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Section 1983 unreasonable searches of the home

To succeed at trial, the victim must present evidence to the jury proving the unreasonableness of the search given all of the circumstances, including:

  1. the scope of the particular intrusion;
  2. the manner in which it was conducted;
  3. the justification for initiating it; and
  4. the place where the search was conducted.

Ninth Cir. Civ. Jury Instr. 9.12.

Warrantless searches of the home

With only three exceptions—consent, exigency, or emergency—an officer’s warrantless search of a person’s home is presumptively unconstitutional.  Groh v. Ramirez, 540 U.S. 551, 558 (2004) (citing Payton v. New York, 445 U.S. 573, 586–88 (1980)).

As the United States Supreme Court has stated, “[t]he security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.”  Coolidge v. New Hampshire, 403 U.S. 443, 453 (1971).  To prevail at trial, however, a person must prove that none of the exceptions to the warrant requirement applied.

Consent exception

The consent exception allows law-enforcement officers to avoid liability for a search. If a home’s occupant could be said to have given consent for a search, then the search cannot be “unreasonable.” To succeed at trial, a person must prove by a preponderance of the evidence that the “consent exception” does not apply to their factual situation. “Preponderance of the evidence” simply means that it is more likely true than not true that the person’s version of events (not the officer’s version of events) occurred.  To determine whether a home’s occupant gave the officer consent for the search, a jury will examine the following facts:

  1. whether the consenting person was in custody;
  2. whether the officers’ guns were drawn;
  3.  whether Miranda warnings were given;
  4. whether the officers told the consenting person that he or she had the right to refuse a request to search;
  5. whether the consenting person was told a search warrant could be obtained; and
  6.  any other circumstances applicable to the case.

Ninth Cir. Civ. Jury Instr. No. 9.15.

Again, the home’s occupant must prove a negative–that, under the circumstances, the consent exception does not apply.

Exigency exception

An officer may also make a warrantless search of a person’s home based on an “exigency.” “Exigencies,” or emergencies, excuse the officer from getting a search warrant.  To prevail at trial, an home’s occupant must again prove a negative: that it’s more likely true than not true (a preponderance of the evidence), that no exigent circumstances existed.  Conversely, the exception will apply, and the home’s occupant will lose at trial, if all of the following are true:

  1. all of the circumstances known to the officer at the time of the entry or search would cause a reasonable person to believe that the entry or the search of the person or home was necessary to prevent destruction of evidence, escape of a suspect, or some other consequence that would improperly frustrate legitimate law enforcement efforts;
  2. at the time the officer made the entry or the search, the officer had probable cause to believe that a crime had been or was being committed; and
  3. there was insufficient time for the officer to get a search warrant.  

Ninth Cir. Civ. Jury Instr. No. 9.16.

In addition to exigent circumstances (1), an officer must still satisfy (2)-(3) for the exception to apply.

Emergency-aid exception

The emergency-aid exception recognizes that law-enforcement officers act in a “community caretaking function” which allows them without a warrant “to enter a home when an emergency which threatens physical harm is presented.”  Espinosa v. City & Cty. of San Francisco, 598 F.3d 528, 534 (9th Cir. 2010) (citations omitted). 

The exception allows officers to enter a home without a search warrant to help an injured occupant or to protect an occupant from imminent injury.  To prove the search was unreasonable, the occupant must prove that it was more likely true than not true that the emergency-aid exception to the warrant requirement did not apply.  The emergency exception applies, and the search is reasonable, if under all of the circumstances:

  1. the police officer had objectively reasonable grounds at the time of the entry or the search 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. the search’s scope and manner were reasonable to meet that end. 

Ninth Cir. Civ. Jury Instr. No. 9.17  

Searches of the home with an invalid warrant

Generally, a police officer’s search under an invalid warrant is as presumptively unreasonable a police officer’s warrantless search.  A search warrant may be invalid because it lacks particularity, which means it fails to specify what the police are searching for. To be valid under the Fourth Amendment, a search warrant must specify what the police should be searching for with enough precision to prevent them from interpreting the warrant themselves: “[t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.  As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.  Marron v. United States, 275 U.S. 192, 196 (1927).

The Fourth Amendment’s particularity requirement for search warrants serves four purposes:

  • First, it prevents “a general, exploratory rummaging in a person’s belongings.”  Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
  • Second, it “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”  Groh v. Ramirez, 540 U.S. 551, 561 (2004) (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977).   
  • Third, “the absence of a sufficiently particular warrant increase[s] the likelihood and degree of confrontation” between the searching officers and the individuals whose property is subject to search.”  Ramirez v. Butte-Silver Bow Cty., 298 F.3d 1022, 1027 (9th Cir. 2002) (as amended), aff’d, Groh v. Ramirez, 540 U.S. 551 (2004).
  • Fourth, an invalid warrant deprives individuals “of the means to be on the lookout and to challenge officers who might have exceeded the limits imposed by the magistrate.”  Ramirez, 298 F.3d at 1027.

Even a facially valid warrant may be invalid based on a theory of judicial deception if the officer lied to the judge to get it.  Under certain circumstances, an occupant whose home was searched pursuant to a search warrant may sue the officer who submitted the affidavit in support of the search warrant to the judge for signing if the affidavit contained omissions or untruths.  

To get to a jury, the occupant must both that the officer’s affidavit or statements to the judge issuing the search warrant:

  1. “contained deliberate falsehood or reckless disregard for the truth;” and further, that
  2. “without the dishonestly included or omitted information, the magistrate would not have issued the warrant.”  

Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir. 1995).  

An officer may act with reckless disregard for the truth by leaving out of the affidavit important facts the officer knows.  “By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw.”  United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985).  To allow a magistrate “to be mislead in such a manner could denude the probable cause requirement of all real meaning.”  Id. at 781.  An officer may violate a person’s Fourth Amendment right to be free from an unreasonable search where (s)he “intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading.”  Id.