,” and

Conway’s testimony “as a rebuttal witness for credibility was appropriate.”

¶18 During its closing argument, the State emphasized Conway’s statements, telling the

jury: “[Hunt]’s testimony in this case is simply not credible. [Hunt] testified that she’s

never sold methamphetamine in Montana. Katrina Conway testified to you very clearly

that in the month preceding [Hunt’s] arrest [Hunt] sold [Conway] methamphetamine

multiple times.”

¶19 The District Court gave the jury a M. R. Evid. 404(b) limiting instruction, among

its other instructions. The jury found Hunt guilty of felony criminal possession of

dangerous drugs with intent to distribute.

2 In Torres, the defendant testified on direct examination that he had never strangled the victim in that case. Torres, ¶ 41. On cross-examination, the State asked him if he had ever strangled anyone, to which he responded that he had not. Torres, ¶ 41. The State argued that his testimony on cross-examination opened the door to a rebuttal impeachment witness—the defendant’s ex-girlfriend—who testified that he had strangled her in a previous uncharged incident. Torres, ¶¶ 16–18. We held that the defendant’s direct testimony did not open the door to rebuttal or impeachment evidence, but “[r]ather, the prosecutor’s own questions ‘set the trap.’” Torres, ¶ 41. 9 STANDARDS OF REVIEW

¶20 We review a district court’s ruling on a motion to suppress to determine whether the

court’s findings of fact are clearly erroneous and whether the court correctly interpreted

and applied the pertinent law to those facts. State v. Loberg, 2024 MT 188, ¶ 8,

418 Mont. 38, 554 P.3d 698. Findings of fact are clearly erroneous if they are not

supported by substantial evidence, the court misapprehended the effect of the evidence, or

if our independent review of the record firmly convinces us that a mistake was made. State

v. Noli, 2023 MT 84, ¶ 24, 412 Mont. 170, 529 P.3d 813. Whether the court correctly

interpreted and applied the law to the facts of the case is a question of law we review

de novo. Loberg, ¶ 8.

¶21 We review evidentiary rulings, including a district court’s decision to allow witness

testimony, for an abuse of discretion. Torres, ¶ 21. A district court abuses its discretion if

its ruling is “based on a clearly erroneous finding of fact, an erroneous conclusion or

application of law,” or if the court otherwise acted “arbitrarily, without conscientious

judgment or in excess of the bounds of reason, resulting in substantial injustice.” State v.

McGhee, 2021 MT 193, ¶ 10, 405 Mont. 121, 492 P.3d 518. We review de novo related

interpretations or applications of law for correctness. Torres, ¶ 21.

DISCUSSION

¶22 Issue 1: Did the District Court err by finding particularized suspicion existed to expand the scope of a traffic stop into a drug investigation and conduct a canine sniff?

¶23 The Fourth Amendment to the United States Constitution, as applied to the states

by the Fourteenth Amendment to the United States Constitution, and Article II, Section 11,

10 of the Montana Constitution protect individuals from unreasonable searches and seizures

by the government. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961); Noli,

¶ 26. Searches and seizures executed without a judicial warrant issued on probable cause

are generally unreasonable, subject to limited exceptions. Loberg, ¶ 10. Evidence

discovered as a result of an unlawful search or seizure may be suppressed in subsequent

criminal proceedings against the defendant. State v. Carrywater, 2022 MT 131, ¶ 12,

409 Mont. 194, 512 P.3d 1180.

¶24 Temporary investigative stops, such as traffic stops, are seizures excepted from the

warrant and probable cause requirements. State v. McElroy, 2024 MT 133,

¶¶ 12–13, 417 Mont. 68, 551 P.3d 282. An officer may stop “any person or vehicle that is

observed in circumstances that create a particularized suspicion that the person or occupant

of the vehicle has committed, is committing, or is about to commit an offense.”

Section 46-5-401(1), MCA. A drug-detecting canine sniff of a vehicle is a search within

the meaning of the Montana Constitution and requires particularized suspicion of unlawful

activity before an officer may conduct one. Loberg, ¶ 10.

¶25 To find particularized suspicion, the State must prove the existence of “objective

data from which an experienced officer can make certain inferences and a resulting

suspicion that the occupant of the vehicle is or has been engaged in wrongdoing.” McElroy,

¶ 13 (citation omitted). Whether sufficient particularized suspicion exists is a question of

fact evaluated under the totality of the circumstances. Noli, ¶ 31. This inquiry must be

supported by specific articulable information, considering the “quantity, substance, quality,

and degree of reliability of information known to the officer at the time.” Loberg, ¶ 10.

11 Law enforcement-specific inferences must be objectively reasonable under the totality of

the circumstances, and although the standard does not require certainty, the officer must

articulate more than a mere “generalized suspicion or undeveloped hunch of criminal

activity to amount to particularized suspicion.” Loberg, ¶ 11.

¶26 Inferences that could be drawn from the conduct of any law-abiding person cannot

be the only bases for an officer’s suspicion because the resulting suspicion is not

particularized. Loberg, ¶ 12. Pertinent to this case, we have observed the following facts

or inferences could be drawn about virtually any law-abiding person: inconsistent

statements concerning a person’s conduct, presence, or plans; unusually nervous or

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

traveling to or from an area generally known as a source, destination, or situs of/for illegal

drugs or other illegal contraband or activity; or other legal or innocuous conduct, behavior,

or possessions. Loberg, ¶ 12 (citing Noli, ¶ 32). Yet such conduct may give rise to

particularized suspicion under the totality of the circumstances when made “in conjunction

with other specific indicia of criminal activity.” Loberg, ¶ 12 (emphasis in original).

¶27 Hunt does not challenge Detective Monaco’s initial stop of her vehicle after he

observed her driving on a public roadway without license plates in violation of § 61-3-301,

MCA. “A statutory violation alone is sufficient to establish particularized suspicion for an

officer to make a traffic stop.” State v. Zimmerman, 2018 MT 94, ¶ 15, 391 Mont. 210,

417 P.3d 289 (citation omitted). Hunt also acknowledges that Detective Monaco had

particularized suspicion to expand the scope of the initial stop into a DUI investigation due

to Hunt’s glassy red eyes and admitted possession of a marijuana “dab pen.”

12 ¶28 Even so, a stop “may not last longer than is necessary to effectuate the purpose of

the stop.” Section 46-5-403, MCA. In order to expand a traffic stop or DUI investigation

into one for possession of illegal drugs, there must be specific and particularized facts “as

to the vehicle which would support a suspicion the vehicle itself contained illegal drugs.”

Loberg, ¶ 12 (citation omitted; emphasis in original). “[A] driver retains a right of privacy

in their vehicle absent particularized and objective facts relating to the vehicle.” Loberg,

¶ 12.

¶29 The District Court found Detective Monaco had sufficient particularized suspicion

to justify expanding the scope of the stop into a drug investigation and conduct a canine

sniff based on the totality of the circumstances, namely: the vehicle’s presence at

Apartment 1; Hunt’s glassy red eyes and jittery movements; her rapid, continuous, and

off-topic speech; and her inconsistent representations about her travels. The District Court

also found Detective Monaco had “specific knowledge of drug activity involving the

apartment where the vehicle had been.”

¶30 Hunt claims the District Court’s findings do not demonstrate the existence of

sufficient “particularized suspicion that the vehicle itself contained drugs.” Hunt contends

the circumstances cited by the District Court are equivalent to the innocuous behavior and

list of inferences that could be drawn about any law-abiding citizen.

¶31 Citing State v. Panasuk, 2024 MT 113, 416 Mont. 430, 549 P.3d 432, Hunt argues

Detective Monaco’s knowledge of prior criminal activity at Apartment 1 was not paired

with reasonable suspicion of current criminal activity. In Panasuk, we held that while an

officer’s knowledge of an individual’s prior criminal history cannot form the sole basis to

13 expand a stop into a drug investigation, an officer’s knowledge of such history “in

conjunction with other factors that do foster a reasonable suspicion of current criminal

activity can be sufficient.” Panasuk, ¶¶ 20, 22 (emphasis in original). The officer did not

have particularized suspicion in that case because the only fact he relied upon to expand

the scope of the detention into a drug investigation was his knowledge of a prior interaction

between Panasuk and a different officer two weeks earlier. Panasuk, ¶¶ 5, 20. We noted

it was significant that the earlier incident did not provide evidence of Panasuk dealing

drugs. Panasuk, ¶ 21. By contrast, we determined in State v. McMaster, 2008 MT 294,

345 Mont. 408, 191 P.3d 443 that the District Court properly considered the officer’s

knowledge about the defendant’s involvement in the drug trade when evaluating the totality

of the circumstances. McMaster, ¶ 23. The officer in that case testified the vehicle he

stopped was registered to the defendant, who the officer believed to be a drug dealer.

McMaster, ¶ 21. The officer based this inference on information shared by other law

enforcement agencies, evidence linking the defendant to the drug trade the officer

discovered during a warranted search, and statements by a person the officer arrested on a

prior occasion implicating the defendant in drug activity. McMaster, ¶ 21.

¶32 The facts in this case are more akin to the facts in McMaster than Panasuk.

Detective Monaco testified he had specific information that methamphetamine was being

trafficked from Apartment 1. Other individuals implicated Apartment 1 as a known drug

activity location when Detective Monaco encountered them during other law enforcement

activities. He observed Hunt’s vehicle parked in front of Apartment 1 only thirty minutes

before the stop, and Hunt said that was the location where she lived and from where she

14 departed immediately before being stopped. While these facts alone may not have

provided a sufficient basis for expanding the stop, when considered in conjunction with

Hunt’s demeanor and appearance at the time of the stop, they provided a resulting suspicion

that Hunt and her vehicle may currently be involved in drug activity. Hunt argues that

“[u]nder that logic, every resident of the apartment complex would be involved in the drug

trade.” But Detective Monaco’s information as to the drug trafficking history was not

generalized to the apartment complex; it was specific to Apartment 1 and to Hunt herself.

Moreover, it was not just Detective Monaco’s understanding of Hunt and Apartment 1’s

history that provided the basis for expanding the stop; it was that history considered in

conjunction with Hunt’s specific appearance and the manner in which she conducted

herself during the stop. Hunt herself acknowledges that Detective Monaco had

particularized suspicion to expand the scope of the initial stop into a DUI investigation due

to her glassy red eyes and admitted possession of a marijuana “dab pen.” Although any

one of these factors alone may not have provided a basis for expanding the stop, we do not

consider the factors individually when determining whether there was particularized

suspicion for expanding the stop; we view them in their totality.

¶33 Hunt argues Detective Monaco’s suspicions about Apartment 1 were “far too

generalized” to support a finding of particularized suspicion based on the vehicle’s

presence there. It is true that traveling from an area generally known for illegal drugs, on

its own or combined with other innocuous behavior, is not enough to rise to particularized

suspicion. Loberg, ¶ 19. In Loberg, we found that the defendant’s presence at a casino—a

location known to be frequented by drug users and distributors—and his “pinpoint pupils”

15 were insufficient to create particularized suspicion for a canine sniff. Loberg, ¶¶ 16, 19.

We reasoned that coming from an area generally known for drugs, like a casino or from

one city to another, cannot form the sole basis of particularized suspicion because it would

subject every person leaving the casino or traveling on a highway to an extended detention

or canine sniff. Loberg, ¶ 19 (citing Noli, ¶¶ 32, 61). But in this case, Hunt fails to account

for the specific, objective facts known to Detective Monaco about Apartment 1, Hunt’s

association with Apartment 1, and the close timeline in which Detective Monaco observed

the car in front of Apartment 1, coupled with Hunt’s admission she had just left

Apartment 1 when he stopped her. Apartment 1 is not open to the public—unlike a

casino—nor is it a public roadway. Nor would every resident of the apartment complex be

subject to search and seizure, because Detective Monaco’s knowledge about drug activity

was specific to Apartment 1. The District Court found Detective Monaco had specific

information resulting in a suspicion of wrongdoing concerning the activities occurring at

Apartment 1. In reviewing a district court’s findings, we do not consider whether the

evidence could support a different finding, nor do we substitute our judgment for that of

the district court regarding the weight given to the evidence. In re V.F.A., 2005 MT 76,

¶ 7, 326 Mont. 383, 109 P.3d 749. “It is the district court’s responsibility to weigh the

evidence presented and ascertain witnesses’ corresponding credibility.” In re V.F.A., ¶ 7.

¶34 “Determining whether particularized suspicion supports an investigative stop does

not deal with hard certainties, but with probabilities.” McMaster, ¶ 23 (citation omitted).

The assessment of the reasonableness of the scope of an investigative stop “must recognize

that the State’s compelling interest in effective law enforcement” requires officers in the

16 field to have reasonable latitude when confirming or dispelling suspicions of criminal

activity. State v. Laster, 2021 MT 269, ¶ 13, 406 Mont. 60, 497 P.3d 224 (citation

omitted). The record in this case includes objective facts relating to Hunt and her vehicle

from which Detective Monaco could reasonably infer Hunt was currently engaged in

narcotics activity based on his specific knowledge of Apartment 1 as a known drug activity

and methamphetamine trafficking location, his observation of the vehicle at Apartment 1

thirty minutes before the stop, Hunt’s association with Apartment 1, and her representation

that she had just left Apartment 1 when she was stopped. These specific indicia of criminal

activity—when considered in conjunction with Hunt’s glassy red eyes, erratic speech and

movements from which Detective Monaco reasonably could infer nervousness atypical of

a minor traffic stop, and her inconsistent statements about her travels that day—support the

District Court’s finding that particularized suspicion of narcotics activity justified

expanding the scope of the investigation and conducting a canine sniff under the totality of

the circumstances. See Noli, ¶ 32 (otherwise innocuous conduct may contribute to totality

of the circumstances when other specific indicia of criminal activity present). The District

Court did not err by denying Hunt’s motion to suppress.

¶35 Issue 2: Did the District Court err by allowing the State to offer rebuttal evidence of Hunt’s prior bad acts on the basis that Hunt’s testimony opened the door?

¶36 The Montana Rules of Evidence generally prohibit admitting evidence of a person’s

“other crimes, wrongs, or acts” for the purpose of proving conformity with the person’s

actions in the present case. M. R. Evid. 404(b). Nevertheless, when a defendant “opens

the door, or broaches a certain topic that would otherwise be off limits,” the State is entitled

17 “to offer evidence in rebuttal, including evidence of other acts.” State v. Guill,

2010 MT 69, ¶ 39, 355 Mont. 490, 228 P.3d 1152 (citation omitted). “Rebuttal evidence

offered by the State is proper only if it tends to counteract a new matter offered by the

defense and has a tendency to contradict or disprove that evidence.” State v. Jackson,

2009 MT 427, ¶ 68, 354 Mont. 63, 221 P.3d 1213 (emphasis added) (citing State v.

Gardner, 2003 MT 338, ¶ 36, 318 Mont. 436, 80 P.3d 1262).

¶37 Hunt argues the District Court committed reversible error by admitting rebuttal

evidence of uncharged acts. Hunt claims that the District Court based its decision on an

erroneous conclusion that Hunt’s testimony opened the door to such evidence. Analogizing

the facts in this case to Torres, Hunt asserts that denying her intent to sell the drugs she

stipulated to possessing did not open the door to cross-examination about or rebuttal

evidence of prior bad acts. Hunt contends Conway’s testimony was irrelevant to the

charged conduct and unfairly prejudicial.

¶38 The State’s position as to the purpose for which it offered the rebuttal evidence has

been somewhat of a moving target. At trial, the State initially argued that Hunt’s answers

to the prosecutor’s final questions during cross-examination opened the door to evidence

that Hunt sold Conway drugs on previous occasions. When objecting to Hunt’s mistrial

motion, the State asserted that it offered Conway’s testimony to impeach Hunt’s credibility

and contended that calling Conway to testify that she had previously purchased meth from

Hunt somehow did not constitute the admission of prior bad acts, “although that may be a

consequence of challenging her veracity.”

18 ¶39 On appeal, the State maintains Hunt opened the door to rebuttal evidence by

testifying that she “only” used methamphetamine and by identifying Parker as the owner

of the drugs. The State argues Conway’s testimony tended to contradict or disprove that

evidence, a finding it claims we may imply from the District Court’s analysis

distinguishing this case from Torres. Alternatively, the State suggests the District Court

reached the right result by admitting the rebuttal evidence for the wrong reason.

¶40 The District Court ruled Hunt opened the door to rebuttal evidence due to “those

open-ended questions of ‘have you ever,’” reasoning:

It is because in Ms. Hunt’s testimony not only did she state she had no intent to distribute these drugs, which would not have opened the door. What opened the door was, No, I never distributed drugs in the State of Montana. So the State is entitled to come in with evidence that demonstrates or doesn’t that that has happened.

(Emphasis added.)

¶41 The District Court acknowledged that such evidence “might go into the 404(b) other

bad acts, which has the limiting instruction that [the jury] can’t assume that she’s acted in

conformity therewith. [Conway] absolutely is an impeachment witness, and I think it is

square on point.”

¶42 After Hunt brought Torres to the District Court’s attention, the court’s reasoning

expanded to account for the State’s cross-examination questions regarding Hunt’s prior

bad acts. In distinguishing Torres, the District Court determined Hunt’s denial of intent to

sell the drugs at issue “invite[d] a question of, [h]ave you ever sold,” which was different

than Torres, because in that case, “the issue wasn’t whether or not he had ever strangled

anybody. It was whether he had strangled this person. The state brought in someone else

19 he had strangled to say, [l]ook, he did it to this gal. He’s going to do it to another one.”

The District Court determined the cross-examination questions were “legitimate

exploration,” and Hunt’s responses opened the door to testimony from a “rebuttal witness

for credibility.”

¶43 In Torres, the defendant was charged with strangulation of a partner or family

member, among other offenses. Torres, ¶ 1. The defendant testified during direct

examination that he had never strangled the victim in that case. Torres, ¶¶ 28, 41. On

cross examination, the State asked the defendant if he had ever strangled another person;

he answered no. Torres, ¶¶ 28, 41. After the defense rested, the State argued it was entitled

to call the defendant’s ex-girlfriend as a rebuttal witness because the defendant denied

strangling other people on cross-examination. Torres, ¶ 16. The trial court allowed the

defendant’s ex-girlfriend to testify about his alleged strangulation of her as impeachment

evidence. Torres, ¶ 17. The defendant’s ex-girlfriend testified the defendant strangled her

during an uncharged and unreported incident several years earlier. Torres, ¶ 18. We

determined the lower court erroneously admitted the ex-girlfriend’s testimony about the

prior strangulation incident, stating:

“[T]he State engaged in a sharp practice. While Torres provided direct testimony denying he had ever strangled [the victim], the first time he categorically denied strangling anyone else was in response to the State’s explicit questioning on cross. The prosecutor’s line of questioning Torres’s prior acts on cross-examination was error. Torres did not open the door that would provide something to rebut or impeach. Rather, the prosecutor’s own questions set the trap.”

Torres, ¶ 41 (internal punctuation omitted).

20 ¶44 The circumstances of this case are analogous to Torres. Hunt’s defense in this case

was that while she knew there were drugs in the envelope, they belonged to Parker and she

neither intended nor had the authority to sell them. On direct examination, Hunt

acknowledged being a user of methamphetamine. But the first time Hunt “categorially

denied” selling drugs in Montana or elsewhere “was in response to the State’s explicit

questioning on cross.” Torres, ¶ 41. Hunt did not make a strategic decision to give those

answers to the jury, the State did. Put another way, Hunt did not open the door, the State

did.3

¶45 The Concurrence and Dissent adopts the characterization that the District Court

grafted on to Hunt’s defense strategy: “I don’t sell; therefore, I didn’t have the intent to

sell.” Concurrence and Dissent, Swanson, C.J., ¶ 66. Yet the evidence presented during

Hunt’s defense tells a story that does not match that characterization. The record before us

shows that the defense cabined its inquiries to the issue of Hunt’s intent to sell the drugs

found in her possession; it never introduced the issue of whether she did or did not sell

drugs generally. We are presented, in other words, with an explanation for the District

3 If Hunt had “already opened the door to the State rebuttal witness before the last [cross-examination] question,” as Chief Justice Swanson’s Concurrence and Dissent contends, then the State could have raised that argument when the alleged door-opening testimony was given during the defense’s examination, and not immediately following the improper questions about Hunt’s prior bad acts at the conclusion of the State’s cross-examination. Concurrence and Dissent, Swanson, C.J., ¶ 73. The analysis of the record presented by the Concurrence and Dissent is neither the argument the State made to the District Court nor the justification the District Court employed to support its conclusion that the door was open to evidence of Hunt’s prior bad acts. The State and District Court explicitly relied on Hunt’s cross-examination testimony to permit Conway’s rebuttal without reviewing the record until after Conway testified and over Hunt’s objection that she had not opened the door. We cannot ignore the sequence of events and the disconnect between the explanation given and the record, which indicates the justifications for admitting Conway’s testimony were contrived. 21 Court’s decision that is incongruent with the testimony elicited by the defense on direct

examination. The Concurrence and Dissent does not point to any record evidence

presented by the defense relating to prior incidents of Hunt selling drugs; rather, it

acknowledges Hunt testified that she was “not a drug dealer” and that she did not sell drugs

in response to cross-examination by the State—the exact problem we identified in Torres.

Concurrence and Dissent, Swanson, C.J., ¶¶ 69–73. Taking the Concurrence and Dissent’s

argument to its conclusion, a defendant’s mere denial of the charged offense would always

open the door to cross-examination about and rebuttal evidence of the defendant’s previous

criminal conduct. This would render the rules governing the admission of prior bad acts

evidence meaningless and revive the problem our holding in Torres sought to address. The

Concurrence and Dissent is correct that the defendant’s “prior conduct or status as a

woman-choker was not at issue” in Torres. Concurrence and Dissent, Swanson, C.J., ¶ 76.

But neither was Hunt’s alleged prior history of selling drugs at issue in this case. The only

conduct for which the State charged Hunt was possessing and intending to distribute the

package of drugs found in her car. The prior incidents alleged by Conway were totally

divorced from those drugs; Conway never testified to seeing Hunt in possession of the

package, and Conway testified the final sale to her occurred, at a minimum, several weeks

before the events at issue in this case.

¶46 The State also fails to explain how Hunt’s direct testimony about Parker introduced

a new matter warranting rebuttal evidence when Detective Monaco’s direct testimony and

the prosecutor’s opening statement both referred to Parker’s potential involvement. On

this point it is also noteworthy and telling that the State did not ask Conway a single

22 question about Parker or about the drugs for which the State charged Hunt during the

State’s examination of her. Hunt “did not open the door that would provide something to

rebut or impeach.” Torres, ¶ 41. The District Court erred by concluding Hunt’s testimony

opened the door to cross-examination about and rebuttal evidence of prior uncharged

conduct, and it abused its discretion by permitting Conway’s testimony on those grounds.

The District Court was obligated to balance the probative value of Conway’s testimony

regarding Hunt’s prior bad acts against the risk such testimony would result in unfair

prejudice against Hunt. Torres, ¶ 42 (citing M. R. Evid. 403; State v. Madplume,

2017 MT 40, ¶ 32, 386 Mont. 368, 390 P.3d 142).

¶47 More implausible than Hunt’s story is the idea that the State was “not trying to get

Hunt to testify she did not commit any prior crime,” but rather it intended to “help the jury

appreciate the likelihood” that Parker and Hunt dealt drugs together. Concurrence and

Dissent, Swanson, C.J., ¶ 77. The State unequivocally asked Hunt whether she sold drugs,

clearly “trying to get Hunt to testify” she did not. The State’s decision to not cross-examine

Parker, and the dearth of questions about Parker during the State’s rebuttal examination of

Conway, discredit any claim that the State offered Conway’s testimony for the purpose of

understanding the relationship between Hunt and Parker. Moreover, it is undisputed that

the State’s first argument regarding the admissibility of the rebuttal evidence was

predicated on Hunt’s cross-examination denial of prior criminal conduct.

¶48 We may not reverse a defendant’s conviction unless the record shows that the

defendant suffered prejudice by the improper admission of evidence. Torres, ¶ 45 (citing

§ 46-20-701(1), MCA). Prejudice to the defendant exists “where there is a reasonable

23 probability that the inadmissible evidence contributed to the conviction.” Torres, ¶ 45

(citing State v. Gowan, 2000 MT 277, ¶ 9, 302 Mont. 127, 13 P.3d 376; State v. Van Kirk,

2001 MT 184, ¶¶ 29, 47, 306 Mont. 215, 32 P.3d 735).

¶49 Evidence of prior bad acts may be unfairly prejudicial if “it arouses the jury’s

hostility or sympathy for one side without regard to its probative value, if it confuses or

misleads the trier of fact, or if it unduly distracts from the main issues.” Madplume, ¶ 33

(citing State v. Hicks, 2013 MT 50, ¶ 24, 369 Mont. 165, 296 P.3d 1149). The improper

admission of Conway’s rebuttal testimony compromised the integrity of Hunt’s trial. In

its closing argument, the prosecutor reminded the jury that Hunt “sold [Conway]

methamphetamine multiple times,” and summarized Conway’s testimony by stating

Conway “had the courage to come in here today and say, [‘]Yeah, that person at some point

in my prior life when I had a problem, that person contributed to that problem[’].” The

State’s use of this evidence carried significant danger that the jury would find Hunt guilty

because Conway alleged that Hunt previously engaged in similar conduct. Unlike Torres,

where we held the improper admission of prior bad acts evidence via rebuttal testimony

was not prejudicial because the jury acquitted the defendant of the strangulation offense,

the jury in this case convicted Hunt of the only offense tried. Our review of the record

leads us to conclude there is a reasonable probability the jury convicted Hunt due to the

erroneous admission of Conway’s testimony.

CONCLUSION

¶50 The District Court’s denial of Hunt’s suppression motion is affirmed. The District

Court abused its discretion by permitting Conway’s testimony after erroneously concluding

24 Hunt’s testimony opened the door. There is a reasonable probability that the introduction

of this evidence compromised the integrity of Hunt’s trial. Hunt’s judgment of conviction

is reversed, and this case is remanded for a new trial.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ BETH BAKER

Justice Laurie McKinnon, concurring and dissenting.

¶51 I agree with the Court’s decision to reverse based on the introduction of improper

rebuttal evidence. However, I dissent from the Court’s conclusion that Detective Monaco

possessed particularized suspicion to expand the scope of the initial traffic stop.

¶52 A Terry stop, as an exception to the general warrant requirement, allows law

enforcement to “stop and temporarily detain a person for investigative purposes if they

have specific and articulable objective facts, based on the totality of the circumstances and

including reasonable inferences, that lead to an objectively reasonable particularized

suspicion that the person is or is about to be engaged in criminal activity.” State v. Loberg,

2024 MT 188, ¶ 9, 418 Mont. 38, 554 P.3d 698 (citing State v. Noli, 2023 MT 84, ¶¶ 30-31,

412 Mont. 170, 529 P.3d 813). For a traffic stop, such as here where the driver failed to

display license plates, the “tolerable duration of police inquir[y] is . . . limited to the

justified purpose or mission of the stop[,]” specifically the traffic violation that warranted

the stop and any associated safety concerns of the officer. Noli, ¶ 33 (quotation omitted).

25 It is axiomatic that the duration of such a stop “may not last longer than is necessary to

effectuate the purpose of the stop.” Section 46-5-403, MCA; Noli, ¶ 33.

¶53 Here, Detective Monaco initially stopped Hunt for driving a vehicle without license

plates. At the hearing on Hunt’s motion to disclose the confidential informant, Detective

Monaco explained that he quickly initiated a valid impaired driving investigation of Hunt,

which dispelled suspicions that she was under the influence. Ostensibly, the stop should

have ended at this point. Noli, ¶ 35. However, the initial stop, premised on Hunt’s lack of

license plates, then expanded to a drug investigation. The relevant question for the Court

thus becomes whether Detective Monaco possessed the requisite particularized suspicion

to extend the stop and expand the scope of his investigation based upon his suspicions

regarding possible criminal activity associated with Apartment 1.

¶54 Expansion of the scope of a traffic stop is justifiable “[i]f based on additional

specific and articulable facts observed or discovered during the lawful scope and duration

of the initial stop” develops “a new or expanded particularized suspicion of criminal

activity.” Noli, ¶ 35 (quotation omitted). The stop “must end without further delay” once

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[.]

Noli, ¶ 35 (quotations omitted). The inquiry into whether an officer has an objectively

reasonable particularized suspicion “demands specific articulable information known to

26 the officer at the time.” Loberg, ¶ 9 (citing Noli, ¶ 30). We have refused to accept

“inferences that could be drawn from the conduct of virtually any law-abiding person” as

little more than “mere generalized suspicion or an inarticulable hunch of criminal activity.”

Loberg, ¶ 12 (citing Noli, ¶ 32). Rather, law enforcement must demonstrate that their

observations of particular behavior operate “in conjunction with other specific indicia of

criminal activity.” Loberg, ¶ 12 (citing Noli, ¶ 32) (emphasis in original). Indeed, in Noli

we provided an exhaustive survey of some of these otherwise legal behaviors which alone

and without additional indicia cannot provide particularized suspicion:

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[;] travelling 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.

Noli, ¶ 32 (citation omitted). Otherwise, we continued, drawing such “‘inferences of

nefariousness’ from no more than inarticulable hunches ‘subject[s] drivers to the perils of

profiling and other impermissible motives for initiating traffic stops.’” Noli, ¶ 32 (quoting

State v. Reeves, 2019 MT 151, ¶ 13, 396 Mont. 230, 444 P.3d 394).

¶55 While the Court correctly assesses the standard for particularized suspicion found

in our Loberg and Noli holdings as requiring more than generalized information that an

area or situs hosts illegal drug activity, the Court then grants undeserved credence to

Detective Monaco’s assertion that drug activity occurred specifically within Apartment 1

27 despite a lack of any support in the record demonstrating specific facts giving rise to a

particularized suspicion. Opinion, ¶ 31. Analogizing the instant case to State v. McMaster,

2008 MT 294, 345 Mont. 408, 191 P.3d 443, the Court reasons that Detective Monaco’s

suspicions reasonably arose from “specific information” known to him. Opinion, ¶ 32.

However, and in contrast to the instant case, the facts giving rise to law enforcement’s

particularized suspicion at issue in McMaster related directly to McMaster himself, to the

vehicle registered in his name, and to information gained from other investigations

including collaborative work between regional law enforcement agencies. McMaster, ¶ 21.

Another law enforcement officer had even witnessed McMaster and his colleagues

“transfer a box from one vehicle to the other.” McMaster, ¶ 19. We further distinguished

McMaster in Loberg, focusing on the conduct observed by law enforcement and that the

information relied upon was recently acquired as a point of divergence between the two

cases. Loberg, ¶ 19 (citing McMaster, ¶¶ 19, 21). The officer in Loberg predicated his

particularized suspicion on the defendant’s quick stop at a casino bearing a notorious

reputation for drug activity. Loberg, ¶ 19. Ultimately, we reasoned that, while generalized

associations of criminal activity with casinos might factor into a totality of the

circumstances analysis, simply concluding that “coming from an area generally known for

illegal drugs is not enough to rise to particularized suspicion without additional specific,

objective facts of criminal activity,” lest “any highway in Montana could be a drug

corridor.” Loberg, ¶ 19 (citing Noli, ¶¶ 32, 61, 63).

¶56 The instant case involves a detective acting on a generalized suspicion arising from

seeing a vehicle parked in front of Apartment 1 which he later witnessed travelling in the

28 general vicinity of the apartment complex.1 Hunt explained to Detective Monaco that she

was returning to work after feeding her animals at her home and visiting a chiropractor—

all legal activities. When asked if she possessed any drug paraphernalia, Hunt responded

affirmatively that she had a legal “dab pen.” She then successfully completed the field

sobriety tests administered by Detective Monaco. Detective Monaco provided no specific

information to tie Apartment 1 to illicit activity: neither he nor his “source” had witnessed

any hand-to-hand deals occur within the premises. Travelling from an area generally

known for illegal drugs might establish particularized suspicion when balanced with the

totality of the circumstances but does not provide the necessary justification to intrude upon

the right to privacy when contextualized only with other totally innocent or innocuous

facts. Loberg, ¶ 19; Noli, ¶¶ 32, 61.

¶57 Detective Monaco’s offered “firsthand knowledge of drug activity in the exact

apartment,” included apprehending “a wanted drug addict”2 there and knowledge of

vehicles frequently coming and going. However, Detective Monaco’s testimony did not

elucidate whether these instances occurred during the period of Hunt’s tenancy or how they

helped establish particularized suspicion for Hunt’s vehicle. Further, Detective Monaco

then admitted that he personally had not seen hand-to-hand drug transactions and that he

1 This is a generous framing of the reasons for the initial stop, which the District Court, in the order denying disclosure of the confidential informant, found “was based on the vehicle’s lack of license plates, not any intelligence provided by an informant.” 2 Detective Monaco’s testimony regarding this fact is vague as to whether the individual was simply apprehended in the apartment, resided there with or without Hunt, or was simply arrested on an outstanding warrant and not caught contemporaneously engaging in criminal activity. 29 could not confirm whether his confidential informant had witnessed the same. Detective

Monaco then clarified that he does not refer to this unnamed individual as an informant,

but rather a “source” who had not received any specific information regarding drug activity

in Apartment 1 “as of late.” Hunt’s BMW itself could not be “associated specifically” with

the intelligence regarding criminal activity occurring in Apartment 1. At trial, Detective

Monaco explained his suspicions, based upon “general intelligence,” that “Hunt might be

up to some criminal activity.” On cross-examination, he reiterated his suspicions stemmed

from general concern or general intelligence of drug activity. Again, he could not confirm

that his “source” or “confidential informant” could definitively state that hand-to-hand drug

deals occurred within Apartment 1.

¶58 Accepting Detective Monaco’s generalized suspicions as sufficient is clearly

erroneous because the District Court misapprehended the effect of attenuated, largely

benign facts to find particularized suspicion of illegal drug activity to extend the traffic

stop. Our caselaw contains multiple instances in which similar facts failed to give rise to

a particularized suspicion meriting the expansion of a traffic stop into a drug investigation.

In Loberg, we held that the evidence offered consisted of otherwise perfectly legal or

innocuous conduct or behavior and was thus inadequate to support a finding of

“particularized suspicion” to justify detention and a canine search. Loberg, ¶ 24. Likewise,

in State v. Harning, 2022 MT 61, ¶ 29, 408 Mont. 140, 507 P.3d 145, we held that law

enforcement impermissibly extended a traffic stop into a drug investigation on the basis of

little more than “an undeveloped, generalized suspicion” that the vehicle may have

contained drugs. In State v. Carrywater, 2022 MT 131, ¶ 26, 409 Mont. 194, 512 P.3d

30 1180, we reversed the denial of a motion to suppress because the law enforcement officer

lacked particularized suspicion to extend the traffic stop based upon the driver and

passenger switching seats in the vehicle and the nervousness of the parties subject to the

search. Law enforcement failed to articulate objective facts that indicated anyone in the

vehicle was using or trafficking illegal drugs. Carrywater, ¶ 26. In State v. McElroy, 2024

MT 133, ¶ 20, 417 Mont. 68, 551 P.3d 282, we held an officer observing signs of hard

travel in the subject’s vehicle, the subject “traveling from a known drug center in a

third-party’s vehicle,” and the subject’s “nervous demeanor” did not provide sufficient

evidence to support a particularized suspicion. And we held in State v. Broken Rope, 278

Mont. 427, 432-33, 925 P.2d 1157, 1160 (1996), that there was nothing inherently

suspicious in a series of innocuous behaviors which could give rise to inferences resulting

in a particularized suspicion that the defendant was or had been engaged in criminal

activity.

¶59 In State v. Panasuk, 2024 MT 113, ¶ 23, 416 Mont. 430, 549 P.3d 432, a case very

much on point to the facts presented here, we reversed a denial of a motion to suppress

evidence obtained when an officer expanded the scope of the initial traffic stop into a drug

investigation purely because of the officer’s awareness of the driver’s prior suspected drug

involvement. There, the officer initiated a traffic stop after seeing Panasuk pulling a trailer

without a license plate. Panasuk, ¶ 18. He then continued the stop “based solely on

Panasuk’s [criminal] history and on information he had received” regarding Panasuk’s

suspected dealing of illegal drugs in another jurisdiction weeks earlier. Panasuk, ¶ 18. We

concluded that the officer impermissibly premised the expansion of the stop on prior

31 suspected drug involvement which could not give rise to a “reasonable suspicion of current

criminal activity.” Panasuk, ¶ 22 (emphasis in original).

¶60 Here, in affirming the denial of Hunt’s motion to suppress, the Court renders a

cursory assessment of the “objective facts” available to and articulated by Detective

Monaco as supporting reasonable inferences of ongoing criminal activity. Opinion, ¶ 34.

Detective Monaco’s representations regarding Apartment 1 lack reliability and arise from

admittedly general suspicions. Detective Monaco stopped the vehicle for failure to display

license plates. The Court acknowledges, as Hunt herself did, the totality of the

circumstances—Hunt’s demeanor, her glassy red eyes, and admitted possession of a “dab

pen,” Opinion, ¶ 32—gave rise to Detective Monaco’s particularized suspicion to expand

the stop into a DUI investigation, but Hunt’s successful completion of the field sobriety

test should have then dispelled further scrutiny. Upon citing her for failing to have license

plates and administering a successful field sobriety test, the stop should have then

concluded. Instead, based solely on generalized suspicions of criminal activity related to

an apartment, not germane to the vehicle or to Hunt herself and located beyond the vicinity

of the traffic stop itself, Detective Monaco expanded the stop. Particularized suspicion to

stop Hunt for failing to display her license plates existed and that stop developed

particularized suspicion to administer a field sobriety test, but none of those factors related

to Apartment 1. Panasuk, ¶ 22.

¶61 The Court’s decision creates a gap in Montana’s right to privacy by which law

enforcement might designate a private residence as involved in “illegal drug activity” and

thereby subject individuals associated with such a residence to heightened and continual

32 scrutiny in perpetuity. Any practical deference towards a law enforcement officer’s

asserted justification based on experience cannot diminish the duty of this Court to

determine the objective reasonableness of those inferences.

¶62 Based on the foregoing, I dissent from the Court’s conclusion that this was a

constitutional expansion of the initial traffic stop. I concur in all other respects with the

Court’s decision.

/S/ LAURIE McKINNON

Justices Ingrid Gustafson and Katherine M. Bidegaray join in the Concurrence and Dissent of Justice Laurie McKinnon

/S/ INGRID GUSTAFSON /S/ KATHERINE M BIDEGARAY

Chief Justice Cory J. Swanson, concurring and dissenting.

¶63 I concur with the Majority on Issue 1. I dissent on Issue 2.

¶64 The District Court did not act arbitrarily or exceed the bounds of judgment when it

determined Hunt opened the door to the State’s rebuttal witness. The court’s view of

Hunt’s theory of defense was supported by the record. Additionally, the court was

supported by the law when it distinguished Hunt’s case from Torres. Thus, the court did

not abuse its discretion.

¶65 “We review evidentiary rulings for abuse of discretion.” State v. Smith, 2021 MT

148, ¶ 14, 404 Mont. 245, 488 P.3d 531 (citation omitted). “A district court abuses its

discretion when it acts arbitrarily without the employment of conscientious judgment or

33 exceeds the bounds of reason, resulting in substantial injustice.” Smith, ¶ 14 (citation

omitted). “A district court’s evidentiary rulings must be supported by the rules and

principles of law; therefore, to the extent that a discretionary ruling is based on a conclusion

of law we must determine whether the court correctly interpreted the law.” Smith, ¶ 14

(citation omitted; internal quotations omitted; ellipsis omitted).

¶66 The Majority highlights Hunt’s theory of the case as “while she knew there were

drugs in the envelope, they belonged to Parker, and she neither intended nor had the

authority to sell them.” Opinion, ¶ 44. However, the District Court correctly saw the

theory as more complex. The District Court concluded the defense was: “I don’t sell;

therefore, I didn’t have the intent to sell.” The court did not abuse its discretion in allowing

the State to challenge that defense theory.

¶67 Initially, as the Majority notes, the District Court allowed the rebuttal witness,

explaining:

Mr. Boyd, this is the peril, unfortunately, with Ms. Hunt’s history and asking those open-ended questions of “have you ever.” So I do think that the door has been opened, but I also agree that we need to know the circumstances and the witness.

¶68 Later, after reviewing the record, the District Court acknowledged it incorrectly

determined the defense counsel asked Hunt if she ever bought drugs. However, the District

Court explained:

I would say that your articulated defense of “she didn’t intend to sell because that’s not what she does” invites a question of, “Have you ever sold?” And I think that’s distinguishable from Torres because in Torres the issue wasn’t whether or not he had ever strangled anybody. It was whether he had strangled this person. The state brought in someone else he had strangled to say, “Look, he did it to this gal. He’s going to do it to another one.”

34 (Internal quotation marks added for clarity).

¶69 The defense called alleged drug dealer Parker to testify ahead of Hunt. Parker stated

he knew Hunt fairly well. She had helped him during his mother’s illness, and he had

helped her with her dog. He had also worked on several of her cars from time to time.

Parker acknowledged he had been informed there was a package with drugs inside, and it

had his name on it. He recited the address of his mechanics shop, which was the address

on the mailing label for the drug package. He also acknowledged law enforcement tried to

interview him and he did not speak to them, relying on his Fifth Amendment right to remain

silent. The defense did not delve any deeper into this subject on direct examination, and

the State declined to cross-examine him. It appears there was a trial tactical game of

chicken going on with Parker’s testimony, and both sides pulled back from asking one too

many questions of this witness.

¶70 Immediately following Parker, Hunt testified Parker was the owner of the drugs.

She acknowledged she was a drug user—indeed a long-term addict. She stated she had an

ongoing user-dealer relationship with Parker. The jury heard the two were familiar enough

with each other that Parker had lived with her at one point, he had keys to the apartment,

and he seemed to be able to come and go as he pleased.

¶71 Hunt testified Parker had received a large package of methamphetamine

(435 grams) in the mail, and he brought the entire package over to her house to then open

it and sell her a small user amount called an eight-ball (3.5 grams). Parker ostensibly took

on this high-risk transport of the entire wholesale drug shipment (rather than one retail

35 baggie) so he could pick up Hunt’s unregistered vehicle, thereby increasing his chances of

being pulled over with the entire shipment on the way back to his mechanics shop.

However, Hunt claimed she changed the plan because she was late for work, so she took

all the drugs and the car. In the meantime, Parker was deprived of his tens of thousands of

dollars of drugs, and without the vehicle he was supposed to repair. This new plan

frustrated all three of Parker’s objectives: selling Hunt a small user amount; keeping the

rest of his drugs safe; and retrieving Hunt’s vehicle so he could repair it.

¶72 The defense added several other self-incriminating items to this narrative before the

State cross-examined Hunt. On direct examination, Hunt said she had been clean but

relapsed when she “got caught up with the wrong people,” and had been buying drugs from

Parker for about a year. She testified law enforcement had searched her vehicle on other

occasions, not just the traffic stop which led to this case. And then her counsel asked what

would have happened if she had attempted to sell the package of drugs. Hunt’s answer

implied she would be in trouble with Parker, as she did not have the “authority” to sell the

drugs. Then she followed up that she did not have the “intention” to sell the drugs.1

¶73 Hunt concluded her cross-examination by confirming her testimony that she was a

drug user, not a drug dealer. That was before the final question and answer to which the

Majority objects, in which the State asked if she had ever sold drugs in Montana. In my

1 Even without the later disputed admissions, Hunt’s testimony likely would have convicted her of the same offense on the prosecution theory of Accountability, §§ 45-2-301 through -303, MCA, had the State sought a conviction in this way. 36 view, Hunt had already opened the door to the State rebuttal witness before the last

question.

¶74 The District Court did not abuse its discretion in finding the State was entitled to

ask the question of whether she had ever sold drugs in Montana, and it correctly ruled Hunt

had opened the door to the State’s rebuttal testimony. After hearing the testimony, the

District Court concluded Hunt argued she never dealt drugs; she was merely a drug user.

The record supports this conclusion. The District Court then correctly distinguished the

testimony from the facts in Torres.

¶75 The Majority now holds these questions make the situation analogous to Torres. I

disagree. The following are not “sharp questions,” they are holding Hunt accountable for

the evidence she already presented on direct examination that she was engaged in ongoing

conduct which gave rise to indices of drug possession with the intent to distribute:

STATE: As I understand your defense, it’s that you’re a person who struggles with a methamphetamine addiction and you don’t sell drugs. Is that correct?

HUNT: Correct. I work.

. . .

STATE: But as I understand your testimony, it’s that you’re a drug user and that you do not sell drugs.

STATE: You’ve never sold drugs in Montana?

¶76 These questions are distinguishable from Torres, where the prosecution introduced

the issue of prior or ongoing conduct, not the defendant:

37 STATE: You understand how serious cutting off someone’s air supply is, don’t you, Mr. Torres?

TORRES: Yes, I do. (Chuckles.)

STATE: You said you never did that to Bri.

TORRES: Never.

STATE: You said you never did that to anyone.

TORRES: I’ve never done that to anyone.

STATE: You’ve never done that to anyone, including Bri.

TORRES: Including Bri.

STATE: Or anyone else.

TORRES: Not that I can remember, no. No, I’ve never strangled anybody.

STATE: Or cut off someone’s air supply.

TORRES: Or cut off their air. Not that I can recall.

STATE: Or cut off their circulation.

TORRES: No.

Torres, ¶ 28. The prosecution’s questioning in Torres came out of nowhere. Torres’s prior

conduct or status as a woman-choker was not at issue. Torres did not argue, “I don’t choke

people,” or “I’m not a woman-choker, therefore I never choked her.” Had he done so, the

result of that case would have presumably been different. Here, on the other hand, the

District Court correctly concluded Hunt put on a defense of, “I’m a drug user, not a drug

dealer,” and its logical extension, “I don’t sell; therefore, I didn’t have the intent to sell.”

38 ¶77 The prosecution did not trick Hunt, engage in sharp practice, or abuse the rules of

cross-examination. It locked Hunt into her theory of defense. The difference between

Torres and here is that the prosecution was not trying to get Hunt to testify she did not

commit any prior crime; the prosecution was trying to attack Hunt’s story to help the jury

appreciate the likelihood that Parker and Hunt were dealing drugs together. Hunt sailed

too close to the wind in her testimony by trying to minimize her role. She essentially

admitted she knowingly possessed drugs and Parker was, at a minimum, using her to store

and transport them. In doing so, the defense opened the door for the State to confront her

with evidence of her drug-dealing activity, which contradicted her sworn testimony

denying the same.

¶78 I would affirm the conviction because the District Court did not abuse its discretion

in allowing the State to present a rebuttal witness to Hunt’s sworn testimony.

/S/ CORY J. SWANSON

Justice Jim Rice joins the Concurrence and Dissent of Chief Justice Cory J. Swanson.

/S/ JIM RICE