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9.14 Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Exigent Circumstances

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In general, a search of [a person] [a person’s [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to 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:

1. all of the circumstances known to the officer[s] at the time would cause a reasonable person to believe that the entry or the search was necessary to prevent [physical harm to the officer[s] or other person[s]] [destruction of evidence] [escape of a suspect], and

2. there was insufficient time to get a search warrant.

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, Instruction 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. Therefore, this instruction frames the burden of proof accordingly.

It is a well-settled exception to the warrant requirement that "exigent circumstances" can justify a warrantless search consistent with the Fourth Amendment. See Warden v. Hayden, 387 U.S. 294, 298 (1967) (upholding a warrantless search where "the exigencies of the situation made that course imperative"); see also Fisher v. City of San Jose, 558 F. 3d 1069 (9th Cir. 2009) (en banc) (discussing exigent circumstances exception in the context of hours-long police standoff). The Ninth Circuit "[has] defined exigent circumstances to include ‘those circumstances that would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.’" Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir.2005) (citation omitted). See also United States v. Cervantes, 219 F.3d 882, 887 (9th Cir.2000) (stating that exigent circumstances exception requires that "(1) there is probable cause to believe that contraband or evidence of a crime will be found in the residence; and (2) exigent circumstances are present.").

Approved 8/2009