N.C.P.I.—Civil 804.50

NOTE WELL: This instruction was previously labeled

“N.C.P.I. - Civil 804.05 SECTION 1983 -

UNREASONABLE SEARCH OF HOME” and published in

May 2004. It has been renumbered as “N.C.P.I. - Civil

804.50” and the published date has been updated from

“MAY 2004” to “JUNE 2016”. No substantive changes

have been made since the 2004 revision.

This (state number) issue reads:

Did the defendant violate the plaintiff's constitutional rights by

conducting an unreasonable search of plaintiff's home?

On this issue the burden of proof is on the plaintiff.

This means that the plaintiff must prove, by the greater weight of

the evidence, three things.

First, that the defendant acted under color of state law. An official

acts under color of state law if he acts within the limits of lawful

authority or if, while purporting to act in the performance of his official

duties, he exceeds lawful authority. On the other hand, an official who

does not use state authority and acts for purely private purposes does

not act under color of state law.1

Second, that the defendant deprived the plaintiff of his Fourth

Amendment2 constitutional right to be free from an unreasonable search.3

Ordinarily, a law enforcement officer must obtain a warrant before

conducting a search of a home. However, there are certain exceptions to

this requirement, including consent and exigent circumstances.4 When a

person in lawful possession of a home freely and voluntarily consents to

a search, law enforcement officers may reasonably and lawfully conduct a

search consistent in scope with the consent given.5 Exigent circumstances

exist when a law enforcement officer has a reasonable belief that there is

an imminent threat of danger to himself or others or that occupants will

attempt to escape or destroy evidence.6

And Third, that the unreasonable search was a proximate cause of

the [injury] [damage] sustained by the plaintiff.

A proximate cause is a cause which in a natural and continuous

sequence produces a person's [injury] [damage], and is a cause which a

reasonable and prudent person could have foreseen would probably

produce such [injury] [damage] or some similar injurious result.

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the plaintiff need not prove that the defendant's

conduct was the sole proximate cause of the [injury] [damage]. The

plaintiff must prove, by the greater weight of the evidence, only that the

defendant's conduct was a proximate cause.

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find, by the greater weight of the evidence,

that the defendant, acting under color of state law, conducted an

unreasonable search of the plaintiff' s home, and that the unreasonable

search was a proximate cause of the plaintiff's [injury] [damage], then it

would be your duty to answer this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "NO" in favor of the defendant.