FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHELLY J. IOANE,

Plaintiff-Appellee,

v.

JEFF HODGES; MICHELLE CASAREZ, 

Federal Officer; BRIAN APPLEGATE, 

Federal Officer; KENT SPJUTE, 

Federal Officer,

Defendants,

and

JEAN NOLL,

Defendant-Appellant.

No. 16-16089

D.C. No.

1:07-cv-00620-

AWI-EPG

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted April 13, 2018

Pasadena, California

Filed September 10, 2018

Amended September 19, 2019
2 IOANE V. NOLL

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

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

Order;

Opinion by Judge Murguia;

Partial Concurrence and Partial Dissent by Judge Bea

SUMMARY**

Bivens

The panel amended the opinion and concurrence filed on 

September 10, 2018, and affirmed the district court’s order 

denying Internal Revenue Service Agent Jean Noll’s motion 

for summary judgment based on her alleged qualified 

immunity in a Bivens v. Six Unknown Named Agents of Fed. 

Bureau of Narcotics, 403 U.S. 388 (1971), suit alleging that 

Agent Noll violated plaintiff’s Fourth Amendment right to 

bodily privacy during the lawful execution of a search 

warrant at plaintiff’s home in 2006.

The panel first held that plaintiff could proceed with her 

Bivens suit against Agent Noll. Applying the test in Ziglar 

v. Abbasi, 137 S. Ct. 1843 (2017), the panel held that this 

case was similar to Bivens and therefore did not present a 

“new context” where plaintiff’s claim was that a federal 

* 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

agent conducted a warrantless search of her person in 

violation of her Fourth Amendment right to bodily privacy. 

The panel turned to the issue of qualified immunity and 

its first prong of reasonableness. The panel held that the 

scope of the intrusion into plaintiff’s bodily privacy here was 

significant, and weighed in favor of a determination of 

unreasonableness. In addition, the manner of Agent Noll’s 

intrusion weighed in favor of concluding that the intrusion 

was unreasonable. Further, the panel held that none of the 

justifications Agent Noll offered for initiating the search 

were borne out by the facts. The panel affirmed the district 

court on this issue.

The second part of the qualified immunity test required 

a determination whether, at the time of Agent Noll’s actions 

in June 2006, the law was clearly established. The panel held 

that by 2006, much of the Circuit’s precedent regarding the 

right to bodily privacy had been established. The panel held 

that 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, was unlawful. The panel concluded that the 

unlawfulness of Agent Noll’s conduct was beyond debate, 

and Agent Noll was not entitled to qualified immunity.

Judge Bea concurred in part and concurred in the 

judgment. Judge Bea agreed with the majority that the case 

did not extend Bivens to a new context, and that the district 

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

summary judgment regarding plaintiff’s claim that Agent 

Noll violated plaintiff’s clearly established constitutional 

rights. Judge Bea would hold that Agent Noll’s actions 

violated plaintiff’s Fourth Amendment rights as clearly 

established in Ybarra v. Illinois, 444 U.S. 85 (1979). Judge 
4 IOANE V. NOLL

Bea disagreed with the majority’s holding that Agent Noll’s 

actions violated plaintiff’s clearly established right to bodily 

privacy.

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.
IOANE V. NOLL 5

ORDER

The opinion and concurrence filed on September 10, 

2018, and appearing at 903 F.3d 929, is hereby amended. An 

amended opinion and concurrence is filed herewith.

The parties are hereby granted leave to file a petition for 

rehearing and/or suggestion for rehearing en banc, pursuant 

to FRAP 40 and G.O. 5.3(a).

OPINION

MURGUIA, Circuit Judge:

Plaintiff Shelly Ioane filed a Bivens suit 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

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. 
6 IOANE V. NOLL

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 

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 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.

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 7

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 

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 
8 IOANE V. NOLL

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 

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 
IOANE V. NOLL 9

questions that do not frequently arise in cases in which a 

qualified immunity defense is unavailable.” Plumhoff v. 

Rickard, 572 U.S. 765, 774 (2014) (quoting Pearson, 

555 U.S. at 236).

1. Bivens Claim

Before reaching the issue of qualified immunity, the first 

question we must address is whether Shelly may bring a 

Bivens suit against Agent Noll. Hernandez v. Mesa, 137 S. 

Ct. 2003, 2006 (2017) (whether Bivens applies “is 

‘antecedent’ to the other questions presented”) (quoting 

Wood v. Moss, 572 U.S. 744, 757 (2014)).

In 1971, the Supreme Court recognized for the first time 

an implied right of action against federal officers for 

constitutional violations. Bivens v. Six Unknown Named 

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In 

Bivens, the Court held that plaintiff Webster Bivens was 

entitled to sue federal agents for damages arising out of an 

unlawful arrest and search, in violation of his Fourth 

Amendment rights. Id. at 389–90.

Following Bivens, however, the Supreme Court has 

repeatedly refused to recognize an implied damages remedy 

against federal officials. See Rodriguez v. Swartz, 899 F.3d 

719, 737 (9th Cir. 2018) (collecting cases). Recently, the 

Court “made clear that expanding the Bivens remedy is now 

a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 

1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

675 (2009)). “This [trend] is in accord with the Court’s 

observation that it has ‘consistently refused to extend Bivens

to any new context or new category of defendants.’” Id.

(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 

(2001)).
10 IOANE V. NOLL

In Abbasi, the Supreme Court laid out a two-step test for 

determining when a Bivens claim should be recognized. 

“[T]he first question a court must ask . . . is whether the 

claim arises in a new Bivens context[.]” Id. at 1864. A case 

presents a new context if it “is different in a meaningful way 

from previous Bivens cases decided by th[e Supreme 

Court].” Id. Abbasi outlined the following non-exhaustive 

“list of differences that are meaningful enough to make a 

given context a new one”:

A case might differ in a meaningful way 

because of [1] the rank of the officers 

involved; [2] the constitutional right at issue; 

[3] the generality or specificity of the official 

action; [4] the extent of judicial guidance as 

to how an officer should respond to the 

problem or emergency to be confronted; 

[5] the statutory or other legal mandate under 

which the officer was operating; [6] the risk 

of disruptive intrusion by the Judiciary into 

the functioning of other branches; or [7] the 

presence of potential special factors that 

previous Bivens cases did not consider. 

Id. at 1859–60.

If the case presents a new Bivens context, then the court 

proceeds to step two. At step two, a court may extend Bivens

in a new context only if two conditions are met. First, “the 

plaintiff must not have any other adequate alternative 

remedy.” Rodriguez, 899 F.3d at 738. Second, “there cannot 

be any ‘special factors’ that lead [the court] to believe that 

Congress, instead of the courts, should be the one to 

authorize a suit for money damages.” Id. While the Supreme 

Court has yet to define the term, “special factors,” it has 
IOANE V. NOLL 11

explained that “the inquiry must concentrate on whether the 

Judiciary is well suited, absent congressional action or 

instruction, to consider and weigh the costs and benefits of 

allowing a damages action to proceed.” Abbasi, 137 S. Ct. 

at 1857–58. Therefore, “to be a ‘special factor counselling 

hesitation,’ a factor must cause a court to hesitate before 

answering that question in the affirmative.” Id. at 1858.

Here, a review of the Abbasi factors in the first step of 

the Bivens analysis demonstrates that this case is similar to 

Bivens and therefore does not present a “new context.” Both 

cases concern an individual’s Fourth Amendment right to be 

free from unreasonable searches and seizures. In Bivens, 

federal agents allegedly searched Bivens’s home and his 

person (by subjecting him to a visual strip search), without 

probable cause or a warrant. See 403 U.S. at 389. Likewise, 

Shelly’s claim here is that a federal agent conducted a 

warrantless search of her person in violation of her Fourth 

Amendment right to bodily privacy.

There is no difference between the two cases with 

respect to the rank of the officers involved, the generality or 

specificity of the official action at issue, or the legal mandate 

under which the officers were operating.2 Further, the extent 

of judicial guidance as to how Agent Noll should have 

responded to the problem was well established.3

2 The fact that Agent Noll searched the Ioane residence pursuant to 

a lawful search warrant, unlike in Bivens where the agents were wholly 

without any warrant, is of no significance. The only Fourth Amendment 

claim at issue here is Shelly’s. With respect to Shelly, Agent Noll 

conducted a warrantless search of her person.

3 This Abbasi factor—“the extent of judicial guidance as to how an 

officer should respond to the problem or emergency to be confronted,” 

Abbasi, 137 S. Ct. at 1860—is analogous to the question in a qualified 
12 IOANE V. NOLL

Recognizing a Bivens action in this closely analogous case 

also does not result in any intrusion by the judiciary into the 

functioning of other branches. See Bivens, 403 U.S. at 407 

(Harlan, J., concurring) (“[T]he judiciary has a particular 

responsibility to assure the vindication of constitutional 

interests such as those embraced by the Fourth 

Amendment.”). Nor does this case implicate any special 

factors not considered previously that counsel against 

recognizing a Bivens remedy.

Rather, as was the case in Bivens, there is no alternative 

remedy for a person in Shelly’s position—“it is damages or 

nothing.” Id. at 410 (Harlan, J., concurring); cf. Abbasi, 

137 S. Ct. at 1865 (“[T]he existence of alternative remedies 

usually precludes a court from authorizing a Bivens 

action.”). Accordingly, Shelly may proceed with her Bivens

suit against Agent Noll.4

2. Reasonableness

We now turn to the issue of qualified immunity and 

begin with its first prong. While the Ninth Circuit never has 

articulated a standard for when an officer’s intentional 

immunity analysis of whether the law was “clearly established” at the 

time of the officer’s actions such that a “reasonable official would 

understand that what [she] is doing violates” a person’s constitutional 

right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). While Judge 

Bea disagrees with the majority that Shelly’s right to bodily privacy from 

a same-sex strip search was clearly established at the time (as explained 

in his separate concurrence), we all agree at a minimum that Shelly’s 

right to be free from an unreasonable search was clearly established 

under Ybarra v. Illinois, 444 U.S. 85 (1979).

4 Because we conclude that Shelly’s Bivens claim does not present 

a “new context,” we need not consider the second part of the Bivens

analysis.
IOANE V. NOLL 13

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 (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.
14 IOANE V. NOLL

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 

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 
IOANE V. NOLL 15

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 

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 stateimposed 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.5

5 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 
16 IOANE V. NOLL

Additionally, unlike the casual, obscured, and restricted 

manner of observation by the prison officials in Grummett, 

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.6 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.7 Yet Agent 

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

See York, 324 F.2d at 455.

6 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.

7 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.
IOANE V. NOLL 17

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 

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 
18 IOANE V. NOLL

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

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

Michael.

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 
IOANE V. NOLL 19

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. 

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

We therefore affirm the district court on this issue.

3. 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).
20 IOANE V. NOLL

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 

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, 
IOANE V. NOLL 21

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

This makes the intrusion here even more significant than in 

Grummett or Sepulveda.

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 
22 IOANE V. NOLL

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 

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

not entitled to qualified immunity.

AFFIRMED.

BEA, Circuit Judge, concurring in part and concurring in the

judgment:

I agree with the majority that this case does not extend 

Bivens to a new context and that the district court did not err 

in denying Agent Noll’s motion for summary judgment 

regarding Shelly Ioane’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 
IOANE V. NOLL 23

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).

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.” (internal 

quotation marks omitted)).

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, 741 (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 
24 IOANE V. NOLL

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. 

To reach that conclusion, it is necessary for the majority to 

hold that a female law enforcement officer 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, 451–53 (9th 

Cir. 1963), where we first announced the right to bodily 

privacy, a female victim was brought to the police station 

after an altercation. 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 
IOANE V. NOLL 25

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).

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 
26 IOANE V. NOLL

observed the female probationer urinating in a bathroom stall 

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

doubt, the most factually analogous case cited by the 

majority.

And yet, several factors indicate that Agent 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 (quoting York, 324 F.2d 

at 455). 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 
IOANE V. NOLL 27

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 

circuit has decided involved cross-sex observation, “gender 

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

Maj. Op. at 15 n.5. 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 741.
28 IOANE V. NOLL

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 

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 

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.’” (internal quotation marks omitted)).
IOANE V. NOLL 29

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 

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.
30 IOANE V. NOLL

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 

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.