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9.13 Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Consent

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In general, a search of a [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 person] [a person in lawful possession of the area to be searched] knowingly and voluntarily consents to the search [and there is not any express refusal to consent by another person who is physically present and also in lawful possession of the area to be searched].

[A person acts "knowingly" if the person acts with an awareness that (a) particular circumstance[s] exist[s].]

In determining whether a consent to search is voluntary, consider all of the circumstances, including:

[whether the consenting person was in custody;]

[whether officers’ guns were drawn;]

[whether the consenting person was told he or she had the right to refuse a request to search;]

[whether the consenting person was told he or she was free to leave;]

[whether Miranda warnings were given;]

[whether the consenting person was told a search warrant could be obtained;]

[any other circumstances applicable to the particular case].

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.


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 an "individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of his person, property, or premises." United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir.2000). See also Ohio v. Robinette, 519 U.S. 33, 40 (1996). In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court reiterated this rule: The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained." Id. at 106. The Court, however, also held that, as between a wife’s consent to a search of the family residence and her husband’s refusal to consent, "a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him." Id.

Under certain circumstances, a third party may have actual or apparent authority to give consent to the search of another’s property. United States v. Davis, 332 F.3d 1163, 1169 (9th Cir.2003). See United States v. Ruiz, 428 F.3d 877, 879 (9th Cir.2005) (citing United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir.1993) (stating three-part test to determine apparent authority of third person). When authority to consent is factually disputed, it may be necessary to instruct the jury on these standards.

Whether a consent to search was voluntary is "a question of fact to be determined from all the surrounding circumstances. When viewing the surrounding circumstances, there is no single controlling criterion." United States v. Perez-Lopez, 348 F.3d 839, 846 (9th Cir.2003) (quoting United States v. Kaplan, 895 F.2d 618, 622 (9th Cir.1990)). See also Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (voluntariness is a question of fact to be determined from a totality of the circumstances), and Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir.2002) (persons entering the secured concourse area of an airport implicitly consent to airport screening searches).

In the context of an airport security screening, consent to search can be implied from the circumstances. United States v. Aukai, 440 F.3d 1168, 1179 (9th Cir.2006).

This instruction includes alternative factors for the jury to consider in determining voluntariness. See Cormier, 220 F.3d at 1113. See also Robinette, 519 U.S. at 39–40.

In addition, the instruction includes an optional definition of the term "knowingly" for use when it would be helpful to the jury.