Sometimes, but less often than people expect. Under the Montana Constitution there is no "automobile exception" that lets police search a car simply because it is a car. A warrantless search of a vehicle needs probable cause and a recognized exception to the warrant requirement, or a warrant. A DUI stop does not change that, though what an officer can plainly see is fair game. This page is part of our Montana DUI Guide.
Why Montana Is Different
Two sections of the Montana Constitution do the work. Article II, Section 11 protects people in "their persons, papers, electronic data and communications, homes and effects from unreasonable searches and seizures." Article II, Section 10 adds something the federal Constitution does not spell out: the right of individual privacy "shall not be infringed without the showing of a compelling state interest."
In State v. Elison, 2000 MT 288, 302 Mont. 228, the Montana Supreme Court read those sections together and declined to follow the federal rule that a vehicle may be searched without a warrant on probable cause alone. The Court concluded there is no automobile exception under the Montana Constitution. A warrantless search of an automobile requires probable cause and a generally applicable exception to the warrant requirement, such as a plain view search, a search incident to arrest, or exigent circumstances. The search in that case, of items behind the seat, was held unlawful.
By statute, a search may be made by authority of a warrant or in accordance with judicially recognized exceptions to the warrant requirement (MCA § 46-5-101).
What an Officer Can See Is Not Private
Elison drew a practical line. When a person rides in a car, items left uncovered on the dashboard or on the seat are no longer private because they are publicly visible. But when a person places items behind or under seats, in a trunk or a glove box, there is no reason to think the privacy interest in them was given up because they happen to be in an automobile.
At a DUI stop, plain view is the most common way physical evidence is found: an open container in a cup holder, a bottle on the floor. Montana's open container law covers the passenger area and exempts a locked glove compartment, the trunk, and the area behind the last upright seat of a vehicle with no trunk (MCA § 61-8-1026). A parallel statute applies to marijuana in the passenger area (MCA § 61-8-1027), covered in marijuana in the car.
The Grounds for a Search, One by One
| Ground | What it allows | Source |
|---|---|---|
| Plain view | An officer who is lawfully at your window may see and seize what is exposed. Items left uncovered on a dashboard or seat are not private. | State v. Elison, 2000 MT 288; State v. Sawyer (1977) |
| Consent | An officer may ask to search. Consent is a recognized exception to the warrant requirement, and the Montana Supreme Court has said it must be narrowly construed. | State v. Ellis, 2009 MT 192 |
| Search incident to arrest | After a lawful arrest, an officer may reasonably search the person and the area within the person's immediate presence, for the purposes the statute lists. | MCA § 46-5-102 |
| Exigent circumstances | Probable cause plus specific facts showing prompt action was needed, for example to prevent the destruction of evidence. The State carries a heavy burden. | State v. Elison, 2000 MT 288 |
| Drug dog sniff of the exterior | A search under the Montana Constitution. Requires particularized suspicion of narcotics activity. | State v. Tackitt, 2003 MT 81 |
| Search warrant | A judge issues one on a sworn application showing probable cause and describing what is to be searched and seized. | MCA § 46-5-221 |
| Inventory after impound | Limited to articles in plain view from outside the vehicle, when impound is the only justification. | State v. Sawyer, 174 Mont. 512 (1977) |
On exigent circumstances, Elison is a useful example of what is not enough. The trial court had relied on the mobility of the vehicle, the chance a confederate could move it, and the late hour. The Supreme Court held the State had not shown specific facts making a warrantless search necessary, and added that the validity of a search cannot turn solely on the time of day.
A Pat-Down Is Not a Car Search
During a lawful stop, an officer who has reasonable cause to suspect that a person is armed and presently dangerous may frisk the person and take other reasonably necessary steps for protection (MCA § 46-5-401(2)(b)). That authority is about weapons and safety. It is not a general license to look for evidence.
Drug Dogs
Montana treats a drug dog sniff of a vehicle as a search. In State v. Tackitt, 2003 MT 81, the Court held that using a drug-detecting dog on a vehicle is a search under Article II, Sections 10 and 11, and that particularized suspicion is required first. Later cases apply the rule to traffic stops: an officer may prolong a stop for a dog sniff only with particularized suspicion of narcotics activity (State v. Meza, 2006 MT 210; State v. Estes, 2017 MT 226). See how long a traffic stop can last.
Inventory Searches After Impound
When a driver is arrested, the vehicle is often towed. The U.S. Supreme Court has recognized warrantless inventory searches of impounded automobiles under standard police procedures. Montana declined to follow that rule. In State v. Sawyer, 174 Mont. 512, 571 P.2d 1131 (1977), the Court held that where the sole justification for an inventory search is that the vehicle is lawfully impounded, the search "must be limited in scope to articles in plain view from outside the vehicle." The Court noted that it was not limiting an officer's right to seize items in plain view, and that the case did not involve probable cause to search or a search related to the arrest.
The rule for what you are carrying is different. In State v. Pastos, 269 Mont. 43 (1994), the Court upheld a routine, administrative inventory search of the personal property on or in the possession of an arrested person at the police station. Getting the vehicle back is covered in getting your car out of impound.
Your Blood and Breath Are a Separate Subject
A search of the car is not the search most DUI cases turn on. Field sobriety tests are themselves a search in Montana (see can I refuse field sobriety tests). Breath and blood testing run under the implied consent law, and after a refusal an officer may apply for a warrant for blood (MCA §§ 61-8-1016(4)(b), 46-5-224), which our page on blood draw warrants explains.
If the Search Was Unlawful
A defendant aggrieved by an unlawful search and seizure may move to suppress what was obtained, and if the motion is granted the evidence is not admissible at trial (MCA § 46-13-302). In a DUI case with an added charge, such as drug possession, a suppression ruling on the vehicle search can decide that charge even when the DUI evidence stands. See motions to suppress.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the court decisions cited. It is not legal advice about your specific case.