DA 19-0734

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 230

WILLIAM SCOTT ROGERS, individually and on behalf

of all others similarly situated,

 Plaintiffs and Appellants,

 v.

LEWIS & CLARK COUNTY, LEWIS & CLARK COUNTY SHERIFF’S OFFICE, 

LEO C. DUTTON, in his capacity as Lewis & Clark County Sheriff, 

JASON GRIMMIS, in his capacity as Lewis & Clark County Undersheriff 

and former Captain for the Lewis & Clark County Detention Center, 

ALAN HUGHES, in his capacity as Captain for the Lewis & Clark Detention Center, 

JOHN and JANE DOES 1 through 50, in their capacity as Employees of the Lewis & 

Clark County Detention Center,

 Defendants and Appellees.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. BDV-2018-1332

Honorable Mike McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

John Doubek, Jonathan King, Keif Storrar, Doubek, Pyfer & Storrar, PLLP,

Helena, Montana

For Appellees:

Mitchell A. Young, Maureen Lennon, MACo Defense Services, Helena, 

Montana

For Amici:

Marty Lambert, Gallatin County Attorney, Bozeman, Montana

09/15/2020

Case Number: DA 19-0734
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Submitted on Briefs: July 15, 2020

 Decided: September 15, 2020

Filed:

__________________________________________

Clerk

c.,.--. 6-- 4(
3

Justice Ingrid Gustafson delivered the Opinion of the Court. 

¶1 William Scott Rogers, leading a group of ninety-six named plaintiffs, filed suit 

against Lewis and Clark County, the Lewis and Clark County Sheriff’s Office, and various 

officials from the sheriff’s office in their official capacities (the “Defendants”), challenging 

the Lewis and Clark County Detention Center (“Detention Center”) policy to conduct an 

unclothed visual body cavity search or “strip search”1 of every detainee prior to placement

in the general population of the facility, regardless whether reasonable suspicion existed

that the individual was concealing a weapon or contraband, as a violation of their 

constitutional rights and § 46-5-105, MCA. The plaintiffs sought certification as a class 

action. On December 20, 2019, the First Judicial District Court, Lewis and Clark County, 

issued an order granting the Defendants summary judgment as to ninety-two of the named 

plaintiffs (the “Plaintiffs”), who were placed into the general population of the facility at 

 

1 The term “strip search” is an imprecise term. See Florence v. Bd. of Chosen Freeholders of Cty. 

of Burlington, 566 U.S. 318, 325, 132 S. Ct. 1510, 1515 (2012). Previously, this Court adopted 

the definitional parameters that “[a] ‘strip search,’ though an umbrella term, generally refers to an 

inspection of a naked individual, without any scrutiny of the subject’s body cavities. A ‘visual 

body cavity search’ extends to visual inspection of the anal and genital areas. A ‘manual body 

cavity search’ includes some degree of touching or probing of body cavities.” Deserly v. Dep’t of 

Corr., 2000 MT 42, ¶ 15 n.1, 298 Mont. 328, 995 P.2d 972 (quoting Blackburn v. Snow, 771 F.2d 

556, 561 n.3 (1st Cir. 1985)). The United States Supreme Court in Florence adopted a broader 

definition, explaining that the term “strip search” could encompass what we defined in Deserly as 

a “visual body cavity search.” See Florence, 566 U.S. at 325, 132 S. Ct. at 1515. Neither party 

challenges that the visual body cavity search at issue in this appeal is encompassed within the term 

“strip search” as used in § 46-5-105, MCA. Thus, we use the term “strip search” in this opinion 

to encompass a visual body cavity search. This, however, does not change or expand our holding 

in Deserly, in which we dealt only with a visual inspection of a naked individual without scrutiny 

of the subject’s body cavities and “specifically [did] not address the legal standards which might 

justify performing either of the remaining levels of nude searches.” Deserly, ¶ 15 n.1. 
4

some point after they were strip searched and denied the motion as to four plaintiffs who 

were never placed in the general population of the facility after they were strip searched. 

The District Court held that in regard to the ninety-two plaintiffs, the strip search policy

does not violate Article II, Sections 10 and 11, of the Montana Constitution or § 46-5-105, 

MCA. The District Court certified the order as a final judgment under M. R. Civ. P. 54(b) 

and the Plaintiffs appeal. 

¶2 Although we conclude the District Court’s certification order is not in substantial 

compliance with the requirements of M. R. App. P 6(6) and our case law interpreting 

certification under M. R. Civ. P. 54(b), given the unique circumstances of this case, we 

assume supervisory control over this proceeding to address the following issues: 

1. Whether the Detention Center’s policy to strip search a detainee arrested for 

traffic or non-felony offenses prior to placement in the general population of the 

facility without a reasonable suspicion to believe that person is concealing a 

weapon, contraband, or evidence of the commission of a crime violates Article II, 

Sections 10 and 11, of the Montana Constitution;

2. Whether the Detention Center’s policy to strip search a detainee arrested for 

traffic or non-felony offenses prior to placement in the general population of the 

facility without reasonable suspicion to believe that person is concealing a weapon, 

contraband, or evidence of the commission of a crime violates § 46-5-105, MCA.

¶3 We affirm the District Court in part and reverse in part and remand for further 

proceedings consistent with this Opinion. 

PROCEDURAL AND FACTUAL BACKGROUND

¶4 The Lewis and Clark County Detention Center is the only detention facility in Lewis 

and Clark County. It houses pretrial detainees charged with both felonies and 

misdemeanors, individuals sentenced to jail terms, and individuals convicted of felonies 
5

and sentenced to the Department of Corrections who have not been moved to a state 

facility. The Detention Center includes a booking area, holding cells, solitary cells, and a 

secure area, which includes a library and housing pods with multiple cells per pod. Inmates 

are frequently housed in areas not designed for long term occupancy, such as the library 

and holding cells, because the jail population exceeds the designed bed space. 

¶5 Unwritten Detention Center policy requires a strip search of any person being placed 

into the general population of the facility to prevent arrestees from bringing weapons or 

contraband into the secure housing area of the facility and to identify any wounds, tattoos, 

or other visible artifacts which might affect individual safe placement. Under the policy,

any placement in which two or more inmates have the opportunity for direct physical 

contact without direct supervision by a detention officer or law enforcement officer is

considered a general population placement. Strip searches at the facility are conducted by

an officer of the same sex as the inmate. Before conducting the strip search, the officer 

conducting the search removes his or her body camera and takes the detainee into a private 

room. The officer instructs the detainee to remove all of his or her clothing while the 

officer observes. The officer inspects the soles of the inmate’s feet, the inmate’s armpits, 

and inside the inmate’s mouth. The officer then instructs the inmate to turn around and 

spread his or her buttocks while in a half prone position, cough while squatting, and, if 

male, turn and face the officer and lift his genitals, and, if female, to lift her breasts and 

remove any feminine hygiene products in use. The officer does not physically touch the 

inmate during the search. 
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¶6 The Plaintiffs allege they were each arrested for a traffic or non-felony criminal 

offense and subject to a strip search as part of the booking process at the Detention Center 

without reasonable suspicion to believe they were in possession of weapons or contraband. 

They allege the Detention Center’s blanket policy to strip search anyone being booked into 

the general population of the facility violates their constitutional and statutory rights. The 

Plaintiffs brought seven claims against the Defendants in their amended complaint 

captioned “Constitutional Violations” (Count I), “Negligence” (Count II), “Negligence Per 

Se” (Count III), “Negligent Supervision” (Count IV), “Intentional Infliction of Emotional 

Distress” (Count V), “Negligent Infliction of Emotional Distress” (Count VI), and

“Invasion of Privacy” (Count VII). Defendants did not concede the absence of reasonable 

suspicion to conduct strip searches of the individual Plaintiffs but conceded the Plaintiffs 

would have been strip searched whether or not reasonable suspicion existed. 

¶7 The Plaintiffs filed a motion for partial summary judgment, a motion for class 

certification, and a class discovery motion. In response, the Defendants filed a motion to 

dismiss, which the District Court converted into a motion for summary judgment. After a 

hearing on the motions, the District Court denied Plaintiffs’ motion for partial summary 

judgment, granted summary judgment to the Defendants in regard to the ninety-two 

Plaintiffs placed in general population, stayed the motions for class certification and class 

discovery, and certified the order as a final judgment under Mont. R. Civ. P. 54(b). 
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STANDARD OF REVIEW

¶8 We review de novo a district court’s grant or denial of summary judgment, applying 

the criteria of M. R. Civ. P. 56(c). Deserly v. Dep’t of Corr., 2000 MT 42, ¶ 11, 298 Mont. 

328, 995 P.2d 972. Summary judgment is appropriate when the pleadings, depositions, 

answers to interrogatories, and admission on file, together with any affidavits, demonstrate 

that no genuine issue of material fact exists and that the moving party is entitled to 

judgment as a matter of law. M. R. Civ. P. 56(c). 

DISCUSSION

¶9 Before we can reach and address the merits of the issues in this case, we must first 

address whether this Court has jurisdiction to consider this appeal. The District Court 

purported to certify this case under M. R. Civ. P. 54(b) as a final order. The Plaintiffs filed 

a notice of appeal with this Court acknowledging the appeal was certified under M. R. Civ. 

P. 54(b) in accordance with M. R. App. P. 4(4). Without waiting for this Court to issue an 

order allowing the appeal to continue under M. R. App. P. 4(4) and without noticing the 

Court of the pending issue, the parties proceeded to fully brief the case. 

¶10 Parties cannot stipulate certification of an order under M. R. Civ. P. 54(b) was 

proper and this Court will dismiss cases, even fully briefed cases, improperly brought on 

appeal under M. R. Civ. P. 54(b). See, e.g., Satterlee v. Lumberman’s Mut. Cas. Co., 

2007 MT 325, ¶ 11, 340 Mont. 176, 178 P.3d 689; In re Marriage of Armstrong, 2003 MT 

277, ¶ 6, 317 Mont. 503, 78 P.3d 1203. Whether the District Court properly certified an 

order as final under Rule 54(b) is a jurisdictional issue for this Court and cannot be waived. 
8

Kohler v. Croonenberghs, 2003 MT 260, ¶¶ 8-9, 317 Mont. 413, 77 P.3d 531; Weinstein v. 

Univ. of Mont., 271 Mont. 435, 443, 898 P.2d 101, 106 (1995). Thus, this Court must 

address the issue even when no party raises it. See Satterlee, ¶ 11; In re Marriage of 

Armstrong, ¶ 6; Kohler, ¶ 9; Roy v. Neibauer, 188 Mont. 81, 84, 610 P.2d 1185, 1187-88

(1980). 

¶11 A district court may direct entry of final judgment under M. R. Civ. P. 54(b) “only 

upon an express determination that there is no just reason for delay” and, 

[i]n so doing, the district court must balance the competing factors present in 

the case to determine if it is in the interest of sound judicial administration 

and public policy to certify the judgment as final, and the court shall, in 

accordance with existing case law, articulate in its certification order the 

factors upon which it relied in granting certification.

M. R. App. P. 6(6). As set forth in Roy, 188 Mont. at 87, 610 P.2d at 1189, the factors this 

Court normally considers regarding a Rule 54(b) certification include: (1) the relationship 

between the adjudicated and unadjudicated claims; (2) the possibility that the need for 

review might or might not be mooted by future developments in the district court; (3) the 

possibility that the reviewing court might be obliged to consider the same issue a second 

time; (4) the presence or absence of a claim or counterclaim which could result in a set-off 

against the judgment sought to be made final; and (5) miscellaneous factors such as delay, 

economic and solvency considerations, shortening the time of trial, triviality of competing 

claims, expense, and the like. In certifying an order under M. R. Civ. P. 54(b), a district 

court must follow three “guiding principles”: (1) the burden is on the party seeking 

certification to convince the district court the case is the “infrequent harsh case” meriting 
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a favorable exercise of discretion; (2) the district court must balance the competing factors 

present in the case to determine if it is in the interest of sound judicial administration and 

public policy to certify the judgment as final; and (3) the district court must marshal and 

articulate the factors upon which it relied in granting certification so that prompt and 

effective review can be facilitated. Kohler, ¶ 16 (quoting Roy, 188 Mont. at 87, 610 P.2d 

at 1189). “[A] trial court must clearly articulate its reasoning behind any factors set forth, 

so this Court has some basis for distinguishing between well-grounded orders and ‘mere 

boiler-plate approval unsupported by the facts or an analysis of the law.’” In re Marriage 

of Armstrong, ¶ 12 (quoting Kohler, ¶ 14). 

¶12 The District Court certified the order as final because (1) the ninety-two plaintiffs 

whose claims were dismissed under the order may be realigned with the remaining 

plaintiffs should the Supreme Court reverse the order; (2) class certification may largely 

depend on whether those ninety-two plaintiffs are returned to the case; (3) the case could 

increase or decrease in complexity depending on the number of plaintiffs; (4) class 

discovery could be enlarged; and (5) the Supreme Court would not be required to determine 

the application of Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 

318, 132 S. Ct. 1510 (2012), to the plaintiff’s constitutional and statutory based claims a 

second time. 

¶13 Upon review of the District Court’s order, we find it is deficient to support 

certification under M. R. Civ. P. 54(b). First, it does not “expressly determine[] that there 

is no just reason for delay” as required by M. R. Civ. P. 54(b) and M. R. App. P. 6(6). 
10

“This omission alone would be sufficient to conclude that the certification order in this 

case does not vest jurisdiction in this Court to entertain the appeal.” In re Marriage of 

Armstrong, ¶ 11. Second, although the District Court cited Weinstein and Roy, it failed to 

address the factors this Court laid out in those cases. The District Court’s reasoning for 

granting certification focuses on economic concerns and simplifying the litigation going 

forward. But such reasoning is not sufficient to justify certification of an order as final 

under M. R. Civ. P. 54(b). In In re Marriage of Armstrong, this Court rejected as 

insufficient bases for certification the district court’s findings “that the determination of 

this issue ‘may’ eliminate the need for a trial on property issues, saving resources for both 

the trial court and the litigants in this case” and the determination of the issue “‘could’ 

shorten the time of trial.” In re Marriage of Armstrong, ¶ 13. Likewise, the District Court’s 

reasoning here that the dismissed Plaintiffs may be realigned with the remaining plaintiffs 

and the complexity of the case could increase or decrease are not sufficient bases for 

certification under M. R. Civ. P. 54(b) without additional explanation of the Roy factors. 

The District Court’s order in this case is deficient and this Court lacks jurisdiction over this 

appeal under M. R. Civ. P. 54(b). 

¶14 District courts and litigants must be mindful of the requirements of certification 

under M. R. Civ. P. 54(b) and M. R. App. P. 4(4) and 6(6). See Roy, 188 Mont. at 84, 

610 P.2d at 1187 (“Too often this Court is confronted with cases that are not ready for 

appellate review within the meaning of the rules, but where the opposing parties do not 

bring this crucial fact to our attention. We often do not discover this until we are deeply 
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into the process of review and indeed often in the opinion-writing stage. We cannot and 

will not tolerate this state of affairs.” (internal quotation omitted)). When an order allowing 

for the appeal to proceed pursuant to M. R. App. P. 4(4) was not forthcoming from the 

Court, the litigants should have filed a notice of issue seeking such an order before 

proceeding with briefing. Litigants should be mindful of wasting the resources and time 

of this Court to consider appeals over which it lacks jurisdiction.

¶15 We, nonetheless, accept jurisdiction over this appeal under our constitutional power 

of supervisory control given the specific circumstances of this case. Article VII, 

Section 2(2), of the Montana Constitution grants this Court “general supervisory control 

over all other courts.” “This extraordinary remedy can be invoked when the case involves 

purely legal questions and urgent or emergency factors make the normal appeal process 

inadequate.” State v. Spady, 2015 MT 218, ¶ 11, 380 Mont. 179, 354 P.3d 590 (citing 

M. R. App. P. 14(3); Redding v. McCarter, 2012 MT 144, ¶ 17, 365 Mont. 316, 281 P.3d 

189). In addition, the case must meet one of three criteria: (a) the other court is proceeding 

under a mistake of law and is causing a gross injustice; (b) constitutional issues of 

state-wide importance are involved; or (c) the other court has granted or denied a motion 

for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c). 

¶16 Supervisory control is an extraordinary remedy, reserved for extraordinary 

circumstances. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 

361 Mont. 279, 259 P.3d 754. “We will assume supervisory control over a district court 

to direct the course of litigation if the court is proceeding based on a mistake of law, which 
12

if uncorrected, would cause significant injustice for which appeal is an inadequate 

remedy.” Stokes, ¶ 5. “Judicial economy and inevitable procedural entanglements [have 

been] cited as appropriate reasons for this Court to issue a writ of supervisory control.” 

Stokes, ¶ 5 (quoting Truman v. Mont. Eleventh Judicial Dist. Court, 2003 MT 91, ¶ 15, 

315 Mont. 165, 68 P.3d 654) (alterations in original). 

¶17 Under the extraordinary circumstances of this case, we have decided to exercise our 

power of supervisory control. The questions presented to this Court are purely legal ones: 

whether Article II, Sections 10 and 11, of the Montana Constitution or § 46-5-105, MCA, 

prohibit the searches at issue here. The answer will govern who is included in the potential

class action and how the litigation proceeds. The preparation and presentation of the case 

will be significantly affected by the answer to these two questions. “If incorrect, the 

[district] court’s conclusions will impact all aspects of the proceeding from preparation for 

trial to settlement negotiations and the trial itself.” Stokes, ¶ 8 (quoting Truman, ¶ 16).

“Denial of a speedy remedy by supervisory control on the straightforward legal issue 

presented in the present case would amount to a substantial injustice.” Stokes, ¶ 8. This is 

especially true in this case when the District Court’s order has effectively ended the case 

before that court for ninety-two of the named plaintiffs and litigation for the remaining 

plaintiffs could drag on for years. 

¶18 Further, it is clear constitutional questions of statewide importance are at issue in 

this case. The Defendants admitted they continue to engage in the challenged conduct, and 

they believe other detention facilities in the State have similar strip search policies. Failure 
13

to review the District Court’s order under supervisory control leaves these challenged

policies in place. Should this Court ultimately reverse the District Court on either of the 

two issues presented on this appeal, failure to review the issue now could result in the rights 

of many additional Montanans being violated and the potential liability of the detention 

facilities conducting such searches continuing to grow. We therefore elect to exercise 

supervisory control over the two questions presented on appeal. 

¶19 1. Whether the Detention Center’s policy to strip search a detainee arrested for 

traffic or non-felony offenses prior to placement in the general population of the 

facility without reasonable suspicion to believe that person is concealing a weapon, 

contraband, or evidence of the commission of a crime violates Article II, Sections

10 and 11, of the Montana Constitution. 

¶20 The District Court rejected the Plaintiffs’ constitutional claims, concluding 

Plaintiffs had no actual expectation of privacy recognized as objectively reasonable by 

society and thus there was no search or seizure that implicated or violated the protections 

contemplated under Article II, Sections 10 and 11, of the Montana Constitution. The court 

explained: 

when weighed against the need to maintain institution security, safety, and 

health . . . society would always insist that an arrestee’s Article II, section 10, 

privacy right must yield when they are placed in a jail, detention center, or 

prison’s general custody or general population in order to prevent “any new 

inmate, either of his own will or as a result of coercion, from putting all who 

live and work at these institutions at even greater risk when [he/she] is 

admitted to [general custody] or general population.”

(quoting Florence, 566 U.S. at 333-34, 132 S. Ct. at 1520) (alterations in original). 

¶21 On appeal, the Plaintiffs maintain they had an actual expectation of privacy to not 

be strip searched and that society recognizes this expectation as objectively reasonable, 
14

because “one of the clearest forms of degradation in Western Society is to strip a person of 

his clothes.” Deserly, ¶ 19 (quoting Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 

1995)). Further, the searches were not reasonable because the record lacked evidence to 

support the belief that increased contraband is being brought into the jail through traffic 

and non-felony offenders or that strip searching these offenders reduces the flow of drugs, 

weapons, or contraband into the jail. 

¶22 Montanan’s have a heightened right of privacy given the express inclusion of that 

right in our state constitution. Mont. Const. art. II, § 10. When a right of privacy is 

specifically implicated as part of a traditional search and seizure analysis, we address

Article II, Section 10, of the Montana Constitution in conjunction with Article II, Section

11, of the Montana Constitution. Deserly, ¶ 15; State v. Goetz, 2008 MT 296, ¶ 14, 345 

Mont. 421, 191 P.3d 489. “In light of the constitutional right to privacy to which 

Montanans are entitled, we have held that the range of warrantless searches which may be 

lawfully conducted under the Montana Constitution is narrower than the corresponding 

range of searches that may be lawfully conducted pursuant to the federal Fourth 

Amendment.” State v. Hardaway, 2001 MT 252, ¶ 35, 307 Mont. 139, 36 P.3d 900. 

¶23 To determine whether there has been an unlawful governmental intrusion into one’s 

privacy in search and seizure situations, we consider three factors: “(1) whether the person 

has an actual expectation of privacy; (2) whether society is willing to recognize that 

expectation as objectively reasonable; and (3) the nature of the State’s intrusion.” Deserly, 

¶ 16. 
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The first two factors are considered in determining whether a search or 

seizure occurred, thus triggering the protections of Article II, Sections 10 and 

11. The third factor relates to the reasonableness of the search or seizure 

under the circumstances. Under the third factor, we determine whether the 

state action complained of violated the Article II, Section 10 and 11 

protections because it was not justified by a compelling state interest or was 

undertaken without procedural safeguards such as a properly issued search 

warrant or other special circumstances. 

Goetz, ¶ 27. 

¶24 As the Plaintiffs point out, this Court recognized in Deserly that “one of the clearest 

forms of degradation in Western Society is to strip a person of his clothes” and “the strip 

search of an individual by government officials, regardless how professionally and 

courteously conducted, is an embarrassing and humiliating experience.” Deserly, ¶ 19 

(quoting Hayes, 70 F.3d at 1146 and Romo v. Champion, 46 F.3d 1013, 1019 (10th Cir. 

1995) (internal quotations omitted)). A person has a reasonable expectation of privacy to 

not be strip searched by government officials and society recognizes that expectation as 

objectively reasonable. Thus, the District Court erred in holding that no search occurs 

when detention officers strip search detainees prior to housing them in the general 

population of the detention facility. 

¶25 The analysis does not end there, however. The Montana Constitution protects 

individuals from unreasonable searches and seizures. We must turn to the third factor—

the nature of the State’s intrusion. While under Montana law a search conducted without 

a search warrant is per se unreasonable, a warrantless search may, nonetheless, be 

reasonable when an individual has a diminished expectation of privacy. Spady, ¶ 26. 

Under those circumstances, a court must “balance the privacy-related and law 
16

enforcement-related concerns to determine if the intrusion was reasonable.” Spady, ¶ 28 

(quoting Maryland v. King, 569 U.S. 435, 463, 133 S. Ct. 1958, 1979 (2013)). “An 

individual taken into police custody has a diminished expectation of privacy.” Spady, ¶ 27; 

see also Worden v. Mont. Bd. of Pardons & Parole, 1998 MT 168, ¶¶ 33, 35, 289 Mont. 

459, 962 P.2d 1157 (“[T]he rights of . . . [i]nmates under the Montana Constitution may be 

limited by legitimate, penological interests . . . . [T]he right to privacy, although not 

completely lost, may be substantially limited.”). 

¶26 In Deserly, this Court noted “the government has a necessary and legitimate need 

to protect the security of those working, visiting, and residing in [penal] institution[s] from 

the introduction of contraband.” Deserly, ¶ 26. Detention officers have a compelling 

interest to protect the health and safety of detainees and staff. The government’s interest 

in security does not turn on whether the arrested person has been charged with a minor, 

nonviolent offense, but rather whether the individual has been classified for general jail 

population detainment.2 While we do not march in lockstep with the federal courts in 

interpreting whether searches and seizures are reasonable under the Montana Constitution, 

we agree with the United States Supreme Court that “[m]aintaining safety and order at 

 

2

 The parties did not raise, and we do not address whether under certain circumstances housing a 

person detained for a traffic or other minor offense in the general population of the detention center 

could constitute an unreasonable seizure. As Justice Alito explained in his concurrence in 

Florence, “the Court does not hold that it is always reasonable to conduct a full strip search of an 

arrestee whose detention has not been reviewed by a judicial officer and who could be held in 

available facilities apart from the general population” and for “those arrested for minor offenses. . . 

admission to the general jail population, with the concomitant humiliation of a strip search, may 

not be reasonable, particularly if an alternative procedure is feasible.” Florence, 566 U.S. 

at 341-42, 132 S. Ct. at 1524 (Alito, J., concurring). 
17

these institutions requires the expertise of correctional officials, who must have substantial 

discretion to devise reasonable solutions to the problems they face.” Florence, 566 U.S. 

at 326, 132 S. Ct. at 1515. “[A] regulation impinging on an inmate’s constitutional rights 

must be upheld ‘if it is reasonably related to legitimate penological interests.’” Florence, 

566 U.S. at 326, 132 S. Ct. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 

2254, 2261 (1987)). 

¶27 The parties in this case do not dispute that contraband and weapons are a perennial 

issue at the detention center and that contraband and weapons can at times be brought into 

the facility secreted away on a detainee’s person. Nor do the parties dispute the detention 

center has an obligation to prevent detainees from bringing weapons or other contraband 

into the secure housing area of the facility and to identify any wounds, tattoos, or other 

visible artifacts which might affect individual safe placement. Plaintiffs have not 

demonstrated the strip searches at issue are not reasonably related to these legitimate 

penological interests or that their diminished expectation of privacy before being housed 

in the general population of the detention facility outweighs that interest such that the 

Montana Constitution prohibits the practice. Given our heightened right to privacy in 

Montana, we must carefully consider the balance between an individual’s privacy interest 

and the penological interest. The Plaintiffs contest the detention center’s blanket policy, 

but do not challenge specific practices.3 Under these circumstances, the Plaintiffs 

 

3 The Plaintiffs do not raise specific instances of officers engaging in intentional humiliation or 

other abusive practices. This issue is not implicated by the facts of this case and we do not consider 

it here. 
18

diminished privacy interests do not outweigh the legitimate penological interests of the 

Detention Center. Although we disagree with the District Court’s analysis, we affirm its 

decision. 

¶28 2. Whether the Detention Center’s policy to strip search a detainee arrested for 

traffic or non-felony offenses prior to placement in the general population of the 

facility without reasonable suspicion to believe that person is concealing a weapon, 

contraband, or evidence of the commission of a crime violates § 46-5-105, MCA.

¶29 The District Court determined § 46-5-105, MCA, was a codification of the United 

States Supreme Court decision in Florence, explaining the statute “is consistent with, and 

reinforces, Florence’s limited holding in that individuals arrested for misdemeanor 

offenses may not be strip searched without reasonable suspicion if they are not placed in 

general custody.” The court explained: “No where in the statute did the 2013 Legislature 

provide that the ‘reasonable suspicion requirement before the strip search’ be applied 

before an individual is placed in a Montana’s [sic] penal institution’s general population or 

general custody.” The court determined this interpretation harmonizes § 46-5-105, MCA, 

with § 46-5-101(2), MCA. Section 46-5-101(2), MCA, allows for warrantless searches in 

accordance with judicially recognized exceptions to the warrant requirement. The court 

reasoned that Florence provides such a judicially recognized exception to the warrant 

requirement for detainees entering the general population of a detention center, authorizing 

the strip searches at issue here under § 46-5-101(2), MCA, while § 46-5-105, MCA, 

clarifies that outside the context of entering the general population of a detention center, 

reasonable suspicion is required to conduct a strip search of a person detained or arrested 

for a minor offense. 
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¶30 Plaintiffs argue on appeal the District Court’s ignored the plain language of 

§ 46-5-105, MCA, and inserted language to create a judicial exception to the prohibition 

on strip searches of detainees arrested for traffic or minor offenses entering the general 

population of a detention facility. Plaintiffs maintain § 46-5-105, MCA, statutorily 

abrogated the decision in Florence and prohibited strip searches of individuals “arrested or 

detained for a traffic offense or an offense that is not a felony” before they are placed in 

the general population of a jail unless there is reasonable suspicion to believe that person 

is concealing a weapon, contraband, or evidence of the commission of a crime. The

Plaintiffs further highlight the legislative history of § 46-5-105, MCA, during the 2013 and 

2019 legislative sessions, which supports such a plain language interpretation of the statute: 

In 2013 when the statute was originally enacted, discussions during committee hearings

and on the floor of the House and Senate focused on the need to statutorily prohibit strip 

searches of detainees charged with traffic or other minor crimes who are arrested and 

brought to jail pending bail or a court appearance. Legislators voiced concerns that strip

searches of such detainees could occur without reasonable suspicion a detainee was 

concealing a weapon, contraband, or evidence of the commission of a crime under the 

United State Supreme Court decision in Florence, because the Supreme Court held such 

searches did not violate a detainee’s Fourth Amendment rights. Second, in 2019, the 

Legislature rejected a proposal to amend § 45-6-105, MCA, to expressly include an

exception from the statutory prohibition for detainees who will be housed in the general 

population of a detention facility. 
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¶31 This case requires the Court to determine whether § 46-5-105, MCA, prohibits 

detention center employees who are booking a person into the general population of a 

detention facility from conducting a visual body cavity search without reasonable suspicion 

to believe that person is concealing a weapon, contraband, or evidence of the commission 

of a crime. Our objective when interpreting a statute is to implement the objectives the 

legislature sought to achieve. Mont. Vending, Inc. v. Coca-Cola Bottling Co. of Mont., 

2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. We ascertain the Legislature’s intent, in 

the first instance, from the plain language of the statute. See Mont. Sports Shooting Ass’n 

v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003; Mont. Vending, Inc., ¶ 21. “If 

the intent of the legislature can be determined from the plain meaning of the words used in 

the statute, the plain meaning controls, and this Court need go no further nor apply any 

other means of interpretation.” Mont. Vending, Inc., ¶ 21. We examine legislative history 

only when the intent cannot be ascertained from the language of the statute. Mont. Vending, 

Inc., ¶ 21. 

¶32 “In the construction of a statute, the office of the judge is simply to ascertain and 

declare what is in terms or in substance contained therein, not to insert what has been 

omitted or to omit what has been inserted.” Section 1-2-101, MCA. We interpret a statute 

by reading it as a whole, “without isolating specific terms from the context in which they 

are used by the Legislature.” Mont. Sports Shooting Ass’n, ¶ 11 (quoting City of Great 

Falls v. Morris, 2006 MT 93, ¶ 19, 332 Mont. 85, 134 P.3d 692). “We must harmonize 

statutes relating to the same subject, as much as possible, giving effect to each.” Mont. 
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Sports Shooting Ass’n, ¶ 11. When interpreting a statute, we must presume the Legislature 

would not pass useless or meaningless legislation, but rather intended to make some change 

in existing law by enacting the statute. Mont. Sports Shooting Ass’n, ¶ 15. 

¶33 Section 46-5-105, MCA, states: 

A person arrested or detained for a traffic offense or an offense that is not a 

felony may not be subjected to a strip search or a body cavity search by a 

peace officer or law enforcement employee unless there is reasonable 

suspicion to believe the person is concealing a weapon, contraband, or 

evidence of the commission of a crime. 

The statute’s prohibition on suspicionless strip searches is unambiguous. The statute 

provides “a peace officer or law enforcement employee” may not conduct suspicionless 

strip searches on a person “detained for a traffic offense or an offense that is not a felony.”

There is no exception provided in the plain text of the statute to the prohibition on 

suspicionless strip searches of persons detained for traffic or minor offenses. Rather, the 

statute is clear, officers and law enforcement employees must have “reasonable suspicion 

to believe the person is concealing a weapon, contraband, or evidence of the commission 

of a crime” to conduct a strip search of a person detained for traffic or minor offenses. The 

Defendants admit the detention officers are “law enforcement employees” under the 

statute. The District Court determined the statute does not expressly apply to a detainee 

being placed in the general population of a detention facility. But the statute does not need 

to state such. See § 1-2-101, MCA. The plain language unequivocally prohibits 

suspicionless strip searches of those arrested for minor offenses in any situation. There is 

no provision that allows officers to strip search without suspicion the covered low-level 
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offenders if they are placed in the general jail population. The Florence Court explained, 

“[i]ndividual jurisdictions can of course choose to impose more restrictive safeguards 

through statutes.” Florence, 566 U.S. at 338, 132 S. Ct. at 1522 (internal quotations 

omitted). The Legislature enacted such a more restrictive safeguard with § 46-5-105, 

MCA. 

¶34 Further, this Court “must presume in construing these statutes that the Legislature 

intended to make some change in existing law by passing it.” Mont. Sports Shooting Ass’n, 

¶ 15. In Florence, the United States Supreme Court held the Fourth Amendment does not 

require the State to have reasonable suspicion to believe a detainee is carrying a weapon or 

contraband in order to strip search the detainee before placing him or her in the general 

population of a detention facility. After Florence such searches were permissible under 

the federal constitution and presumably permissible under § 46-5-101(2), MCA, as a 

judicially recognized exception to the warrant requirement. The passage of § 46-5-105, 

MCA, statutorily abrogated this judicially recognized exception and imposed more 

restrictive safeguards on officers in this State. Because the plain language of the statute on 

this issue is unambiguous, we do not examine the legislative history of the statute. The 

District Court’s interpretation of the statute was in error. We reverse and remand the grant 

of summary judgment to the Defendants on this issue. 
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CONCLUSION

¶35 The District Court’s order is affirmed in part and reversed in part and remanded for 

further proceedings consistent with this Opinion. 

/S/ INGRID GUSTAFSON

We concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ JAMES JEREMIAH SHEA

/S/ DIRK M. SANDEFUR