Case update: Does Your Right to PrivacyExtend to Preventing the Police From Watching You Use The Restroom?

​Imagine being at home when the police show up to execute a search warrant for your home, looking for documents, computer records, and electronic information storage devices.  …And you’ve got to use the restroom.  Should a same-gender officer be able to insist on coming into the bathroom with you to watch you relieve yourself, all under the guise of ensuring you don’t destroy or hide evidence while you’re in there? Thankfully, the court said no. 
In Ioane v. Hodges[1],the IRS suspected Mr. Ioane criminal fraud. The IRS sought, and was granted, a search warrant, allowing them to access the Ioane home, looking for documents, computer records, and electronic information storage devices that could be evidence of that fraud. The Ioanes were told then were free to leave, but would not be allowed back into the house if they chose to leave. So they stayed, waiting patiently in the kitchen.  At some point during the search, Mrs. Ioane informed the Agents that she needed to use the bathroom. A female agent accompanied her to the bathroom, told Mrs. Ioane to remove her clothing, and then told Mrs. Ioane to hold up her dress while she relieved herself. Feeling rightfully violated, Mrs. Ioane filed suit in federal court under 42 U.S.C. § 1983. 
First, the court decided that Mrs. Ioane was able to file suit as the female officer was not entitled to qualified immunity from civil liability, after balancing Mrs. Ioane’s right “to hold public officials accountable when they exercise power irresponsibly” with the government’s “need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Generally, the law defaults to finding that the government is entitled to qualified immunity unless the facts demonstrate that the officer’s conduct violated a constitutional right, andthe right was clearly established at the time of the asserted violation. Because this case revolved around the 4thAmendment, and the 4thAmendment always begs in inquiry into the reasonableness of the government’s actions, the court was, in short, asking if the female agent’s demand to actually watch Mrs. Ioane relieve herself was reasonable under the circumstances of that case, specially looking at “(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.”
So let’s walk through each of these factors.  First, as us reasonable minds would expect, the court had no trouble announcing that it isa violation of one’s right to bodily privacy to require that person to expose him- or herself to an officer. Because the Court logically reasoned that the “naked body” is the most “basic subject of privacy,” it found that “the scope of the intrusion into [the wife’s] bodily privacy here was significant.” Second, the court found it was important that Mrs. Ioane was not detainedat the time of this intrusion, and thus was entitled to more freedom from the scrutiny of the agent. This was especially so as there was no reason to believe that Mrs. Ioane was in possession of any weapons or evidence at the time she requested to use the bathroom. Lastly, it was noted this intrusion occurred in the Ioane home, and a person’s home has always been held to be a place in which we can expect to heightened level, of privacy. 
Thus, the court held that forcing a person who has not been detained to expose him- or herself to a law enforcement officer, is a Fourth Amendment violation unless the officer has reasonable articulable suspicion that the person be armed, or probable cause to believe he or she is secreting evidence.


[1](9th Cir. Sept. 10, 2018) 903 F.3rd929.