CA9: City’s order to employee to bring stuff out of house was Fourth Amendment violation

Plaintiff is a city firefighter on medical leave. City officials became suspicious of his leave, and they started investigating, videotaping him buying building supplies, something not within the doctor’s restriction. They came to his house and requested consent to search it to see if the building supplies had been installed. He refused consent. Then they used the threat of firing him for insubordination if he did not bring the stuff out. On this threat, he brought out the stuff he bought to show that he had not installed it, and the investigation ended. He sued over the compelled entry into his home, which the court found violated the Fourth Amendment, but all the defendants but the investigator (not a city official) got qualified immunity. Delia v. City of Rialto, 621 F.3d 1069 (9th Cir. 2010):

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 the City of Rialto 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. As a result, Chief Wells’s order “convey[ed] a message that compliance with [his] request[ ] [was] required.” Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). As this court has recognized in the situation where police demand entrance to a dwelling, “compliance with a [governmental] demand is not consent.” United States v. Winsor, 846 F.2d 1569, 1573 n.3 (9th Cir. 1988) (en banc) (internal quotations omitted). In Winsor, police officers decided to enter a hotel and go from room to room looking for a robbery suspect. Id. at 1571. “When the police knocked on the door [of the defendants’ room] and demanded that it be opened,” one of the defendants obeyed, at which point, the police officers recognized the suspect as the robber and found evidence of the robbery in plain view. Id. This court found that the defendant had opened the door in response to a claim of lawful authority, not voluntarily. Id. at 1573. Consequently, this court held that “the police did effect a ‘search’ when they gained visual entry into the room through the door that was opened at their command.” Id. Similarly, 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.