Argument preview: Hotel guest registers and the Fourth Amendment – harder than it looks?
on Mar 2, 2015 at 4:54 pm
Tuesday’s argument in City of Los Angeles v. Patel, a Fourth Amendment case, presents a particularly difficult example of a common Supreme Court question: should the Court rule narrowly on the case before it, or answer far broader questions? That question does not always have obvious ideological parameters (although the Fourth Amendment context may color the Justices’ views in this case), and Tuesday’s argument may be most interesting for the perspective it may provide on each Justice’s jurisprudential approach.
Moreover, both sides in Patel have assembled all-star casts of lawyers and amici. The plaintiffs’ brief shows Tom Goldstein (founder of this blog) and the Harvard Supreme Court clinic; while Los Angeles’s merits briefs show Josh Rosenkranz (former director of the Brennan Center) and Orin Kerr (also an occasional writer for this blog). Eighteen amicus briefs have been filed (and I do not pretend to have read them all). Thus, although the bulk of media attention this week will likely focus on Wednesday’s argument in the challenge to the Affordable Care Act, this case now looks much harder, and more important, than it first appeared.
The basics of the case
The case presents a Fourth Amendment challenge to a municipal ordinance that authorizes “administrative” law-enforcement searches of hotel and motel guest registers. “Administrative search” is a label generally used to describe governmental inspections of commercial premises for health and safety reasons — that is, not based on probable cause to believe a crime has been committed, and not looking primarily for evidence of crime. (In recent years the Court has used the label of “special needs” searches to capture an even broader category of searches that includes “administrative”).
Here, the Los Angeles ordinance in question provides that records of information about guests that hotel are required by law to keep – guest registers — “shall be made available to any officer of the Los Angeles Police Department for inspection … at a time and manner that minimizes any interference with the operation of the business.” The ordinance appears to have been enacted to provide a disincentive for the short-term use of hotels and motels for crime. It was stipulated below (that is, agreed to by all parties) that the ordinance authorizes the police to inspect such guest registers without the hotel owner’s consent and, most significantly, without a warrant. A group of motel owner-operators sued, and once various stipulations were reached, all parties agreed that “the sole issue … is a facial constitutional challenge” to the ordinance under the Fourth Amendment. They sought a declaratory judgment against the ordinance and an injunction prohibiting its enforcement.
The district court upheld the ordinance, ruling that hotels have “no reasonable expectation of privacy” in their guest information. That issue, however, appears to have dropped out of the case: the Ninth Circuit ruled, and Los Angeles now concedes, that hotels have some privacy interest in their guest registers, even if “limited,” such that an inspection under the ordinance constitutes a “search” for Fourth Amendment purposes. (Also, be careful not to confuse the privacy interests of the hotel owners with privacy concerns of guests. Only the former are at issue here; and because guests have already disclosed their personal information to the hotels, precedent would say that they have no further “expectation of privacy” in the records in any case.)
Not one, but two, questions are presented
In its current appellate posture, the substantive Fourth Amendment issue before the Court seems clear: is a municipal ordinance, which requires hotels to make their hotel registers available for surprise (unannounced) inspections by the police, unconstitutional because the police are not required to obtain a warrant in advance? By a vote of seven to four, the Ninth Circuit ruled en banc that such a warrantless business-information search ordinance is unconstitutional. The circuit relied on cases such as Camara v. Municipal Court of the City and County of San Francisco (1967) and Marshall v. Barlow’s, Inc. (1978), which hold that under the Fourth Amendment, governmental officials generally must obtain “administrative warrants” in advance of conducting commercial business searches. The majority rejected the idea that hotels are “closely [that is, pervasively] regulated” businesses, which prior decisions hold can support an exception to the general advance-warrant rule.
The dissenting Ninth Circuit judges, however, while debating the substantive point, made a procedural argument their main focus. They quoted Sibron v. New York (1968): “The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of [an] individual case.” Because the hotel-owner plaintiffs here had agreed in the trial court to drop their “as applied” challenge in favor of a facial attack based on stipulated facts, this case now presents an issue far broader than the specific hotel-register ordinance: may statutes and ordinances ever be challenged under the Fourth Amendment on a facial basis? Substantial party and amicus briefing has now gone into this second, procedural, issue.
Three reasons that this case is harder, and more important, than it may look
1. The first reason this case is harder than it looks is because, although the Court has often said that facial challenges to statutes are “disfavored,” it has also allowed them in some cases, including one Fourth Amendment precedent (Marshall v. Barlow’s, Inc.) holding an administrative search statute unconstitutional because it permitted warrantless inspections. Thus a ruling that a facial challenge can never be used to challenge a statute under the Fourth Amendment would require some fancy precedential footwork.
Moreover, presumably some statutes can be so obviously unconstitutional as to be “facially” invalid – even if this one is not – and a broad ruling that a facial Fourth Amendment challenge can never be allowed would require needless resource expenditures as well as, perhaps, unnecessary personal indignities. Thus, fact specifics may not always be necessary, depending on the clarity of the constitutional rule involved. For example, if a rule were announced that “administrative searches always require some kind of warrant,” then more facts might not be needed. Here, the plaintiffs appear to argue for such a rule – and Los Angeles has agreed to the stipulation that its ordinance authorizes warrantless police inspections of hotel registers. Thus the city’s plea that a facial challenge here must be rejected because there is no concrete factual record rings a bit hollow: in fact, Los Angeles agreed to the fact central to the plaintiffs’ claim: warrantless searches have been and continue to be conducted under the city ordinance. If the plaintiffs’ constitutional rule were adopted, then the statute would plainly not meet it.
However, there is in fact no absolute constitutional rule requiring warrants in all administrative search contexts. Indeed, the case that most favors the plaintiffs here (Barlow’s) also expressly noted that its condemnation of warrantless searches in that case did not automatically mean that “warrantless search provisions in other regulatory statutes are also constitutionally infirm.” Instead, the Justices agreed, the “reasonableness” of such administrative statutes “will depend upon the specific enforcement needs” in each context.
Thus, in this case, the city (and also the Solicitor General appearing as an amicus) argues that the “bare bones” record in this case, lacking specific evidence addressing the details of the hotel guest registry context, should not permit a facial challenge. The city claims that there are over a hundred “similar” ordinances or statutes across the United States. I suspect most of the Justices will be hesitant to broadly rule that all such statutes are unconstitutional, without more of a factual record; and will be even more unwilling to rule that warrantless administrative search statutes are never valid. Yet at the same time, I don’t see a majority ready to rule that facial Fourth Amendment challenges may never be heard. Thus a narrower “not in this case” ruling may attract the broadest support within the Court.
2. Which brings us to the second reason this case is difficult: for better or worse, the Court has already endorsed a rule that warrantless search statutes applied to “closely regulated” industries (such as firearms, liquor, and auto-junkyard businesses) do not violate the Fourth Amendment. While the parties vigorously dispute whether the hotel industry should fit this description, the existence of the exception is clear and thus a broad facial invalidation is difficult.
On the “closely regulated” side, Los Angeles points out that inns have been regulated since colonial times; and that Los Angeles has had a hotel registry inspection ordinance since 1899. The plaintiffs, however, argue with some force that if the hotel industry meets the “pervasively regulated” category, then “nearly every business in the United States” would also qualify, and warrantless commercial searches would become the norm rather than a “closely guarded” exception to the Fourth Amendment’s preference for warrants. Indeed, the plaintiffs point out that the telecommunications industry is highly regulated, and yet just last Term the Court stressed (in Riley v. California) that the Fourth Amendment’s warrant requirement should apply with special care to cell phones. (This may, in fact, expose theoretical difficulties in the “closely regulated business exception” search doctrine in general.)
3. Finally, this case appears more difficult than its first impression because Los Angeles argues persuasively that surprise inspections of guest information at “no-tell motels” are, in fact, necessary to discourage such businesses from being used as easy locations for drug and prostitution (sex-trafficking) crimes. This argument has a commonsense appeal to it – but again, there is no factual record to back it up. Thus the city’s own “no facial challenge without evidence” argument works somewhat against it. Still, the Justices’ general reluctance to rule in Fourth Amendment cases without an evidentiary record, and their general desire to avoid broad statements of law when they can, might ultimately counsel them to kick this case back (“reverse and remand”) for both sides to provide evidentiary support for their claims. In sum, a huge amount of resources may have been spent by both sides in this litigation, only to be returned to square one because some unfortunate strategic decisions were made when the litigation started a decade ago.
Will the Court be interesting in dismissing the case as improvidently granted?
One final argument may generate some interesting discussion on Tuesday. Perhaps recognizing that they are swimming upstream, the plaintiffs’ merits brief presents, as their first argument and at some length, a suggestion that the Court should “dismiss [the case] as improvidently granted” (or, in Court-insider vernacular, “DIG” the case). (Of course, such an order would, unless accompanied by more, operate in the plaintiffs’ interest, leaving in place the Ninth Circuit’s ruling in their favor.) The Court is usually reluctant to “DIG” a case once substantial resources have been invested, but it nevertheless does issue such orders once or twice a Term. The plaintiffs use some pretty strong rhetoric (“bait and switch”; the City “hid its intention” and did not act “forthrightly”) to argue that Los Angeles has changed its positions since filing its cert. petition and did not argue there what it now argues on the merits. The plaintiffs argue that the “two important Circuit splits” presented as the reason to grant review have now been abandoned in favor of a “closely regulated industry” argument not mentioned in the cert. petition.
Los Angeles, of course, disagrees with the premises of the DIG argument as well as its conclusion. As the petitioner in the Supreme Court, Los Angeles will argue first on Tuesday, and the plaintiffs (as the respondents) will argue second. So by the time the plaintiffs’ lawyer stands up, the Justices will likely have already signaled whether they are interested in this issue. Arguing as the respondent in the Supreme Court can thus be both easier and yet less satisfying than going first: you often have a clear indication of what the Justices are interested in – but if they have expressed no interest in an argument you briefed, you often have to leave that argument back in the moot court room. It will be interesting to see on Tuesday what traction, if any, the DIG argument receives.
The case law regarding facial challenges is esoteric; and the case law addressing administrative searches can be numbingly arcane. A summary like this one can only scratch the surface and paint broadly. Tuesday’s argument in this case is likely to show us only tentative views from some of the Justices; this is a case where the Justice to whom the case is assigned after argument is likely to have much latitude. In addition, the substantive merits of an ordinance allowing warrantless hotel-registry searches are likely to be obscured by the lack of an evidentiary record.
Still, the Fourth Amendment often generates unexpected fireworks, and the Justices are certainly divided as to their approaches on search-and-seizure issues. For example, Justice Alito is likely to see the law enforcement value of the Los Angeles ordinance, while Justice Sotomayor is likely to be unhappy with warrantless searches unless strongly justified. The Justices may find themselves in quick agreement about the unattractiveness of a facial challenge in this case. But if not, look for some starkly different views on what the Fourth Amendment requires here.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]