WPI 342.04 Unreasonable Search—Burden of Proof on the Issues

Use this instruction for Fourth Amendment claims involving unreasonable searches. For cases in which the defendant did not directly search the plaintiff, but instead caused the plaintiff to be searched, the instruction will need to be modified.

Use this instruction with WPI 340.01 (Claims Instruction for Section 1983 Cases) and WPI 340.03 (Civil Rights—“Under Color of Law”—Definition). Use this instruction in place of WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues).

Depending on the facts, the instruction may need to be accompanied by one of the pattern instructions addressing exceptions from the need for a search warrant. See WPI 342.05 (search incident to lawful arrest); WPI 342.06 (consent); and WPI 342.07 (exigent circumstances).

Regarding the bracketed word “proximately,” see the detailed discussion of causation, in WPI 340.06 (Causation—Comment Only); see also the Comments to WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues) and WPI 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition).

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of Evidence).

The instruction is similar to Ninth Circuit Model Civil Jury Instruction 9.12 (2007). For discussion, see WPI 340.06 (Causation—Comment Only).

For search cases filed under Section 1983, the essential element in the plaintiff's burden of proof is that the search was unreasonable. See Ruggiero v. Krzeminski, 928 F.2d 558, 562–63 (2d Cir.1991).

Under the Fourth Amendment, a search occurs if the government intrudes upon a subjective and reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351–52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994). A search also occurs when the government physically intrudes on persons, houses, papers, or effects. See Florida v. Jardines, 569 U.S. 1, 133 S.Ct 1409, 1414–18, 185 L.Ed.2d 495 (2013) (using a drug dog to investigate within the curtilage of a home comprised a search); United States v. Jones, 565 U.S. 400, 404–11, 132 S.Ct. 945, 949–53, 181 L.Ed.2d 911 (2012) (holding that a search occurred when the government physically occupied private space in order to obtain information).

Courts continue to grapple with emerging technology in defining what governmental actions comprise a search. In United States v. Jones, 565 U.S. 400, 404, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012), the Supreme Court held that a person had been searched within the meaning of the Fourth Amendment where police had attached a GPS device to his car in order to track his movements for more than a month. See also Riley v. California, 573 U.S. 373, 124 S.Ct. 2473, 189 L.Ed. 2d 430 (2014).

Parties and courts should take care when drafting jury instructions that when the federal constitution forms the basis for a claim, those instructions draw on cases that interpret the federal constitution, as the Washington Supreme Court has determined that Article I, section 7 of the state constitution provides individuals with broader protections than required under the Fourth Amendment. See WPI 340.00 (Civil Rights—Introduction).

Warrantless searches are presumptively unreasonable. Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); State v. Acrey, 148 Wn.2d 738, 745–46, 64 P.3d 594 (2003). Such searches are permitted only when a few “specifically established and jealously guarded exceptions are present, the burden to establish same falling upon the party who conducted the warrantless search.” Staats v. Brown, 139 Wn.2d 757, 776, 991 P.2d 615 (2000). In warrantless search cases, the presumption of unreasonableness:

Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991).

A search warrant may issue only upon a determination of probable cause. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). Probable cause exists when the facts and circumstances support a reasonable inference that, more probably than not, a crime has occurred or is occurring and that particular evidence of that crime is likely to be found at the place to be searched. See State v. Thein, 138 Wn.2d. at 140; State v. Goble, 88 Wn.App. 503, 508–09, 945 P.2d 263 (1997); State v. Werth, 18 Wn.App. 530, 536, 571 P.2d 941 (1977).

Search warrants must be strictly construed and their execution must be within the specificity of the warrant. State v. Cottrell, 12 Wn.App. 640, 643, 532 P.2d 644 (1975), reversed on other grounds, 86 Wn.2d 130, 542 P.2d 771 (1975). Once the purpose of the warrant has been carried out, the authority to search ends. See State v. Legas, 20 Wn.App. 535, 541, 581 P.2d 172 (1978).

In certain settings, such as schools, airports, courthouses, and federal buildings, warrantless searches are authorized. See, e.g., United States v. Bulacan, 156 F.3d 963, 967 (9th Cir.1998) (administrative searches at federal buildings for weapons and explosives must be limited in intrusiveness, consistent with administrative scheme); Kuehn v. Renton Sch. Dist, 103 Wn.2d 594, 599, 694 P.2d 1078 (1985) (search by school officials must be based on particularized suspicion with respect to each individual searched); Jacobsen v. City of Seattle, 98 Wn.2d 668, 673, 658 P.2d 653 (1983) (citing cases related to airports and courthouses); State v. McKinnon, 88 Wn.2d 75, 558 P.2d 781 (1977) (lower quantum of evidence required for search of students by school officials). In a Section 1983 case, the Washington Supreme Court rejected as unconstitutional intensive pat-down searches of persons attending rock concerts. Jacobsen v. City of Seattle, 98 Wn.2d 668, 658 P.2d 653 (1983).