CACI No. 3023. Unreasonable Search or Seizure - Search or Seizure Without a Warrant - Essential Factual Elements (42 U.S.C. § 1983)
Judicial Council of California Civil Jury Instructions (2023 edition)
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3023.Unreasonable Search or Seizure - Search or Seizure
Without a Warrant - Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] carried out an
unreasonable [search/seizure] of [his/her/nonbinary pronoun]
[person/home/automobile/office//property/[insert other]] because [he/she/
nonbinary pronoun] did not have a warrant. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] [searched/seized] [name of plaintiff]’s
[person/home/automobile/office/property/[insert other]];
2. That [name of defendant] did not have a warrant;
3. That [name of defendant] was acting or purporting to act in the
performance of [his/her/nonbinary pronoun] official duties;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s [search/seizure] was a substantial
factor in causing [name of plaintiff]’s harm.
New September 2003; Renumbered from CACI No. 3003 December 2012; Revised
November 2019
Directions for Use
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.
Sources and Authority
• “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
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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.)
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• “ ‘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.)
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Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 888,
892, 893
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law - Law Enforcement and Prosecution, ¶ 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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