CACI 3023 Unreasonable Search or Seizure—Search or Seizure Without a Warrant—Essential Factual Elements (42 U.S.C. § 1983)

New September 2003; Renumbered from CACI No. 3003 December 2012; Revised November 2019

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The “official duties” referred to in element 3 must be duties created pursuant to any state, county, or municipal law, ordinance, or regulation. This aspect of color of law most likely will not be an issue for the jury, so it has been omitted to shorten the wording of element 3.

•“The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ ” (Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 171 [52 Cal.Rptr.2d 777], internal citation omitted.)

•“A Fourth Amendment ‘search’ occurs when a government agent ‘obtains information by physically intruding on a constitutionally protected area,’ or infringes upon a ‘reasonable expectation of privacy,’ As we have explained, … ‘when the government “physically occupie[s] private property for the purpose of obtaining information,” a Fourth Amendment search occurs, regardless whether the intrusion violated any reasonable expectation of privacy. Only where the search did not involve a physical trespass do courts need to consult Katz’s reasonable-expectation-of-privacy test.’ ” (Whalen v. McMullen (9th Cir. 2018) 907 F.3d 1139, 1146–1147, original italics, internal citations omitted.)

•“[A] seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Sandoval v. County of Sonoma (9th Cir. 2018) 912 F.3d 509, 515, original italics.)

•“[F]or the purposes of § 1983, a properly issued warrant makes an officer’s otherwise unreasonable entry non-tortious—that is, not a trespass. Absent a warrant or consent or exigent circumstances, an officer must not enter; it is the entry that constitutes the breach of duty under the Fourth Amendment. As a result, the relevant counterfactual for the causation analysis is not what would have happened had the officers procured a warrant, but rather, what would have happened had the officers not unlawfully entered the residence.” (Mendez v. County of Los Angeles (9th Cir. 2018) 897 F.3d 1067, 1076.)

•“[T]here is no talismanic distinction, for Fourth Amendment purposes, between a warrantless ‘entry’ and a warrantless ‘search.’ ‘The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home.’ ” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 874.)

•“ ‘The Fourth Amendment prohibits only unreasonable searches … . [¶] The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ ” (Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834], internal citation omitted.)

•“ ‘[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ‘And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?’ An officer’s good faith is not enough.” (King v. State of California (2015) 242 Cal.App.4th 265, 283 [195 Cal.Rptr.3d 286], internal citations omitted.)

•“Thus, the fact that the officers’ reasonable suspicion of wrongdoing is not particularized to each member of a group of individuals present at the same location does not automatically mean that a search of the people in the group is unlawful. Rather, the trier of fact must decide whether the search was reasonable in light of the circumstances.” (Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d 1178, 1194.)

•“ ‘It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.’ Thus, a warrantless entry into a residence is presumptively unreasonable and therefore unlawful. Government officials ‘bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.’ ” (Conway, supra, 45 Cal.App.4th at p. 172, internal citations omitted.)

•“ ‘[I]t is a “basic principle of Fourth Amendment law” ’ that warrantless searches of the home or the curtilage surrounding the home ‘are presumptively unreasonable.’ ” (Bonivert, supra, 883 F.3d at p. 873.)

•“The Fourth Amendment shields not only actual owners, but also anyone with sufficient possessory rights over the property searched. … To be shielded by the Fourth Amendment, a person needs ‘some joint control and supervision of the place searched,’ not merely permission to be there.” (Lyall, supra, 807 F.3d at pp. 1186–1187.)

•“[T]he Fourth Amendment’s ‘prohibition on unreasonable searches and seizures applies to searches conducted by public school officials.’ ” (Scott v. County of San Bernardino (9th Cir. 2018) 903 F.3d 943, 948.)

•“The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean ‘under “pretense” of law.’ A police officer’s actions are under pretense of law only if they are ‘in some way “related to the performance of his official duties.’ ” By contrast, an officer who is ‘ “pursuing his own goals and is not in any way subject to control by [his public employer],’ ” does not act under color of law, unless he ‘purports or pretends’ to do so. Officers who engage in confrontations for personal reasons unrelated to law enforcement, and do not ‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations omitted.)

•“[P]rivate parties ordinarily are not subject to suit under section 1983, unless, sifting the circumstances of the particular case, the state has so significantly involved itself in the private conduct that the private parties may fairly be termed state actors. Among the factors considered are whether the state subsidized or heavily regulated the conduct, or compelled or encouraged the particular conduct, whether the private actor was performing a function which normally is performed exclusively by the state, and whether there was a symbiotic relationship rendering the conduct joint state action.” (Robbins v. Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d 534], internal citations omitted.)

•“Private parties act under color of state law if they willfully participate in joint action with state officials to deprive others of constitutional rights. Private parties involved in such a conspiracy may be liable under section 1983.” (United Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989) 865 F.2d 1539, 1540, internal citations omitted.)