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SCOTUS: Ordinance allowing police inspection of hotel registry is facially unconstitutional

City of Los Angeles v. Patel, USSC No. 13-1175, 2015 WL 2473445 (June 22, 2015), affirming 738 F.3d 1058 (9th Cir. 2013) (en banc); Scotusblog page (including links to briefs and commentary)

A majority of the Supreme Court holds that a Los Angeles ordinance compelling hotel operators to make their guest registries available to police for inspection on demand is facially unconstitutional because it penalizes the hoteliers for declining to turn over their records without affording them any opportunity to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. Along the way, the Court clarifies that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored” (slip op. at 4), clarifying language from Sibron v. New York, 392 U.S. 40 (1968), that some courts have read as barring facial challenges to statutes under the Fourth Amendment.

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. 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. (Slip op. at 2-3).

A majority of the en banc Ninth Circuit held that any search under the ordinance is unreasonable because, under analogous Supreme Court case law dealing with administrative subpoenas, a person must have 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. Five justices on the Court agree.

The majority first clarifies that there’s no bar to making a facial challenge to a statute or ordinance on Fourth Amendment grounds, despite the observation in Sibron, 392 U.S. at 59, 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.” That language must be read in the context of the case, where there was substantial ambiguity about what conduct the challenged statute authorized, making it difficult if not impossible to tell whether and to what extent it violated the Fourth Amendment. (Slip op at 5-6).

The majority also rejects the argument that a facial challenge is inappropriate because warrantless searches will never be unconstitutional in all cases; some searches will be consensual or justified by an emergency or other exigency. This argument “misunderstands how courts analyze facial challenges.” (Slip op. at 7). When analyzing whether a law is unconstitutional in all of its applications, the Court considers only applications of the statute in which it actually authorizes or prohibits conduct: The “[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects…. The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” (Slip op. at 8, quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 894 (1992)).

Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute…. (Slip op. at 8).

On the merits, the majority assesses whether the ordinance falls under the “administrative search” exception to the warrant requirement, Camara v. Municipal Court, 387 U.S. 523, 534 (1967), and, reaffirming and applying See, holds it does not:

The Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See, 387 U.S., at 545; [Donovan v.Lone Steer, 464 U.S. [408,] 415 [(1984)] (noting that an administrative search may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the opportunity to “question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court”). And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that § 41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid. (Slip op. at 10).

The majority rejects the contention that the ordinance is valid under the more relaxed standard that applies to “highly regulated businesses.” Hotels don’t fall into that very narrow category, which consists of businesses engaged in some intrinsically dangerous activity (liquor sales, firearms dealing, for instance); and even if they did the ordinance still doesn’t pass muster under the relaxed standard applicable to such businesses, as set out in New York v. Burger, 482 U.S. 691, 702-03 (1087). (Slip op. at 13-17).

Justice Scalia dissents (joined by the Chief Justice and Justice Thomas) concludes the hotels are highly regulated businesses and that the ordinance meets the Burger standard. Justice Alito also dissents (joined by Justice Thomas), saying there are serious arguments that the Fourth Amendment is inconsistent with facial challenges, but assuming such facial challenges make sense the ordinance here is constitutional because there are circumstances under which application of the law would be valid.

Note there is no dispute in any of the opinions about whether an inspection under the ordinance is a “search.” As noted in our post on the cert grant, inspection laws like LA’s have been upheld in the past on the theory there’s no search because hotel owners have no reasonable expectation of privacy in the registry, and both the district court and 3-judge appellate panel in this case agreed with that analysis. (Slip op. at 3). The en banc panel disagreed, saying 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.” 738 F.3d at 1061-62. The majority simply notes in passing that the Fourth Amendment applies in commercial premises as well as homes (slip op. at 9), and no the dissents take no issue with that. Thus, the Court reaffirms the general rule from Camara and See, which had reversed a previous rule that governmental inspections of commercial businesses were not Fourth Amendment searches at all.

Also, note that the majority stresses “the narrow nature of our holding.” (Slip op. at 13). First, it has no bearing on cases where hotel operators consent to the search or where exigent circumstances permit a warrantless search. (Id.). Second, pre-compliance review doesn’t impose any “onerous burdens” because a simplified administrative subpoena system, with review when necessary by an administrative law judge, will usually suffice. (Slip op. at 11). In the rare event that an officer suspects a hotel owner may tamper with the registry while a review is pending, the officer may “guard the registry until the required hearing can occur, which ought not take long.” (Slip op. at 12). Thus, there can be “at least an opportunity to contest … without compromising the government’s ability to achieve its regulatory aims.” (Slip op. at 13).

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