9.15 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—EXCEPTION TO WARRANT REQUIREMENT—EMERGENCY OR COMMUNITY-CARETAKER CIRCUMSTANCES
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, 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 for their assistance for the protection of life or property;
2. the police officer[s] [was] [were] not primarily motivated by an intent to arrest or to seize evidence; and
3. 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 9.2–9.7.
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.
There is an "emergency" or "community caretaker" exception to the warrant requirement. United States v. Cervantes, 219 F.3d at 887-89 (9th Cir.2000) (citing Mincey v. Arizona, 437 U.S. 385, 392 (1978). See also United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir.2005).
The emergency doctrine recognizes that police function as community caretakers in addition to their roles as criminal investigators and law enforcers. Cervantes, 219 F.3d at 889. See also Mincey, 437 U.S. at 392 (noting the Court did "not question the right of the police to respond to emergency situations"). This exception has three requirements: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) The search must not be primarily motivated by an intent to arrest and/or to seize evidence; and (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Stafford, 416 F.3d at 1073–74. See also United States v. Russell, 436 F.3d1086, 1090 (9th Cir.2006).