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9.13 Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest

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In general, a search of [a person] [a person’s [residence] [property]] is unreasonable under the Fourth Amendment if the search is not authorized by 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 the search is incident to a lawful arrest. 

[I instruct you that the arrest of the plaintiff was a lawful arrest.] [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard; i.e., insert elements to show probable cause to arrest for a particular crime]]. 

A search is "incident to" a lawful arrest if: 

1. it occurs contemporaneously with the arrest, that is, at the same time or shortly after the arrest and without any intervening events separating the search from the arrest; and

2. it is limited to a reasonable search of the person arrested and to the immediate area within which that person might gain possession of a weapon or might destroy or hide evidence at the time of the search. 

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; that is, that the search was not incident to a lawful arrest. 


Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). When the search incident to arrest involves a vehicle, refer to Instruction 9.14 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search of Vehicle Incident to Arrest of a Recent Occupant). 

It is a well-settled exception to the warrant requirement that a police officer may search incident to a lawful custodial arrest both the arrested person and the area within the person’s "immediate control"; i.e., "the area from within which [the person] might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763 (1969). The search must be "spatially and temporally incident to the arrest," and, to satisfy the temporal requirement, must be "roughly contemporaneous with the arrest." United States v. Camou, 773 F.3d 932, 937 (9th Cir.2014) (holding border patrol agent’s search of arrestee’s cell phone 80 minutes after arrest not roughly contemporaneous with arrest). "The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item ‘within the arrestee’s immediate control when he was arrested’; [and] (2) did ‘events occurring after the arrest but before the search ma[k]e the search unreasonable’?" Id. at 938 (second alteration in original). 

The Ninth Circuit has noted that "[m]ere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay." United States v. Maddox, 614 F.3d 1046, 1049 (9th Cir.2010) (finding search of defendant’s key chain taken from his person incident to arrest, but tossed back into his vehicle after arrestee was secured in patrol car, invalid under search-incident-to-arrest exception). 

An actual arrest is a prerequisite for this exception to the warrant requirement. Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir.2005) (holding probable cause to make arrest insufficient to trigger exception in absence of actual arrest). 

If the court is able to determine as a matter of law that an arrest was lawful, the Committee recommends the court instruct the jury accordingly. However, when there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case. See Instruction 9.23 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest). 

In United States v. Robinson, 414 U.S. 218, 235 (1973), the United States Supreme Court held that an officer may conduct "a full search of the person" incident to the person’s lawful custodial arrest. Id. at 235. In Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir.1991), the Ninth Circuit held that the "full search authorized by Robinson [is] limited to a pat-down and an examination of the arrestee’s pockets, and d[oes] not extend to a strip search or bodily intrusion." Id. at 1446 (quoting Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir.1984)) (internal quotation marks omitted). 

The United States Supreme Court has held that officers may perform a warrantless breath test as a search incident to arrest, but may not perform a warrantless blood test as a search incident to arrest. Birchfield v. North Dakota, 136 S. Ct. 2160, 2184 (2016). The Court held that a breath test incident to arrest is categorically included within the search-incident-to-arrest exception. Id. at 2176, 2179-80, 2183. In contrast, a warrantless blood test is never authorized as a search incident to arrest, but may be permissible on a case-by-case basis under the exigent circumstances exception to the warrant requirement. Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013) ("Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances [under the exigent circumstances exception].").  

In Riley v. California, 134 S. Ct. 2473 (2014), the Court considered the search-incident-to-arrest exception as it pertained to cell phones. The Court held that the phone itself may be searched incident to an arrest, but officers must generally secure a search warrant before conducting a search of the data stored on the cell phone. Id. at 2493. However, the Court also noted that if "law enforcement still has specific concerns about the potential loss of evidence in a particular case … they may be able to rely on exigent circumstances to search the phone [data] immediately." Id. at 2487.  

A plaintiff alleging a § 1983 claim based on an unreasonable search 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); 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); 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]"); 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).