Supreme Court Bars Cops From Accessing Hotel Registries Without A Warrant
In a significant blow for privacy and the protections of the Fourth Amendment, yesterday the Supreme Court struck down a Los Angeles ordinance that permitted police to inspect hotel guest registries without a warrant:
WASHINGTON — The Supreme Court on Monday struck down a Los Angeles ordinance that allowed the police to inspect hotel and motel guest registries without permission from a judge. In a second decision, the courtclarified the standards for excessive force claims against corrections officers from people awaiting trial.
Both cases were decided by 5-to-4 votes, with the court’s more liberal members in the majority.
The case concerning hotel registries is likely to have a broad impact, as dozens of cities allow warrantless searches, which law enforcement officials say help them catch fugitives and fight prostitution and drug dealing.
A group of motel owners challenged the Los Angeles law. They said they were not troubled by its requirement that they keep records about their guests. But they objected to a second part of the ordinance, which allowed the police to look at the registries at any time without the owners’ consent or a search warrant.
Justice Sonia Sotomayor, writing for the majority, said most owners were not likely to object. But those who do, she said, must be given the opportunity to make their case to a “neutral decision maker” before they are forced to turn over the records or risk arrest.
“Absent an opportunity for precompliance review,” Justice Sotomayor wrote, “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. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.”
Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the majority opinion.
If a police officer fears the owner will tamper with the records while a judge considers the matter, Justice Sotomayor wrote, “he or she can guard the registry until the required hearing can occur, which ought not take long.”
In dissent, Justice Antonin Scalia called that approach “equal parts 1984 and Alice in Wonderland.”
He added that the majority had struck a needless blow against a valuable and barely intrusive practice.
“Motels not only provide housing to vulnerable transient populations, they are also a particularly attractive site for criminal activity ranging from drug dealing and prostitution to human trafficking,” he wrote in an opinion joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas. “Offering privacy and anonymity on the cheap, they have been employed as prisons for migrants smuggled across the border and held for ransom and rendezvous sites where child sex workers meet.”
Given that, Justice Scalia wrote, “the limited warrantless searches authorized by Los Angeles’s ordinance are reasonable under the circumstances.” Justice Samuel A. Alito Jr. filed a separate dissent in the case, Los Angeles v. Patel, No. 13-1175.
University of California at Hastings Law Professor Rory Little has an excellent summary of the Court’s ruling at SCOTUSBlog of which this I think is the key part:
The important general holding today is that “absent consent, exigency, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded the opportunity to obtain precompliance review before a neutral decisionmaker.” This means that business owners who are confronted with an administrative subpoena to inspect their premises must have some opportunity to “question the reasonableness of the subpoena before suffering any penalties for refusing to comply.” With these broad statements, the Court seems to establish a clear general rule for all administrative search contexts. Today’s ruling likely means that many governmental records or conditions inspection programs will now have to be re-evaluated for compliance with Patel.
The specifics of motel registration record searches
Because the Los Angeles statute allows “a hotel owner who refuses to give an officer access to” the guest registry to “be arrested on the spot,” without an opportunity to contest the reasonableness of the search, it “is, therefore, facially invalid.” The majority does not appear to disagree with Justice Scalia’s dissenting point that motels, “offering privacy on the cheap, have been employed as prisons for migrants … and rendezvous sites” for “child sex workers.” Narcotics distributions can also take place in some motels. But these “nefarious” uses do not make all hotels “intrinsically dangerous,” and only intrinsically dangerous industries are (it now seems) released from today’s constitutional “precompliance review” rule.
By contrast, the Court notes the possibility that in some cases a government inspection may be “motivated by illicit purposes.” (For example, there lurks in the background of this case a claim that the LAPD was using its records search powers to harass and threaten motels owned by Indian-Americans.) In such as case, a “move to quash the subpoena before any search takes place” might be required – although the Court carefully notes that it has “never attempted to prescribe the exact form an opportunity for precompliance review must take.”
As Conor Friedersdorf puts it, this ruling is a pretty significant victory for privacy rights in an era when we are living in a world where fewer and fewer things are private. It is arguably true that the fact that a person is a guest at a particular hotel or motel is not something protected by the zone of privacy granted to them by the Fourth Amendment because it is information that is in the custody of a third party, that really isn’t the end of the analysis. The same Fourth Amendment that protects guests also applies to hotel owners and gives them the right to refuse to comply with police requests for a records request that isn’t supported by probable cause. Many owners, no doubt, would want to do this because of the reassurance that it provides to guests that their information won’t simply be shared with whomever might ask for it regardless of the reason they might want it. Given the fact that there are circumstances, such as domestic violence situations where an individual would have a good reason to keep that information as private as possible. In addition to those situations, though, there are plenty of perfectly legitimate reasons why someone might wish that information to remain private, and if hotel owners wish to comply with that request than police ought to have a better reason than “because we want to see it.”
Obviously, there will be circumstances where the police would have good cause or reason to need to inspect a hotel register of either guests currently staying at the hotel, or those who have stayed in the past. In most of those cases, though they would easily be able to get a warrant from a Judge so there’s no reason why they shouldn’t be required to do so. In cases where there isn’t time for a warrant and exigent circumstances such as the search for a fleeing felon or a missing persons case require them to act quickly, the court notes that the law would permit the police to inspect the register without the hotel owner’s consent, although one generally imagines that in such situations a business owner would be inclined to cooperate with the police to begin with. And, of course, if hotel owners consent to the search without a warrant then there is no issue at all, and a guest whose arrested was rooted in that consent would not be able to challenge the action under the Fourth Amendment.
In dissent, Justice Scalia essentially argues that the government has an interest in having unfettered access to hotel registry records and requiring that hotel maintain those records for a time period determined by the government rather than the business needs of the owner because hotels and motels can be used by people committing criminal acts. It is undeniable that hotels and motels have been used to commit criminal acts in the past, or have been used by people on the run from the law as a place to hide from the police. That fact, however, shouldn’t be reason to give the police unfettered access to these records, and would essentially open up a Pandora’s Box in that it could be used as the basis for allowing the government to access a wide variety of records on a whim.
Friedersdorf explains late in his article why this issue is important for reasons going far beyond hotel registers in Los Angeles:
A brief put forth by Los Angeles in this case argued that a hotel operator’s “individual privacy concerns pale in comparison to the City’s legitimate interest in deterring prostitutes, drug dealers, and other serious criminals from committing crimes in hotels. Hotels have only a limited privacy interest in their required registers.” If you suddenly found yourself owning and operating a motel in Los Angeles, would you feel a limited privacy interest or a strong privacy interest in the fact that a prominent LAPD whistleblower, the wife of an LAPD officer put on administrative leave for domestic violence, or a group of anti-police activists were staying at your hotel, where you hope for future police protection from criminals?
Going forward, a libertarian approach to Fourth Amendment law would offer much better protection. “When a search or seizure occurs, its effect on privacy is one consideration in determining whether or not it was reasonable,” the Cato Institute declared in its amicus brief on this case. “Privacy invasion is not, however, the sine qua non of unreasonable searches and seizures. Instead of asking whether Los Angeles hoteliers have an ‘expectation of privacy’ in their business records, this Court should examine whether their right ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’ is infringed by a statute that requires them to create business records and make them available for search on their premises by ‘any officer of the Los Angeles Police Department,’ for any reason or no reason, and without a warrant.”
As Conor notes, the dissent would have allowed the police to have unfettered access to these records and likely further eroded the protections of the Fourth Amendment. In that respect, it is fortunate that they were in the minority.
Here’s the opinion:
- None Found