In Iaone v. Noll, the 9th Circuit Court of Appeals affirmed denial of summary judgment to an IRA Agent in a 42 U.S.C. section 1983 lawsuit alleging the agent violated the plaintiff's Fourth Amendment rights. The agent was part of a group of agents executing a search warrant for the plaintiff's house. The agents informed the inhabitants that they were free to leave during the search, but would not be allowed to return. The male inhabitant used the bathroom. A male agent escorted him to the bathroom, searched the room, then stood outside the closed door while the man used the facilities. Later the female inhabitant asked to use the bathroom. The defendant agent insisted on staying inside the bathroom, ordered the female inhabitant to remove her clothes, and then faced the woman while she used the toilet. She sued the agent.
The 9th Circuit agreed that the agent had violated the plaintiff's Fourth Amendment rights, and was not entitled to qualified immunity. The majority, citing a series of 9th Circuit cases involving officers of one gender observing persons of another gender nude (and in one case using the bathroom), concluded that, regardless of gender, case law established at the time of the incident that observing an undetained person in her own home while she used the bathroom was a significant intrusion into her privacy. The law further established that the search warrant for the premises did not justify searching an individual on the premises absent reasonable suspicion the person is armed and dangerous. None of the agent's justifications for the observation were supported by the circumstances.
A concurring judge disagreed that cases limiting officers of the opposite gender from viewing persons naked clearly established that a female officer observing a female violated the Fourth Amendment. But the judge agreed that the law clearly established the search warrant for the house did not justify the agent's search of the inhabitant absent reasonable suspicion.
****The panel published an amended decision on September 19, 2019 that reached the same conclusions.*****
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