Shelly Ioane v. Jean Noll

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHELLY J. IOANE, No. 16-16089

Plaintiff-Appellee,

D.C. No.

v. 1:07-cv-00620-

AWI-EPG

JEFF HODGES; MICHELLE CASAREZ,

Federal Officer; BRIAN APPLEGATE,

Federal Officer; KENT SPJUTE, OPINION

Federal Officer,

Defendants,

and

JEAN NOLL,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted April 13, 2018

Pasadena, California

Filed September 10, 2018

2 IOANE V. NOLL

Before: Carlos T. Bea and Mary H. Murguia, Circuit

Judges, and Donald W. Molloy, * District Judge.

Opinion by Judge Murguia;

Concurrence by Judge Bea

SUMMARY **

Civil Rights

The panel affirmed the district court’s order, on

summary judgment, denying qualified immunity to an

Internal Revenue Service Agent in an action alleging that the

agent violated plaintiff’s Fourth Amendment right to bodily

privacy when, during the lawful execution of a search

warrant at plaintiff’s home, the agent escorted plaintiff to the

bathroom and monitored her while she relieved herself.

The panel held that weighing the scope, manner,

justification, and place of the search, a reasonable jury could

conclude that the agent’s actions were unreasonable and

violated plaintiff’s Fourth Amendment rights. The agent’s

general interests in preventing destruction of evidence and

promoting officer safety did not justify the scope or manner

of the intrusion into plaintiff’s most basic subject of privacy,

her naked body. The panel further held that a reasonable

officer in the agent’s position would have known that such a

*

The Honorable Donald W. Molloy, United States District Judge

for the District of Montana, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

IOANE V. NOLL 3

significant intrusion into bodily privacy, in the absence of

legitimate government justification, was unlawful. The

agent therefore was not entitled to qualified immunity.

Concurring in the judgment, Judge Bea stated that he

agreed with the majority’s ultimate conclusion that the

district court did not err in denying the agent’s motion for

summary judgment regarding plaintiff’s claim that she

violated plaintiff’s clearly established constitutional rights.

However, because he disagreed with the majority’s holding

that the agent’s actions violated plaintiff’s clearly

established right to bodily privacy, Judge Bea wrote

separately

COUNSEL

Gretchen M. Wolfinger (argued), Jonathan S. Cohen, and

Gilbert S. Rothenberg, Attorneys; Caroline D. Ciraolo,

Principal Deputy Assistant Attorney General; Diana L.

Erbsen, Deputy Assistant Attorney General; Tax

Division/Appellate Section, United States Department of

Justice, Washington, D.C.; for Defendant-Appellant.

Ariel Beverly (argued) and Norvik Azarian (argued),

Certified Law Students; Paula M. Mitchell, Supervisor,

Loyola Law School; E. Martin Estrada, Munger Tolles &

Olson LLP, Los Angeles, California; for Plaintiff-Appellee.

4 IOANE V. NOLL

OPINION

MURGUIA, Circuit Judge:

Plaintiff Shelly Ioane filed suit for damages under

42 U.S.C. § 1983 against Internal Revenue Service (IRS)

Agent Jean Noll. Shelly alleged that Agent Noll violated her

Fourth Amendment right to bodily privacy when, during the

lawful execution of a search warrant at her home, Agent Noll

escorted Shelly to the bathroom and monitored Shelly while

she relieved herself. Agent Noll moved for summary

judgment, claiming that she was entitled to qualified

immunity. The district court denied Agent Noll’s motion,

and she appeals. 1

We have jurisdiction over this interlocutory appeal,

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we

affirm.

Background

In 2006, Michael Ioane, Sr. (“Michael”) was under

investigation for criminal tax fraud and conspiracy. At the

1

At summary judgment, plaintiffs included Shelly and her husband,

Michael Ioane, Sr. Plaintiffs initially pursued several causes of action

against the United States and the Federal agents who executed the search

warrant on the Ioane residence. However, the only claims remaining at

the summary judgment stage were for excessive force and invasion of

bodily privacy in violation of their Fourth Amendment rights. The Ioanes

claimed that the Federal agents, including Agent Noll, used excessive

force when the Federal agents pointed guns at the Ioanes’ heads, and that

Agent Noll invaded Shelly’s bodily privacy when Agent Noll entered the

bathroom with Shelly and monitored Shelly while she relieved herself.

The district court granted summary judgment for Agent Noll on

plaintiffs’ excessive force claim, but denied Agent Noll summary

judgment on Shelly’s invasion of bodily privacy claim.

IOANE V. NOLL 5

time, Agent Noll was a Supervisory Special Agent for the

IRS Criminal Investigation Division, and she was asked to

assist in executing a search warrant as part of the

investigation regarding Michael. Prior to executing the

search warrant, agents learned that the Ioanes had registered

weapons and that these weapons likely would be at their

home. The search warrant authorized the IRS agents to

search the Ioane residence for, among other things, records,

computers, computer-related equipment, and computer

storage devices.

On June 8, 2006, agents from the IRS Criminal

Investigation Division, including Agent Noll, arrived at the

Ioane residence to conduct the search. Only Michael and

Shelly were home at the time. The IRS agents informed

Michael and Shelly that they could stay on the premises if

they cooperated with the agents conducting the search.

However, the agents informed the Ioanes that if they chose

to leave to the premises, they would not be allowed to return.

Both Ioanes stayed on the premises, and sat in the kitchen

while the agents conducted the search.

At some point early in the search, Michael needed to use

the bathroom. A male agent escorted Michael to the

bathroom and conducted a quick search of the bathroom

area—opening a couple of drawers and looking in the

shower—before exiting and closing the door behind him.

The male officer stood outside the closed bathroom door

while Michael relieved himself.

Then, about a half an hour into the search, Shelly told the

agents that she needed to use the bathroom. Agent Noll

escorted Shelly to the bathroom, and when she stepped

inside and started to close the door, Agent Noll told Shelly

that she had to come inside, too. Shelly asked Agent Noll to

wait outside, but Agent Noll resisted her plea. Agent Noll

6 IOANE V. NOLL

told Shelly to remove her clothing so that she could make

sure Shelly did not have anything hidden on her person.

When Shelly objected, Agent Noll explained that she needed

to make sure Shelly did not hide or destroy anything, and

that this was standard procedure. Shelly, who was wearing a

long sundress, pulled up her dress so Agent Noll could see

that she was not hiding anything. According to Shelly, Agent

Noll made Shelly hold up her dress while she relieved

herself, using one hand to hold up her dress and the other to

pull her underwear down. Agent Noll faced Shelly while

Shelly used the bathroom, and when Shelly was finished,

Agent Noll escorted her back to the kitchen.

Analysis

On appeal, Agent Noll claims that the district court erred

when it determined that she is not entitled to qualified

immunity from Shelly’s invasion of bodily privacy claim.

Agent Noll contends that her actions were objectively

reasonable, and therefore did not violate Shelly’s Fourth

Amendment rights. Further, Agent Noll argues that even if

her actions were not reasonable, the law was not so clearly

established in 2006 that a reasonable officer in her position

would have known that her actions were unlawful.

We review a district court’s legal conclusion that an

official is not entitled to qualified immunity de novo. Eng v.

Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“Our

interlocutory jurisdiction to review a denial of qualified

immunity is limited exclusively to questions of law, which

we review de novo.”).

Qualified immunity balances “the need to hold public

officials accountable when they exercise power

irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform

IOANE V. NOLL 7

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009). To balance these competing interests, we

perform a two-part test. Saucier v. Katz, 533 U.S. 194, 201

(2001); Crowe v. Cty. of San Diego, 608 F.3d 406, 427 (9th

Cir. 2010). An officer is entitled to qualified immunity under

this test unless (1) the facts, construed in the light most

favorable to the plaintiff, demonstrate that the officer’s

conduct violated a constitutional right, and (2) the right was

clearly established at the time of the asserted violation. Karl

v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir.

2012); Saucier, 533 U.S. at 201. If there is no constitutional

violation, the inquiry ends and the officer is entitled to

qualified immunity. Saucier, 533 U.S. at 201. On the other

hand, if we determine that the alleged facts establish a

constitutional violation, we proceed to part two of the test to

determine whether the right at issue was clearly established.

Id. While we have discretion to begin our analysis with

either part of the test, Pearson, 555 U.S. at 236, it is

nevertheless beneficial to begin with the first part of the test

because it “promotes the development of constitutional

precedent and is especially valuable with respect to

questions that do not frequently arise in cases in which a

qualified immunity defense is unavailable.” Plumhoff v.

Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting Pearson,

555 U.S. at 236).

1. Reasonableness

We begin with the first part of the qualified immunity

test. While the Ninth Circuit never has articulated a standard

for when an officer’s intentional viewing of an individual’s

naked body is constitutionally permissible under the Fourth

Amendment, “[t]he touchstone of the Fourth Amendment is

reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250

(1991) (citing Katz v. United States, 389 U.S. 347, 360

8 IOANE V. NOLL

(1967)). Determining the reasonableness of a particular

search involves balancing the degree to which the search

intrudes upon an individual’s privacy against the degree to

which the search is needed to further legitimate

governmental interests. United States v. Knights, 534 U.S.

112, 118–19 (2001). The required factors to consider are:

“(1) the scope of the particular intrusion, (2) the manner in

which it is conducted, (3) the justification for initiating it,

and (4) the place in which it is conducted.” Byrd v. Maricopa

Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011)

(citing Bell v. Wolfish, 441 U.S. 520, 559 (1979) (internal

quotation marks omitted)).

Three cases from our Circuit inform the scope and

manner of the intrusion here. We first recognized the right

to bodily privacy in 1963. In York v. Story, we held that a

plaintiff had alleged sufficient facts to state an invasion of

bodily privacy claim under § 1983 when she alleged that

three police officers took and distributed nude photos of her

when she came to the station to report that she had been

assaulted. 324 F.2d 450, 452, 455–56 (9th Cir. 1963).

According to the allegations in the complaint, the officers

had insisted that it was necessary to take photos of the

plaintiff for her case, and directed her to undress in a room

of the police station despite the plaintiff’s objections and

insistence that she did not have bruises that required her to

be photographed in the nude. Id.at 452. Recognizing that the

“naked body” is the most “basic subject of privacy,” we

concluded that the woman had alleged a claim that the

officers’ actions violated her privacy rights under the

Fourteenth Amendment due process clause. Id. at 455–56.

In 1985, we recognized that the right to bodily privacy

also applies to inmates. In Grummett v. Rushen, male prison

inmates filed a class action § 1983 lawsuit alleging that the

IOANE V. NOLL 9

prison’s practice of allowing female correction officers to

view male inmates showering, disrobing, and using toilet

facilities violated their privacy rights. 779 F.2d 491, 492–93

(9th Cir. 1985). Although we held that the prisoners had a

right to privacy in their naked body, id. at 494, we concluded

that the officials had not violated the inmates’ privacy rights

because the officials’ view of the inmates was “restricted by

distance,” “casual in nature,” and justified by security needs,

id. at 495–96. We concluded that the prison authorities had

“devised the least intrusive means to serve the state’s

interests in prison security” and had not violated the inmates’

rights to bodily privacy. Id. at 494 (citing Wooley v.

Maynard, 430 U.S. 705, 716 (1976)).

Finally, in 1992, we held that a parole officer violated a

female parolee’s right to bodily privacy when he entered the

bathroom stall while the parolee was providing a urine

sample. Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th

Cir. 1992). Distinguishing the facts in Grummett, we

determined that the parole officer’s view of the parolee was

“neither obscured nor distant,” and “far more degrading to

[the parolee] than the situation faced by the inmates in

Grummett.” Id. at 1416. Relying on Grummett and

recognizing that parolee rights are “even more extensive

than those of inmates,” we concluded that the parole officer

had violated the parolee’s bodily privacy rights. Id. at 1416.

From York, Grummett, and Sepulveda, we conclude that

the scope of the intrusion into Shelly’s bodily privacy here

was significant. Agent Noll intruded on Shelly’s most basic

subject of privacy, her naked body. See York, 324 F.2d at

455. Moreover, unlike the prison inmates in Grummett and

the parolee in Sepulveda, Shelly’s privacy interests had not

been reduced. Just as in Sepulveda, where we recognized

that parolees have, “at a minimum, the same right to bodily

10 IOANE V. NOLL

privacy as a prison inmate,” 967 F.2d at 1416, Shelly, who

had not been detained and was not herself the subject of a

search warrant, had more right to bodily privacy than a

parolee. See Samson v. California, 547 U.S. 843, 850 (2006)

(explaining that parolees are on the “continuum” of state-

imposed punishments with fewer expectations of privacy

than probationers because parole is more akin to

imprisonment). Therefore, the scope of Agent Noll’s

intrusion into Shelly’s bodily privacy right was significant

and weighs in favor of a determination of unreasonableness. 2

Additionally, unlike the casual, obscured, and restricted

manner of observation by the prison officials in Grummett,

2

Although York, Grummett, and Sepulveda all involved searches by

members of the opposite sex, gender was not central to the conclusion of

whether the intrusion at issue was unreasonable. Indeed, York,

Grummett, and Sepulveda recognize that the naked body is the most

basic subject of privacy, and an arbitrary intrusion by any government

actor is unconstitutional. See York, 324 F.2d at 455 (“The desire to shield

one’s unclothed figure from view of strangers, and particularly strangers

of the opposite sex, is impelled by elementary self-respect and personal

dignity.”); see also Grummett, 779 F.2d at 495 (finding no violation even

where prison search conducted by member of the opposite sex);

Sepulveda, 967 F.2d at 1416 (emphasizing the up-close, unobscured

privacy intrusion rather than the fact that the parole officer and parolee

were of opposite genders); Byrd, 629 F.3d at 1150 (N.R. Smith, J.,

dissenting in part) (“In evaluating the scope of a search, the searching

officer’s gender is irrelevant.”). The concurrence takes a different view

regarding these cases, but it appears from these cases that gender is a

factor for evaluating the severity of the intrusion rather than the mark of

the intrusion itself. Indeed, as with any Fourth Amendment analysis, the

question is balancing the nature of the intrusion against the degree to

which the search is needed to further legitimate governmental interests.

Knights, 534 U.S. at 118–19. That Agent Noll and Shelly both are

women does not change that Agent Noll violated Shelly’s privacy rights.

See York, 324 F.2d at 455.

IOANE V. NOLL 11

Agent Noll stood facing Shelly in the Ioanes’ home

bathroom while Shelly relieved herself. Agent Noll’s

intrusion was like the parole officer’s intrusion in Sepulveda,

which we concluded was unreasonable. 3 See Sepulveda,

967 F.2d at 1415–16; see also York 324 F.2d at 455.

Therefore, the manner of Agent Noll’s intrusion weighs in

favor of concluding that the intrusion was unreasonable. See

Byrd, 629 F.3d at 1142–43 (weighing the Bell factors to

determine whether the intrusion was reasonable).

Furthermore, none of the justifications Agent Noll

offered for initiating the search are borne out by the facts.

First, and most notably, the Ioanes were not detained during

execution of the search warrant. Despite the fact that the

Fourth Amendment permits limited detention of individuals

on the premises while officers execute a search warrant, see

Michigan v. Summers, 452 U.S. 692, 703–05 (1981), the

agents informed the Ioanes they were free to go. 4 Yet Agent

Noll contends that her intrusion into Shelly’s bodily privacy

was justified because of the inherent risk that Shelly might

destroy evidence. However, the fact that the Ioanes were not

detained belies Agent Noll’s contention that she and the

other agents were worried about Shelly destroying “floppy

3

Agent Noll contends that she does not recall escorting Shelly to the

bathroom, but that such a practice is “standard procedure.” However,

nowhere in the record is this procedure memorialized, and it appears the

other agents did not follow this “standard procedure” when Michael used

the bathroom.

4

In Summers, the Supreme Court held that it was reasonable, for

Fourth Amendment purposes, to detain individuals while officers

execute a lawful warrant on the premises. 452 U.S. at 703–05. This

limited detention is justified by preventing flight, loss of incriminating

evidence, and harm to occupants and officers. Id. at 702–03. However,

the Supreme Court has not held that these government interests authorize

the type of bodily privacy intrusion that took place here.

12 IOANE V. NOLL

disks, smart cards and PC cards . . . [hidden] on her person

under her dress.” If the agents legitimately feared that Shelly

might destroy evidence in the bathroom, they would not have

permitted Shelly to leave the premises where she could have

destroyed of the evidence elsewhere, and they would have

been constitutionally permitted to do so. See id.

Second, Agent Noll argues that monitoring Shelly was

necessary to ensure that Shelly did not have anything

dangerous concealed in her clothing. Yet the search warrant

authorized only the search of the premises, not the

individuals on the premises. See Ybarra v. Illinois, 444 U.S.

85, 91–92 (1979) (rejecting the argument that individuals’

Fourth Amendment rights are abrogated simply by virtue of

the fact that they are on the premises where officers are

executing a lawful search warrant). Furthermore, Agent Noll

does not argue that she had a reasonable belief that Shelly

was armed except for asserting that the agents had found

other weapons on the premises. And, even if Agent Noll

possessed an objectively reasonable belief that Shelly was

armed and dangerous, this belief only would have justified a

pat-down for weapons, not the intrusion into bodily privacy

that occurred here. See id. at 92–93 (holding that an officer

must possess a reasonable belief that an individual is armed

and dangerous before conducting a weapons pat-down, even

if the individual is on the premises where officers are

executing a search warrant) (citing Adams v. Williams,

407 U.S. 143, 146 (1972); Terry v. Ohio, 392 U.S. 1, 21–27

(1968)). Indeed, the agents had monitored Shelly in the

kitchen for approximately 30 minutes before Shelly asked to

use the bathroom, and nowhere in the record does it reflect

that the officers conducted a pat-down search of Shelly or

Michael.

IOANE V. NOLL 13

Third, Agent Noll asserts that other safety concerns

justified monitoring Shelly while she used the bathroom

because the bathroom was not secure, and Shelly could have

gained access to the rest of the house through a second door

in the bathroom, putting officers or herself at risk. However,

by the time Shelly needed to use the bathroom, other agents

already had checked the bathroom for weapons.

Additionally, Agent Noll offers no explanation why

watching Shelly use the bathroom was the only way to abate

the risk that Shelly might flee, given that other officers might

have been recruited to stand outside the bathroom’s second

door. See Grummett, 779 F.3d at 494 (concluding that the

prison had not violated inmates’ rights when the prison had

devised the least intrusive means to serve the state security

interests). Indeed, the agents permitted Michael, who was

the subject of the investigation, to use the bathroom while a

male agent stood outside the door. In sum, the justifications

Agent Noll offers for initiating the search weigh in favor of

a determination of unreasonableness.

Finally, the search was conducted in the Ioane’s home

bathroom. The law recognizes heightened privacy interests

in the home, which arguably makes this intrusion more

egregious, especially when Shelly herself was not the subject

of the search. See Kyllo v. United States, 533 U.S. 27, 31

(2001). The place of the search, therefore, also weighs in

favor of unreasonableness.

Weighing the scope, manner, justification, and place of

the search, a reasonable jury could conclude that Agent

Noll’s actions were unreasonable and violated Shelly’s

Fourth Amendment rights. Agent Noll’s general interests in

preventing destruction of evidence and promoting officer

safety did not justify the scope or manner of the intrusion

into Shelly’s most basic subject of privacy, her naked body.

14 IOANE V. NOLL

See York, 324 F.2d at 455; see also Byrd, 629 F.3d at 1141.

We therefore affirm the district court on this issue.

2. Clearly Established

The second part of the qualified immunity test requires

us to determine whether, at the time of Agent Noll’s actions

in June 2006, the law was clearly established. To be clearly

established, “[t]he contours of the right must be sufficiently

clear that a reasonable official would understand that what

[she] is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). That is, the right must be

established “in a more particularized, and hence more

relevant, sense[.]” Id.; Dunn v. Castro, 621 F.3d 1196, 1201

(9th Cir. 2010) (“[T]he right allegedly violated must be

defined at the appropriate level of specificity before a court

can determine if it was clearly established.”) (quoting Wilson

v. Layne, 526 U.S. 603, 615 (1999)). This high standard is

intended to give officers breathing room “to make

reasonable but mistaken judgments about open legal

questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

“[I]t protects all but the plainly incompetent or those who

knowingly violate the law.” Id. (quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)). While the Supreme Court has

repeatedly admonished this court not to define clearly

established law at a high level of generality, see, e.g., City &

Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015), we

need not identify a prior identical action to conclude that the

right is clearly established, Anderson, 483 U.S. at 640. We

first look to binding precedent to determine whether a law

was clearly established. Chappell v. Mandeville, 706 F.3d

1052, 1056 (9th Cir. 2013).

By 2006, much of our Circuit’s precedent regarding the

right to bodily privacy had been established. First, from

York, it was clearly established that an individual’s naked

IOANE V. NOLL 15

body is the most basic subject of privacy. 324 F.2d at 455.

Second, from Grummett, it was clearly established that

casual, restricted, and obscured viewing of a prison inmate’s

naked body is constitutionally permitted if it is justified by

legitimate government interests such as prison security

needs. 779 F.2d at 492, 494–95. Finally, from Sepulveda, it

was clearly established that a male parole officer’s

intentional viewing of a female parolee providing a urine

sample, over the parolee’s objection, is unconstitutional.

967 F.2d at 1416.

Additionally, it was clearly established by 2006 that an

individual’s Fourth Amendment right against unreasonable

searches is not abrogated by virtue of her presence at the

execution of a search warrant. See Ybarra, 444 U.S. at 91–

93. In Ybarra, the Supreme Court held that an officer

executing a search warrant on a premises must possess a

reasonable belief that an individual is armed and dangerous

before conducting a weapons pat-down of the individual. Id.

Taken together, the holdings from York, Grummett,

Sepulveda, and Ybarra put the unlawfulness of Agent Noll’s

conduct beyond debate. See al-Kidd, 563 U.S. at 741 (“We

do not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question

beyond debate”); White v. Lee, 227 F.3d 1214, 1238 (9th Cir.

2000) (“[Cl]osely analogous preexisting case law is not

required to show that a right was clearly established.”).

First, unlike the inmates in Grummett or the parolee in

Sepulveda, Shelly’s privacy interests had not been reduced.

The agents were executing a search warrant at Shelly’s

house, but Shelly had not been detained. Furthermore,

Michael, and not Shelly, was the subject of the investigation.

This makes the intrusion here even more significant than in

Grummett or Sepulveda.

16 IOANE V. NOLL

Second, it is clearly established that such a significant

intrusion as occurred here never can be permitted in the

absence of legitimate government interests, which here,

plainly were lacking. See Grummett, 779 F.2d at 496;

Knights, 534 U.S. at 118–19 (“[T]he reasonableness of a

search is determined by assessing, on the one hand, the

degree to which it intrudes upon an individual’s privacy and,

on the other, the degree to which it is needed for the

promotion of legitimate governmental interests.”) (internal

quotation marks and citation omitted).

Finally, if the Constitution prohibits an officer from

conducting a weapons pat-down of an individual during

execution of a search warrant in the absence of a reasonable

belief that the individual is armed and dangerous, the

intrusion here, for which Agent Noll has articulated no

reasonable belief that Shelly was armed and dangerous,

clearly was unconstitutional. See Ybarra, 444 U.S. at 91–93.

And, even if Agent Noll had possessed a reasonable and

articulable belief that Shelly was armed and dangerous, it is

beyond debate that Agent Noll initially only would have

been constitutionally permitted to conduct a pat-down search

and not watch Shelly use the bathroom. See id. at 92–93

(citing Terry, 392 U.S. at 21–27). Accordingly, Agent Noll’s

decision to monitor Shelly while Shelly used the restroom,

when Agent Noll clearly was not authorized to conduct a

weapons pat down, arguably qualifies as “plainly

incompetent.” See al-Kidd, 563 U.S. at 743.

In sum, a reasonable officer in Agent Noll’s position

would have known that such a significant intrusion into

bodily privacy, in the absence of legitimate government

justification, is unlawful. Hope v. Pelzer, 536 U.S. 730, 739–

41 (2002) (“[O]fficials can still be on notice that their

conduct violates established law even in novel factual

IOANE V. NOLL 17

circumstances.”). We therefore conclude that Agent Noll is

not entitled to qualified immunity.

AFFIRMED.

BEA, Circuit Judge, concurring in judgment:

I agree with the majority’s ultimate conclusion that the

district court did not err in denying Agent Noll’s motion for

summary judgment regarding Shelly Ione’s claim that Agent

Noll violated Shelly’s clearly established constitutional

rights. However, because I disagree with the majority’s

holding that Agent Noll’s actions violated Shelly’s clearly

established right to bodily privacy, I write separately.

I

A

As the majority correctly notes, we engage in a two-part

test when determining whether a government agent is

entitled to qualified immunity. Saucier v. Katz, 533 U.S.

194, 201 (2001). An officer is entitled to qualified immunity

under this test unless: (1) the facts, construed in the light

most favorable to the plaintiff, demonstrate that the officer’s

conduct violated a constitutional right, and (2) that right was

clearly established at the time of the asserted violation. Id.

Because this case reaches us on a denial of summary

judgment, we must determine whether Agent Noll “would

be entitled to qualified immunity as a matter of law assuming

all factual disputes were resolved in [Shelly’s] favor.” Eng

v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009).

18 IOANE V. NOLL

To be clearly established, “[t]he contours of the right

must be sufficiently clear that a reasonable official would

understand that what [she] is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). That is,

the right must be established “in a more particularized, and

hence more relevant, sense.” Id.; Dunn v. Castro, 621 F.3d

1196, 1201 (9th Cir. 2010) (“the right allegedly violated

must be defined at the appropriate level of specificity before

a court can determine if it was clearly established”).

This particularized requirement does not mean that there

must be a prior case with identical facts—an officer can still

be on notice that her conduct “violates established law even

in novel factual circumstances.” Hope v. Pelzer, 536 U.S.

730, 739–41 (2002). “[B]ut existing precedent must have

placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). “In

other words, immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’”

White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix

v. Luna, 136 S. Ct. 305, 308 (2015). Additionally, even if an

officer violates a clearly established right, the officer is

entitled to qualified immunity if the officer’s “mistake as to

what the law requires is reasonable.” Saucier, 533 U.S. at

205.

B

Here, the majority concludes that Agent Noll was not

entitled to qualified immunity as a matter of law, in part

because Agent Noll violated Shelly’s clearly established

Fourth Amendment right to bodily privacy when Agent Noll

searched Shelly and viewed her naked body during the

course of executing a search warrant at the Ioanes’ residence.

In order to reach that conclusion, it is necessary for the

majority to hold that a female law enforcement officer

IOANE V. NOLL 19

violates a clearly established right to bodily privacy when

she unreasonably views the naked body of a female suspect.

The majority cites three of our prior cases regarding

bodily privacy to support the existence of such a clearly

established right. But the cases cited by the majority are

distinguishable from the instant case in significant ways.

Most problematically, none of the cases cited by the majority

state that there is a constitutional right to bodily privacy that

is violated by same-sex observation.

For instance, in York v. Story, 324 F.2d 450 (9th Cir.

1963), where we first announced the right to bodily privacy,

a female victim was brought to the police station after an

altercation. Id. at 451–53. Male officers told her that they

needed to photograph her naked body to preserve evidence

of bruising. Id. The woman repeatedly objected, stated that

she did not want to be photographed, and contended that

there was no evidence of bruising to document. Id. The

officers photographed the woman anyway and distributed

the photos throughout the department. Id. We held that the

officers’ actions violated the woman’s right to bodily

privacy. Id.

But York does not support a clearly established right that

was violated in this case for a number of reasons. First, the

privacy violation in York was much more severe because the

photographs were disseminated to other officers. Here, the

observation was in a one-on-one setting. Second, even the

York court recognized that the fact that the officers were

male and the victim was female was significant, stating: “We

cannot conceive of a more basic subject of privacy than the

naked body. The desire to shield one’s unclothed figured

from view of strangers, and particularly strangers of the

opposite sex, is impelled by elementary self-respect and

personal dignity.” Id. at 455 (emphasis added).

20 IOANE V. NOLL

Next, the majority cites Grummett v. Rushen, 779 F.2d

491 (9th Cir. 1985). In Grummett, male inmates sued the

department of corrections for allowing female guards to

observe them in the showers and while using the restroom,

claiming a violation of their right to privacy. Id. at 492–93.

This court held that there was no violation of the right to

bodily privacy because the inmates had a reduced privacy

interest, the female guards observed the inmates naked only

from a distance, and the department’s policies were, on the

whole, reasonable. Id. at 494–96.

Again, Grummett does not support a clearly established

right that was violated in this case. First, the plaintiffs in

Grummett exclusively challenged cross-sex observations—

the plaintiffs did not even attempt to argue that male guards’

observations of naked male inmates violated the inmates’

right to bodily privacy. As a result, this court’s analysis was

entirely framed in terms of whether cross-sex observations

and searches violated the right to bodily privacy. Second,

the Grummett court found no constitutional violation even

though the observations were cross-sex. Although

Grummett stands for the proposition that some right to

bodily privacy exists, it is difficult to see how Grummett

could have created a clearly established constitutional right

to be free from same-sex observation.

Finally, the majority cites Sepulveda v. Ramirez,

967 F.2d 1413, 1416 (9th Cir. 1992). In Sepulveda, we held

that a male probation officer violated a female probationer’s

right to bodily privacy when the male probation officer

observed the female probationer urinating in a bathroom stall

during a uranalysis test. 967 F.2d at 1415. This is, without

doubt, the most factually analogous case cited by the

majority.

IOANE V. NOLL 21

And yet, several factors indicate that Noll’s conduct was

not clearly proscribed by this court’s opinion in Sepulveda.

First, and most obviously, our ruling in Sepulveda hinged on

the fact that the probation officer was of the opposite sex,

and all of the cases the Sepulveda court cited involved

observation by members of the opposite sex. Id. Indeed, the

Sepulveda court itself cited York for the proposition that

“[t]he desire to shield one’s unclothed figured from view of

strangers, and particularly strangers of the opposite sex, is

impelled by elementary self-respect and personal dignity.”

Id. at 1415 n.5. Thus, it is unclear how Sepulveda can be

read to create a clearly established constitutional right to be

free from naked observation by members of the same sex.

Second, in concluding that the probation officer’s

conduct was not “reasonable,” the Court relied on the fact

that his conduct violated department of corrections policies.

Id. At 1416. Here, by contrast, Agent Noll’s uncontradicted

declaration establishes that her conduct comported with IRS

policy. Again, at a minimum, this fact provides a basis to

conclude that Agent Noll’s mistake as to whether she was

violating the right established by Sepulveda was reasonable.

Finally, Sepulveda did not occur in the context of the

execution of a search warrant. The majority argues that this

means Shelly likely had broader rights than the probationer

in Sepulveda. But that argument ignores the factual context

relevant to determining whether Sepulveda sufficiently

defined the contours of the right at issue. In particular,

Sepulveda contains no discussion regarding how to weigh

the right to bodily privacy against the interests of officer

safety or the preservation of evidence.

The majority dismisses many of these concerns without

serious examination. Most notably, the majority asserts (in

a footnote) that, although every bodily privacy case this

22 IOANE V. NOLL

circuit has decided involved cross-sex observation, “gender

was not central” to the analysis in any of those cases. See

Maj. Op. at 2 n.2. Thus, the majority concludes, “[the fact

t]hat Agent Noll and Shelly both are women does not change

that Agent Noll violated Shelly’s privacy rights.” See id.

Gender is not central?

It is impossible to square this conclusion with our

precedent. Every bodily privacy case cited by the majority

involved cross-sex observation and every case noted that the

cross-sex nature of the observation was a significant part of

the court’s analysis. No case cited by the majority discusses

whether same-sex observation is subject to the same sort of

analysis or scrutiny. In fact, language from York and

Sepulveda—and the result from Grummett—strongly

suggest that same-sex observations are not subject to the

same sort of scrutiny as cross-sex observations.

The majority is likely correct that Agent Noll’s actions

were unreasonable, and Agent Noll may have violated

Shelly’s constitutional right to bodily privacy during the

search. But the existence of a constitutional violation alone

is insufficient to deny qualified immunity—we must find

that the right at issue was “clearly established.” Our

precedent at the time of the alleged violation in this case did

not put the issue of whether same-sex observation violates

the right to bodily privacy “beyond debate.” See al-Kidd,

563 U.S. at 743.

The majority could have used this case to clarify the law

regarding the right to bodily privacy and announced that the

right applied in both same-sex and cross-sex situations alike.

Perhaps that is the correct result. But the majority cannot, in

one fell swoop, both announce for the first time that the

scope of the bodily privacy right includes same-sex

IOANE V. NOLL 23

observations and, at the same time, hold that the right was

clearly established at the time of the violation. 1

II

Nonetheless, I concur in the majority’s ultimate

conclusion that the district court did not err in denying Agent

Noll’s motion for summary judgment. Drawing all factual

inferences in favor of Shelly, as we must, Agent Noll’s

actions violated Shelly’s Fourth Amendment rights under

the Supreme Court’s decision in Ybarra v. Illinois, 444 U.S.

85 (1979).

In Ybarra, police received a tip that a bartender was

likely to be dealing heroin at his bar on a particular night. Id.

at 87–90. The police used that tip to obtain a search warrant

for the bar and the bartender. Id. When the police arrived at

the bar, they announced that they were executing a search

warrant and then stated that they were going to perform a

weapons pat-down on all of the patrons of the bar who were

present. Id. During that weapons pat-down, an officer found

heroin on a patron of the bar. Id.

During the ensuing criminal case, the patron moved to

suppress the evidence found in the pat-down search, arguing

that the officer had no probable cause to search him. Id. The

state courts held that the search was permissible because a

1

The majority is defining the right of bodily privacy at a higher level

of generality—same and cross-sex observation of nudity—than the level

of generality here involved: same-sex observation. This is precisely the

sort of judicial decision-making for which the Supreme Court has

repeatedly chastised us. See Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (“This Court has ‘repeatedly told courts—and the Ninth Circuit

in particular—not to define clearly established law at a high level of

generality.’”).

24 IOANE V. NOLL

state statute authorized officers executing a search warrant

to detain and search anyone at the premises. Id.

The Supreme Court reversed, holding that the search was

unconstitutional. The Supreme Court held that the officers

needed individualized probable cause as to the patron in

order to conduct an evidence search of his person and that

the search warrant for the premises combined with the

patron’s presence at the premises was insufficient. Id. at 90–

92. Additionally, the Court held that any weapons frisk

needed to be supported by a “reasonable belief” that the

patron was armed and dangerous. Id. at 92–94. Finally, the

Court rejected the state’s argument that such searches were

necessary as part of drug enforcement because of the ease

with which evidence of a drug crime could be concealed,

passed from person to person, and disposed of. Id. at 94–96.

In short, Ybarra stands for the proposition that a search

warrant for a particular premises does not give the officers

executing the warrant the right to search individuals who are

present, but who the officers do not have independent

probable cause to search. Here, Shelly was not the subject

of the investigation and the search warrant did not authorize

a search of her person, only of the premises. As a result,

under Ybarra, any search of Shelly needed to be supported

by independent probable cause or, in the case of a weapons

frisk, a reasonable belief that she was armed and dangerous.

Neither of those conditions was met in this case. Agent

Noll had no individualized probable cause to search Shelly.

Consequently, there was no basis to conduct an evidence

search of Shelly’s person. Additionally, Agent Noll likely

lacked any reasonable belief that Shelly was armed and

dangerous. Although Agent Noll knew there were firearms

in the house, those firearms did not belong to Shelly and

there was no other basis on which to conclude that Shelly

IOANE V. NOLL 25

was armed and dangerous. Regardless, even if Agent Noll

had a reasonable basis to believe Shelly was armed and

dangerous, her actions in this case plainly exceeded the

limits of the sort of weapons pat-down authorized by the

Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).

As a result, I would hold that Agent Noll’s actions

violated Shelly’s Fourth Amendment rights as clearly

established in Ybarra.

III

In conclusion, Agent Noll’s actions did not violate

Shelly’s clearly established right to bodily privacy.

However, drawing factual inferences in Shelly’s favor,

Agent Noll’s actions in this case likely violated Shelly’s

constitutional rights under Ybarra. On that basis, I would

hold that the district court was correct to deny Agent Noll’s

motion for summary judgment. As a result, I CONCUR in

the judgment of the majority opinion.