Argument analysis: How does requiring a warrant interfere with surprise police searches of hotel guest registers?

The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an essential procedural safeguard pre-compliance judicial review. Prior to argument, many observers thought this meant that some judicial administrative warrant process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling.

Background

Recall from the preview that a group of motel owners sued Los Angeles, seeking to invalidate a municipal ordinance that requires them to make information about guests that they are required by law to record, available to any [LAPD] officer for inspection at a time and in a manner that minimizes any interference with the operation of the business. But no trial or evidentiary hearing was ever held; instead, the parties stipulated to a few facts and then agreed that the sole issue remaining was a facial constitutional challenge to the ordinance.

One stipulation was that, under the law in question, the motel operators have been subject and continue to be subject to searches and seizures of their motel registration records by the [LAPD] without consent or warrant. The Ninth Circuit ultimately ruled that this without a warrant stipulation rendered the law unconstitutional under the Fourth Amendment.

In its petition for certiorari, Los Angeles presented what amounts to three questions: (1) whether facial challenges to ordinances and statutes are ever permissible under the Fourth Amendment; (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry; and, if so, (3) whether the ordinance is unconstitutional because it does not require a warrant or other pre-compliance judicial review. Whether the Court should answer all of these questions, or whether the first one is instead dispositive, seemed to be a primary focus of oral argument yesterday.

Tuesdays oral argument and expectations of privacy

Observers, including this observer, sometimes forget how much close attention the Justices pay to the questions presented. At Tuesdays argument, Joshua Rosenkranz (arguing on behalf of the city) went immediately to the third question that is, the substantive constitutionality of the ordinance in question. The parties (and the Ninth Circuit) appeared to consider the second question to be moot, because they agreed by the time of argument that motel operators do have some limited expectation of privacy in their registers. But Justice Anthony Kennedy appeared to still be concerned: If a member of this Court sits down to write the opinion, does he or she have to use the phrase reasonable expectation of privacy, or do we just forget [it]? Then referencing prior administrative search cases, he asked whether the phrase closely regulated is another way to talk about reasonable expectation of privacy?

Both Rosenkranz and Deputy Solicitor General Michael Dreeben (arguing on behalf of the federal government in support of Los Angeles) quickly picked up on the point: noting that the ordinance has been on the books for many years, Rosenkranz argued that no one goes into the hotel business unaware that their registers will be inspected. Dreeben later chose to begin his argument by proposing a much narrower basis: the ordinance involves an entry only into the public lobby area of a motel. Although Chief Justice John Roberts and Justice Sonia Sotomayor quickly took issue with Dreebens suggestion, the second question (whether there is a reasonable expectation of privacy and, if so, how that affects the case) does not appear to be dead.

The substantive merits: The warrant requirement argument appears to be obscured.

With only twenty minutes (because the city was sharing its time with the federal government), Rosenkranzs opening argument otherwise focused entirely on the merits of the ordinance; the facial challenge aspect of the case was not raised until Dreeben stood up. Rosenkranz began by dramatically asserting that this case is about whether to deprive cities of one of the most effective tools they have to deter human trafficking and other short-term criminal activity in motels. He argued that it is necessary to allow frequent, unannounced spot inspections in real time without notice.

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Argument analysis: How does requiring a warrant interfere with surprise police searches of hotel guest registers?