No. 12813 INTHE 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, Sinclairand 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 districtcourt, Gallatin County, in favor of defendants, respondentshere. Appellants areresidents of GallatinCounty. Respondents areL.D.W. Anderson, then sheriff of Gallatin County and three deputy sheriffs of that county. On July 23, 1967, a searchwarrant was issued atthe request of the Bozeman chief of police and atthe 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 todo with the investigative work preparatory torequesting the search warrant, nor did they participate in any way in obtaining the warrant. It

was later determined that the searchwarrant 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 citypolicemen in two searches for drugs. None of respondents, though present, did any of the arresting of individuals involved but appellant Strungs were imprisoned atthe county jail where they were held for several days until bail could be arranged atthe 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 iswhether 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 Appellants note that the warrant involved was issued pursuant to section 54-112, R.C.M. 1947 (since repealed).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 statutegoverning the issuance of search wilrrants innarcotic cases. It provided inpart: "If upon the sworn complaint of any person, it shall be made toappear toany judge of the districtcourt that there is probable cause to believe that narcotic drugs arebeing 

## * * * kePt contrary tolaw, such judge shall

## * * 

## * issue a warrant directed toany peace officer in the county commanding him to search the premises lesigned and described in such complaint and warrant, and to seize allnarcotic drugs there found 

## * 

## * *. No warrant shall issue tosearch a private dwel-ling occupied as such

## * * 

## *." Appellants argue that from thevery face of thewarrant, it was obvious the justice of the peace had exceeded hisjurisdiction in issuing thewarrant and that respondent peace officers

were bound toknow that such a searchwarrant was void and that if they executed the same they did so attheir peril. Having been placed injail, appellants argue the only defense tothis action of falseimprisonment was that it was done (1)based on the advice of the county attorney and (2) pursuant toa search warrant, and these arequestions of fact so summary judgment should not have issued. First, we note the search warrant was valid on its face

as totherespondent peace officers when it was shown tothem by the county attorney when he ordered them toassist inthe search. It was not until over a year and a half later when this Court in Statev. Langan, 151Mont. 558, 445 P.2d 565, held that only a district courtjudge could issue a searchwarrant for narcotics, that thevalidity 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 tomake them subject todamages every 

### timethey miscalculated inwhat a court of lastresort would determine constituted an invasion of constitutional rights. Under a fact situation similar to the instant case, thefederal court in Daly v. Pedersen, 278 F.Supp. 88, 93, (D.Minn. 1967) had thisto say regarding a civilrights action against two sheriff's officers: "'Itwould require law enforcement officers to respond indamages every 

### timethey miscalculated inregard towhat a court of lastresort would determine constituted an invasion of constitutional rights, even where, ashere, a trialjudge-- more learned inthe law than a police officer-- held thatno such violation occurred.

"'So long asthe 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 inMonroe v. Pape--for the deprivation of plaintiff's rights. "No one has a constitutional right tobe free from a law officer's honest misunderstanding of the law or facts inmaking 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 faithunderstanding of the law and does not actwith 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, 163Mont. 154, 515 P.2d 679, 30 St.Rep. 985; Meinecke v. McFarland, 122 Mont. 515, 206 P.2d 1012. Here, the searchwarrant 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 tohold appellants injail until they made bond. There being no genuine issue as toany material factwe find the districtcourt properly granted summary judgment.Justices