Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 5. SEARCH AND SEIZURE · Part 1. Legality and Admissibility
Montana Code Annotated

Mont. Code Ann. § 46-5-102 (2026)

Scope Of Search Incident To Arrest

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 5
  4. Part 1
  5. 46-5-102 Scope of search incident to arrest

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 5. SEARCH AND SEIZURE

Part 1. Legality and Admissibility

Scope Of Search Incident To Arrest

46-5-102. Scope of search incident to arrest. When a lawful arrest is effected, a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of:

(1) protecting the officer from attack;

(2) preventing the person from escaping;

(3) discovering and seizing the fruits of the crime; or

(4) discovering and seizing any persons, instruments, articles, or things which may have been used in the commission of or which may constitute evidence of the offense.

History: En. 95-702 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-702.

Notes of Decisions
Cited in 27 cases (1 in the last 5 years), 1980–2024 · leading case: State v. Hardaway, 2001 MT 252 (Mont. 2001).
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State v. Hardaway, 2001 MT 252 (Mont. 2001). · cites it 74× “Numerous exceptions to search warrant requirements have developed including, but not limited to, "hot pursuit," "plain view/feel," "stop and frisk," "exigent circumstances" and "search incident to arrest" under *908 § 46-5-102, MCA.”
State v. Galpin, 2003 MT 324 (Mont. 2003). · cites it 14× “2d 685, 694 ; § 46-5-102, MCA. Such a search generally must be limited to the immediate locale of the arrest.”
State v. Lanegan, 2004 MT 134 (Mont. 2004). · cites it 14× “Furthermore, § 46-5-102, MCA, permitted Deputy Hight to search Lanegan incident to his arrest within certain limitations, none of which the District Court found applicable to the instant set of circumstances.”
State v. Olson, 2002 MT 211 (Mont. 2002). · cites it 9× “2d at 694 ; see also § 46-5-102, MCA. Such a search generally must be limited to the immediate locale of the arrest.”
State v. Dickinson, 2008 MT 159 (Mont. 2008). · cites it 10× “However, the State did not offer as an alternative theory of justification that the items discovered during Fiscus' extended search inevitably would have been discovered upon issuance of the requested search warrant.”
State v. Demontiney, 2014 MT 66 (Mont. 2014). · cites it 14× “Section 46-5-102, MCA. ¶25 Because the searches have different purposes, their scopes also differ.”
State v. Bobby Cooksey, 2012 MT 226 (Mont. 2012). · cites it 6× “” Section 46-5-102(4), MCA. The officers did not do so.”
State v. Allen, 612 P.2d 199 (Mont. 1980). · cites it 10× “Section 46-5-102, MCA; Chimel v. California (1969), 395 U.”
State v. Isom, 641 P.2d 417 (Mont. 1982). · cites it 6× “Section 46-5-102, MCA, describes the manner in which a peace officer may search following a lawful arrest, and again, this section is not directly applicable.”
State v. Ellis, 2009 MT 192 (Mont. 2009). · cites it 4× “3d 444 ; a search incident to a lawful arrest, Hardaway , ¶ 36 (citing § 46-5-102, MCA); and exigent circumstances coupled with probable cause, State v.”
State v. Stubbs, 892 P.2d 547 (Mont. 1995). · cites it 6× “Section 46-5-102(1), MCA. A search to protect the officer from attack necessarily includes a search for weapons.”
State v. Madplume, 2007 MT 11 (Mont. 2007). · cites it 8× “We also held that the warrantless search "was not conducted in accordance with the rationale permitting a warrantless search incident to a lawful arrest" under § 46-5-102, MCA, as argued by the State. Hardaway , ¶ 58.”
Show all 27 citing cases →
— Mont. Code Ann. § 46-5-102(1) — 7 cases
State v. Hardaway, 2001 MT 252 (Mont. 2001). “Numerous exceptions to search warrant requirements have developed including, but not limited to, "hot pursuit," "plain view/feel," "stop and frisk," "exigent circumstances" and "search incident to arrest" under *908 § 46-5-102, MCA.”
State v. Stubbs, 892 P.2d 547 (Mont. 1995). “Section 46-5-102(1), MCA. A search to protect the officer from attack necessarily includes a search for weapons.”
State v. Galpin, 2003 MT 324 (Mont. 2003). “2d 685, 694 ; § 46-5-102, MCA. Such a search generally must be limited to the immediate locale of the arrest.”
State v. Hammer, 759 P.2d 979 (Mont. 1988).
State v. Griffin, 2004 MT 331 (Mont. 2004).
— Mont. Code Ann. § 46-5-102(3) — 1 case
State v. Allen, 612 P.2d 199 (Mont. 1980). “Section 46-5-102, MCA; Chimel v. California (1969), 395 U.”
— Mont. Code Ann. § 46-5-102(4) — 7 cases
State v. Hardaway, 2001 MT 252 (Mont. 2001). “Numerous exceptions to search warrant requirements have developed including, but not limited to, "hot pursuit," "plain view/feel," "stop and frisk," "exigent circumstances" and "search incident to arrest" under *908 § 46-5-102, MCA.”
State v. Bobby Cooksey, 2012 MT 226 (Mont. 2012). “” Section 46-5-102(4), MCA. The officers did not do so.”
State v. Galpin, 2003 MT 324 (Mont. 2003). “2d 685, 694 ; § 46-5-102, MCA. Such a search generally must be limited to the immediate locale of the arrest.”
State v. Marino, 2016 MT 220 (Mont. 2016).
State v. Cooney, 2006 MT 318 (Mont. 2006).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.