Being Arrested
MCA 46-6-311 — probable cause and circumstances that require immediate arrest, the warnings before questions, and a judge without unnecessary delay
Without a warrant, a peace officer may arrest a person on probable cause that the person is committing or has committed an offense, when existing circumstances require immediate arrest. The officer tells the person of the officer's authority, the intention to arrest and the cause, unless the person is caught in the act or telling would imperil the arrest.
Who handles this in Montana: State Bar of Montana, Licensed Lawyer Montana; and legal aid programs and the state offices, listed in the Montana directory.
- An arrest is made by actual restraint or by submitting to custody, and the person may not be restrained more than is necessary.
- Before questioning a person in custody, an officer gives the warnings: the right to remain silent, that anything said can be used in court, the right to an attorney present, and one provided at no cost if needed.
- A person arrested goes without unnecessary delay before the nearest and most accessible judge for an initial appearance.
Even an unlawful arrest. A person may not use force to resist an arrest known to be made by a peace officer, even if the person believes it is unlawful and it in fact is.
- An officer may arrest on a warrant, or on reasonable grounds to believe a warrant for the person has been issued in Montana or a felony warrant in another jurisdiction.
- After a lawful arrest, the officer may reasonably search the person and the area within their immediate presence for the officer's protection, to prevent escape, or to find evidence of the offense.
Several rules about an arrest come from the Supreme Court of the United States rather than from this state's code. It has held that before questioning a person in custody, officers must warn that the person may remain silent, that anything said can be used against them, and that they have a right to a lawyer, appointed if they cannot afford one; that a person arrested without a warrant is entitled to a prompt decision by a judge on whether there was probable cause; and that officers generally need a warrant to search the data on a phone taken from a person they arrested. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Sources for this section (11)
- MCA 46-6-311 — Basis for arrest without warrant -- arrest of predominant aggressor -- no contact order
- MCA 46-6-312 — Manner of arrest without warrant
- MCA 46-6-104 — Method of arrest
- MCA 46-6-107 — Miranda warning prior to custodial interrogation
- MCA 46-7-101 — Appearance of arrested person -- use of two-way electronic audio-video communication
- MCA 45-3-108 — Use of force in resisting arrest
- MCA 46-6-210 — Arrest by peace officer
- MCA 46-5-102 — Scope of search incident to arrest
- Miranda v. Arizona, 384 U.S. 436 (1966) — Right to remain silent and to counsel during custodial interrogation
- County of Riverside v. McLaughlin, 500 U.S. 44 (1991) — Probable cause review generally within 48 hours of a warrantless arrest
- Riley v. California, 573 U.S. 373 (2014) — Police need a warrant to search a phone seized during an arrest
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Montana attorney.