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9.12 Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest

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In general, a search of [a person] [a person’s [residence] [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 contemporaneously with the arrest, that is, at the same time or shortly after the arrest and without any intervening events separating the search from 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.

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 9.3–9.8 and in conjunction with Instruction 9.11 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). When the search incident to arrest involves a vehicle, refer to Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search of Vehicle Incident to Arrest of a Recent Occupant).

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 is unreasonable under the Fourth Amendment. However, the Ninth Circuit has concluded the plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden to prove an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir.1994); see also Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir.2002) (reaffirming that plaintiff in § 1983 action "carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]"). 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 a lawful custodial 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). The search must be "spatially and temporally incident to the arrest," and, to satisfy the temporal requirement, must be "roughly contemporaneous with the arrest." U.S. v. Camou, 773 F.3d 932, 937 (9th Cir.2014) (holding border patrol agent’s search of arrestee’s cell phone 80 minutes after arrest not roughly contemporaneous with arrest). "The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item ‘within the arrestee’s immediate control when he was arrested’; (2) did ‘events occurring after the arrest but before the search ma[k]e the search unreasonable’?" Id. at 938.  

The Ninth Circuit has noted that "[m]ere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay." United States v. Maddox, 614 F.3d 1046, 1049 (9th Cir.2010) (finding search of defendant’s key chain taken from his person incident to arrest, but tossed back into his vehicle after arrestee was secured in patrol car, invalid under search-incident-to-arrest exception).

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) (holding 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 9.21 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest).