On Monday, the U.S. Supreme Court issued its opinion in City of Los Angeles v. Patel, a Fourth Amendment case involving a Los Angeles City ordinance that authorized warrantless police inspections of hotel guest registers. In a 5-4 decision, Justice Sotomayor, delivering the opinion of the Court, stated, “the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.”
But Patel is more than a hotel ordinance case. Patel addresses facial Fourth Amendment challenges—which Patel concluded are allowed; administrative searches—which, in this case, required that hotel operators be given an opportunity for precompliance review by a neutral decisionmaker; and “closely regulated” businesses—a label that the Court refused to apply to the hotel industry.
Los Angeles Municipal Code Section 41.49
Los Angeles Municipal Code § 41.49 requires hotels to record information about their guests and to make those records available for police inspection upon demand—i.e., without requiring law enforcement to obtain a search warrant authorizing the inspection.
To comply with Section 41.49, hotels—which includes any hotel, inn, hostelry, tourist home, motel, lodging house, or motel rooming house—were required to record and maintain for 90 days the following information about their guests:
- Make, model and license plate number of the guest’s vehicle (if parked on the hotel’s premises);
- Date and time of the guest’s arrival and planned departure;
- Room number;
- Rate charged;
- Method for payment of the room (e.g., cash, check, or credit card);
- Number and expiration date of an identification presented by walk-in guests, guests paying in cash, or guests renting a room for less than 12 hours; and
- Credit card information for those guests checking in via hotel kiosk.
The Court in Patel focused on a particular subsection of the ordinance, Section 41.49(3)(a), which bears quoting here:
The record shall be kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent to that area. The record shall be maintained at that location on the hotel premises for a period of 90 days from and after the date of the last entry in the record and shall be made available to any officer of the Los Angeles Police Department for inspection. Whenever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.
The Court made it abundantly clear that Patel did not address Section 41.49’s record-keeping requirement; nor did it address a hotel operator’s ability to consent to guest register searches. Instead, the Court’s focused on administrative searches and Section 41.49’s penalties for failing to comply with an officer’s request to inspect the hotel’s guest register.
Factual and Procedural Background
Despite the lengthy procedural history of this case, there are relatively few facts to discuss. In 2003, a group of motel owners and a lodging association (Respondents, or collectively, Patel) sued the City of Los Angeles (Petitioner, or the City) challenging the constitutionality of Section 41.49 both on its face and as applied. Patel eventually dropped the “as applied” challenge, however—which was dismissed without prejudice—and the parties proceeded to trial on only the facial challenge to Section 41.49’s constitutionality.
The trial lasted a mere 24 minutes. Only a single document, the text of Los Angeles Municipal Code § 41.49, was introduced as an exhibit. The end result was that the United States District Court for the Central District of California upheld the ordinance’s validity under Patel’s facial Fourth Amendment challenge.
On appeal, a Ninth Circuit panel affirmed the trial court’s ruling. But the City’s victory was short-lived. Upon rehearing en banc, a divided Ninth Circuit reversed, determining that a police officer’s inspection of a hotel’s guest register under Section 41.49 constituted a “search” based upon both a property-rights analysis, see United States v. Jones, 132 S. Ct. 945 (2012), and the privacy expectations at issue, see Katz v. United States, 389 U.S. 347 (1989). Inspecting a hotel’s guest register was an administrative search that required judicial review prior to an officer’s demand to view the register. In the absence of a judicial review provision, the full Ninth Circuit concluded “no circumstances [exist] in which [Section 41.49] may be constitutionally applied.”
The City’s and Patel’s Arguments
Although my prior posts on Hamilton and Griffin on Rights.com—specifically my pre-oral argument and post-oral argument posts—discuss each party’s written and oral arguments in greater detail, a brief recitation is warranted here. The City’s Petition for Certiorari asked the Court to resolve two questions.
- Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and
- 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.
Much of the City’s briefing dealt with the validity of facial Fourth Amendment challenges to a statute or ordinance. At oral argument, however, the Court primarily addressed whether Section 41.49 was an administrative search and whether hotels are closely regulated businesses. Further, the City asserted that the application of a warrant requirement to Section 41.49 would prevent police from conducting “realtime records checks,” an action that essentially forces hotels to remain “on the level.” See Transcript, at 7-8.
While the City sought to keep no-tell motels “on the level,” Patel argued that, unless motel operators were provided with an opportunity for a pre-inspection hearing, Section 41.49 was unconstitutional. Patel argued that pre-enforcement judicial review could be obtained through the use of an administrative subpoena—not a warrant—which would be sufficient to protect hotel operators from harassing and burdensome hotel-register inspections initiated on a police officer’s “whim.” See Transcript at 30. Further, Patel argued that a one-page administrative subpoena was not overly burdensome to law enforcement and would protect the hotel operator’s “sense of tranquility.”
The Court’s refusal, at oral argument, to use its time developing the City’s central proposition—that a facial Fourth Amendment challenge is disfavored and perhaps should never be entertained—was a clear signal that most on the Court were willing to determine Section 41.49’s constitutionality, even in the absence of specific facts concerning an improper warrantless guest-register search.
Facial Challenges Under the Fourth Amendment
Justice Sotomayor began Section II of the Court’s opinion with a clarification that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.” A “facial challenge” attacks a statute, not an application of the statute. In this case, the facial challenge attacked Section 41.49(3)(a). The Court had no problem with a facial challenge based on the Fourth Amendment, dispelling the fog of misunderstanding that confused an earlier opinion, Sibron v. New York, 392 U.S. 40 (1968). According to the Court, Sibron says that a facial challenge under the Fourth Amendment will not likely succeed if the underlying statute is substantially ambiguous—i.e., a confusing statute is not fodder for a facial challenge brought under the Fourth Amendment. And here, there was no such problem because Section 41.49(3)(a)’s requirements were unambiguous.
Still, though, a facial challenge has certain requirements, such as establishing that a “law is unconstitutional in all of [the] applications” that the law “actually authorizes or prohibits.” On this issue, the City had asserted that Section 41.49(3)(a) could be applied constitutionally, giving as examples situations involving, for example, an emergency, consent, or that a warrant exists. In Justice Sotomayor’s view the City’s argument missed the point. Instead, the Court focused only on the conduct that the statute either authorized or prohibited. If exigency or a warrant justified the search, then there would be no need to rely on Section 41.49(3)(a).
Administrative Searches and Subpoenas, and Precompliance Review:
Section III built upon the foundation established by the Court’s earlier facial challenge analysis. Searches of residential and commercial premises must be reasonable. In the absence of prior judicial review, such searches are per se unreasonable unless a warrant exception exists.
One exception to the warrant requirement is for an “administrative search.” In contrast to the government’s “general interest of crime control,” an administrative search furthers the government’s administrative goals. See Patel, at 9 (quotingIndianapolis v. Edmond, 531 U.S. 32, 44 (2000)). Nonetheless, administrative searches still afford the subject of the search the opportunity for “precompliance review before a neutral decisionmaker.” The fatal flaw in Section 41.49(3)(a), however, was that it failed to give hotel operators a way to challenge the legitimacy of the search and, in fact, authorized the hotel operator’s immediate arrest upon refusal of an officer’s demand to inspect the guest register.
Hotel operators should be given an opportunity to request a neutral review of the police’s demand to inspect the hotel’s guest register. The best way to do that, reasoned the Court, was to require an administrative subpoena. The subpoena is typically a short, simple form that is not overly burdensome to police officers. If the hotel operator refused to comply with the subpoena, then the hotel operator could move to quash the inspection before any search took place. To address concerns that the hotel operator would use this time to update the guest register or purge the register of any incriminating entries, the Court explained that police could guard the register—or even seize it—pending the neutral decisionmaker’s review of the subpoena’s validity. The administrative subpoena process sufficed to provide precompliance review and put the hotel operator and police on more equal footing vis-a-vis guest register searches.
Hotels Are Not “Closely Regulated Businesses”
If a business is “closely regulated” by the government, then general administrative searches of the business are afforded a more lenient validity standard. Here, Justice Sotomayor pointed to four industries that the Court had identified in prior administrative-search cases as “closely regulated” industries: liquor sales, firearms dealing, mining, and running an automobile junkyard. The Court concluded that operating a hotel was not significantly similar to these industries because operating a hotel did not pose “a clear and significant risk to the public welfare.” Sure, hotels must maintain a license, collect taxes, post their rates, and meet sanitary minimums, but these are the same sorts of burdens imposed on many types of business. Moreover, the history of hotel regulations—which included requirements that operators provide suitable provisions, lodging, and “pasturing and stable room . . . for [their guests’] horses”—while relevant, was distinguishable from warrantless searches.
Finally, the Court shored up its denial of the “closely regulated” classification by addressing the three criteria normally required under the Fourth Amendment for such inspections:
- “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”;
- “[T]he warrantless inspections must be ‘necessary’ to further [the] regulatory scheme”; and
- “[T]he statute’s inspection program, in terms of the certainty and regulatory application, [must] provid[e] a constitutionally adequate substitute for a warrant.”
See New York v. Burger, 482 U.S. 691, 702–03 (1987).
Still, the Court was not convinced by the City’s argument that hotel operators should not be given precompliance review rights because to do so would give the hotel operator the opportunity to falsify guest records. Nothing in Patel’s administrative subpoena and precompliance review requirement prevented “surprise inspection[s]” because the police could guard the registry pending the results of a neutral decisionmaker’s ruling on the hotel operator’s motion to quash the administrative subpoena.
Patel’s Two Dissents:
The two Patel dissents are especially interesting. Justice Scalia authored the first, an opinion in which he was joined by Chief Justice Roberts and Justice Thomas. Justice Alito authored the second, in which only Justice Thomas joined. Even though the two dissents both argued that Patel’s facial Fourth Amendment challenge should fail, the dissenters (aside from Justice Thomas) did not join both of the dissents.
The central difference between the two dissents, in one sense, turned on whether it is proper, as a conceptual matter, to bring a facial Fourth Amendment challenge to a statute or ordinance—i.e., whether Fourth Amendment claims should be brought only within the context of an actual search (an “as applied” challenge), wherein the particular search is alleged to have violated the Fourth Amendment. Justice Scalia was willing to assume that a facial Fourth Amendment challenge was possible—although offering somewhat ominously that “[t]he decision to [bring a facial challenge] might be a poor strategic move”—while Justice Alito was far less certain that a facial Fourth Amendment challenge was ever proper. See Patel (Alito, J., dissenting, at 4) (“There are serious arguments that the Fourth Amendment’s application to warrantless searches and seizures is inherently inconsistent with facial challenges.”).
After working through this threshold conceptual difference, however, both dissents went on to conclude that Patel’s facial Fourth Amendment challenge to Section 41.49 should fail. Justice Scalia rejected Patel’s Fourth Amendment challenge based upon the reasonableness of the “minor intrusions” that the ordinance imposed on motel operators. Justice Alito, on the other hand, used a more formalistic analysis, arguing that because circumstances exist in which Section 41.49 could be constitutionally applied, Patel’s Fourth Amendment challenge must be rejected. The two dissents boiled down to “reasonableness,” on the one hand, versus reliance on “basic principles of facial invalidation,” on the other.
So, why did the dissenting Justices (aside from Justice Thomas) not join both of the dissenting opinions, and does it even matter? I think it might.
While it likely amounts to “tea leaf” reading, it might matter that Justice Alito didn’t join Justice Scalia’s Patel dissent. Justice Scalia’s dissent was premised on his fundamental disagreement with the modern understanding of the Fourth Amendment—i.e., that warrantless searches are “per se unreasonable . . . subject only to a few well-delineated exceptions.” SeeKatz, 389 U.S. at 357 (1967). In contrast to the modern view, Justice Scalia’s Patel dissent argues that the Fourth Amendment requires only that searches and seizures be reasonable, and that the so-called warrant requirement is merely a Court-made “presumption”—a “guidepost” in applying the Search-and Seizure Clause’s “indeterminate reasonableness standard”. As an aside here, this breaks no new ground. Justice Scalia has long expressed the view that the Fourth Amendment requires only that searches and seizures be reasonable, rather than Katz’s approach of a per se warrant requirement. See, e.g., California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring) (“[O]ur jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone. . . . By the late 1960’s, the preference for a warrant had won out, at least rhetorically.” (citations omitted)).
But in Patel, Justice Scalia went even further, parsing the Fourth Amendment—literally dissecting the Amendment into its component grammatical parts—in establishing the validity of his Fourth Amendment view. See Patel (Scalia, J., dissenting, at 3–4) (“Grammatically, the two clauses of the Amendment seem to be independent—and directed at entirely different actors. The former tells the executive what it must do when it conducts a search, and the latter tells the judiciary what it must do when it issues a search warrant.”). Justice Scalia’s Patel dissent may amount to a flag in the sand representing a renewed interest by some on the Court in applying a “reasonableness” balancing test, rather than the less flexible warrant requirement—at least in cases where the search’s intrusion on privacy interests are minimal. And, from a “nose counting” perspective, Justice Scalia might have appreciated Justice Alito’s open endorsement that reasonableness alone is the Fourth Amendment’s overarching command.
Interestingly enough, Justice Scalia explained the need for his Patel Fourth-Amendment tutorial on the ground that the majority based its analysis on the Court’s administrative-search cases rather than on the Fourth Amendment itself. See Patel (Scalia, J., dissenting, at 14) (“But the Constitution predates 1967 [the year that two administrative-search cases were decided], and it remains the supreme law of the land today.”). Justice Scalia’s explanation seems only partially correct, however—his dissent went on to conclude that Section 41.49 “easily meets” the requirements for a warrant exception under the very administrative-search cases that the Patel majority had used. See Patel (Scalia, J., dissenting, at 5) (applying New York v. Burger, 482 U.S. 691 (1987)).
So, what does this mean? Perhaps nothing. Or, Justice Scalia’s Patel dissent may signal a renewed willingness for some on the Court to consider whether “reasonableness,” as opposed to a categorical warrant requirement, is the Fourth Amendment’s overarching command. That’s why I suspect that Justice Scalia might well have preferred for Justice Alito to have joined the Scalia dissent.