Does Montana have any "Disturbing the Peace" or "Disorderly Conduct" laws that one might be threatened with while OCing?
I understand we may not be able to transport bear spray in our checked baggage. We're flying into Missouli. Where might you suggest we pick up some bear spray - Wal-Mart?
Thanks again.
HERE ARE THE MONTANA CODES AND CASE LAW THAT YOU NEED TO KNOW ABOUT as LEOs are bound to these:
MCA 46-5-401. Investigative stop and frisk.
• Officer must have “particularized suspicion” that a person “has committed, is committing, or is about to commit an offense”
• Requires a statement of “particularized suspicion” “as promptly as possible.”
• The officer may only “request the person's name and present address and an explanation of the person's actions.” Detainee may evoke their 5th Amendment right to remain silent. However, the U.S. Supreme Court recently ruled that you are required to clearly and explicitly state that you “invoke your right to remain silent”, your “5th Amendment guarantee against self-incrimination,” or words to that effect.
• The officer may “frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed AND presently dangerous to the officer or another person present.”
MCA 46-5-401. Investigative stop and frisk. (1) In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a peace 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. If the stop is for a violation under Title 61, unless emergency circumstances exist or the officer has reasonable cause to fear for the officer's own safety or for the public's safety, the officer shall as promptly as possible inform the person of the reason for the stop.
(2) A peace officer who has lawfully stopped a person or vehicle under this section may:
(a) request the person's name and present address and an explanation of the person's actions and, if the person is the driver of a vehicle, demand the person's driver's license and the vehicle's registration and proof of insurance; and
(b) frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present. The officer may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon until the completion of the stop, at which time the officer shall either immediately return the object, if legally possessed, or arrest the person.
(3) A peace officer acting under subsection (2) while the peace officer is not in uniform shall inform the person as promptly as possible under the circumstances and in any case before questioning the person that the officer is a peace officer.
MCA 46-5-403. Duration of stop.
• “A stop authorized by 46-5-401 or 46-6-411 may not last longer than is necessary to effectuate the purpose of the stop.”
• Questions must relate to the purpose of the stop.
U.S. v. DeBerry, 76 F.3d 884, 885 (7th Cir. 1996) (cannot be stopped over a legally carried firearm)
• U.S. vs. Deberry affirms that merely carrying a firearm does not give rise to reasonable suspicion to stop and detain a person.
• The police CAN’T detain someone unless they have “a reasonable belief and not a mere hunch that the person carrying the gun was violating the law.”
Terry v. Ohio, 392 U.S. 1 (1968) (cannot have gun seized without reasonable suspicion)
• A "Terry frisk" is permitted ONLY if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime AND has a reasonable belief that the person "may be armed and presently dangerous."
• The police officer must be able to point to specific and articulable facts which…reasonably warrant the search. This could be a reasonable suspicion … that his safety or that of others was in danger, or that a specific crime was being committed.
• Police cannot reach into pockets for objects clearly not weapons, and cannot remove any item that doesn’t feel like a weapon such as a wallet, ID card, or cash.
• A terry frisk is limited to patting down the outside of the clothing.
U.S. v. Ubiles, 224 F.3d 213 (3rd Cir. 2000)
• The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
U.S. v. King, 990 F.2d 1552 (10th Cir. 1993)
• The Tenth Circuit found that a detention simply because of the possession of a loaded firearm lacks sufficient basis because the firearm alone doesn’t create a reasonable suspicion of criminal activity.
People v. Loudermilk (1987)
A suspect may not be detained because he refused to identify himself or produce identification.
U.S. v. Brown 739 F.2d 1136 (7th Cir. 1984)
Defendant is entitled to refuse to furnish identification.
U.S. v. Manuel (1993)
Refusal to consent to a search doesn’t constitute a reasonable suspicion.
State v. Barwick, 66 Wn. App. 706 at 709, 833 P.2d 421 (July 30, 1992)
"Indeed, there is no general requirement in this country for citizens to carry any identification."
Below are some U.S. Supreme Court decisions which affirm your right to NOT show an ID (or otherwise identify yourself) or answer any questions.
Coates v. Cincinnati, 402 U.S. 611, 616 (1971)
”Texas may not criminalize by statute or practice conduct that is Constitutionally protected.”
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)
“…a statute which serves as “merely the cloak” for arrests which would not otherwise be lawful is a pernicious affront to the Fourth Amendment and cannot be upheld”
Miranda v. Ariz., 384 U.S. 436 at 491 (1966)
“Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them.”
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)
The Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings
45-7-303. Obstructing justice. (1) For the purpose of this section "an offender" means a person who has been or is liable to be arrested, charged, convicted, or punished for a public offense.
(2) A person commits the offense of obstructing justice if, knowing another person is an offender, the person purposely:
(a) harbors or conceals an offender;
(b) warns an offender of impending discovery or apprehension, except this does not apply to a warning given in connection with an effort to bring an offender into compliance with the law;
(c) provides an offender with money, transportation, weapon, disguise, or other means of avoiding discovery or apprehension;
(d) prevents or obstructs by means of force, deception, or intimidation anyone from performing an act that might aid in the discovery or apprehension of an offender;
(e) suppresses by act of concealment, alteration, or destruction any physical evidence that might aid in the discovery or apprehension of an offender; or
(f) aids an offender who is subject to official detention to escape from official detention.
And here are some more Montana codes:
45-8-101. Disorderly conduct. (1) A person commits the offense of disorderly conduct if the person knowingly disturbs the peace by:
(a) quarreling, challenging to fight, or fighting;
(b) making loud or unusual noises;
(c) using threatening, profane, or abusive language;
(d) rendering vehicular or pedestrian traffic impassable;
(e) rendering the free ingress or egress to public or private places impassable;
(f) disturbing or disrupting any lawful assembly or public meeting;
(g) transmitting a false report or warning of a fire or other catastrophe in a place where its occurrence would endanger human life;
(h) creating a hazardous or physically offensive condition by any act that serves no legitimate purpose; or
(i) transmitting a false report or warning of an impending explosion in a place where its occurrence would endanger human life.
Note that carrying a firearm openly in Montana cannot be considered as disorderly conduct.
45-8-213. Privacy in communications. (1) Except as provided in 69-6-104, a person commits the offense of violating privacy in communications if the person knowingly or purposely:
(c) records or causes to be recorded a conversation by use of a hidden electronic or mechanical device that reproduces a human conversation without the knowledge of all parties to the conversation. This subsection (1)(c) does not apply to:
(i) elected or appointed public officials or to public employees when the transcription or recording is done in the performance of official duty;
(ii) persons speaking at public meetings;
(iii) persons given warning of the transcription or recording, and if one person provides the warning, either party may record;
Consenting to a Search:
Common courtesy is one thing, but it’s not a courtesy to let a stranger look through your stuff or pat you down. If an officer is asking permission for something then that means he doesn’t have the justification he needs to do it without your permission. He’s asking you to waive your rights. If they have probable cause to search you, they wouldn’t ask permission. NEVER consent.
Q – Would you mind if I search your _______?
A- What would you be searching for?
Q- If you have nothing to hide, why would you object to a search?
A- Have you ever thought of applying that same reasoning to your own property?
46-6-502. Arrest by private person. (1) A private person may arrest another when there is probable cause to believe that the person is committing or has committed an offense and the existing circumstances require the person's immediate arrest. The private person may use reasonable force to detain the arrested person.
(2) A private person making an arrest shall immediately notify the nearest available law enforcement agency or peace officer and give custody of the person arrested to the officer or agency.
46-6-506. Temporary detention by merchant -- liability. (1) A merchant, as defined in 30-11-301, who has reason to believe that a person has committed or is in the process of committing the offense of theft may stop and temporarily detain that person. The merchant:
(a) shall promptly inform the person that the stop is for investigation of shoplifting and that upon completion of the investigation, the person will be released or turned over to the custody of a peace officer;
(b) may demand the person's name and present or last address and question the person in a reasonable manner for the purpose of ascertaining whether or not the person is guilty of shoplifting;
(c) may take into possession any merchandise for which the purchase price has not been paid and that is in the possession of the person or has been concealed from full view; and
(d) may detain the person or request the person to remain on the premises until a peace officer arrives.
(2) A stop, detention, questioning, or recovery of merchandise under this section must be done in a reasonable manner and time. Unless evidence of concealment is obvious and apparent to the merchant, this section does not authorize a search of the detained person other than a search of the person's coat or other outer garments and any package, bag, or other container. After the purpose of a stop has been accomplished or 30 minutes have elapsed, whichever occurs first, the merchant shall allow the person to go unless the person is arrested and turned over to the custody of a peace officer.
(3) A merchant stopping, detaining, or arresting a person on the belief that the person is shoplifting is not liable for damages to the person unless the merchant acts in a manner contrary to this section.
(4) As used in this section, the following definitions apply:
(a) "Concealment" means any act or deception done purposely or knowingly upon or outside the premises of a wholesale or retail store or other mercantile establishment, with the intent to deprive the merchant of all or part of the value of the merchandise. The following acts or deceptive conduct is prima facie evidence of concealment:
(i) concealing merchandise upon the person or in a container or otherwise removing merchandise from full view while upon the premises;
(ii) removing, changing, or altering a price tag;
(iii) transferring or moving any merchandise upon the premises to obtain a lower price than the merchandise was offered for sale for by the merchant; or
(iv) abandoning or disposing of any merchandise in such a manner that the merchant will be deprived of all or part of the value of the merchandise.
(b) "Shoplifting" means the theft of any goods offered for sale by a wholesale or retail store or other mercantile establishment.
45-7-401. Official misconduct. (1) A public servant commits the offense of official misconduct when in an official capacity the public servant commits any of the following acts:
(a) purposely or negligently fails to perform any mandatory duty as required by law or by a court of competent jurisdiction;
(b) knowingly performs an act in an official capacity that the public servant knows is forbidden by law;
(c) with the purpose to obtain a personal advantage or an advantage for another, performs an act in excess of the public servant's lawful authority;
(d) solicits or knowingly accepts for the performance of any act a fee or reward that the public servant knows is not authorized by law; or
(e) knowingly conducts a meeting of a public agency in violation of 2-3-203.
(2) A public servant convicted of the offense of official misconduct shall be fined not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.
(3) The district court has exclusive jurisdiction in prosecutions under this section. Any action for official misconduct must be commenced by an information filed after leave to file has been granted by the district court or after a grand jury indictment has been found.
(4) A public servant who has been charged as provided in subsection (3) may be suspended from office without pay pending final judgment. Upon final judgment of conviction, the public servant shall permanently forfeit the public servant's office. Upon acquittal, the public servant must be reinstated in office and must receive all backpay.
(5) This section does not affect any power conferred by law to impeach or remove any public servant or any proceeding authorized by law to carry into effect an impeachment or removal.
Rodriguez v. United States
The Supreme Court ruled in Rodriguez v. United States that the police can't stall traffic stops for dog sniff for drugs. Prolonging a traffic stop to allow for a sniff of the vehicle by a drug-detecting dog violates the Constitution’s shield against unreasonable seizures.
In a 6-to-3 decision, the high court said that police may not continue to detain a driver and passengers during a roadside traffic stop to facilitate an additional investigation, such as a sniff of the vehicle by a drug-detecting dog.
“We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures,” Justice Ruth Bader Ginsburg wrote in the majority opinion.
The officer must allow the seized person to depart once the purpose of the stop has concluded.”
The ruling comes from a case between Nebraska police officer Morgan Struble and driver Dennys Rodriguez, the latter pulled over for a routine stop before a drug-sniffing dog was used to find drugs in the vehicle. The issue that led to the Supreme Court’s ruling was the amount of time it took to complete said stop, which would have ended the moment Struble issued the written warning to Rodriguez. Instead, the officer kept the driver stopped until backup arrived to conduct the search.
Though lower courts had ruled that a wait of less than 10 minutes was a minimal intrusion into the driver’s Fourth Amendment rights at worst, the Supreme Court declared that the stop could only last for as long as was needed to conclude the original purpose for the stop.
Citizens can no longer be detained by police who are waiting for dogs without reasonable suspicion during a traffic stop.
As for bear spray, you can buy a used (but still full) can for $10, then sell it back to the same store for $5 before you leave.
Replay Sports
2593 US-2 #7
(406) 752-5005
Open until 6:00 PM
