When Police Come to the House
MCA 46-5-221 — a warrant on sworn facts that particularly describe the place, served within 10 days, and no night arrest at home for a misdemeanor
A search may be made by the authority of a search warrant, or under the exceptions to the warrant requirement the courts recognize.
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.
- The application is under oath and states facts sufficient for probable cause that an offense was committed and that evidence may be found.
- It particularly describes the place to be searched and who or what is to be seized.
- The warrant may be served day or night, but within 10 days of issuance, or it is void.
At night, at home. A person may not be arrested at home at night for a misdemeanor committed at another time and place unless a judge has endorsed that direction on the warrant. Partner or family member assault is the exception.
The Fourth Amendment draws its firmest line at the entrance to a home, and the Supreme Court of the United States has held where it falls in situations police meet at a door. Absent consent or exigent circumstances, officers may not enter a home without a warrant to make a routine felony arrest. Where one occupant consents to a search of a shared home and another who is physically present expressly refuses, the search is unreasonable as to the one who refused. And officers may enter without a warrant when they have an objectively reasonable basis for believing someone inside is seriously injured or imminently threatened with such injury. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
How a warrant is served is also measured by the Fourth Amendment. The Supreme Court of the United States has held that whether officers knocked and announced their presence before entering is part of whether the entry was reasonable, and that the knock and announce principle forms part of that analysis rather than being a rigid rule without exceptions. 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 (8)
- MCA 46-5-101 — Searches and seizures -- when authorized
- MCA 46-5-221 — Grounds for search warrant
- MCA 46-5-225 — When warrant may be served
- MCA 46-6-105 — Time of making arrest
- Payton v. New York, 445 U.S. 573 (1980) — Warrantless entry into a home to make a routine arrest is barred
- Georgia v. Randolph, 547 U.S. 103 (2006) — A present occupant's refusal defeats another occupant's consent
- Brigham City v. Stuart, 547 U.S. 398 (2006) — Police may enter to render emergency aid
- Wilson v. Arkansas, 514 U.S. 927 (1995) — Knocking and announcing is part of whether an entry is reasonable
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed Montana attorney.