Billings, Montana

• Stay calm. It is not a good idea to run. Speak carefully and clearly. Anything you say can be used against you in a court of law.
• It is not a good idea to touch the officers. Keep your hands where the police can see them.
• It is not a good idea to resist, even if you’re innocent or if you think the police are acting unfairly or unlawfully. 

a. Can the police arrest you for refusing to answer questions?

ANSWER: No, you cannot be arrested simply for refusing to answer a police officer's questions. You have the right to remain silent. If you do not want to answer the questions, you can say, "I do not want to talk to you" and walk away calmly. Or, if you do not feel comfortable doing that, you can ask if you are free to go. If the answer is yes, you can consider just walking away. Do not run from the officer.

Even if you are under arrest, you do not have to answer questions. Ask to speak to a lawyer immediately. It is not a good idea to answer any questions without first talking to a lawyer.

See Montana Code Annotated 2021, §46-6-107. Additional information can be found at https://www.aclumontana.org/en/know-your-rights/stops-and-arrests-what-do-when-encountering-law-enforcement

b. What if the officers do not identify themselves?

ANSWER: If a police officer stops you while he or she is not in uniform, they are required to inform you as soon as possible that they are a police officer. They must, in any case, identify themselves before questioning you. (Montana Code Annotated 2019, §46-5-401(3))

c. What if an officer just begins speaking to me but does not order me to do anything?

ANSWER:  You do not have to answer any questions. You can say, "I do not want to talk to you" and walk away calmly. Or, if you do not feel comfortable doing that, you can ask if you are free to go. (See Montana Code Annotated 2021, §46-6-107) 

Additional information can be found at https://www.aclumontana.org/en/know-your-rights/stops-and-arrests-what-do-when-encountering-law-enforcement

d. What if the officer is not in uniform or identified as an officer but I think it is one?

ANSWER:  If a police officer stops you while he or she is not in uniform, they are required to inform you as soon as possible that they are a police officer.  They must identify themselves before questioning you. (Montana Code Annotated 2019, §46-5-401(3))

• Stay calm.It is not a good idea to run.Speak carefully and clearly. Anything you say can be used against you in a court of law.
• It is not a good idea to touch the officers. Keep your hands where the police can see them.
• It is not a good idea to resist, even if you’re innocent or if you think the police are acting unfairly or unlawfully.

e. Can I tell police I do not want to speak without a lawyer?

ANSWER: Yes, you have the right to remain silent. If you are arrested, the officer must tell you about your constitutional right to remain silent, your right to an attorney, and your right to have an attorney appointed if you cannot afford one. You should exercise all these rights, even if the officers don't tell you about them. Do not tell the police anything except your name. Anything else you say can and will be used against you. Ask to see a lawyer immediately. Law enforcement officers are not permitted to listen to a call you make to your lawyer (though they can listen to calls you make to other people). (Miranda v. Arizona, 384 U.S. 436 (1966), Montana Code Annotated 2021, §46-6-107)

Additional information can be found at https://www.aclumontana.org/en/know-your-rights/stops-and-arrests-what-do-when-encountering-law-enforcement

f. If I sit down, am I resisting?

ANSWER:  No, just sitting down is not resisting arrest. A person resists arrest if they try to prevent the officer from making an arrest by using or threatening to use physical force, or if they do something else that puts the officer or someone else at risk of being hurt. (Montana Code Annotated 2019, 45-7-301)

To reduce risk to yourself, keep your hands where police can see them.

g. If I am stopped in a group, and some kids run, can I run?

ANSWER: Don't run even if others do. Stay calm, be polite, and don't argue or resist, even if you are innocent or you believe that the police are violating your rights. To reduce risk to yourself, make sure to keep your hands where police can see them. You are not required to answer an officer's questions. Ask if you are free to leave. If the officer says yes, calmly and silently walk away. (Montana Code Annotated 2021, §46-6-107)

Additional information can be found at https://www.aclumontana.org/en/know-your-rights/your-rights-demonstrations-and-protests.

h. Can I tell others (siblings, for example) to run?

ANSWER:  No, you should not tell others to run. This could be seen as preventing the police from doing their job. Stay calm, be polite, and don't argue or resist, even if you are innocent or you believe that the police are being unfair. To reduce risk to yourself, make sure to keep your hands where police can see them. You are not required to answer an officer's questions. Ask if you are free to leave. If the officer says yes, calmly and silently walk away. (Montana Code Annotated 2021, §46-6-107)

Additional information can be found at https://www.aclumontana.org/en/know-your-rights/your-rights-demonstrations-and-protests

i. If the officer's language is not my first language, can I tell them without waiving my rights?

ANSWER:  If you don't understand what the officer is saying, you can ask for an interpreter. The police should provide an interpreter as soon as possible, and before interrogation. This is also the case for those who are hard of hearing and in need of a sign language interpreter. (Montana Code Annotated 2021, §49-4-503) However, the interpreter will be one assigned by the police department - you will not be able to use your own personal interpreter. 

If you wish to remain silent, you can say, "I wish to remain silent."

j. If I did not do anything, can they stop me?

ANSWER:

Yes. Police officers have the authority to stop you if they have a reasonable suspicion that you are involved in or is about to commit a criminal activity (Terry v. Ohio, 392 U.S. 1 (1968) and Montana Code Annotated 2019, §46-5-401). For example, if there is any reason for an officer to believe that you are armed and dangerous, that officer can legally stop you.

• You have the right to say no to searches of your person.
• You have the right to say no to searches of your car, house or other surroundings.
• You cannot be arrested for refusing to consent to a search without a warrant.
• A warrant is a court order so you have no choice but to consent.

a. What if a police officer wants to search my phone?

ANSWER:  Police officers are generally required to obtain a search warrant before conducting a search of digital information contained in your phone. The United States Supreme Court unanimously held in the 2014 case (Riley v. California, 573 U.S. 373) that law enforcement agents cannot randomly search your cellphone data without having a warrant. Thus, you do not need to hand over your phone and/or password otherwise.

Further, under the Fifth Amendment, you do not have to give a self-incriminating statement about yourself. Passwords to digital devices such as phones and computers have been generally accepted as a form of statement in a court of law. Therefore, you cannot usually be forced to hand over passwords, even where a warrant is in force, unless a court has directed otherwise.

Note that in Montana, there are a few exceptions as outlined below.

Exceptions:

• Police officers have a warrant allowing them to search digital information in your phone.
• Police officers can search physical aspects of your phone, e.g. removing the battery or case, in your possession at the time of arrest.
• When the police officers, in good faith, believes that exigent, or emergency, circumstances are present that requires immediate disclosure of communications relating to the emergency. There is an emergency situation if, for example, the warrantless search of your phone can prevent injury to someone or can prevent the imminent destruction of evidence.
• You (or the authorized user of your phone) give consent to search the content of your phone.
• If you have voluntarily and publicly disclosed the stored data.
• in order to respond to the user’s call for emergency services.
• for any electronic devices found within the confines of an adult or youth correctional facility.

(Montana Code 46-5-112 Electronic data privacy; 13-132 Riley v. California (06/25/2014) (supremecourt.gov))

b. What if a police officer asks me for my password to my phone?

ANSWER: You do not have to provide the password to your phone. Police officers are generally required to obtain a search warrant before conducting a search of digital information contained in your phone. The United States Supreme Court unanimously held in the 2014 case (Riley v. California, 573 U.S. 373) that law enforcement agents cannot randomly search your cellphone data without having a warrant. Thus, you do not need to handover your phone and/or password otherwise.

Further, under the Fifth Amendment, you do not have to give a self-incriminating statement about yourself. Passwords to digital devices such as phones and computers have been generally accepted as a form of statement in a court of law. Therefore, you cannot usually be forced to hand over passwords, even where a warrant is in force, unless a court has directed otherwise.

Note that in Montana, there are a few exceptions as outlined below.

Exceptions:

• Police officers have a warrant allowing them to search digital information in your phone.
• Police officers can search physical aspects of your phone, e.g. removing the battery or case, in your possession at the time of arrest.
• When the police officers, in good faith, believes that exigent, or emergency, circumstances are present that requires immediate disclosure of communications relating to the emergency. There is an emergency situation if, for example, the warrantless search of your phone can prevent injury to someone or can prevent the imminent destruction of evidence.
• You (or the authorized user of your phone) give consent to search the content of your phone.
• If you have voluntarily and publicly disclosed the stored data.
• in order to respond to the user’s call for emergency services.
• for any electronic devices found within the confines of an adult or youth correctional facility.

 (Montana Code 46-5-112 Electronic data privacy; 13-132 Riley v. California (06/25/2014) (supremecourt.gov))

c. What if they tell me to give them my password or other access to my phone?

ANSWER: You do not have to provide the password to your phone. Police officers are generally required to obtain a search warrant before conducting a search of digital information contained in your phone. The United States Supreme Court unanimously held in the 2014 case (Riley v. California, 573 U.S. 373) that law enforcement agents cannot randomly search your cellphone data without having a warrant. Thus, you do not need to handover your phone and/or password otherwise.

Further, under the Fifth Amendment, you do not have to give a self-incriminating statement about yourself. Passwords to digital devices such as phones and computers have been generally accepted as a form of statement in a court of law. Therefore, you cannot usually be forced to hand over passwords, even where a warrant is in force, unless a court has directed otherwise.

Note that in Montana, there are a few exceptions as outlined below.

Exceptions:

• Police officers have a warrant allowing them to search digital information in your phone.
• Police officers can search physical aspects of your phone, e.g. removing the battery or case, in your possession at the time of arrest.
• When the police officers, in good faith, believes that exigent, or emergency, circumstances are present that requires immediate disclosure of communications relating to the emergency. There is an emergency situation if, for example, the warrantless search of your phone can prevent injury to someone or can prevent the imminent destruction of evidence.
• You (or the authorized user of your phone) give consent to search the content of your phone.
• If you have voluntarily and publicly disclosed the stored data.
• in order to respond to the user’s call for emergency services.
• for any electronic devices found within the confines of an adult or youth correctional facility.

 (Montana Code 46-5-112 Electronic data privacy; 13-132 Riley v. California (06/25/2014) (supremecourt.gov))

d. Do I have to give them my device password if they demand it from me if I am not under arrest? What if they just ask for it?

ANSWER:  You do not have to provide the password to your phone. Police officers are generally required to obtain a search warrant before conducting a search of digital information contained in your phone. The United States Supreme Court unanimously held in the 2014 case (Riley v. California, 573 U.S. 373) that law enforcement agents cannot randomly search your cellphone data without having a warrant. Thus, you do not need to handover your phone and/or password otherwise.

Further, under the Fifth Amendment, you do not have to give a self-incriminating statement about yourself. Passwords to digital devices such as phones and computers have been generally accepted as a form of statement in a court of law. Therefore, you cannot usually be forced to hand over passwords, even where a warrant is in force, unless a court has directed otherwise.

Note that in Montana, there are a few exceptions as outlined below.

Exceptions:

• Police officers have a warrant allowing them to search digital information in your phone.
• Police officers can search physical aspects of your phone, e.g. removing the battery or case, in your possession at the time of arrest.
• When the police officers, in good faith, believes that exigent, or emergency, circumstances are present that requires immediate disclosure of communications relating to the emergency. There is an emergency situation if, for example, the warrantless search of your phone can prevent injury to someone or can prevent the imminent destruction of evidence.
• You (or the authorized user of your phone) give consent to search the content of your phone.
• If you have voluntarily and publicly disclosed the stored data.
• in order to respond to the user’s call for emergency services.
• for any electronic devices found within the confines of an adult or youth correctional facility.

(Montana Code 46-5-112 Electronic data privacy; 13-132 Riley v. California (06/25/2014) (supremecourt.gov))

e. What tools can police use to search me? What technology? (Facial recognition, hidden cameras, finger print searches, etc.)

ANSWER: There are several tools police can use to search you:

• Police officer can record the encounter with you if you are questioned in a place of detention. In doing so, police officers must advise you of your rights to remain silent, your right to a lawyer, the fact that the recording is taking place and when the recording has stopped. (Montana Code Annotated 2019, §46-4-408)
• Police can also take fingerprints from you and take photographs if you are arrested and they have a search warrant. (Montana Code Annotated 2019, §41-5-1206)
• If a court order is obtained in advance, police officers can use a pen register or trap and trace device to track your phone calls. Such device that has the ability to record conversations is prohibited. (Montana Code Annotated 2019, §46-4-402)
• Police can also use unmanned aerial vehicles (such as drones) with a warrant and in instances where certain requirements are met (for example, during the investigation of a motor vehicle crash scene). (Montana Code Annotated 2019, §46-5-109)
• Police can also obtain location information of an electronic device with a warrant and in certain other instances (for example, when the device is reported stolen by the owner, consent of the owner or user of the device, in a possible life-threatening situation, etc.) (Montana Code Annotated 2019, §46-5-110).
• Police can also use license plate reader and similar devices to identify a vehicle in certain instances, such as when the vehicle is stolen, associated with a wanted, missing or endangered person, etc. (Montana Code Annotated 2019, §46-5-117).

f. Can they search my backpack or other item I am carrying?

ANSWER: Yes, but police can only search your backpack, purse, or other items:

1) With a valid search warrant (a legal document signed by a judge which specifically describes the item to be searched and items that they are looking for) OR

2) Without a warrant, but only in certain situations where:

1. you consented to the search or
2. police officers have reasonable grounds to believe that you have or are about to commit a crime, in which case, the police officers may stop you. If the officer reasonably suspects that you are armed and dangerous to the officer or another person present, the officer may “frisk you” (i.e., pat you down). The officer may take any object found during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon or
3. you are legally arrested and the search is for the purpose of:
   1. protecting the officer from attack;
   2. preventing you from escaping;
   3. finding anything obtained as a result of a crime; or
   4. finding anything which may have been used in a crime or which may be an evidence of an offense; or
4. the police have probable cause or good reason to believe that the item you are carrying was involved in a crime, for example, if they saw drugs or a weapon being put inside in plain view or
5. in emergency situations. There is an emergency situation if, for example, the search of your belonging can prevent injury to someone or can prevent the imminent destruction of evidence.

(Montana Code Annotated 2019, §46-5-101; Montana Code Annotated, 2019 §46-5-102; Montana Code Annotated 2019, §46-5-401; Terry v. Ohio, 392 U.S. 1 (1968))

g. Can they take my picture or record me?

ANSWER:  Yes, police officers can record the encounter with you if you are questioned in a place of detention. In doing so, police officers must advise you of your rights to remain silent, your right to a lawyer, the fact that the recording is taking place and when the recording has stopped. (Montana Code Annotated 2019, §46-4-408)

Police can also take fingerprints from you and take photographs if you are arrested and they have a search warrant. (Montana Code Annotated 2019, §41-5-1206).

h. Can they ask me where I am going and why?

ANSWER: Yes, police officers have the authority to stop you if they have a reasonable suspicion that you are involved in or are about to commit a criminal activity (Terry v. Ohio, 392 U.S. 1 (1968) and Montana Code Annotated 2019, §46-5-401). For example, if there is any reason for an officer to believe that you are armed and dangerous, that officer can legally stop you. During such stop, the police may request  your name and current address and an explanation of your actions (which could include questions around where you are going and why).

• The police may arrest you because they suspect you of committing (or having committed) a violation of the law, or if they suspect that you currently have evidence of a crime.
• Sometimes police have a warrant for an arrest.  You should be clear on what kind of warrant is being presented to you if that is the case.
• It is a good idea to review any paper from police/warrant carefully, to ensure you understand what exactly is covered.
• If arrested, you may be charged with a felony for a more serious crime (with potential jail time of one year or more), a misdemeanor for a less serious crime (with jail time of less than one year) or a violation.
• If the police arrest you, they also have the right to search you. Anything found during this search may be used as evidence against you.

a. What if I did not do anything illegal, must I speak with the police and answer questions?

ANSWER:  No. You are not required to make a statement, answer police questions or participate in a police investigation, and you never have to go anywhere with the police unless they have arrested you.

If you have not been arrested, and are not in custody, you may have the right to walk away. It may be a good idea to ask the questioning officer whether you are free to leave. Do not run to try to leave without permission as this may be seen as guilty conduct or aggravate the officers.

If the police ask to speak to you about an investigation, it is a good idea to request to speak to your lawyer and have your parents/guardian present.

If you tell the police you want a lawyer with you during questioning, they will have to stop questioning you until your lawyer arrives or (if you cannot afford your own lawyer) the court has appointed you a lawyer.

If you start answering questions and then change your mind, you can still ask for a lawyer and the police should stop asking you questions until your lawyer arrives. However, everything you have said can still be used as evidence against you in court.

b. What if they tell me something they are investigating that is wrong? Must I correct them?

ANSWER:  No. You are not required to make a statement, answer police questions or participate in a police investigation.

 If the police ask to speak to you about an investigation, it is a good idea to request to speak to your lawyer and have your parents/guardian present.

 If you tell the police you want a lawyer with you during questioning, they will have to stop questioning you until your lawyer arrives or (if you cannot afford your own lawyer) the court has appointed you a lawyer.

 If you start answering questions and then change your mind, you can still ask for a lawyer and the police should stop asking you questions until your lawyer arrives. However, everything you have said can still be used as evidence against you in court.

c. What if an officer just begins speaking to me but does not order me to do anything?

ANSWER:  Stay calm.  It is not a good idea to run.  Speak carefully and clearly. Remember that anything you say can be used against you in a court of law.

• It is not a good idea to touch the officers. Keep your hands where the police can see them.
• It is not a good idea to resist, even if you’re innocent or if you think the police are acting unfairly or unlawfully.

d. What is the legal difference between talking to them if they do not tell me I am under arrest, versus after they inform me that I am under arrest?

ANSWER: If you are not under arrest, then you are just being stopped for questioning and potential frisking (“pat-down”). (Montana Code Annotated 2019, §46-5-401). You are not required to make a statement, answer police questions or participate in a police investigation, and you are not legally in “custody” if you are stopped as noted above.

A police officer's tone and word usage is a good indicator of whether the officer is demanding or asking something.

If an officer orders you to do something you should comply, even if you are innocent or you believe your rights are being violated.

REMEDIES: If you feel like your rights are being violated due to police misconduct:

1. It is not a good idea to physically resist officers or threaten to file a complaint.  It is not a good idea to challenge police conduct on the street.
2. Write down everything you remember, including officers' badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first).
3. File a written complaint with the agency's internal affairs division or civilian complaint board. In the case of a complaint against police officers, a Complaint or Commendation may be filed by faxing (406-657-8417), mailing (P.O. Box 1554, Billings, MT 59103), or bringing your form to the Police Department. If you fax or mail your form in, you should address it to the Chief of Police.

For additional information, you can also contact the Montana ACLU (406) 443-8590 or aclu@aclumontana.org or visit www.aclu.org/profiling.

If an officer is requesting information, you may volunteer the information or refuse to answer and either request to leave or demand an attorney.

a. What is the difference between the police deciding to search me or my belongings (phone, person, backpack) and me agreeing to the search?

ANSWER:  If you agree to the search, then the police officers are free to search you and your belongings.

If you do not agree to the search, then the police officers can only search you and your belongings in exceptional cases as outlined below:

1. With a valid search warrant (a legal document signed by a judge which specifically describes the item to be searched and items that they are looking for) OR
2. Without a warrant, but only in certain situations where:
   1. police officers have reasonable grounds to believe that you have or are about to commit a crime, in which case, the police officers may stop you. If the officerreasonably suspects that you are armed and dangerous to the officer or another person present, the officer may “frisk you” (i.e., pat you down). The officer may take any object found during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon or
   2. you are legally arrested and the search is for the purpose of:
      1. protecting the officer from attack;
      2. preventing you from escaping;
      3. finding anything obtained as a result of a crime; or
      4. finding anything which may have been used in a crime or which may be an evidence of an offense; or
   3. the police have probable cause or good reason to believe that the item you are carrying was involved in a crime, for example, if they saw drugs or a weapon being put inside in plain view or
   4. in emergency situations. There is an emergency situation if, for example, the search of your belonging can prevent injury to someone or can prevent the imminent destruction of evidence.

(Montana Code Annotated 2019, §46-5-101; Montana Code Annotated 2019, §46-5-102; Montana Code Annotated 2019, §46-5-401; Terry v. Ohio, 392 U.S. 1 (1968))

b. What if they tell me to give them information versus them asking and me providing answers voluntarily?

If you provide answers voluntarily, remember that anything can be used as evidence against you in court. Miranda v. Arizona, 384 U.S. 436 (1966).

If you have not been arrested, and the police officers are just asking you to give information, you are not required to make a statement, answer police questions or participate in a police investigation, and you never have to go anywhere with the police unless they have arrested you.

If the police ask to speak to you about an investigation, it is a good idea to request to speak to your lawyer and have your parents/guardian present.

If you tell the police you want a lawyer with you during questioning, they will have to stop questioning you until your lawyer arrives or (if you cannot afford your own lawyer) the court has appointed you a lawyer.

If you start answering questions and then change your mind, you can still ask for a lawyer and the police should stop asking you questions until your lawyer arrives. However, everything you have said can still be used as evidence against you in court.

• No. Police officers can legally arrest you without a warrant in several circumstances:
  • When the crime is committed in front of the police officers; or
  • When the officer has probable cause (reason to suspect) that the suspect is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.

(Montana Code Annotated 2019, §46-6-311).

a. If I did not do anything, can they stop me?

ANSWER: Yes. Police officers have the authority to stop you if they have a reasonable suspicion that you are involved in or are about to commit a criminal activity (Terry v. Ohio, 392 U.S. 1 (1968) and Montana Code Annotated 2019, §46-5-401). For example, if there is any reason for an officer to believe that you are armed and dangerous, that officer can legally stop you.

b. Can I ask for the reason they stopped me?

ANSWER:  You may ask, but police are generally not obligated to tell you the reason if you are detained under an "investigative stop and frisk" where the police have a reasonable suspicion that a crime occurred or will likely occur, unless you are stopped in a motor vehicle.  In such vehicle stops, police are required to promptly tell you the reason why they stopped you, unless emergency circumstances exist or the officer has reasonable cause to fear for the officer’s own safety or for the public’s safety.  Montana Code Annotated 2019, §46-5-401).

c. Can I advocate for another young person stopped by police if we are stopped together?

ANSWER: Being stopped together may mean the police are also considering you part of the incident or crime, so advocating for someone else may carry the risk of either implicating yourself further or being charged with obstruction of justice, if you knew the other person is an offender but you purposely deceive anyone so that the other person does not get arrested or purposely aids the other person to avoid being arrested.  (Montana Code Annotated, 2019 §45-7-303). Remember that anything you say can be used against you in a court of law.

d. If I think the stop is unjustified, what can I do?

ANSWER:  Follow police directions and if they arrest you, do not resist.

• Write down everything you remember, including officers’ badge and patrol car numbers, which agency the officers were from, and any other details.
• Get contact information for witnesses.
• File a written complaint with the agency’s internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish.

The ACLU's website provides additional helpful details: https://www.aclu.org/know-your-rights/stopped-by-police/#ive-been-arrested-by-the-police

e. Can I get the officer's identifying information for a future complaint?

ANSWER:  Yes. If you're able to, write down or remember the officer's name or badge number if they are visible.  Police are not required by law to give you their badge number or name.

The ACLU's website provides additional helpful details: https://www.aclumontana.org/en/know-your-rights/stops-and-arrests-what-do-when-encountering-law-enforcement