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9.16 Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Emergency Aid

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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] [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, under all of the circumstances:

 1. the police officer[s] had reasonable grounds to believe that there was an emergency at hand and there was an immediate need to protect others or themselves from serious harm; and

2. there was a reasonable basis to associate the emergency with the area or place that was searched.

 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 9.3–9.8.

 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 that a 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. 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]"). Therefore, this instruction frames the burden of proof accordingly.

 The Supreme Court has consistently recognized an emergency aid exception to the warrant requirement that allows law enforcement officers to "enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." United States v. Snipe, 515 F.3d 947, 951 (9th Cir.2008) (quoting Brigham City v. Stuart, 547 U.S. 398 (2006)).

 The emergency doctrine recognizes that police function as community caretakers in addition to their roles as criminal investigators and law enforcers. Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 534 (9th Cir.2010).

 As the Ninth Circuit has clarified, this exception has two requirements: "(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need." Sheehan v. City & Cnty. of S.F., 743 F.3d 1211, 1221 (9th Cir.2014) (quoting Snipe, 515 F.3d at 952); see also Hopkins v. Bonvicino, 573 F.3d 752, 763-66 (9th Cir.2009) (explaining difference between emergency and related exigency exceptions).

 Whether they rely on the emergency aid or exigent circumstances exception to the Fourth Amendment’s general warrant requirement, officers are required to conduct the search or seizure in a reasonable manner, including use of reasonable force. Sheehan, 743 F.3d at 1222 (applying Supreme Court’s excessive force standard under Fourth Amendment to both emergency aid and exigency exceptions). To assess whether the force used was reasonable, see Instruction 9.23 Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive (Deadly and Nondeadly) Force