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Defendants-appellants Officers Krzeminski and Lemons (the "Officers") appeal from a judgment for nominal damages and attorney's fees entered in the United States District Court for the District of Connecticut (Eginton, J.) following a jury trial in a civil rights action predicated on an illegal search and seizure conducted in the home of plaintiffs-appellees. Responding to special interrogatories submitted by the court, the jury found that there had been a consent to the entry of the premises and that the seizure of certain objects within the premises was permissible under the doctrine of "plain view" and by consent. However, the jury, in further response to interrogatories, determined that a warrantless search within the premises was improper because it was neither a search incident to a lawful arrest nor one conducted with the consent of the proper party. The Officers contend on appeal that the jury should have been permitted to consider whether the search was permissible under the doctrine of "plain view" and therefore assert that the court denied the Officers a valid defense theory by failing to include the theory of "plain view" search in its special interrogatory and in its instruction. We hold that no error was committed by the district court in either the framing of its interrogatories or in its jury instruction because the doctrine of "plain view" does not validate searches conducted without a warrant.

On cross-appeal, plaintiffs-cross-appellants ("the Ruggieros") contend that the district court erred by failing to place on the Officers the burden of proving exceptions to the search warrant requirement. Instead, the judge gave the jury the customary charge with respect to the burden of proof in civil actions. We find that no error was committed by the district court in so instructing the jury, and that, in any 560*560 event, the burden of proving unreasonable search in an action brought under 42 U.S.C. § 1983 (1988) should be borne by those who urge unreasonableness.


928 F.2d 558 (1991)

Deborah RUGGIERO, Christine Ruggiero and Joseph Ruggiero, Plaintiffs-Appellees, Cross-Appellants,


Anthony KRZEMINSKI and Charles Lemons, Individually and in their official capacities as Officers in the Police Department of New Haven, Connecticut, Defendants-Appellants, Cross-Appellees.

Nos. 600, 666 and 696, Dockets 89-9257, 90-7093 and 90-7515.

United States Court of Appeals, Second Circuit.

Argued November 15, 1990. Decided March 18, 1991.

New York Law School location: File #1105, Box #127