Rialto Firefighter’s 4th Amendment Rights Violated By Fire Chief’s Search Order

The 9th Circuit Court of Appeals just handed down a decision in a case arising from a fire department administrative investigation in Rialto, California.

Firefighter Nicholas Delia of the Rialto Fire Department was under investigation for working while off injured back in 2006. A private investigator was hired to follow him, and observed him purchasing construction materials including several rolls of insulation. The investigator turned a video of the purchase over to the fire chief.

Delia was called in for questioning as part of the administrative investigation. The questioning was conducted by an attorney hired by the fire department. Also present was the fire chief and two battalion chiefs. Delia was asked about purchasing construction materials while off injured, and he acknowledged purchasing several rolls of insulation in conjunction with some duct work done in his house. He said the rolls were still in his house, unopened.

The attorney asked Delia if he would consent to allowing Battalion Chief Peel to follow him home, and examine the rolls of insulation. On advice of counsel, Delia refused to consent to what amounted to a warrantless search of his home.  

After some discussion, the city’s attorney asked if Delia would consent to having Chief Peel follow him home, and wait outside while Delia brought the insulation out of his house to prove the insulation had not been installed. Again on advice of counsel Delia refused to consent.

Delia was then ordered to produce the insulation by Fire Chief Stephen Wells. Chiefs Peel and Bekker followed Delia home, where he promptly produced the requested rolls of insulation. The chiefs thanked him and left.

Delia then filed suit against the City of Rialto, Chiefs Well, Peel and Bekker, and the attorney-investigator for violation of his Constitutional rights.

Here is a copy of the decision for those with a serious interest in fire department administrative investigations. Download Rialto FD search of private residence of FF

The short story is that the court gave Delia a win…. but no money…. yet.  The court concluded that by ordering Delia to produce the insulation the investigators violated his 4th Amendment rights to be free from unreasonable searches. However, the court concluded that the Chiefs did not violate a “clearly established right”, and thus the chiefs were entitled to a qualified immunity.

The investigator, because he was a private attorney, was not entitled to a qualified immunity and the case against him was remanded. Barring an appeal to the US Supreme Court, Delia will get a chance to go to trial against the attorney-investigator.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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