                             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


                                   Submitted on Briefs:   June 26, 1992

Filed:


                                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 $ 5 4 5 in prior fines to be worked
off at the rate of $ 2 5 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
