No. 91-448 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DEANNA PLUMLEE, 

plaintiff and Appellant, 

HON. NEIL M. TRAVIS, CITY JUDGE, 

CITY OF LIVINGSTON, 

MONTANA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron L. Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sarah Arnott Ozment, Attorney at Law, Livingston, 

Montana 

For Respondent: 

Robert Jovick, Attorney at Law, Livingston, Montana 

Filed: 

Submitted on Briefs: June 26, 1992 

I 

'Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Deanna Plumlee appeals from an order of the Sixth 

Judicial District Court, Park County, denying and dismissing her 

writ of certiorari. 

We reverse. 

Appellant raises several issues for our consideration. 

However, because of our holding below, we need only discuss the 

following issue: 

Did a bench warrant for the arrest of appellant for failing to 

pay fines meet the requirements of § 46-6-105, MCA, and constitute 

a lawful arrest? 

The facts of this case originally arose from events which led 

to the arrest and conviction of appellant for criminal trespass, 

disorderly conduct, and resisting arrest. As a result, appellant 

was sentenced to ten days in jail and ordered to pay $545 in fines 

and costs. Because appellant did not make any payments on the 

fines or perform any community service, and did not request any 

additional extension of time or make other arrangements to satisfy 

the fines, a bench warrant was issued for her arrest on 

November 29, 1990. 

On the evening of April 22, 1991, appellant and some of her 

friends were drinking at a rest area near Livingston. One of the 

friends was arrested for driving under the influence of alcohol. 

Appellant went with her friend to the police department. No one at 

the police station was aware of the outstanding warrant for her 

arrest, and appellant was permitted to leave. 
Upon learning of the outstanding contempt warrant for 

appellant's arrest, two police officers obtained the warrant and 

went to appellant's trailer home on the night of April 22. The 

officers knocked on the door and appellant, who was in her night 

clothes and appeared intoxicated, answered the door. The officers 

announced themselves whereupon she requested to put on her shoes, 

which the officers told her she could do. They requested 

permission to enter the house and appellant motioned them to come 

inside. They then informed her that they had a warrant for her 

arrest and she became upset and requested to see the warrant. One 

of the officers went out to the squad car to get the warrant in an 

effort to calm her down. After the officer left, appellant became 

physically and verbally abusive to the officer remaining in the 

home. The officer informed her she was under arrest and placed her 

in a wrist lock in order to subdue her. The second officer came 

back into the trailer and assisted in the arrest. 

On April 23, 1991, appellant was brought before a justice of 

the peace for the additional charges of resisting arrest and 

assault. Appellant pled not guilty and the charges in the Justice 

Court are still pending. About an hour after appearing in Justice 

Court, appellant then appeared in City Court for a contempt 

hearing. 

The City Judge found appellant in contempt and sentenced her 

to 26 days in jail, which included $545 in prior fines to be worked 

off at the rate of $25 per day (22 days), plus a $100 contempt fine 
to be worked off at the rate of $25 per day, which added four days 

to her jail time. 

Appellant served 15 days in jail before being released by 

order of the District Court as a result of appellant's attorney 

filing a writ of certiorari. On June 7, 1991, the District Court 

held a hearing to determine if appellant's bench warrant arrest was 

lawful and if her appearance in City Court did not comport with 

procedural due process. On June 19, 1991, the District Court 

issued its findings of fact, conclusions of law, and order denying 

and dismissing the writ of certiorari. Because of her lack of 

financial resources, this Court granted appellant permission to 

file this appeal in forma pauperis. 

Did a bench warrant for the arrest of appellant for failing to 

pay fines meet the requirements of 5 46-6-105, MCA, and constitute 

a lawful arrest? 

In the case before this Court, the City Court Judge issued a 

bench warrant for appellant's arrest which stated that the police 

were to arrest her "wherever she may be found . . ." and that the 

warrant "may be served any time of the day or night." The judge's 

signature appeared twice on the warrant. One of those signatures 

specifically indicated that appellant could be arrested at night. 

Appellant argues that more specific language is required by 

1 46-6-105, MCA, such as "may be served upon the defendant at her 

home or private dwelling place at night.:' 

Prior to 1967, Montana law required an endorsement by a 

magistrate to allow for nighttime arrests for misdemeanor offenses. 
Section 46-6-105, MCA, was amended in 1967 to include the 

following: 

An arrest may be made at any time of the day or 

night, except that a person may not be arrested in the 

person's home or private dwelling place at night for a 

misdemeanor committed at some other time and place unless 

upon the direction of a judge endorsed upon an arrest 

warrant. 

By placing restrictions on the time and place of arrest for 

misdemeanor offenses, the legislature was attempting to curb 

potential police abuse. The Revised commission Comment to 

§ 95-607, RCM (1947) (now codified at 5 46-6-105, MCA) , offers some 

insight into the reason for the change: 

This provision broadens the scope of arrests for 

misdemeanors and allows arrests for all misdemeanors at 

night, except that a person cannot be arrested at night 

in his home for a prior misdemeanor unless upon the 

direction of a magistrate endorsed upon a warrant of 

arrest. This restriction was imposed to prevent the 

police from harassing a person or searching his home on 

the pretext of arresting him for a misdemeanor committed 

at some other time and place. 

It is clear from the language of the statute and the 

Commission's Comments, that the legislature intended to place an 

additional restriction on arresting an individual at night and in 

his home for a misdemeanor offense committed at some other time and 

place by requiring the endorsement of an independent magistrate. 

We agree with appellant that g 46-6-105, MCA, requires that a 

misdemeanor arrest warrant contain more specific language than the 

one issued in this case. We hold that an individual cannot be 

arrested in his home or private dwelling place at night for a 

misdemeanor offense committed at some other time and place without 
the express direction of a magistrate endorsed upon the warrant for 

arrest. 

Because the city court's bench warrant did not meet the 

requirements of § 46-6-105, MCA, we order that the contempt order 

be vacated and dismissed. 

Reversed. 

We concur: 

/ 
July 27, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Sarah Arnott Ozment 

Attorney at Law 

P.O. Box 1160 

Livingston, MT 59047 

Robert Jovick 

City Attorney 

P.O. Box 1245 

Livingston, MT 59047 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAW OF MONTANA