Roe v. Sherry

• Decision Date: 31 July 1996
• Docket Number: No. 95-55761,95-55761
• Citation: 91 F.3d 1270
• Parties: 96 Cal. Daily Op. Serv. 5655, 96 Daily Journal D.A.R. 9212 Robert ROE, Plaintiff-Appellant, v. Helen M. SHERRY, Special Agent; Ray Larabee; Christopher Yohn; U.S. Naval Investigative Services; United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1270

91 F.3d 1270

96 Cal. Daily Op. Serv. 5655, 96 Daily Journal

D.A.R. 9212

Robert ROE, Plaintiff-Appellant, v. Helen M. SHERRY, Special Agent; Ray Larabee; Christopher

Yohn; U.S. Naval Investigative Services; United

States of America, Defendants-Appellees.

No. 95-55761.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1996.

Decided July 31, 1996.

Martha Hall and Deborah DiIorio, DiIorio & Hall, San Diego, California, for plaintiff-appellant.

Tom Stahl, Assistant United States Attorney, San Diego, California, for defendants-appellees.

Appeal from the United States District Court for the Southern District of California, John S. Rhoades, District Judge, Presiding. D.C. No,. CV-94-01205-JSR(LSP).

Before: FLOYD R. GIBSON, ^* JOHN T. NOONAN, Jr. and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge:

In this Bivens ¹ action, Robert Roe contends Naval officers violated his rights under the Fourth and Fifth Amendments when they searched, seized, and disclosed his HIV test results. The district court determined the officers were entitled to qualified immunity and granted them summary judgment. Roe appeals. We have jurisdiction under 28 U.S.C. § 1291. We hold as a matter of law that no constitutional violation occurred, and we affirm. ²

FACTS

On a number of occasions, Roe and U.S. Navy Petty Officer Michael Healy engaged in unprotected sexual relations. Before engaging in this activity, Roe asked Healy whether he was HIV positive. Healy said he was not. This was not true. Healy had tested positive for HIV and was under a military order not to engage in unprotected sex and to inform any potential partner of his HIV status.

When Roe learned that Healy had tested positive for HIV, he contacted Healy's commanding officer and reported Healy's misconduct. Special Agent Helen Sherry was assigned to the case. In response to Sherry's request, Roe provided Sherry with a sworn statement in which Roe stated that he and Healy had engaged in unprotected sexual relations and that Healy had not informed him beforehand of his HIV-positive status. Roe also told Sherry that he had been tested for HIV and his results were negative.

Attempting to obtain more evidence of Healy's alleged misconduct, Sherry called Roe a number of times. Eventually, Roe showed Sherry some correspondence between Roe and Healy and a letter from Healy's wife to Roe. Roe also showed Sherry a videotape of Roe and Healy engaging in sexual relations. After several requests, Roe provided Sherry with copies of the letters. He also told Sherry that he would think about her request for a copy of the video.

Sherry learned the Navy intended to pursue criminal charges against Healy. She then obtained a search warrant for Roe's apartment. During the execution of the search warrant, Sherry and another officer discovered a two-page HIV test report in Roe's bedroom. They turned the front page and read the results, which indicated Roe had tested positive for HIV. Against Roe's protests, the officers seized the report.

The following month, Healy's command decided not to pursue criminal charges against In this appeal Roe argues, as he did in the district court, that the search and seizure of his HIV report violated his rights under the Fourth Amendment, and that the seizure and disclosure of the report violated his right to privacy under the Fifth Amendment. He also contends the officers are not entitled to qualified immunity.

him. Instead, Healy was administratively discharged. Roe then brought this Bivens action against the officers who executed the search warrant.

DISCUSSION

A. Standard of Review

We review de novo the district court's determination that the officers are entitled to qualified immunity and the district court's grant of summary judgment. Doe v. Attorney General, 941 F.2d 780, 783 (9th Cir.1991); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). A fundamental inquiry in a qualified immunity analysis is "whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); see also Allen v. Sakai, 48 F.3d 1082, 1090 (9th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1695, 131 L.Ed.2d 559 (1995).

B. Search and Seizure of Roe's HIV Test Results

The search warrant for the search of Roe's apartment authorized the officers to search and seize "one videocassette recording of [Roe] and Michael Healy engaging in oral copulation, ... letters authored by [Roe], letters authored by Michael Joseph Healy, photographs." The officers do not contend the warrant authorized their search or seizure of Roe's HIV report. They contend that while they were lawfully searching Roe's apartment under authority of the search warrant, the HIV report was in plain view, its evidentiary value was apparent, and they lawfully seized it. Roe disputes this. He contends the evidentiary value of the report was not immediately apparent to the officers.

If, during the lawful execution of a search warrant, an officer discovers evidence of a crime in plain view, the officer may seize the object even if the object is not listed in the search warrant. In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir.1991). To fall within the plain view exception, two requirements must be met: the officers must be lawfully searching the area where the evidence is found and the incriminatory nature of the evidence must be immediately apparent. Horton v. California, 496 U.S. 128, 135-36, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990); United States v. Ewain, 78 F.3d 466, 469 (9th Cir.1996).

Roe does not contend the initial intrusion-the search of his apartment-was unlawful. Nor does he contend the officers were searching in areas not authorized by the search warrant. Although Roe asserts the HIV report was in a closed briefcase in his bedroom, and the officers assert the report was in a drawer in Roe's bedroom, this dispute is immaterial. Whether in the briefcase or in the drawer, the officers were lawfully looking in areas where items listed in the search warrant could be found. See Ewain, 78 F.3d at 469.

In short, while executing the warrant the officers were where they had a legal right to be, looking where they had a legal right to look. What they saw in plain view was an HIV report. According to Sherry's declaration submitted in support of her summary judgment motion, the front page of the report "bore the notation 'HIV' in large letters and the word 'results' or 'report' or some similar notation." Roe does not dispute this. Although he contends the word "confidential" also was printed on the front page, the record does not support this.

Because the HIV report was found in Roe's bedroom, it was reasonable for the officers to assume the report was his. The question is, was it reasonable for them to believe, as they say they did, that Roe's HIV report was evidence of a crime? We conclude it was.

Roe had told Sherry that, prior to engaging in sexual relations with Healy, Roe had tested negative for HIV. Roe's HIV test results, if subsequent to his sexual relations The officers also were investigating whether Healy had committed an aggravated assault under 10 U.S.C. § 928(b). ³ The Navy could establish a violation of subsection 928(b)(1) by proving that Healy committed an assault on Roe by "means ... likely to produce death or grievous bodily harm." The HIV virus can produce death or grievous bodily harm. The Navy had evidence that Healy had engaged in unprotected sexual relations with Roe without telling him that he, Healy, had tested positive for HIV. Assuming the Navy presented proof that the HIV virus can be transmitted through unprotected sexual relations, see United States v. Banks, 36 M.J. 1003, 1006 (A.C.M.R.1993), if Roe tested positive for HIV after engaging in sexual relations with Healy, this would tend to prove that Healy infected Roe with the HIV virus and could satisfy the "means" element of subsection 928(b)(1). United States v. Joseph, 37 M.J. 392, 400 (C.M.A.1993).

with Healy, would be relevant to the question whether Healy had violated the military order for which he was under investigation. If the test results were positive, this would tend to show that Healy had violated the military order. Conversely, if the tests were negative, this could provide evidence that Healy had not violated the order.

Under subsection 928(b)(2), the prosecution would have to prove that grievous bodily harm actually was inflicted. United States v. Ricketts, 1 M.J. 78, 82 n. 5 (C.M.A.1975). If Roe tested positive for HIV, this would tend to show the actual infliction of harm. If, however, Roe tested negative for HIV, the prosecution might not have been able to prosecute Healy under subsection 928(b)(2).

Roe argues this evidence is irrelevant. He contends the Navy could have prosecuted Healy for aggravated assault under 10 U.S.C. § 928(b)(1), but not under 10 U.S.C. § 928(b)(2). This argument lacks merit. As discussed above, Roe's HIV report could provide evidence of an aggravated assault under subsection 928(b)(1).

Moreover, simply because the military previously may have chosen to prosecute people committing similar conduct under subsection 928(b)(1) does not mean the Navy would be precluded from prosecuting Healy under subsection 928(b)(2). If the evidence supported a charge of aggravated assault under subsection 928(b)(2), the Navy would not be barred from seeking a conviction under this subsection. Further, if Healy communicated a fatal disease to Roe, it might be appropriate to prosecute Healy for a crime more serious than aggravated assault. See Joseph, 37 M.J. at 396 (stating soldier's willful exposure of HIV to unsuspecting victim may result in prosecution for aggravated assault "or worse").

Thus, Roe's HIV status was a piece of circumstantial evidence...