IRS Agent Audits Potty, Violates Fourth Amendment

Ioane v. Hodges, 2018 U.S. App. LEXIS 25569 (9th Cir. Sep. 10, 2018)

Okay, I made up the phrase “potty audit,” but here’s what happened. IRS agents lawfully executed a search warrant in the presence of the homeowners. Or rather, they were executing it lawfully–until the homeowners needed to use the bathroom. While the husband was permitted to go in privacy after agents did a cursory search of the area, the wife was not so fortunate. Id. at *4. A female IRS agent insisted on watching while the wife went to the bathroom. Specifically, she required the wife to hold up her dress while relieving herself, and the agent stood facing her and watched the entire time. Id. The wife later sued. The Ninth Circuit upheld the district court’s ruling that the search was unreasonable under the Fourth Amendment, and that qualified immunity did not protect the agent from liability.

This case may help our criminal folks in that it starts with a helpful review of right-to-bodily-privacy cases under the Fourth Amendment. It applies the prevailing test that: “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.” Id. at 7 (citing 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.” Id. at *8 (internal citation omitted).

The Court also reminded the government that even when a search warrant is lawful, it “authorize[s] only the search of the premises, not the individuals on the premises.” Id at *12. (citing Ybarra v. Illinois, 444 U.S. 85, 91-92 (1979) (rejecting the argument that individuals’ Fourth Amendment rights are abrogated merely by presence during a search-warrant execution).

The Court also found significant the fact that the search occurred in a home bathroom. “The law recognizes heightened privacy interests in the home, which arguably makes this intrusion more egregious, especially when [the wife] herself was not the subject of the search.” Id. at *16. Cf. Kyllo v. United States, 533 U.S. 27, 31 (2001).

Law enforcement’s war on seventh-grade drama.

Scott v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 25568 (9th Cir. Sep. 10, 2018)

A group of seventh-grade girls had some drama with each other, if you can believe that. The semester progressed, and the situation escalated into several physical confrontations. Id. at *4-5. A school resource deputy was summoned to speak to the group of girls to “attempt to mediate.

If “attempt to mediate” means “get frustrated and arrest them all without individualized probable cause,” then the deputy got an A+ that day. Indeed, he decided to arrest the girls en masse because, as he explained to them, he was not “playing around” and taking them to jail was the easiest way to “prove a point” and “make [them] mature a lot faster.” The deputy stated that he did not care “who [was] at fault, who did what” because “it [was] the same, same ticket, same pair of handcuffs.” Id. at *7-8.

The district court was not impressed. It granted summary judgment against the deputy when some of the girls sued. The Ninth Circuit was nonplussed too, affirming the judgment. Balancing students’ Fourth Amendment rights against the special needs that can arise in a school setting, cf. New Jersey v. T.L.O.,469 U.S. 325 (1985), the Court held that the searches “were unreasonable because they were not justified at their inception.” Id. at *11 (internal punctuation omitted).

Three gems in here help our criminal clients: First, Scott is a nice citation for the need for individualized probable cause: here, “generalized allegations of group bickering and fighting, not specific information about [plaintiffs]” did not meet that standard. Id. at *11. Second, Scott pushes back against the standard trope that “the officer’s [racist, vindictive, pretextual] motivations are irrelevant.” That’s simply not true in purported “special needs” cases: “[W]hile the traditional Fourth Amendment analysis ‘is predominantly an objective inquiry,’ the ‘actual motivations’ of officers may be considered when applying the special needs doctrine.” Id. at *12. Here, because the deputy admittedly acted for an impermissible motive–trying to “prove a point” and show he wasn’t “playing around”–then “this alone is sufficient to conclude that a warrantless arrest is unreasonable.” Id. at *13 (internal punctuation omitted). Finally, we can use this case for the proposition that even arrests that are justified at their inception become unlawful if not “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at *14.