"We'll leave the light on for you...and the police"
“Descend upon them without notice,” the Government official implored, “and frequently, so that they never know when the police are going to come.”
No, those words were not taken from a speech intended to galvanize a police task force targeting high-level drug dealers and cultivators—although they seemingly could have been. They are an excerpt from a recent oral argument before our nation’s highest court in City of Los Angeles v. Patel, Docket No. 13-1175, heard on March 3, 2015. (The entire oral argument is available online at Oyez.org.)
The pronouns “them” and “they” refer to hotel and motel operators in Los Angeles, CA. The criminal activity for which the Government so fervently advocated police must intercept is record keeping—guest registries, to be specific. Section 41.49 of Los Angeles’ Municipal Code outlines, not only what data must be collected and recorded from guests, but also where and how it is stored.
A guests name; address; make, model, and tag of vehicle; date and time of arrival; scheduled date of departure; number of people in party; room number assigned; rate charged; and method of payment must all be collected and record. L.A. Mun. Code § 41.49(2)(a). If the guest pays cash, walks-in off the street, or rents a room for less than twelve hours, a number and expiration date must be acquired from the form of identification produced, and if an electronic kiosk is used for check in, a guest’s credit card information must also be stored. Id. This information must be stored in either the guest reception, front desk, or adjacent area, and stored for 90 days. Id.
Of particular import in Patel is a clause that states that the information collected “shall be made available to any officer of the Los Angeles Police Department.” Id. There s no warrant requirement, or anything like it; in fact, the only restriction on police conduct is that, “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Id. Failure to comply with these regulations was a criminal misdemeanor.
One might think that local hotel and motel visitors might be concerned about the amassing of such personal data; viewing the dissemination of this information to police as an invasion of privacy. And perhaps some do feel that way, but it wasn’t a hotel or motel guest that challenged this law. It was Naranjibhai and Ramilaben Patel, owners of a motel in Los Angeles, CA, who had been subjected to police inspections of their guest records.
Using 42 U.S.C. § 1983 as the vehicle, the Patels challenged the portion of Section 41.49 of Los Angeles’ Municipal Code that required the catalog of guests’ personal information (“guest register”) be made available for police inspection, arguing that, on its face and in all circumstances, the law was unconstitutional in light of the Fourth Amendment. The Patels sought declaratory and injunctive relief. (The actual record keeping requirements, as Justice Scalia repeatedly pointed out in oral argument, were not at issue).
Following a bench trial, the District Court rejected the Patels’ facial challenge and entered judgment in favor of the City of Los Angeles.
On appeal, the Ninth Circuit en banc assumed, without deciding, that the Fourth Amendment searches at issue were a form of administrative record inspections, not criminal investigations, and the focus was only guest records, not non-public areas. While the Ninth Circuit found much of Section 41.49 constitutionally sound, it found an “essential procedural safeguard against arbitrary or abusive inspection demands” lacking. “As presently drafted,” the court noted, “§ 41.49 provides no opportunity for pre-compliance judicial review of an officer’s demand to inspect a hotel’s guest records,” and failure to comply could result in a criminal conviction. The court ultimately held that the law was facially unconstitutional because that “procedural deficiency” affects the validity of all searches conducted pursuant to Section 41.49.
The City of Los Angeles filed a Writ of Certiorari, and, on October 20, 2014, the Supreme Court granted the petition.
If you’re not a hotel or motel operator (or guest, for that matter) in Los Angeles, CA, then you may not see the importance of the Supreme Court’s upcoming ruling in Patel at first blush.But a closer look reveals that the Patel opinion has the potential to reshape Fourth Amendment jurisprudence in this country.
There are two questions presented on appeal in Patel:
- Whether facial challenges are constitutional under the Fourth Amendment; and,
- If so, whether the police inspection clause in Section 41.49 is facially constitutional.
While both are interesting issues, the Court’s ruling on the first issue will have a larger impact for those of us who live, and practice criminal defense, in Florida. I can comfortably deduce that because Appendix E of the City of Los Angeles’ petition, which listed over 70 other similar ordinances and statutes around the country, did not include a single Florida law, and I couldn’t find one either.
As you may know, the Supreme Court only grants cert. in a select few cases a year. Usually, to get in the door, there is a conflict amongst the courts; and for issue 1, it was a small, but pure, “circuit split.” TheNinth Circuit’s ruling in Patel that facial challenges to ordinances under the Fourth Amendment were constitutional, ran afoul of the Sixth Circuit’s earlier decision in Warshak v. United States, 532 F. 3d 521 (6th Cir. 2008) (en banc).
In Warshak, the Petitioner, using a motion to suppress physical evidence in his criminal case, levied facial (and as applied) challenges under the Fourth Amendment to a certain portion of the Stored Communications Act, 18 U.S.C. § 2703(d). As to the facial challenge, the Sixth Circuit, relying primarily on the “ripeness doctrine,” rejected Warshak’s claims. Although the government had twice used § 2703(d) to conduct ex parte searches of Warshak’s emails, there was no promise it would happen again. In the Sixth Circuit’s view, a “reviewing court looks at the claim in the context of an actual, not a hypothetical, search and in the context of a developed factual record of the reasons for and the nature of the search. A pre-enforcement challenge to future … searches, by contrast, provides no such factual context. The Fourth Amendment is designed to account for an unpredictable and limitless range of factual circumstances, and accordingly it generally should be applied after those circumstances unfold, not before.” 532 F.3d 521.
There is some Supreme Court precedent that seems to support the Sixth Circuit’s holding. In Sibron v. New York, 392 U.S. 40, 59 (1968), a case in which NYC’s stop-and-frisk law was under scrutiny, the Supreme Court said: “The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”
On the flip side, however, it could be argued the the Court’s language in United States v. Salerno, 481 U.S. 739 (1987), a case challenging the Bail Reform Act of 1984, implicitly acknowledges that facial challenges, while extraordinarily difficult to mount, are nonetheless constitutional vehicles. “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Id. at 745.
On March 3, 2015, the Court heard oral argument in Patel, the case to quash the circuit split and give guidance to the nation on this issue of facial challenges under the Fourth Amendment. Justice Scalia seemed to offer softball after softball to the Government, and, at times, appeared to be frustrated that Section 41.49’s requirement of collecting and storing the personal information from hotel and motel guests was not at issue, let alone any issue being challenged levied by hotel guests. Justice Sotomayor offered Sibron as a case lending support to the Patels’ side, though. She noted that anytime the challenged is focused on a law’s lack of procedural protection, a facial challenge is appropriate.
Both sides agreed, the police need not have probable cause before inspections, and that a warrant, administrative or criminal, need not be obtained before inspections. The issue was thus narrowed to whether Section 41.49 had a built in procedural protection whereby a hotel or motel operator, like the Patels, could make a formal objection to the police inspection and interject an independent magistrate. The Patels argued that police should have to bring with them a one-page administrative subpoena, request the guest registers, and, if the hotel or motel operator wishes to object, judicial review (to ensure the police are not merely harassing any particular operator or focusing on a criminal investigation) was appropriate.
The shame of this all, in my view, is really that, despite the entire narrative being couched in terms of “administrative” or “closely-regulated businesses,” the thrust of Section 41.49 is criminal in nature. It allows police, who suspect particular hotels or motels are being used for prostitution or drug-related activities, to figure out who is visiting; when they visit; and how they pay. Because they would need a warrant supported by probable cause to go about getting this information directly from the guests, assuming they had it, Section 41.49 provides a back channel through the guise of administrative auspices. In the end, I believe the Court will rule that facial challenges under the Fourth Amendment, while exceedingly rare in terms of appropriateness, are constitutional, although I express serious doubt as to whether the Patels’ challenge will prevail on the merits of the second issue. I anticipate Justice Sotomayor or Justice Kagan will author the dissent in this case.
So remember, that motel off the Florida Turnpike may be leaving the lights on for you, but, in time, they may also be leaving your information at the front desk for the police.