Montana Code Annotated

Mont. Code Ann. § 46-5-228 (2026)

Procedures Assisting In Execution Of Service Of Search Warrant

✓ current as of May 2026

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TITLE 46. CRIMINAL PROCEDURE

CHAPTER 5. SEARCH AND SEIZURE

Part 2. Search Warrants

Procedures Assisting In Execution Of Service Of Search Warrant

46-5-228. Procedures assisting in execution of service of search warrant. (1) All necessary and reasonable force may be used to serve a search warrant or to effect an entry into any building, property, or object to serve a search warrant, but any restraint or detention of the person served must be in the least restrictive manner that is consistent with the safety of the person serving the warrant and anyone assisting that person.

(2) The person serving the search warrant may reasonably detain and search any person on the premises being searched at the time of the search, but must do so in the least restrictive manner that is consistent with the safety of the person serving the warrant and anyone assisting that person. The search of persons on the premises is:

(a) for protection of the person serving the warrant and anyone assisting that person; or

(b) to prevent the disposal or concealment of any evidence, contraband, or persons particularly described in the warrant.

History: (1)En. 95-709 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-709; amd. Sec. 56, Ch. 800, L. 1991; Sec. 46-5-208, MCA 1989; redes. 46-5-228(1) by Code Commissioner, 1991; (2)En. 95-710 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-710; amd. Sec. 57, Ch. 800, L. 1991; Sec. 46-5-209, MCA 1989; redes. 46-5-228(2) by Code Commissioner, 1991; amd. Sec. 1, Ch. 153, L. 2005.

Notes of Decisions

Cited in 4 cases, 1994–2006 · leading case: State v. Dawson, 1999 MT 171 (Mont. 1999).

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State v. Dawson, 1999 MT 171 (Mont. 1999). · cites it 28× “¶ 26 In addition to the provisions of §§ 46-5-401 and 402, MCA, the State argued before the court below and now in its brief on appeal, that § 46-5-228(2), MCA, also justified the search of Dawson's person.”

State v. Ellington, 2006 MT 219 (Mont. 2006). · cites it 17× “The State countered that § 46-5-228, MCA, provided the authority for officers to detain Ellington temporarily pursuant to their search warrant, and that officers had a particularized suspicion sufficient to justify his detention under § 46-5-401, MCA.”

State v. Attaway, 870 P.2d 103 (N.M. 1994). · cites it 2× “3 (Proposed Official Draft 1975). Many state statutes authorize the use of reasonable and necessary force in executing a search warrant, without expressly requiring announcement: 725 ILCS 5/108-8 (1992 State Bar Ed.”

State v. Anderson, 1999 MT 60 (Mont. 1999). · cites it 4× “¶25 Finally, the State cites to § 46-5-228(2), MCA, as authority for its argument that probable cause alone was sufficient to justify the warrantless search of Anderson.”

— Mont. Code Ann. § 46-5-228(2) — 2 cases

State v. Dawson, 1999 MT 171 (Mont. 1999). “¶ 26 In addition to the provisions of §§ 46-5-401 and 402, MCA, the State argued before the court below and now in its brief on appeal, that § 46-5-228(2), MCA, also justified the search of Dawson's person.”

State v. Anderson, 1999 MT 60 (Mont. 1999). “¶25 Finally, the State cites to § 46-5-228(2), MCA, as authority for its argument that probable cause alone was sufficient to justify the warrantless search of Anderson.”

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