The Delaware State Escheater sought an examination of records of Marathon Petroleum, and it refused to comply. The state could not force plaintiff to comply, so there is no search if plaintiff refuses. Marathon Petroleum Corp. v. Cook, 2016 U.S. Dist. LEXIS 130358 (D.Del. Sept. 23, 2016):
Plaintiffs allege that Defendants’ audit constitutes an unreasonable search and seizure in violation of the Fourth Amendment. (D.I. 1 ¶ 4b (“The DUPL violates the Fourth Amendment protection against unlawful search and seizure by authorizing the State Escheator to search Plaintiffs’ confidential, privileged and proprietary records without any reasonable basis … and without providing a procedure for pre-compliance review.”)) The Court disagrees. Instead, as Defendants argue, the alleged actions do not constitute a search under the Fourth Amendment.
Plaintiffs fail to state a plausible claim for a violation of the Fourth Amendment because they do not allege that they are required to cooperate with the audit. To the contrary, Plaintiffs affirmatively assert that Defendants do not have the authority to issue a summons or take any other action to compel Plaintiffs to produce any of the requested documents or to compel Plaintiffs to cooperate with Defendants’ requests for information. (D.I. 27 at 10-11 (explaining that “[t]he DUPL authorizes enforcement and/or challenges only of final determinations of liability, penalties and interest — after the audit is completed”)) The fact that Defendants do not have authority to compel compliance means that Plaintiffs have not actually been the subject of a search. Indeed, Plaintiffs could simply ignore Defendants’ demand for information. In this sense, Defendants’ request for documents resembles a police officer’s request for permission to search – an action that does not run afoul of the Fourth Amendment. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990) (“The [Fourth Amendment] prohibition does not apply … to situations in which voluntary consent has been obtained … from the individual whose property is searched , ….”).