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9.17 Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—Exceptions to Warrant Requirement

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In general, a seizure of a person’s property is unreasonable under the Fourth Amendment unless the seizure is authorized by a warrant. [A "warrant" is a written order signed by a judge that permits a law enforcement officer to seize particular property.] Under an exception to this rule, a warrant is not required and a seizure of property is reasonable if [set forth applicable exception to warrant requirement]. Thus, in order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception does not apply.


Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7, and in conjunction with Instruction 9.16 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—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 warrant requirement of 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.

"‘[I]n the ordinary case, seizures of personal property are unreasonable within the meaning of the Fourth Amendment . . . unless . . . accomplished pursuant to a judicial warrant issued by a neutral and detached magistrate after finding probable cause.’" Menotti v. City of Seattle, 409 F.3d 1113, 1154 (9th Cir.2005) (quoting Illinois v. McArthur, 531 U.S. 326, 330–31 (2001)).

Although the committee has not provided instructions for the many exceptions to the warrant requirement for the seizure of property, the following decisions may be helpful in formulating an instruction tailored to particular facts:

(1) Menotti, 409 F.3d at1152 n.72, collects case citations authorizing warrantless seizures of property in the context of administrative searches, searches incident to arrest, automobile checkpoint searches, and a Terry seizure.

(2) United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir.1986) (warrantless seizure of abandoned property does not violate Fourth Amendment) (citations omitted).

(3) United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir.2005) (plain view exception to warrant requirement).