9.19 Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—Exeptions to Warrant Requirement

            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]. Therefore, in order to prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception does not apply.  

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.18 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—Generally). 

           “[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 (collecting case citations authorizing warrantless seizures of property in context of administrative searches, searches incident to arrest, automobile checkpoint searches, and Terry v. Ohio, 392 U.S. 1 (1968)). 

            (2) Lavan v. City of Los Angeles, 693 F.3d 1022, 1030-31 (9th Cir. 2012) (concluding that warrantless seizure of homeless person’s abandoned property was properly subjected to Fourth Amendment’s reasonableness requirement); see also Garcia v. City of Los Angeles, 11 F.4th 1113, 1119 (9th Cir. 2021) (holding city ordinance allowing city to discard bulky items of personal property stored in public areas, when such items were not designated as shelters, authorized unreasonable seizures in violation of the Fourth Amendment). 

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

            (4) Rodriguez v. City of San Jose, 930 F.3d 1123, 1140 (9th Cir. 2019) (discussing emergency exception and “community caretaking function” exception in context of seizure of firearms from home when police had probable cause to detain resident experiencing acute mental health episode who otherwise would have access to firearms and present serious public safety threat upon returning home). 

            (5) Kilgore v. City of South El Monte, 3 F.4th 1186, 1189-93 (9th Cir. 2021) (discussing warrantless administrative searches for “closely regulated” businesses). 

            (6) United States v. Anderson, 101 F.4th 586, 596-97 (9th Cir. 2024) (discussing the scope of inventory search exception to warrant requirement).

             (7) United States v. Baker, 58 F.4th 1109, 1116 (9th Cir. 2023) (“Because warrantless searches or seizures of abandoned property do not violate the [F]ourth [A]mendment, persons who voluntarily abandon property lack standing to complain of its search or seizure.”) (quoting United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986)).

             (8) Brewster v. Beck, 859 F.3d 1194, 1196-97 (9th Cir. 2017) (explaining the state’s interest in keeping unlicensed drivers off the road is governed by the “community caretaking” exception, which permits government officials to remove vehicles from the streets when they “jeopardize public safety and the efficient movement of vehicular traffic”).

             (9) Woodward v. City of Tucson, 870 F.3d 1154, 1160 (9th Cir. 2017) (“One who has been formally evicted has no reasonable expectation of privacy in his or her previous residence” and “[b]ecause the undisputed evidence shows that [the former tenant] was aware of her eviction, this case differs from situations where the individuals claiming privacy rights either did not know they had been evicted or claimed that they still had tenancy rights.”). 

(10) Verdun v. City of San Diego, 51 F.4th 1033, 1046-48 (9th Cir. 2022) (holding that the longstanding practice of chalking tires for parking enforcement purposes does not violate the Fourth Amendment warrant requirement for searches because it fits with the “administrative search” (or “special needs”) exception).

           A plaintiff alleging a § 1983 claim based on an unreasonable seizure in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994) (“Larez at all times had the ultimate burden of proving to the jury that she had been seized unreasonably in violation of the Fourth Amendment.”); 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]”); see also Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship). In Mueller, parents brought a § 1983 suit against law enforcement officers who removed their infant child to secure testing and treatment advised by physicians. On appeal, the Muellers argued that the jury instructions erroneously put the burden on them to show an absence of imminent danger to their child. Mueller, 700 F.3d at 1193. The Ninth Circuit held that “[b]ecause the Muellers’ claims arise under section 1983 the jury instructions properly placed the burden on the Muellers.” Id.; cf. Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir. 2009) (placing burden on defendant to show existence of exigent circumstance at summary judgment stage).

Revised September 2024