Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 5. SEARCH AND SEIZURE · Part 4. Stop and Frisk
Montana Code Annotated

Mont. Code Ann. § 46-5-402 (2026)

Repealed

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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 5
  4. Part 4
  5. 46-5-402 Repealed

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 5. SEARCH AND SEIZURE

Part 4. Stop and Frisk

Repealed

46-5-402. Repealed. Sec. 2, Ch. 343, L. 2003.

History: En. 95-719 by Sec. 4, Ch. 513, L. 1973; amd. Sec. 8, Ch. 184, L. 1977; R.C.M. 1947, 95-719(4) thru (7); amd. Sec. 43, Ch. 800, L. 1991.

Notes of Decisions
Cited in 18 cases (2 in the last 5 years), 1980–2022 · leading case: State v. Damon, 2005 MT 218, 119 P.3d 1194.
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State v. Damon, 2005 MT 218, 119 P.3d 1194. · cites it 32× “¶ 31 Section 46-5-402, MCA (2001), the so-called "stop and frisk statute," which the Legislature repealed in 2003, provided that before questioning a person, an officer had to inform the person of the nature of the stop.”
State v. Henderson, 1998 MT 233, 966 P.2d 137. · cites it 30× “The provisions of § 46-5-402(4), MCA, make the District Court's reliance on Farley and Redinger misplaced.”
State v. Krause, 2002 MT 63, 44 P.3d 493. · cites it 20× “¶34 The State argues on the other hand that Krause’s contention would be true only if Officer Heinecke had reason to suspect that Krause was armed and presently dangerous as provided by subsection (1) of § 46-5-402, MCA. The State maintains that under this subsection of the…”
State v. Dawson, 1999 MT 171, 983 P.2d 916. · cites it 22× “To that end, § 46-5-402, MCA, provides: Stop and frisk.”
State v. Nelson, 2004 MT 310, 101 P.3d 261. · cites it 17× “First, he argues that his admission to Officer Baiamonte that he had used methamphetamine, Officer Baiamonte’s observations of his behavior and the administration of the sobriety tests should be suppressed because officers gave him neither the stop advisory, pursuant to §…”
State v. Zakovi, 2005 MT 91, 110 P.3d 469. · cites it 13× “At neither the accident scene nor at the hospital did Officer Cohenour give Zakovi *478 the investigative stop advisory pursuant to § 46-5-402(2), MCA (2001). ¶8 On July 13, 2001, Zakovi was charged in the Jefferson County Justice Court with driving under the influence of…”
State v. Broken Rope, 925 P.2d 1157 (Mont. 1996). · cites it 14× “The remainder of the State's arguments relate to the officers' entitlement to "frisk" a person and seize certain objects pursuant to § 46-5-402, MCA. According to the State, however, § 46-5-402, MCA, applies "[o]nce a peace officer has lawfully stopped a person under § 46-5-401.”
State v. Stubbs, 892 P.2d 547 (Mont. 1995). · cites it 6× “Section 46-5-402, MCA; State v. Gopher (1981), 193 Mont.”
State v. Hilgendorf, 2009 MT 158, 208 P.3d 401. · cites it 4× “2d 199, 203 (1994), and inventory searches are "not subject to the probable cause strictures of § 46-5-402(2), MCA." State v. Heath, 2000 MT 94, ¶ 18 , 299 Mont.”
State v. Morris, 749 P.2d 1379 (Mont. 1988). · cites it 5× “Morris further complains that Officer Neumeyer did not follow the stop and frisk procedures of § 46-5-402, MCA. The procedures of that statute apply once the officer has lawfully stopped a person and so apply specifically to the "frisk" portion of the process.”
Duran v. Buttrey Food, Inc., 616 P.2d 327 (Mont. 1980). · cites it 6× “Section 46-5-402, MCA. The merchant's arrest statute, sections 46-6-502(3) and 503, MCA, were adopted originally as a part of Chapter 274, Montana Session Laws of 1974.”
State v. M. Zeimer, 2022 MT 96, 510 P.3d 100. · cites it 2× “¶39 Even when justified based on a particularized suspicion that the subject is presently armed and dangerous, the constitutionally-authorized manner and scope of a protective frisk/pat-down search is narrowly limited to a protective pat-down of the subject’s “outer 21 The Terry…”
Show all 18 citing cases →
Mont. Code Ann. § 46-5-402(1): 1 case
State v. Broken Rope, 925 P.2d 1157 (Mont. 1996). “The remainder of the State's arguments relate to the officers' entitlement to "frisk" a person and seize certain objects pursuant to § 46-5-402, MCA. According to the State, however, § 46-5-402, MCA, applies "[o]nce a peace officer has lawfully stopped a person under § 46-5-401.”
Mont. Code Ann. § 46-5-402(2): 3 cases
State v. Hilgendorf, 2009 MT 158, 208 P.3d 401. “2d 199, 203 (1994), and inventory searches are "not subject to the probable cause strictures of § 46-5-402(2), MCA." State v. Heath, 2000 MT 94, ¶ 18 , 299 Mont.”
State v. Zakovi, 2005 MT 91, 110 P.3d 469. “At neither the accident scene nor at the hospital did Officer Cohenour give Zakovi *478 the investigative stop advisory pursuant to § 46-5-402(2), MCA (2001). ¶8 On July 13, 2001, Zakovi was charged in the Jefferson County Justice Court with driving under the influence of…”
State v. Heath, 2000 MT 94, 999 P.2d 324.
Mont. Code Ann. § 46-5-402(4): 6 cases
State v. Damon, 2005 MT 218, 119 P.3d 1194. “¶ 31 Section 46-5-402, MCA (2001), the so-called "stop and frisk statute," which the Legislature repealed in 2003, provided that before questioning a person, an officer had to inform the person of the nature of the stop.”
State v. Henderson, 1998 MT 233, 966 P.2d 137. “The provisions of § 46-5-402(4), MCA, make the District Court's reliance on Farley and Redinger misplaced.”
State v. Krause, 2002 MT 63, 44 P.3d 493. “¶34 The State argues on the other hand that Krause’s contention would be true only if Officer Heinecke had reason to suspect that Krause was armed and presently dangerous as provided by subsection (1) of § 46-5-402, MCA. The State maintains that under this subsection of the…”
State v. Zakovi, 2005 MT 91, 110 P.3d 469. “At neither the accident scene nor at the hospital did Officer Cohenour give Zakovi *478 the investigative stop advisory pursuant to § 46-5-402(2), MCA (2001). ¶8 On July 13, 2001, Zakovi was charged in the Jefferson County Justice Court with driving under the influence of…”
State v. Nelson, 2004 MT 310, 101 P.3d 261. “First, he argues that his admission to Officer Baiamonte that he had used methamphetamine, Officer Baiamonte’s observations of his behavior and the administration of the sobriety tests should be suppressed because officers gave him neither the stop advisory, pursuant to §…”
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