Montana Vehicle Searches Run on a Constitution That Names Electronic Data

The starting point in Montana is constitutional and it is unusually explicit. Article II, Section 11 of the Montana Constitution secures the people from unreasonable searches and seizures and, since the November 8, 2022 amendment, lists electronic data and communications alongside persons, papers, homes and effects. The same section requires that a warrant to search a place, to seize a person or thing, or to access electronic data or communications describe the place or the thing and rest on probable cause supported by oath or affirmation reduced to writing. Montana also carries a separate, freestanding privacy clause at Article II, Section 10: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." That compelling-interest formula has no analogue in the Fourth Amendment and is why Montana search doctrine is argued on state constitutional grounds first.

The implementing statute is short. Section 46-5-101, MCA, permits a search of a person, object or place and the seizure of evidence, contraband or persons only where the search is made by the authority of a search warrant or in accordance with judicially recognized exceptions to the warrant requirement. Consent is one of those judicially recognized exceptions; it is not written into the section, which is why nothing in the Montana Code sets out a consent script, a warning that consent may be refused, or a duty to log whether consent was requested and given. Section 46-5-102, MCA, defines the scope of a search incident to arrest and limits it to the person arrested and the area within that person's immediate presence, for the purposes of protecting the officer, preventing escape, and discovering and seizing the fruits or instruments of the crime. Section 46-5-103, MCA, then lists the circumstances in which a search will not be held illegal, including where a right of the defendant was not infringed.

The stop that precedes the search is governed by 46-5-401(1), MCA, which requires that the person or vehicle be observed in circumstances creating a particularized suspicion of an offense, and by 46-5-403, MCA, which provides that the stop "may not last longer than is necessary to effectuate the purpose of the stop." A search extending beyond that window is challenged on the duration ground as much as on the search ground. Montana also legislated on device data in the same period: 46-5-112, MCA, requires a warrant for electronic data with stated exceptions, and 46-5-117 prohibits the use of license plate readers except as the section allows.

On marijuana, Montana did not follow the states that wrote a search protection into their legalisation act. Section 16-12-107(4), MCA, provides that possession of or application for a license does not solely constitute probable cause to search a person or the person's property, or otherwise subject them to inspection by a governmental agency including a law enforcement agency, but that protection is written for people licensed under the marijuana chapter, not for an adult consumer at a roadside. Section 16-12-303, MCA, states that nothing in the chapter limits a law enforcement agency's ability to investigate unlawful activity in relation to a person with a license.

More importantly, Montana created a transport offense that cuts the other way. Section 61-8-1027, MCA, enacted by Chapter 576, Laws of 2021, makes it an offense to knowingly possess marijuana, marijuana products or marijuana paraphernalia within the passenger area of a motor vehicle on a highway, unless the item was purchased from a dispensary and remains in its unopened original packaging, or is in a locked glove or storage compartment, a trunk, a luggage compartment, a truck bed or cargo compartment, behind the last upright seat of a vehicle without a trunk, or in a closed container in an area not normally occupied by the driver or a passenger. Montana therefore belongs with the legalisation states whose vehicle rule is a stowage requirement, not a shield.

A search made without a warrant and outside a judicially recognized exception is challenged by a motion to suppress filed in the court where the charge is pending, under 46-5-101 and Article II, Sections 10 and 11 of the Montana Constitution. The remedy is exclusion of the evidence, and 46-5-103(2), MCA, confirms the converse: evidence lawfully seized is admissible in any prosecution or proceeding, whether or not that proceeding is for the offense the search was originally made for. A separate remedy exists for electronic data: 46-5-113, MCA, creates a civil action for violation of the electronic data privacy sections, and 46-5-110 sets a civil penalty for location information violations.

The marijuana transport offense at 61-8-1027(3)(a) carries a fine not to exceed $100, and 61-8-1027(3)(b) makes it unusually consequence-free otherwise: it is not a criminal offense within the meaning of 3-1-317, 3-1-318, 45-2-101, 46-18-236, 61-8-104 or 61-8-711, it may not be recorded or charged against a driver's record, an insurer may not hold it against the insured or raise premiums because of it, and the surcharges in 3-1-317, 3-1-318 and 46-18-236 may not be imposed.