No. 12813 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

NORMAN STRUNG and PRISCILLA STRUNG, 

Plaintiffs and Appellants, 

L. D. W . ANDERSON, HANK FEDDES , CARL 

SMITH and LES GEE, 

Defendants and Respondents. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellants : 

Berger, Anderson, Sinclair and Murphy, Billings, 

Montana 

James J. Sinclair argued, Billings, Montana 

For Respondents : 

Corette, Smith and Dean, Butte, Montana 

Dolphy 0. Pohlman, Jr. argued, and Kendrick Smith, 

appeared, Butte, Montana 

Submitted: January 13, 1975 

Decided: FEB 11 1975 z - --Ek c 1 2,'b Filed : 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a summary judgment granted by the 

district court, Gallatin County, in favor of defendants, respondents here. 

Appellants are residents of Gallatin County. Respondents are L.D.W. Anderson, then sheriff of Gallatin County and 

three deputy sheriffs of that county. On July 23, 1967, a 

search warrant was issued at the request of the Bozeman chief 

of police and at the direction of the Gallatin County attorney, 

by a justice of the peace, directing respondents and peace 

officers to search the home of appellants Norman Strung and 

Priscilla Strung. Respondents had nothing to do with the investigative work preparatory to requesting the search warrant, nor 

did they participate in any way in obtaining the warrant. It 

was later determined that the search warrant was erroneously 

obtained from a justice of the peace, not from the district court. 

Respondents' depositions reveal they were accompanied by 

the county attorney and his staff along with city policemen in 

two searches for drugs. None of respondents, though present, 

did any of the arresting of individuals involved but appellant 

Strungs were imprisoned at the county jail where they were held 

for several days until bail could be arranged at the direction 

of the county attorney. Appellants were charged with the possession of dangerous drugs, which charge was dismissed by the 

county attorney on October 21, 1967. Thereafter appellants 

brought suit against respondents for false arrest and false imprisonment. 

The sole issue here is whether or not the district court 

erred in granting respondents' motion for summary judgment. 

Appellants note that the warrant involved was issued pursuant to section 54-112, R.C.M. 1947 (since repealed). That 
~catute was a unique statute governing the issuance of search 

wilrrants in narcotic cases. It provided in part: 

"If upon the sworn complaint of any person, it 

shall be made to appear to any judge of the district court that there is probable cause to 

believe that narcotic drugs are being * * * k ePt 

contrary to law, such judge shall * * * issue a 

warrant directed to any peace officer in the 

county commanding him to search the premises 

lesigned and described in such complaint and 

warrant, and to seize all narcotic drugs there 

found * * *. No warrant shall issue to search 

a private dwel-ling occupied as such * * *." 

Appellants argue that from the very face of the warrant, 

it was obvious the justice of the peace had exceeded his jurisdiction in issuing the warrant and that respondent peace officers 

were bound to know that such a search warrant was void and that 

if they executed the same they did so at their peril. Having 

been placed in jail, appellants argue the only defense to this 

action of false imprisonment was that it was done (1) based on 

the advice of the county attorney and (2) pursuant to a search 

warrant, and these are questions of fact so summary judgment 

should not have issued. 

First, we note the search warrant was valid on its face 

as to the respondent peace officers when it was shown to them 

by the county attorney when he ordered them to assist in the 

search. It was not until over a year and a half later when this 

Court in State v. Langan, 151 Mont. 558, 445 P.2d 565, held that 

only a district court judge could issue a search warrant for 

narcotics, that the validity of the search warrant in the instant 

case was determined. It is this Court's opinion that it would 

put too great a burden on law enforcement officers to make them 

subject to damages every time they miscalculated in what a court 

of last resort would determine constituted an invasion of constitutional rights. 

Under a fact situation similar to the instant case, the 
federal court in Daly v. Pedersen, 278 F.Supp. 88, 93, (D.Minn. 

1967) had this to say regarding a civil rights action against two 

sheriff's officers: 

"'It would require law enforcement officers to 

respond in damages every time they miscalculated 

in regard to what a court of last resort would 

determine constituted an invasion of constitutional rights, even where, as here, a trial judge-- 

more learned in the law than a police officer-- 

held that no such violation occurred. 

"'So long as the defendant's conduct stemmed 

from his reasonable belief as to the requirements of the law and was not unreasonable in any 

other way, he cannot be held responsible--under 

the standard of liability set forth in Monroe v. 

Pape--for the deprivation of plaintiff's rights. 

"No one has a constitutional right to be free 

from a law officer's honest misunderstanding of 

the law or facts in making an arrestq1. [Citing 

case] Thus, the action of a police officer 

oannot be tortious when the officer proceeds on 

the basis of his reasonable, good faith understanding of the law and does not act with unreasonable violence or subject the citizen to 

unusual indignity. The facts alleged in the complaint demonstrate conclusively that the defendant could not reasonably have forseen that a 

deprivation of constitutional rights might have 

resulted from his conduct. Under such circumstances, the complaint must be dismissed.'" 

See also: Harri v. Isaac, 111 Mont. 152, 107 P.2d 137; Wheeler 

v. Moe, 163 Mont. 154, 515 P.2d 679, 30 St.Rep. 985; Meinecke v. 

McFarland, 122 Mont. 515, 206 P.2d 1012. 

Here, the search warrant was prepared and obtained by 

the county attorney; service was not made by respondents though 

they participated in the raid; they were not involved in appellants' 

arrest although respondent Anderson, as sheriff, was statutorily 

bound to hold appellants in jail until they made bond. 

There being no genuine issue as to any material fact we 

find the district court properly granted summary judgment. 
Justices