probable cause standard in Montana

2001Section 46-22-101(1), MCA. ¶10 Gundrum first alleges that he is illegally restrained because he was not afforded a probable cause hearing within 36 hours of his arrest as provided in § 46-23-1012(4), MCA (1999), and discussed in State v. Giddings, 2001 MT 76 , 305 Mont. 74 , 29 P.3d 475 , and State v. Goebel, 2001 MT 155 , 306 Mont. 83 , 31 P.3d 340 .

2001Section 46-22-101(1), MCA. ¶10 Gundrum first alleges that he is illegally restrained because he was not afforded a probable cause hearing within 36 hours of his arrest as provided in § 46-23-1012(4), MCA (1999), and discussed in State v. Giddings, 2001 MT 76 , 305 Mont. 74 , 29 P.3d 475 , and State v. Goebel, 2001 MT 155 , 306 Mont. 83 , 31 P.3d 340 .

1983The probable cause requirement relative to administrative searches is less stringent than that relative to criminal investigations and “[i]f a valid public interest justifies the in trusión contemplated, then there is probable cause to issue a suitably restricted search warrant.” Camara, 387 U.S. at 539 , 87 S.Ct. at 1736 , 18 L.Ed.2d at 941 .

1983The probable cause requirement relative to administrative searches is less stringent than that relative to criminal investigations and “[i]f a valid public interest justifies the in trusión contemplated, then there is probable cause to issue a suitably restricted search warrant.” Camara, 387 U.S. at 539 , 87 S.Ct. at 1736 , 18 L.Ed.2d at 941 .

1988In State v. Spielmann, Christensen (1973), 163 Mont. 199 , 516 P.2d 617 , we adopted for Montana law purposes the probable cause exception for motor vehicles developed in Carroll v. United States (1925), 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 , and Chambers v. Maroney (1970), 399 U.S. 42, 48 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 .

1988In State v. Spielmann, Christensen (1973), 163 Mont. 199 , 516 P.2d 617 , we adopted for Montana law purposes the probable cause exception for motor vehicles developed in Carroll v. United States (1925), 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 , and Chambers v. Maroney (1970), 399 U.S. 42, 48 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 .

2008Swan, 220 Mont. at 166 , 713 P.3d at 1006. ¶33 Unlike the procedures at issue in Morrissey and Gagnon , §§ 46-23-1012 and 46-23-1013, MCA (1983), provided the following due process protections: (1) “[t]he revocation hearing is held promptly, before a defendant is returned to prison;” (2) “[t]he defendant receives notice of the hearing and of the alleged violations;” (3) and “the hearing is held before a judge, rather than an administrative body, providing additional protection for the defendant.” Swan, 220 Mont. at 166 , 713 Mont. at 1006. ¶34 We deemed sufficient the 1983 version of § 46-23-1

2008Swan, 220 Mont. at 166 , 713 P.3d at 1006. ¶33 Unlike the procedures at issue in Morrissey and Gagnon , §§ 46-23-1012 and 46-23-1013, MCA (1983), provided the following due process protections: (1) “[t]he revocation hearing is held promptly, before a defendant is returned to prison;” (2) “[t]he defendant receives notice of the hearing and of the alleged violations;” (3) and “the hearing is held before a judge, rather than an administrative body, providing additional protection for the defendant.” Swan, 220 Mont. at 166 , 713 Mont. at 1006. ¶34 We deemed sufficient the 1983 version of § 46-23-1

2001When considering a probable cause challenge to a search warrant, the “duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause to issue a search warrant existed.” State v. Oleson, 1998 MT 130, ¶ 7 , 289 Mont. 139, ¶ 7 , 959 P.2d 503, ¶ 7 , overruled in part by State v. Kuneff, 1998 MT 287 , 291 Mont. 474 , 970 P.2d 556 (quoting State v. Jensen (1985), 217 Mont. 272, 276 , 704 P.2d 45, 47 ).

2001When considering a probable cause challenge to a search warrant, the “duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause to issue a search warrant existed.” State v. Oleson, 1998 MT 130, ¶ 7 , 289 Mont. 139, ¶ 7 , 959 P.2d 503, ¶ 7 , overruled in part by State v. Kuneff, 1998 MT 287 , 291 Mont. 474 , 970 P.2d 556 (quoting State v. Jensen (1985), 217 Mont. 272, 276 , 704 P.2d 45, 47 ).

2001When considering a probable cause challenge to a search warrant, the “duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause to issue a search warrant existed.” State v. Oleson, 1998 MT 130, ¶ 7 , 289 Mont. 139, ¶ 7 , 959 P.2d 503, ¶ 7 , overruled in part by State v. Kuneff, 1998 MT 287 , 291 Mont. 474 , 970 P.2d 556 (quoting State v. Jensen (1985), 217 Mont. 272, 276 , 704 P.2d 45, 47 ).

2001When considering a probable cause challenge to a search warrant, the “duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause to issue a search warrant existed.” State v. Oleson, 1998 MT 130, ¶ 7 , 289 Mont. 139, ¶ 7 , 959 P.2d 503, ¶ 7 , overruled in part by State v. Kuneff, 1998 MT 287 , 291 Mont. 474 , 970 P.2d 556 (quoting State v. Jensen (1985), 217 Mont. 272, 276 , 704 P.2d 45, 47 ).

2008We acknowledged the limited statutory requirement of a probable cause hearing in State v. Goebel, 2001 MT 73, ¶¶ 20-22 , 305 Mont. 53, ¶¶ 20-22 , 31 P.3d 335, ¶¶ 20-22 .

2008We acknowledged the limited statutory requirement of a probable cause hearing in State v. Goebel, 2001 MT 73, ¶¶ 20-22 , 305 Mont. 53, ¶¶ 20-22 , 31 P.3d 335, ¶¶ 20-22 .

2006“The ‘reasonable cause’ standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer’s diminished expectation of privacy ....” Burchett, 277 Mont. at 195-96 , 921 P.2d at 856 (citing Burke, 235 Mont. at 169 , 766 P.2d at 256-57 , and Griffin v. Wisconsin, 483 U.S. 868 , 107 S. Ct. 3164 (1987)).

2006“The ‘reasonable cause’ standard is substantially less than the probable cause standard required by the Fourth Amendment because of the probationer’s diminished expectation of privacy ....” Burchett, 277 Mont. at 195-96 , 921 P.2d at 856 (citing Burke, 235 Mont. at 169 , 766 P.2d at 256-57 , and Griffin v. Wisconsin, 483 U.S. 868 , 107 S. Ct. 3164 (1987)).

2001Section 46-22-101(1), MCA. ¶10 Gundrum first alleges that he is illegally restrained because he was not afforded a probable cause hearing within 36 hours of his arrest as provided in § 46-23-1012(4), MCA (1999), and discussed in State v. Giddings, 2001 MT 76 , 305 Mont. 74 , 29 P.3d 475 , and State v. Goebel, 2001 MT 155 , 306 Mont. 83 , 31 P.3d 340 .

2001Section 46-22-101(1), MCA. ¶10 Gundrum first alleges that he is illegally restrained because he was not afforded a probable cause hearing within 36 hours of his arrest as provided in § 46-23-1012(4), MCA (1999), and discussed in State v. Giddings, 2001 MT 76 , 305 Mont. 74 , 29 P.3d 475 , and State v. Goebel, 2001 MT 155 , 306 Mont. 83 , 31 P.3d 340 .

2001Section 46-22-101(1), MCA. ¶10 Gundrum first alleges that he is illegally restrained because he was not afforded a probable cause hearing within 36 hours of his arrest as provided in § 46-23-1012(4), MCA (1999), and discussed in State v. Giddings, 2001 MT 76 , 305 Mont. 74 , 29 P.3d 475 , and State v. Goebel, 2001 MT 155 , 306 Mont. 83 , 31 P.3d 340 .

2001OPINION AND ORDER ¶1 Stana Jean Vance (Vance), pro se, filed a Petition for Writ of Habeas Corpus, contending she was entitled to the benefit of this Court’s decision in State v. Giddings, 2001 MT 76 , 305 Mont. 74 , 29 P.3d 475 , because she did not receive a probable cause hearing within *72 36 hours of her arrest under a bench warrant for probation revocation.

2001The State maintains that Giddings was afforded a probable cause hearing at the time the bench warrant was issued and due process does not require two probable cause inquiries. ¶26 We agree with the State’s contention that the relevant inquiry is *90 whether retroactive application of a particular change in the law creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones (2000), 529 U.S. 244, 250 , 120 S.Ct. 1362, 1367 , 146 L.Ed.2d 236 (holding that a rule enacted by the state parole board which extended the time period between parole

2001The State maintains that Giddings was afforded a probable cause hearing at the time the bench warrant was issued and due process does not require two probable cause inquiries. ¶26 We agree with the State’s contention that the relevant inquiry is *90 whether retroactive application of a particular change in the law creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones (2000), 529 U.S. 244, 250 , 120 S.Ct. 1362, 1367 , 146 L.Ed.2d 236 (holding that a rule enacted by the state parole board which extended the time period between parole

2001The State maintains that Giddings was afforded a probable cause hearing at the time the bench warrant was issued and due process does not require two probable cause inquiries. ¶26 We agree with the State’s contention that the relevant inquiry is *90 whether retroactive application of a particular change in the law creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones (2000), 529 U.S. 244, 250 , 120 S.Ct. 1362, 1367 , 146 L.Ed.2d 236 (holding that a rule enacted by the state parole board which extended the time period between parole

2001The State maintains that Giddings was afforded a probable cause hearing at the time the bench warrant was issued and due process does not require two probable cause inquiries. ¶26 We agree with the State’s contention that the relevant inquiry is *90 whether retroactive application of a particular change in the law creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Garner v. Jones (2000), 529 U.S. 244, 250 , 120 S.Ct. 1362, 1367 , 146 L.Ed.2d 236 (holding that a rule enacted by the state parole board which extended the time period between parole

1995In State v. Hall (1991), 249 Mont. 366, 369 , 816 P.2d 438, 440 , this Court reiterated that "[in] State v. Burke ... this Court, following Griffin v. Wisconsin ... set forth the standard for probationary searches." That standard is the reasonable grounds standard, which is less strict than the probable cause standard.

1995In State v. Hall (1991), 249 Mont. 366, 369 , 816 P.2d 438, 440 , this Court reiterated that "[in] State v. Burke ... this Court, following Griffin v. Wisconsin ... set forth the standard for probationary searches." That standard is the reasonable grounds standard, which is less strict than the probable cause standard.

1993State v. Lee (1988), 232 Mont. 105, 109 , 754 P2d 512, 515 .

1993State v. Lee (1988), 232 Mont. 105, 109 , 754 P2d 512, 515 .

1991State v. Lee (1988), 232 Mont. 105, 109 , 754 P.2d 512, 515 ; State v. Ellinger (1986), 223 Mont. 349, 352 , 725 P.2d 1201, 1202 .

1991State v. Lee (1988), 232 Mont. 105, 109 , 754 P.2d 512, 515 ; State v. Ellinger (1986), 223 Mont. 349, 352 , 725 P.2d 1201, 1202 .

1988State v. Ellinger (Mont. 1986), [ 223 Mont. 349 ,] 725 P.2d 1201, 1202 , 43 St.Rep. 1778 , 1780, citing State v. Hamilton (1980), 185 Mont. 522, 528 , 605 P.2d 1121, 1125 ; State v. Hill (1976), 170 Mont. 71, 74 , 550 P.2d 390, 392 .

1988State v. Ellinger (Mont. 1986), [ 223 Mont. 349 ,] 725 P.2d 1201, 1202 , 43 St.Rep. 1778 , 1780, citing State v. Hamilton (1980), 185 Mont. 522, 528 , 605 P.2d 1121, 1125 ; State v. Hill (1976), 170 Mont. 71, 74 , 550 P.2d 390, 392 .

1988State v. Ellinger (Mont. 1986), [ 223 Mont. 349 ,] 725 P.2d 1201, 1202 , 43 St.Rep. 1778 , 1780, citing State v. Hamilton (1980), 185 Mont. 522, 528 , 605 P.2d 1121, 1125 ; State v. Hill (1976), 170 Mont. 71, 74 , 550 P.2d 390, 392 .

1988State v. Ellinger (Mont. 1986), [ 223 Mont. 349 ,] 725 P.2d 1201, 1202 , 43 St.Rep. 1778 , 1780, citing State v. Hamilton (1980), 185 Mont. 522, 528 , 605 P.2d 1121, 1125 ; State v. Hill (1976), 170 Mont. 71, 74 , 550 P.2d 390, 392 .

1973Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L ed 2d 538; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L ed 2d 419, 426, 428; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; and v a r i o u s o t h e r United S t a t e s Supreme Court c a s e s which d i f f e r e n t i a t e between automobiles and nonmovable premises.

1973Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L ed 2d 538; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L ed 2d 419, 426, 428; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; and v a r i o u s o t h e r United S t a t e s Supreme Court c a s e s which d i f f e r e n t i a t e between automobiles and nonmovable premises.

1973Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L ed 2d 538; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L ed 2d 419, 426, 428; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; and v a r i o u s o t h e r United S t a t e s Supreme Court c a s e s which d i f f e r e n t i a t e between automobiles and nonmovable premises.

1973Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L ed 2d 538; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L ed 2d 419, 426, 428; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L ed 2d 564; and v a r i o u s o t h e r United S t a t e s Supreme Court c a s e s which d i f f e r e n t i a t e between automobiles and nonmovable premises.

2022State v. Brander, 2004 MT 150, ¶ 8 , 321 Mont. 484 , 92 P.3d 1173 .

2022State v. Brander, 2004 MT 150, ¶ 8 , 321 Mont. 484 , 92 P.3d 1173 .

2022At a minimum, however, it “require[s] some specific and 19 articulable factual basis known to the probation officer upon which to reasonably suspect, based on the probationer’s criminal and probation compliance history and the officer’s knowledge of his or her life, character, and circumstances, that the probationer may be in possession of contraband in violation of his or her probation or the criminal law.” Peoples, ¶ 18 (citing State v. Fischer, 2014 MT 112, ¶¶ 10-17 , 374 Mont. 533 , 323 P.3d 891 ) (other citations omitted). ¶35 Under the third requirement, the scope of the search must be l

2022At a minimum, however, it “require[s] some specific and 19 articulable factual basis known to the probation officer upon which to reasonably suspect, based on the probationer’s criminal and probation compliance history and the officer’s knowledge of his or her life, character, and circumstances, that the probationer may be in possession of contraband in violation of his or her probation or the criminal law.” Peoples, ¶ 18 (citing State v. Fischer, 2014 MT 112, ¶¶ 10-17 , 374 Mont. 533 , 323 P.3d 891 ) (other citations omitted). ¶35 Under the third requirement, the scope of the search must be l

2019However, because many of Neiss's arguments overlap and tangentially touch on probable cause, we will address the existence of probable cause for the August 2015 Warrant. ¶45 The situation here, where an electronic device is seized pursuant to lawful authority-the March 2013 Warrant-and probable cause subsequently scrutinized pursuant to a warrant for the contents of the computer-the August 2015 Warrant-is analogous to what we addressed in State v. Lacey , 2009 MT 62 , 349 Mont. 371 , 204 P.3d 1192 .

2019However, because many of Neiss's arguments overlap and tangentially touch on probable cause, we will address the existence of probable cause for the August 2015 Warrant. ¶45 The situation here, where an electronic device is seized pursuant to lawful authority-the March 2013 Warrant-and probable cause subsequently scrutinized pursuant to a warrant for the contents of the computer-the August 2015 Warrant-is analogous to what we addressed in State v. Lacey , 2009 MT 62 , 349 Mont. 371 , 204 P.3d 1192 .