Unnecessary Bathroom Chaperone Was Intrusion of Bodily Privacy

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Ioane v. Hodges, 2018 (9th Cir. 2019)

Over 13 years ago (who says that justice isn’t speedy?), Internal Revenue Service Criminal Investigation Division agents served a search warrant on the Ioane residence. During the course of the search, Michael Ioane asked to use the bathroom. A male IRS agent checked the bathroom for weapons and waited outside the closed bathroom door as Ioane used the bathroom.

Shelly Ioane was not a target of the warrant and she was not detained. When she asked to use the bathroom, a female IRS agent insisted on escorting her into the bathroom. The agent first told Ms. Ioane to strip, but then commanded her to hold up her dress and pull down her underwear while relieving herself, facing directly in front of the agent standing next to her in the bathroom.

The court also held any reasonable officer would have known such a significant intrusion into bodily privacy, under similar circumstances, is clearly unlawful.

Shelly Ioane sued, claiming a violation of her Fourth Amendment right to bodily privacy during the warrant execution. The agent claimed she needed a full view of Ms. Ioane’s body as she used the bathroom to prevent her from obtaining a weapon (from the bathroom already checked by a male agent), fleeing to other parts of the residence (though another agent could have stood outside the other door), or destroying evidence (again, the bathroom had been searched). The agent also claimed the close observation was standard IRS procedure, though the evidence showed the procedure was not followed with Mr. Ioane.

The appellate court held the claimed reasons of preventing destruction of evidence and promoting officer safety did not justify the scope or manner of the intrusion into a most basic subject of privacy, particularly considering Ms. Ioane’s status as a non-detainee. The court also held any reasonable officer would have known such a significant intrusion into bodily privacy, under similar circumstances, is clearly unlawful.

The outcome of this case should not be a surprise, but it is a good reminder that seemingly simple errors can compound into a lawsuit consuming hours and thousands of dollars in legal fees through 13 years of litigation. The story won’t be over until the agent’s actions are judged in a trial court or a settlement is reached. This is also a reminder that supervisors should be available to put the brakes on such missteps.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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