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9.11 Particular Rights—Fourth Amendment—Unreasonable Search—Generally

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This chapter is being reviewed in light of comments solicited by the Committee from the public.


As previously explained, the plaintiff has the burden to prove that the act[s] of the defendant[s] [name[s]] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant[s] deprived [him] [her] of [his] [her] rights under the Fourth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

Under the Fourth Amendment, a person has the right to be free from an unreasonable search of [his] [her] [person] [residence] [vehicle] [other]. In order to prove the defendant[s] deprived the plaintiff of this Fourth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

1. [Name[s] of applicable defendant[s]] searched the plaintiff’s [person] [residence] [vehicle] [other];

2. in conducting the search, [name[s]] acted intentionally; and

3. the search was unreasonable.

[A person acts "intentionally" when the person acts with a conscious objective to engage in particular conduct. Thus, the plaintiff must prove the defendant meant to search the plaintiff’s [person] [residence] [vehicle] [other]. Although the plaintiff does not need to prove the defendant intended to violate the plaintiff’s Fourth Amendment rights, it is not enough if the plaintiff only proves the defendant acted negligently, accidentally or inadvertently in conducting the search.]


Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and an applicable definition of an unreasonable search, such as Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest) and Instruction 9.14 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Consent).

The Fourth Amendment’s protection against unreasonable searches extends beyond criminal investigations. Grady v. North Carolina, 135 S. Ct. 1368 (2015) (holding that state conducts search subject to Fourth Amendment when it attaches tracking device without consent to recidivist sex offender after civil proceedings).

Section 1983 "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." OSU Student Alliance v. Ray, 699 F.3d 1053, 107172 n.12 (9th Cir.2012) (quoting Daniels v. Williams, 474 U.S. 327, 328 (1986)). It is well settled that "negligent acts do not incur constitutional liability." Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.2002). Specific intent to violate a person’s rights "is not a prerequisite to liability under § 1983." Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992) (citations omitted). Instead a plaintiff must prove the defendant acted with the mental state necessary to show a violation of a particular right.

With respect to the Fourth Amendment, the Supreme Court has defined a seizure as "a governmental termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original); see also Nelson v. City of Davis, 685 F.3d 867, 876-77 (9th Cir.2012) (discussing intent and concluding that defendant officers intentionally seized plaintiff under the Fourth Amendment). The Committee assumes the same intentional mental state is required to prove a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment, although there does not appear to be any Supreme Court or Ninth Circuit decision directly on point.

The last paragraph of this instruction includes an optional definition of the term "intentionally" for use when it would be helpful to the jury.

In United States v. Thomas, 726 F.3d 1086, 1092-93 (9th Cir.2013), the Ninth Circuit discussed how the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012) altered the Katz reasonable-expectation-of-privacy focus and that case law now directs "if the Government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has ‘undoubtedly occurred.’" In Jones, government officials installed a GPS-tracking device to the underside of a vehicle located in a public parking lot, and then utilized the device to monitor the vehicle’s movements. The Court decided that when "[t]he Government physically occupied private property for the purposes of obtaining information" a physical intrusion occurred and constituted a search under Fourth Amendment principles. Id. at 949-53.

The Supreme Court also held that the government’s use of a drug dog within the curtilage of a home used "to investigate the home and its immediate surroundings" was a search within the meaning of the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409, 1414-18 (2013).