Search and Seizure: Exceptions to Warrant

by Tim Baldwin

In Montana and United States Constitutions, warrantless searches and seizures are per se invalid. However, there are several exceptions to this rule. The recognized exceptions to a warrantless search and seizure follow: (1) exigent circumstances existed; (2) the citizen gave voluntary and knowing consent for the officer to enter, search and seize; (3) the officers obtained evidence in “plain view”; (4) the officers obtained evidence under the Public Caretaker Doctrine; (5) the search was made pursuant to the Defendant’s terms of probation; and (6) the officers obtained evidence under the Inevitable Discovery Doctrine. I will explain each exception briefly.

Exigent Circumstances

Exigent circumstances have been defined as follows.

those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

United States v. Zermeno (9th Cir.1995), 66 F.3d 1058, 1063 (quoting United States v. McConney (9th Cir.1984), 728 F.2d 1195, 1199, cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)). Exigent circumstances are not a subjective determination. The officer must have facts to justify a search and seizure under the exigent circumstances exception.

Additionally, Montana law requires that the officers knock and announce their presence before a search. In State v. Hill, the Montana Supreme Court stated,

In Montana, the ‘knock and announce’ rule requires that government agents knock and announce their presence prior to entering an individual’s home without a warrant unless exigent circumstances are present.

Hill, 345 Mont. 95, 102, 189 P.3d 1201, 1207 (2008). The officer must have a reasonable belief to determine whether exigent circumstances exist. And “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Richards v. Wis., 520 U.S at 394 (1997). If no exigent circumstances and the officer did not knock and announce his presence to search, the officer cannot search person or property without a warrant.


The Montana Supreme Court has set forth the factors used to determine whether consent was given voluntary and without coercion. It stated the following in State v. Munson as follows.

This test focuses on “the nature of [the individual’s] subjective understanding,” Schneckloth, 412 U.S. at 230, 93 S. Ct. at 2049, which in turn depends on “the characteristics of [the individual] and the details of the interrogation,” Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2047. A number of considerations are pertinent to this inquiry, such as whether the individual was in custody or under arrest at the time consent was requested; whether consent was sought after the search had already been conducted; whether the individual was expressly informed that he or she had the right not to consent to the search; whether the individual was told that a search warrant could be obtained; whether the individual was advised of his or her constitutional rights; the repeated and prolonged nature of the questioning; the individual’s age, education, and intelligence; and whether the individual was threatened or coerced in any manner.

Munson, 2007 MT 222, P51, 339 Mont. 68, 169 P.3d 364, 2007 Mont. LEXIS 403 (Mont. 2007). Where the State cannot prove that consent was given voluntary and knowingly, the officer’s search of that person or property is illegal and must be suppressed.

Along with the rule of consent, the Montana Supreme Court has ruled that, in cases where an officer observes evidence of a person who is in a place of privacy, that person must have knowingly exposed himself to the public for the officer’s observations to be admissible. The Montana Supreme Court said,

[P]ersons have an actual (subjective) expectation of privacy…within the confines of their private homes and enclosed structures and which they do not knowingly expose to the public.

State v. Siegal, 281 Mont. 250, 275, 934 P.2d 176, 191, 1997 Mont. LEXIS 39, 48, 54 Mont. St. Rep. 158 (Mont. 1997); see also, State v. 1993 Chevrolet Pickup, 2005 MT 180, P14, 328 Mont. 10, 15-16, 116 P.3d 800, 804 (Mont. 2005) (“Voluntary relinquishment of one’s interest in an item or one’s control over that item is akin to the legal concept of abandonment”); State v. Wilson, 218 Mont. 359 (Mont. 1985).

If a person does not give voluntary and knowing consent, the officer cannot search without a warrant. And unless a person exposes himself knowingly to the public, the officer’s observations of that person inside a place of privacy are inadmissible.

Plain View Doctrine

The Montana Supreme Court in State v. Lewis, (Mont. 2007) stated the Plain View Doctrine this way:

the plain view doctrine…“allows peace officers, under certain circumstances, to seize evidence in plain view without a warrant.” State v. Loh, 275 Mont. 460, 468, 914 P.2d 592, 597 (1996). If, while a law enforcement officer is lawfully present on an individual’s property, and in the course of his or her lawful presence, the officer discovers evidence in plain view, and if its incriminating nature is “immediately apparent,” then that evidence may be seized and used against the defendant at trial.

Id., 2007 MT 295, P22, 340 Mont. 10, 17-18, 171 P.3d 731, 737 (emphasis added). In short, if an officer is not a place lawfully to begin with, nothing he observes in plain view is admissible. For example, say an officer views illegal drugs on a person’s kitchen counter, but the officer is not in the house lawfully, then the officer’s “plain view” observations are illegal. The officer’s presence must be lawful before his “plain view” is admissible.

Caretaker Doctrine

The Montana Supreme Court described the Caretaker Doctrine this way.

The community caretaker doctrine, like the Terry investigative stop, is a recognized exception to the Fourth Amendment’s and Article II, Section 11’s prohibitions against unreasonable searches and seizures. Lovegren, PP 16-17. This doctrine is operative in cases where law enforcement initiates contact with a citizen not in order to investigate the commission of a crime, but to investigate a potential vehicle accident, or otherwise ensure the safety of citizens.

State v. Graham, 2007 MT 358, P25, 340 Mont. 366, 373, 175 P.3d 885, 890, 2007 Mont. LEXIS 612, 13-14 (Mont. 2007). The Montana Supreme Court has stated further,

once…the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating not only the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under Article II, Sections 10 and 11 of the Montana Constitution as interpreted in this Court’s decisions.

Graham, 340 Mont. at 373, citing State v. Lovegren, 2002 MT 153, 310 Mont. 358, 51 P.3d 471, 2002 Mont. LEXIS 315 (Mont. 2002). If the officer makes contact with a person under the Caretaker Doctrine, he must not be investigating the commission of a crime and must be making contact only to investigate a citizen’s peril. Then, once the officer sees that no peril exists, he must cease his contact. Any evidence the officer observes from the pretense of “caretaker” is illegal and inadmissible.


The Montana Supreme Court has explained the general rule of law regarding the search of a probationer this way:

The search of a person may be conducted pursuant to a valid search warrant or in accordance with a judicially recognized exception. Section 46-5-101, MCA. In Montana, a probation officer may search a probationer’s residence without a warrant so long as the officer has reasonable cause for the search. See State v. Roper, 2001 MT 96, P12, 305 Mont. 212, P12, 26 P.3d 741, P12; State v. Beaudry, 282 Mont. 225, 228, 937 P.2d 459, 460-61 (1997); State v. Burchett, 277 Mont. 192, 195, 921 P.2d 854, 856 (1996); State v. Boston, 269 Mont. 300, 305, 889 P.2d 814, 817 (1995); and State v. Burke, 235 Mont. 165, 169, 766 P.2d 254, 256-57 (1988). “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, 97 L. Ed. 2d 709 (1987)). Admin. R. M. 20.7.1101(7) further underscores our precedent by permitting a warrantless search of a probationer’s or parolee’s person, vehicle or residence only “upon reasonable cause.”

State v. Moody, 2006 MT 305, P12, 334 Mont. 517, 521, 148 P.3d 662, 665, 2006 Mont. LEXIS 635, 5-6 (Mont. 2006) (emphasis added). There are many issues that surround these kinds of searches. Suffice it to say, searches may be illegal against a probationer if the search was not conducted by the probation officer, was conducted not according to the terms of the sentence order (e.g. not at the probationer’s home, not his vehicle), and was conducted to investigate a new crime.

Inevitable Discovery Doctrine (IDD)

The Montana Supreme Court has adopted the United States Supreme Court’s definition of the IDD:

It is clear that the cases implementing the exclusionary rule begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity. Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means–here the volunteers’ search–then the deterrence rationale has so little basis that the evidence should be received.

State v. Ellis, 2009 MT 192, P54, 351 Mont. 95, 111, 210 P.3d 144, 154-155, 2009 Mont. LEXIS 226, 32-33 (Mont. 2009), quoting Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377, 1984 U.S. LEXIS 101, 52 U.S.L.W. 4732 (U.S. 1984).

In explaining the IDD the Montana Supreme Court recognized, “inevitable discovery most often applies when the investigatory procedures were already in progress prior to the illegal search.” Ellis, 351 Mont. at 111. The Court in Ellis showed, “evidence seized [that] was not the inevitable product of a legal search already in progress” does not qualify under the IDD. The Court explained the facts for its ruling as follows.

The police who responded to Ellis’s residence had no authority to search any part of his home, much less seize evidence of a crime which he allegedly committed; the officers were not involved in a legal search already in progress when they seized evidence from S.S.’s bedroom and person.

Ellis, 351 Mont. at 111. The Court reasoned that conducting searches where a warrant is needed prevents the State from using any evidence obtained from the illegal search under the IDD. The Court in Ellis used a Ninth Circuit Court of Appeals case to explain its ruling, stating,

In Mejia, the Ninth Circuit Court of Appeals rejected the contention that the inevitable discovery doctrine applied where law enforcement officers had probable cause to conduct a search, but simply failed to obtain a warrant. Mejia, 69 F.3d at 319. In so holding, the Court of Appeals explained that it has never applied the inevitable discovery exception

“so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to ‘excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.’”

Mejia, 69 F.3d at 320 (citing Echegoyen, 799 F.2d at 1280 n. 7; United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994)). The Court of Appeals further stated:

“If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.

“We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.”

Ellis, 351 Mont. at 112. Like the Plain View Doctrine, the officers must have been in a lawful search for this doctrine to apply. If the officer did not have a lawful reason to be present or to be searching to begin with, then no evidence discovered as a result of his presence and searching is admissible.


The Montana and United States Constitutions require warrants for searches and seizures, but you can bet that officers and prosecutors will try to use these exceptions where they can. Many times, people do not know their rights in these areas and give them up too eagerly thinking that the officers will help them later. Had these citizens simply reserved their rights, they would be in a much better position. Search and Seizure law comprises the bulk of criminal law. Suffice to say, if you have been charged with a crime and the officers have conducted any searches and seizures, you need to consult with any attorney about your case.

If you have been charged with a crime and need a criminal defense attorney, email Tim Baldwin at

Know About DUIs

by Tim Baldwin

A DUI conviction can disrupt your life in more than one way, not the least of which is the stress is causes you and your family. Most people do not realize the number of issues that arise in a DUI case. For example, there are stop, search and seizure, consent, and breath test issues. And in many cases, the issues can work favorably for you. That is why you should contact an attorney who practices in criminal law and particularly in DUI cases.

Here are a few things to keep in mind if you are ever stopped and arrested for a DUI:

  1. Consent. When you consent to giving evidence (i.e. making statements, performing field sobriety exercises, giving breath samples) to the officer, you waive your rights to suppress that evidence had you not consented. Keep in mind, Montana law gives the officer the right to ask for your name, driver license, registration and proof of insurance upon a lawful stop. From there, if the officer observes indicators of impairment, he will begin his DUI investigation by asking you usual questions (i.e. have you been drinking? Where are you coming from? etc.). He is seeking evidence to build a DUI case. Eventually,  if the officer believes he has obtained enough facts of impairment, he will ask you to exit the vehicle and perform field sobriety exercises. And then he will ask you to give a breath sample (see below). If you decide you to do not consent to answering questions, performing FSEs, or giving a breath sample, you must inform the officer at that time that you do not consent. If the officer asks you to sign a rights waiver, do not sign if you want to reserve your right not to consent.
  2. Breath Test Before Arrest. Montana law states that every driver who drives on the public ways implicitly consents to giving an officer a preliminary breath test (PBT) where the officer has particularized suspicion that the driver is driving while impaired by alcohol. If you refuse to give a breath sample, your license will be automatically suspended according to the law (with the right of appeal, of course). Keep in mind that the PBT can be used to form probable cause for your arrest but in most cases cannot be introduced as evidence at trial.
  3. Breath Test After Arrest. Montana law also states that every driver implicitly consents to giving a breath test after arrest to determine the blood alcohol content. If you refuse, your driver license will be suspended automatically (with the right of appeal, of course). If you consent to the breath test, the results can and will be used as evidence against you, unless the consent was obtained illegally.
  4. Inference of Impairment. If you refuse to give a breath test after arrest and your case goes to trial, the court will instruct the jury that they may infer from your refusal that you were under the influence. However, the inference is rebuttable; that is, you can rebut that inference.
  5. Actual Control of Vehicle. Montana law does not require that you be actually driving to be convicted of DUI. Rather, you only have to be in “actual physical control” of the vehicle while you were impaired. Thus, if you are in the driver’s seat while impaired with the keys near you for access, you could be arrested and perhaps found guilty.
  6. Evidence. The main evidence the prosecutor uses to convict a defendant of DUI are: (a) the officer’s observations of the driver (i.e. smell of alcohol, watery eyes, slurred speech, FSE, etc.), (b) video and audio of the stop and investigation, and (c) results from the breath test. The less you are exposed to each of those categories, the weaker the DUI case is and the more likely the chances of getting the charge reduced, dismissed or acquitted.

If you have been arrested for DUI, email Tim Baldwin at

Reasonable Cause to Investigate Crimes: Protect Yourself

by Tim Baldwin

In state and federal jurisdictions, police cannot investigate supposed or perceived criminal activities without reasonable suspicion or cause. If police violate this rule of law and arrest you, you can move the court to suppress evidence and potentially dismiss the action against you. Your rights in this area are powerful protections against arbitrary government power in favor of individual liberty.

However, depending on the judge looking at the issue, “reasonable” cause may be an uphill battle because it is based heavily on the circumstances. A judge who wants to find “reasonable” cause will try hard to find it in the facts. If there are questions of credibility at a suppression or dismissal hearing, this kind of judge will find police credible and find no reason to disbelieve their version of the facts, even if the defendant testifies to the contrary.

This puts you in a position of having to defend yourself before a jury (a risky move), instead of getting the case dismissed pretrial (a safer move). This means that every person confronted with police action should know how to protect himself from police, prosecutors and judges who have the facts and law wrong.

What should you do when confronted by an officer who wants to investigate a crime? The following are basic, yet fundamental ways to respond to the officer. In essence, these are your rights as state and federal citizens.

First, always be respectful to the officer. Even if you are absolutely in the right in a given situation, you will not help yourself by being rude, arrogant and disrespectful to the officer. If the officer does not like you or does not like you invoking your rights, let him be the bad actor, not you. The reasons are many, but there is one heavy reason: if your case goes to a trial or hearing, you want the judge or jury to like you. Credibility is tremendously important in every case. Do not ruin your credibility by looking like a jackass.

Second, know why the officer is making contact with you. In many (if not all) states, the law requires police to inform you of the reason he stopped you. But if he does not inform you, you need to find out yourself.

Either the officer is investigating a crime or not. If he is investigating a crime, you have the right to remain silent. If he is not investigating a crime, you still have the right to remain silent. In either case, you have the right to remain silent. But anytime an officer stops you, you should find out immediately if he suspects you of a crime. Immediately upon a stop, ask him:

Officer, do you suspect me of committing a crime?

If the officer suspects you of committing a crime, he must tell you. If he does suspect you of committing a crime, do not aid the police by answering his questions without an attorney present. Invoke your right to remain silent and ask for your attorney to be present. If police persist to ask questions, continue to invoke your right to remain silent.

If the officer does not suspect you of committing a crime, police have no right to detain you without your consent. This means you have the liberty to leave and not answer any questions. So, find out immediately if police are detaining you. Ask the officer,

Am I being detained?


Am I free to leave?

If the officer says you are being detained or you are not free to leave, you may again ask,

What crime do you suspect me of committing?

If the officer informs you that you are not suspected of committing a crime or that you are  not being detained, then you are free to leave.

Third, if the officer informs you that either he suspects you of a crime or you are being detained, invoke your right to remain silent. So, when the officer asks you questions that could be used against you, you may tell the officer,

Officer, since you say you suspect me of a crime or since you are detaining me, I am invoking my right to remain silent and am requesting my attorney be present before I answer any questions.


If the officer persists in asking you questions, continue to invoke your right to remain silent and to an attorney. Remember, invoking your right to remain silent can never be used against you at trial, nor is it a basis for arrest. Remember too, never abandon your rights for fear of being arrested. If you are arrested without probable cause, that arrest is illegal. Any prosecution that results is illegal. Your attorney should be able to get the case dismissed.

But even if the case is not dismissed, you have protected yourself and not aided in their prosecution against you by invoking your rights. You will be glad you invoked your rights instead of waiving your rights and giving statements that police and prosecutors would use against you.

Note about traffic stops

As a practical matter, most people are contacted by police during traffic stops, if the officer asks you questions that do not pertain to the reason for the stop, you may handle that situation simply by asking,

Officer, what crime do you suspect me of committing to ask me that question?

For example, if the officer stops you for speeding; approaches your vehicle; introduces himself (Hi, I am officer so-and-so); and tells you the reason for the stop (i.e. I clocked you travelling 55mph in a 45mph zone…Can I have your license, registration and insurance?), he may ask you questions unrelated to that stop, such as,

So, where are going?


So, where are you coming from?


Who is in the vehicle with you?


Are you carrying a weapon?


Have you been drinking?

At that point, ask the officer,

Officer, what crime do you suspect me of committing to ask me that question?

If the officer informs you that he does not suspect you of any crime, invoke your right not to answer his questions because, well, the officer has no authority to ask you questions unrelated to the reason he stopped you: he is simply fishing to find information he can use against you.

If the officer informs you that he suspects you of committing a crime, then you have the right not to incriminate yourself: you may invoke your right to remain silent and for an attorney to be present for any questioning while the officer has detained you.

Fourth, never consent to a search. Note: a search includes field sobriety exercises in a DUI investigation. That’s right, you have no obligation to perform field sobriety exercises if an officer suspects you of DUI. Police are trained to make their jobs easier, which means police are trained to get you to talk and consent. Police count on the fact that most people simply talk and consent when asked by police.

Police will likely ask you, do you mind if I search you, your vehicle, home, purse, etc, or something to that effect. In that situation, you may feel you are being pressured or coerced to consent, but  you have the absolute right not to consent, and your refusal to consent cannot be used against you at trial. If police ask for your consent, simply say,

Officer, I do not consent to any searches.

It is simple: do not talk and do not consent. These are your rights. Invoke them.


“Reasonable” cause and suspicion are low standards. Depending on the judge, reasonable cause and suspicion may be a “license” for officers to stop whoever they want and ask whatever questions they wish. This puts many citizens in positions of having to prove their innocence to police. It puts people in a position of having to defend themselves against prosecutors who assume you are lying. It puts people in a position of having to worry about how a judge will rule on legal issues–a judge that favors the government in every scenario and who hates to rule against police and prosecutors.

The fourth and fifth amendments to our federal constitution were ratified by the States because of human nature. Human nature can be dangerous when people in government have the power to destroy other peoples’ lives. The number of biases, prejudices and misconceptions police, prosecutors and judges have against criminal defendants are numerable. Do not put yourself in a position of aiding them. Protect yourself with the knowledge of your rights: you can only benefit from that.

For your criminal defense, email Tim Baldwin at