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9.13 Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search of Vehicle Incident to Arrest of a Recent Occupant

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


In general, a search of a person’s vehicle 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 of the vehicle 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 of a vehicle [specify area searched] is "incident to" the arrest of a recent occupant only if: 

1. The arrestee is not securely in police custody and the [specify area searched] is "within the reaching distance" of the arrestee; or 

2. The officer has reason to believe that the vehicle contains evidence of the offense that is the subject of the arrest. 

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). 

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. 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. 

In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court narrowed the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement first announced in Chimel v. California, 395 U.S. 752 (1969), and later as applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981). Gant, 556 U.S. at 335. 

Gant held that a warrantless search of a vehicle, incident to the arrest of a driver or recent occupant, is constitutionally permissible only if: (1) the arrestee is within reaching distance of the passenger compartment at the time of the search, or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest. Id. at 351. 

Thus, when the arrestee is secured by police, and there is no threat of evidence destruction or weapons, officers may not rely on the search-incident-to-arrest exception to justify the search of a vehicle. Id. at 335 ("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."); see also United States v. Ruckes, 586 F.3d 713, 717–18 (9th Cir.2009) (applying Gant, 556 U.S. at 343–44, and concluding that vehicle search incident to arrest was invalid).

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).