California Civil Jury Instructions (CACI)

3004. Affirmative Defense - Search Incident to Lawful Arrest

[Name of defendant] claims that the search was reasonable and that a search warrant was not required. To succeed, [name of defendant] must prove all of the following:

1. That the search was conducted as part of a lawful arrest of [name of plaintiff];

2. That [name of defendant] searched only [name of plaintiff] and the area within which [he/she] might have gained possession of a weapon or might have destroyed or hidden evidence; and

3. That the search was reasonable under the circumstances.

In deciding whether the search was reasonable, you should consider, among other factors, the following:

(a) The extent of the particular intrusion;

(b) The place in which the search was conducted; [and]

(c) The manner in which the search was conducted; [and]

(d) [insert other applicable factor].

Directions for Use

For instructions regarding whether an arrest is lawful, see instructions in the False Imprisonment series (CACI Nos. 1400-1409).

This instruction is not intended for use in cases involving automobile searches: "[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." (New York v. Belton (1981) 453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768], footnotes omitted.)

Sources and Authority

"Searches incident to lawful arrest constitute a well-established exception to the warrant requirement of the Fourth Amendment." (Hallstrom v. Garden City (9th Cir. 1993) 991 F.2d 1473, 1477, internal citations omitted.)

"Under applicable federal law, a lawful custodial arrest creates a situation which justifies the full contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches are considered valid because of the need to remove weapons and to prevent the concealment or destruction of evidence." (People v. Gutierrez (1984) 163 Cal.App.3d 332, 334-335 [209 Cal.Rptr. 376], internal citations omitted.)

"Law enforcement officers are permitted to search the entire passenger compartment of a car, including the inside of containers, during a 'search incident to arrest.' " (United States v. Tank (2000) 200 F.3d 627, 631, fn. 6, internal citations omitted.)

"In New York v. Belton, we determined that the lower courts 'have found no workable definition of "the area within the immediate control of the arrestee" when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.' In order to provide a 'workable rule,' we held that 'articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within "the area into which an arrestee might reach in order to grab a weapon" . . . .' We also held that the police may examine the contents of any open or closed container found within the passenger compartment, 'for if the passenger compartment is within the reach of the arrestee, so will containers in it be within his reach.' " (Michigan v. Long (1983) 463 U.S. 1032, 1048- 1049 [103 S.Ct. 3469, 77 L.Ed.2d 1201], internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 706 et seq.

(New September 2003)