9.12 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—EXCEPTION TO WARRANT REQUIREMENT—SEARCH INCIDENT TO ARREST
In general, a search of [a person] [a person’s [residence] [vehicle] [property]] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant. [A "search warrant" is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.] Under an exception to this rule, a search warrant is not required and a search is reasonable if the search is incident to a lawful arrest.
[I instruct you that the arrest of the plaintiff was a lawful arrest.] [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard, i.e., insert elements to show probable cause to arrest for a particular crime]].
A search is "incident to" a lawful arrest if:
1. it occurs at the same time or shortly after the arrest ; and
2. it is limited to a search of the person arrested and to the immediate area within which that person might gain possession of a weapon or might destroy or hide evidence at the time of the search. [When the person arrested was in a vehicle at the time or shortly before the arrest and there is reason to believe that evidence of the offense of arrest might be found in the vehicle, the search may extend to the entire passenger compartment of the vehicle, as well as any containers within it.]
In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply; that is, that the search was not incident to a lawful arrest.
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7 and in conjunction with Instruction 9.11 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally).
There is a split of authority among the circuits concerning which party in a § 1983 civil action has the burden to prove the factual basis for an exception to the general rule that a warrantless search isunreasonable under the Fourth Amendment. In Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir.1994), it appears the Ninth Circuit concluded the plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment had the burden to prove an asserted exception to the warrant requirement did not apply. Thus, this instruction frames the burden of proof accordingly.
It is a well-settled exception to the warrant requirement that a police officer may search incident to an arrest both the arrested person and the area within the person’s "immediate control"; i.e., "the area from within which [the person] might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763 (1969). Thus, a search incident to the arrest of an occupant of a vehicle may extend to the entire passenger compartment of a vehicle, as well as any containers within it. United States v. Mayo, 394 F.3d 1271, 1277 (9th Cir.2005) (citing New York v. Belton, 453 U.S. 454, 460 (1981)).
In Arizona v. Gant, 556 U.S. 332 (2009), however, the Supreme Court limited the circumstances when Chimel and Belton would justify a warrantless search of a vehicle incident to the arrest of a recent occupant:
Under Chimel, police may search incident to arrest only the space within an arrestee’s "immediate control," meaning "the area from within which he might gain possession of a weapon or destructible evidence." The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. . . . [W]e also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.
Id. at 335. The Court held:
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Id. at 351. Although earlier Ninth Circuit precedent holds a search incident to arrest must be "roughly contemporaneous with the arrest," (see United States v. Smith, 389 F.3d 944, 951 (9th Cir.2004) (quoting United States v. McLaughlin, 170 F.3d 889, 892 (9th Cir.1999)), and "[t]here is no fixed outer limit for the number of minutes that may pass between an arrest and a valid, warrantless search that is a contemporaneous incident of the arrest," McLaughlin, 170 F.3d at 892, these decisions now must be read in light of Arizona v. Gant.
An actual arrest is a prerequisite for this exception to the warrant requirement. Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir.2005) (probable cause to make arrest insufficient to trigger exception in absence of actual arrest).
If the court is able to determine as a matter of law that an arrest was lawful, the committee recommends the court instruct the jury accordingly. When, however, there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case. See Instruction 9.20 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest).