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City of Los Angeles v. Patel, USSC No. 13-1175, cert. granted 10/20/14

Questions presented:

(1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and

(2) Whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Lower court opinion: Patel v. City of Los Angeles, 738 F.3d 1058 (9th Cir. 2013) (en banc)


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Here’s a neat issue, though it seems unlikely to come up in criminal defense practice very often. A Los Angeles city ordinance requires hotels to keep certain records about its guests and gives local police the authority to inspect those guest records at any time, without a search warrant and without the hotel’s consent. Failure to comply with an officer’s inspection demand carries a penalty of up to six months in jail and a $1,000 fine. LA is hardly alone; the City’s petition cites about 70 similar state and municipal enactments, including West Milwaukee’s Mun. Code § 14-506. (A quick and cursory search of Wisconsin ordinances by On Point found a similar ordinance in Green Bay, § 23.36, covering rooming houses and shelters, but not hotels; and there may be more out there.)

Patel, who owns hotels in LA, sought an injunction against enforcement of the warrantless inspection aspect of the ordinance, saying it was invalid under the Fourth Amendment. A majority of the en banc Ninth Circuit held that inspection of the records is clearly a search under the Fourth Amendment because it requires access to the hotel’s property and its private records. Moreover, any search under the ordinance is unreasonable because the most analogous Supreme Court case law that might apply to such searches (which deals with administrative subpoenas) requires a person an opportunity to “obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply,” See v. City of Seattle, 387 U.S. 541, 545 (1967), and the ordinance doesn’t provide that opportunity.

The dissenting judges objected on the ground that facial challenges to legislation based on the Fourth Amendment aren’t appropriate:

The Amendment has always prohibited specific government conduct—”unreasonable searches and seizures”—not legislation that could potentially permit such conduct. It is for this reason that the Supreme Court has held that “[t]he constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case.” Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

738 F.3d at 1065. The Patels dropped an as-applied challenge raised in their original complaint, which in the dissent’s mind left the court “with insufficient facts regarding the unconstitutional conduct they allege has occurred” and instead required “the gymnastics of the hypothetical….” Id. at 1066Because the ordinance could plainly apply to situations where there isn’t a Fourth Amendment violation—e.g., where police officers arrive at a hotel with a legitimate search warrant and the hotelier refused to produce the register—the majority can’t rely on United States v. Salerno, 481 U.S. 739, 745 (1987), which seems to allow such a challenge only where there are no circumstances in which the record-inspection provision may be constitutionally applied. Id. at 1066-67.

Besides the split amongst the Ninth Circuit judges, the Sixth Circuit, in Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (en band), has followed Sibron in holding that facial challenges under the Fourth Amendment are improper—though Warshak‘s refusal to declare the Stored Communications Act, 18 U.S.C. §§ 2701-2711, unconstitutional really rests more on ripeness than the facial/as-applied distinction, since the government hadn’t yet attempted to use the Act’s provision against Warshak. In any event, the Court will have to first resolve whether a facial challenge may proceed, and if it follows Sibron it won’t reach the second issue about the privacy of hotel guest lists.

As to that second issue, one state has upheld this kind of regulation on the ground that hotel operators don’t have a reasonable expectation of privacy in the guest registry. Commonweath v. Blinn, 503 N.E.2d 25 (Mass. 1987). But Blinn long pre-predates the revival of the property-interest rationale for Fourth Amendment protections by Florida v. Jardines, 133 S. Ct. 1409 (2013), and United States v. Jones, 132 S. Ct. 945 (2012), and the Ninth Circuit held that record inspections under the ordinance involve “both a physical intrusion upon a hotel’s papers and an invasion of the hotel’s protected privacy interest in those papers, for essentially the same reasons. … The business records … are the hotel’s private property, and the hotel therefore has both a possessory and an ownership interest in the records. By virtue of those property-based interests, the hotel has the right to exclude others from prying into the contents of its records, which is also the source of its expectation of privacy in the records.” 738 F.3d at 1061-62. Thus, if the Court does reach this issue, it will provide a vehicle for the Court to further develop Jones and Jardines or address the reasonableness of a business owner’s expectation of privacy in records required to be kept by a regulator, or both.

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