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

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


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 9.3–9.8, and in conjunction with Instruction 9.17 (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. However, the Ninth Circuit has concluded that a 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]"). Therefore, 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 at 1152 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. See Rodriguez v. United States, 135 S.Ct. 1609 (2015) (holding dog sniff is not ordinary incident of traffic stop; absent reasonable suspicion, seizure "‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation").

(2) Lavan v. City of L.A., 693 F.3d 1022, 1030-33 (9th Cir.2012) (finding that warrantless seizure of homeless person’s abandoned property was properly subjected to Fourth Amendment’s reasonableness requirement).

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