A few weeks ago, the U.S. Supreme Court granted review in City of Los Angeles v. Patel, a case that raises several interesting questions. A Lodging (i.e., hotel and motel) Association complains that a Los Angeles municipal code section violates the Fourth Amendment right to be free of unreasonable searches and seizures. The law in question requires hotels to maintain guest registries and to make those registries available for police inspection upon demand. The registries must contain such information as the guest’s name and address; the number of people in the guest’s party; the guest’s date and time of arrival and scheduled date of departure; and the room number assigned to the guest. The records must be must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent to that area” for 90 days.
The challenged part of the law provides that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided 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.” The city stipulated that this part of the law permits police officers to inspect hotel records at will without either consent or a search warrant. A hotel’s refusal to comply with a police officer’s inspection demand constitutes a misdemeanor, punishable by up to six months in jail and a $1000 fine.
The three issues on which the Court has granted review are (1) Does compelled access to a hotel’s guest records constitute a Fourth Amendment “search” of the hotel?; (2) May hotels bring a facial challenge to the statue authorizing guest record access (and penalizing the denial of such access) or must it limit itself to as-applied claims about particular searches of guest records that have already been initiated or carried out?; and (3) Does the statute violate the Fourth Amendment, given the lack of a provision providing for pre-compliance judicial review? This column will examine these questions as well as one unasked question that may be as important as the others.
What Is a Search?
The first question posed by Patel is a very basic one about when the Fourth Amendment does and does not apply to governmental activity. The Fourth Amendment governs two sorts of state activities: “searches” and “seizures.” Specifically, it prohibits “unreasonable” searches and seizures and identifies various prerequisites to the acquisition of a valid warrant. To be regulated by the Fourth Amendment, then, a government action must qualify as either a “search” or a “seizure.” Otherwise, as far as this Amendment is concerned, a government may, without event, behave as unreasonably as it likes. In Patel, the relevant category is “searches,” and the question is accordingly whether perusing a hotel’s guest records counts under this category.
In addition to asking whether a particular activity does or does not qualify as a “search” in some general sense, it is usually important to know who is being “searched,” if in fact anyone is. For example, a police officer’s rifling through the glove compartment of John Doe’s car certainly does qualify as a search. However, if police find evidence in the glove compartment that John Doe’s one-time passenger, Reese Roe, is a drug dealer, then the fact that the police have performed a search will not be enough to empower Roe to object to the search at a suppression hearing preceding her own criminal trial. Only someone who is searched can complain about the unreasonableness of a search.
This requirement, sometimes known as “Fourth Amendment standing,” is bad news for the hypothetical Roe, because the Supreme Court has said, in Rakas v. Illinois, that “mere passengers” lack a “reasonable expectation of privacy” in the glove compartment of the vehicle in which they are passengers. This means that although police have performed a search in examining the glove compartment, they have not performed a search of Roe, and Roe therefore has no grounds for complaining about the search (and thus can neither suppress what the police found in the glove compartment nor bring a lawsuit against the police for violating her civil rights if the police did violate the Fourth Amendment).
This is all important in Patel because one could imagine someone other than the operator(s) of a hotel complaining about a statute that gives police authority to examine hotel guest records at will. That someone might be a hotel guest. Hotel guests might not want the police (or really, anyone other than employees of the hotel) to know that they stayed at the hotel, what room they occupied, where they live, or any of the other confidential information that they need to share with the hotel.
So why didn’t hotel guests (or some subset of hotel guests) challenge the constitutionality of the statute in Patel? For the simple reason that the U.S. Supreme Court has held specifically that people who share personal information with third parties retain no “reasonable expectation of privacy” in having that information remain free of surveillance. The two cases in which the Court announced this principle are Smith v. Maryland and United States v. Miller.
Under Smith and Miller, an individual forfeits any reasonable expectation of privacy that she has in private material when she hands over that material to third parties. This is why even the majority opinion in the Ninth Circuit accepted that police officers do not “search” hotel guests, as a matter of Fourth Amendment law, when they forcibly examine guest records held by the hotel: “To be sure, the guests lack any privacy interest of their own in the hotel’s records. [citations omitted] But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel.”
Accordingly, someone other than the hotel guests must challenge the statute, despite the fact that the guests themselves are arguably the ones most likely to feel violated by government surveillance of records containing their identifying information, length of stay, etc. This is what I mean when I say that the question not asked—whether the examination of the records constitutes a search of hotel guests—may be the most important question in this case. This is especially true in light of the language of Justice Sotomayor in her concurring opinion in United States v. Jones, where she casts doubt on the idea that, in the information age, handing over data to a third party ought to forfeit one’s reasonable expectation of privacy in that data, as the precedents hold that it does:
Justice Sotomayor explained: “I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year…. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
There is reason to think, given the vote alignment in Jones, that Justice Sotomayor may have allies in her thinking. So the unasked question may in fact come up as this case goes forward in the Supreme Court, and this question would be “Do hotel guests have a reasonable expectation of privacy in the hotel guest registration materials that record guests’ names, addresses, room numbers, and other personal data about them?”
Sticking with the actual questions presented, however, the hotel does seem like a sensible backup candidate for a privacy interest in the records. Though the ultimate interested party in that privacy may be the guest, the hotel itself is running a business in which it has proprietary interests in keeping confidential its guest lists and other such information stored in its files. Indeed, even one dissenting opinion in the Ninth Circuit decision in Patel acknowledges that examinations of hotel records would constitute a search. It says that “[t]he Patels may be right in asserting that as a practical matter the Los Angeles Police Department has applied the ordinance to undertake searches that violate the Fourth Amendment.” It seems fair to expect, accordingly, that the U.S. Supreme Court will agree that mandatory examination of a hotel’s guest records does implicate the Fourth Amendment. Stated differently, the surveillance authorized by the statute challenged in Patel does appear to constitute a “search” of (at least) the hotel, for Fourth Amendment purposes.
When Is a Search Unreasonable?
Another question in Patel is whether it is reasonable, under the Fourth Amendment, for police to access a hotel’s records, as authorized by the challenged statute, in the absence of a warrant, individualized suspicion regarding the hotel, and any sort of judicial preview or neutral examination of why police wish to examine this particular hotel’s records. According to both the majority opinion below and one of the dissents, the answer to this question is plainly “no.” In other words, if a police officer were simply to approach a hotel and, under the authority of the challenged statute, demand access to the guest records without a warrant, without individualized suspicion, and without a neutral preview of any sort, then this demand would not just implicate but would appear also to violate the Fourth Amendment rights of the people who operate the hotel.
At the same time, the majority acknowledges that the searches at issue here may qualify as administrative rather than criminal investigatory searches. Administrative searches are directed at ensuring compliance with a non-criminal regulatory regime. The goal, when government officials conduct an administrative search, is not to find evidence of criminal misconduct that may be used in a future prosecution but instead, for example, to make sure that the conditions in a building are up to code.
Courts judge administrative searches more leniently than they do the sorts of searches motivated by criminal law enforcement objectives. This is in part because the government takes a less hostile and adversarial stance toward its targets in such searches. Yet even for administrative searches, there are standards and requirements that the unadorned authorization contained in the statute challenged in Patel fails to satisfy.
How May Hotels Challenge the Statute?
The second question is whether people who are bound by the statute to comply with unconstitutional demands for access to guest records may bring a facial challenge to the validity of the statute. That is, does a hotel operator need to wait until a police officer actually comes and demands access to guest records before bringing a Fourth Amendment (as-applied) challenge to the demand, or may the operator challenge the statute as unconstitutional before particular officers have acted on its authority?
Answering this question is not strictly a matter of constitutional criminal procedure. Bringing a facial challenge to an unconstitutional statute outside of the First Amendment free speech area, under United States v. Salerno, may require a showing that there can be no constitutional application of the statute in question. Some scholars, including fellow Verdict columnist Professor Michael C. Dorf, argue that the Salerno language is more restrictive than the Court’s actual practice, but it is frequently cited, so I shall assume that it applies here. Under Salerno, if the statute could be constitutionally enforced on some occasions, then the appropriate context in which to bring a claim of unconstitutionality would be an as-applied challenge to the particular search (or other unconstitutional conduct) that a public official has carried out pursuant to the statute in question. As the Supreme Court has said on numerous occasions, it prefers cases that are concrete and rich in facts over cases that are abstract and purely theoretical considerations of statutes.
The question about facial challenges in this case thus amounts to a question about (1) whether it is appropriate to apply the Salerno “no constitutional applications” language to a statute authorizing police searches, and if so, (2) whether the statute challenged in Patel qualifies as having no constitutional applications.
Starting with the second question, the majority opinion in the lower court finds that because the statute in Patel authorizes a search without requiring any of the things that make a search valid (e.g., consent, a warrant, individualized suspicion, or a pre-search review by a neutral entity), any search conducted pursuant to the statute would thereby be unconstitutional. The dissenting position is that because some searches police might conduct would conform to constitutional requirements—because police might get a warrant, even though the statute does not require them to, or because police might have individualized suspicion coupled with exigent circumstances excusing the lack of a warrant—it is therefore not the case that all searches conducted under the law would violate the Fourth Amendment.
It remains to be seen whether the Supreme Court wishes to require that all applications of a statute be unconstitutional under the Fourth Amendment to allow for a challenge to a statute that has not been specifically enforced against the challengers. However, it seems that if a police officer has consent or a warrant or individualized suspicion coupled with exigent circumstances excusing the absence of a warrant, then the officer is not relying on the statute as an authorization for his search. Rather, the officer applying the statute is one who lacks any of the usual prerequisites associated with a Fourth Amendment search but who nonetheless goes forward with a search solely on the authority of the challenged statute. And the officer who does that has acted in violation of the Fourth Amendment every time.
By analogy, consider the three-judge plurality opinion in Planned Parenthood v. Casey, which struck down the husband-notification provision of the Pennsylvania abortion law. Those defending the statute had argued that a facial challenge to it should fail, because most women would notify their husbands about a planned abortion anyway or would have little trouble doing so, so the law would not pose an undue burden for the vast majority of women governed by it. The plurality’s response was that “[t]he fact that [the challenged statute] may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant.”
Likewise in Patel, for the police officers who would comply with the requirements of the Fourth Amendment regardless of the statute’s empowering them to do otherwise, the statute is largely irrelevant. The relevant category of searches authorized by the Los Angeles law is the group of searches that do not otherwise conform to legal requirements but that nonetheless fall squarely within the authorization granted by the law, which permits officers to search guest records at will and on demand, without a warrant, without individualized suspicion, without consent, and without any pre-compliance neutral review.
The clearest way to think about the statute in this case, I would suggest, is as a general warrant. General warrants played a central role in motivating the drafting of the Fourth Amendment (as well as in inspiring the Revolutionary War itself). A general warrant authorized law enforcement to perform searches on targets of their choice, discretionarily, without any individualized basis in suspicion or otherwise. The Los Angeles Code section stands as the equivalent of such a general warrant, granting permission to the Los Angeles Police Department to search any selected individual hotels’ guest records at will and at its unbridled discretion, while simultaneously giving permission to the government to arrest and prosecute any hotel operators who resist police efforts to carry out this unbounded authority.
It would be odd, in the face of this general warrant taking the form of a legislative enactment, to demand that hotel operators wait for the ticking bomb to explode (and for themselves to be faced with the choice of relinquishing privacy or risking criminal conviction, incarceration, and fines) before allowing a court to say what is obvious to anyone who examines the law in question: this statute empowers police to perform unreasonable searches and is therefore a blatant violation of the Fourth Amendment, a constitutional provision that binds not only the executive branch of government embodied in law enforcement but the legislative branch as well.