Monday, June 22, 2015
The Supreme Court today struck a Los Angeles city ordinance that required hotels to make available their guest records "to any officer of the Los Angeles Police Department for inspection . . . ." But at the same time the ruling specifically allows the city to require hotel owners to keep and retain a guest registry and says that officers can search it if they only get a warrant (even just an ex parte administrative warrant), or satisfy an established exception to the Fourth Amendment warrant requirement.
In short, the ruling in Los Angeles v. Patel only requires officers to jump through a hoop--an important hoop, to be sure, but perhaps only a minimally challenging hoop--before reviewing hotel records.
Still, the sharply divided ruling is a clear victory for Fourth Amendment enthusiasts for two reasons. For one, the ruling requires precompliance review of some sort in the ordinary case. This means that in most cases a neutral decisionmaker would review an officer's request to search the records before the search. For another the ruling underscores the fact that challengers can bring a facial case under the Fourth Amendment.
Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justice Sotomayor wrote that the LA ordinance violated the Fourth Amendment on its face. In particular, she said that ordinance authorized an extra-judicial administrative search (with no prior judicial approval and no probable cause requirement), and that kind of search requires the subject to "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The Court explained why that's important:
Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.
Although the Court recognized that it never really defined "precompliance review," the ordinance allowed no review and therefore violated the Fourth Amendment on its face. The Court said that the ordinance has to provide a hotel owner at least an opportunity for precompliance review; but because it didn't, it violated the Fourth Amendment.
The Court emphasized "the narrow nature of our holding," saying that nothing in today's ruling prevents the city from requiring hotel owners from maintaining a guest registry with certain information, or authorizing the police to access that registry with appropriate Fourth Amendment protections, or under established Fourth Amendment exceptions.
Justice Scalia wrote the principal dissent, joined by Chief Justice Roberts and Justice Alito. Justice Scalia argued that a warrantless hotel records search was not unreasonable in every application (as required for a facial challenge), because hotels are closely regulated and therefore the government has more leeway in conducting warrantless administrative searches under New York v. Burger.
Justice Alito also dissented, joined by Justice Thomas. Justice Alito argued that the Court overreached with its facial ruling, that there are (at least) five applications of the ordinance that satisfy the Fourth Amendment, and that the Court's ruling means that LA can never enforce its "116-year-old requirement that hotels make their registers available to police officers."