Argument preview: Hotel guest registers and the Fourth Amendment harder than it looks?

Tuesdays argument in City of Los Angeles v. Patel, a Fourth Amendment case, presents a particularly difficult example of a common Supreme Court question: should the Court rule narrowly on the case before it, or answer far broader questions? That question does not always have obvious ideological parameters (although the Fourth Amendment context may color the Justices views in this case), and Tuesdays argument may be most interesting for the perspective it may provide on each Justices jurisprudential approach.

Moreover, both sides in Patel have assembled all-star casts of lawyers and amici. The plaintiffs brief shows Tom Goldstein (founder of this blog) and the Harvard Supreme Court clinic; while Los Angeless merits briefs show Josh Rosenkranz (former director of the Brennan Center) and Orin Kerr (also an occasional writer for this blog). Eighteen amicus briefs have been filed (and I do not pretend to have read them all). Thus, although the bulk of media attention this week will likely focus on Wednesdays argument in the challenge to the Affordable Care Act, this case now looks much harder, and more important, than it first appeared.

The basics of the case

The case presents a Fourth Amendment challenge to a municipal ordinance that authorizes administrative law-enforcement searches of hotel and motel guest registers. Administrative search is a label generally used to describe governmental inspections of commercial premises for health and safety reasons that is, not based on probable cause to believe a crime has been committed, and not looking primarily for evidence of crime. (In recent years the Court has used the label of special needs searches to capture an even broader category of searches that includes administrative).

Here, the Los Angeles ordinance in question provides that records of information about guests that hotel are required by law to keep guest registers shall be made available to any officer of the Los Angeles Police Department for inspection at a time and manner that minimizes any interference with the operation of the business. The ordinance appears to have been enacted to provide a disincentive for the short-term use of hotels and motels for crime. It was stipulated below (that is, agreed to by all parties) that the ordinance authorizes the police to inspect such guest registers without the hotel owners consent and, most significantly, without a warrant. A group of motel owner-operators sued, and once various stipulations were reached, all parties agreed that the sole issue is a facial constitutional challenge to the ordinance under the Fourth Amendment. They sought a declaratory judgment against the ordinance and an injunction prohibiting its enforcement.

The district court upheld the ordinance, ruling that hotels have no reasonable expectation of privacy in their guest information. That issue, however, appears to have dropped out of the case: the Ninth Circuit ruled, and Los Angeles now concedes, that hotels have some privacy interest in their guest registers, even if limited, such that an inspection under the ordinance constitutes a search for Fourth Amendment purposes. (Also, be careful not to confuse the privacy interests of the hotel owners with privacy concerns of guests. Only the former are at issue here; and because guests have already disclosed their personal information to the hotels, precedent would say that they have no further expectation of privacy in the records in any case.)

Not one, but two, questions are presented

In its current appellate posture, the substantive Fourth Amendment issue before the Court seems clear: is a municipal ordinance, which requires hotels to make their hotel registers available for surprise (unannounced) inspections by the police, unconstitutional because the police are not required to obtain a warrant in advance? By a vote of seven to four, the Ninth Circuit ruled en banc that such a warrantless business-information search ordinance is unconstitutional. The circuit relied on cases such as Camara v. Municipal Court of the City and County of San Francisco (1967) and Marshall v. Barlows, Inc. (1978), which hold that under the Fourth Amendment, governmental officials generally must obtain administrative warrants in advance of conducting commercial business searches. The majority rejected the idea that hotels are closely [that is, pervasively] regulated businesses, which prior decisions hold can support an exception to the general advance-warrant rule.

The dissenting Ninth Circuit judges, however, while debating the substantive point, made a procedural argument their main focus. They quoted Sibron v. New York (1968): The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of [an] individual case. Because the hotel-owner plaintiffs here had agreed in the trial court to drop their as applied challenge in favor of a facial attack based on stipulated facts, this case now presents an issue far broader than the specific hotel-register ordinance: may statutes and ordinances ever be challenged under the Fourth Amendment on a facial basis? Substantial party and amicus briefing has now gone into this second, procedural, issue.

Three reasons that this case is harder, and more important, than it may look

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Argument preview: Hotel guest registers and the Fourth Amendment harder than it looks?