Firefighter’s Compelled Display Of Insulation Violates Fourth Amendment

Nicholas Delia is a firefighter with the City of Rialto, California. On August 10, 2006, Delia began to feel ill while working to control a toxic spill. He was then transported to a hospital emergency room for evaluation. There, a doctor gave him an off-duty work order for three work shifts. The doctor, however, did not place any activity restrictions on Delia.

On August 15, 2006, the City became suspicious of what Delia claimed to be a work-related illness. The City hired a private investigation firm to conduct surveillance on Delia. During this surveillance, Delia was filmed buying building supplies, including several rolls of fiberglass building insulation, at a home improvement store. Based on these observations, the City began a formal internal affairs investigation of Delia to determine whether he was off work on false pretenses. The City began its internal affairs investigation of Delia despite the fact that Delia had no activity restrictions placed on him by his treating physician.

As part of the internal affairs investigation, Delia was ordered to appear on September 18, 2006 for an administrative investigation interview. The interview was conducted by Steve Filarsky, a private attorney retained by the City. In addition to Filarsky and Delia, and Delia’s attorney, two battalion chiefs were present at the interview. At the onset of the interview, Filarsky warned Delia that he was obligated to fully cooperate. Delia was further cautioned that “if at any time it is deemed you are not cooperating then you can be held to be insubordinate and subject to disciplinary action, up to and including termination.”

After some preliminary questions, Filarsky asked Delia about any home construction projects he was currently undertaking in his home. Delia answered that he had some duct work done in his home and had purchased some rolls of insulation. He told Filarsky that the rolls were currently sitting in his house. Filarsky showed Delia a videotape of him purchasing home construction materials, including the rolls of insulation, at a store. Filarsky asked Delia whether this insulation had been installed. Delia told Filarsky that it was still bagged at his house.

Unable to get Delia to consent to a warrantless search of his house by Battalion Chief Mike Peel, Filarsky asked if Delia would volunteer to have Peel follow him to his house, where Delia would bring out the rolls of insulation to show Peel that they had not been installed. On the advice of his counsel, Delia refused Filarsky’s request.

Unable to get Delia to volunteer, Filarsky ordered Delia to produce the rolls of insulation from his house. Delia’s attorney questioned Filarsky’s legal authority for issuing such an order and requested that the order be in writing. Following a lengthy break, Delia was presented with a written order to produce the insulation for inspection signed by the Fire Chief.

Immediately after the interview, the battalion chiefs followed Delia to Delia’s house. The battalion chiefs parked alongside the curb in front of Delia’s house. After Delia’s attorney arrived, he, Delia, and a union representative went into Delia’s house and brought out three or four rolls of insulation and placed them on his lawn. After Delia brought out the last roll of insulation, a battalion chief thanked him for showing them the insulation and the two drove off.
Delia sued the City, alleging that his Fourth Amendment search and seizure rights were violated by the City. The Ninth Circuit agreed with him.

As the Court analyzed it, “unable to obtain Delia’s consent to search his home, and alternatively, failing to persuade Delia to voluntarily retrieve the insulation from his home and place it in public view on his front lawn, Filarsky was stymied. It was only at this juncture that Filarsky’s final move was to hatch a plan to compel Delia to do indirectly what Filarsky and City officials knew they could not directly do without clearly violating the Fourth Amendment. Delia was ordered to go into his house and bring out the rolls of insulation for inspection. He was cautioned at the beginning of his interview that his failure to cooperate with the investigation could result in charges of insubordination and possible termination of his employment.

“Under the facts in this case, Delia was compelled to enter his own home and retrieve the insulation for public view by order of Chief Wells. Delia’s actions were involuntary and coerced by the direct threat of sanctions including loss of his firefighter position. Therefore, we hold that the warrantless compelled search of Delia’s own home, requiring him to retrieve and display the insulation in public view on his front yard, violated Delia’s right under the Fourth Amendment to be free from an unreasonable search of his home by his employer.”

Delia v. City of Rialto, 621 F.3d 1069 (9th Cir. 2010).

This article appears in the January 2011 issue