Tuesday, July 17, 2012
A divided three-judge panel of the Ninth Circuit ruled today in Patel v. City of Los Angeles that an LA ordinance allowing police officers to inspect hotel records containing guest information, without a warrant, did not violate the Fourth Amendment on its face.
The ruling means that the ordinance stays on the books. But the court was careful not to rule out a later as-applied challenge.
The majority looked to both the reasonable-expectation-of-privacy test and the common-law trespassory test. As to reasonable expectation of privacy, the majority ruled that hotel owners do not have a categorical expectation of privacy in the guest information that they are required to obtain and retain--although it held open the possibility that an owner might have such an expectation in an as-applied challenge. The court said that it already held that hotel guests themselves do not have a reasoanble expectation of privacy in this information; it's not a huge leap, it said, to imagine that owners, as a class, do not have a reasoanble expectation of privacy in this information.
As to the common-law trespassory test, the court ruled that the limited intrusion into paper (and not property) is reasonable and therefore does not violate the Fourth Amendment. The court explained that "reasonableness" remains the standard for the Fourth Amendment, even after the Supreme Court did not discuss it in applying the common-law trespassory test in United States v. Jones--because the Court said in that case that the government ""forfeited" the argument that that attachment and use of the GPS device was reasonable by failing to make that argument to the court of appeals." Op. at 8202. (Jones was the case this Term that held that the government's warrantless attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, was a search and violated the Fourth Amendment. The Court did not address the government's alternative argument that the search was reasonable, because the government failed to raise it below.)
Judge Pregerson dissented, arguing that a warrantless search must meet an exception to the warrant requirement. Here, there was none.