Argument analysis: How does requiring a warrant interfere with surprise police searches of hotel guest registers?
on Mar 4, 2015 at 1:42 pm
The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an “essential procedural safeguard… pre-compliance judicial review.” Prior to argument, many observers thought this meant that some judicial “administrative warrant” process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling.
Recall from the preview that a group of motel owners sued Los Angeles, seeking to invalidate a municipal ordinance that requires them to make information about guests that they are required by law to record, “available to any [LAPD] officer for inspection … at a time and in a manner that minimizes any interference with the operation of the business.” But no trial or evidentiary hearing was ever held; instead, the parties stipulated to a few facts and then agreed that “the sole issue” remaining was “a facial constitutional challenge” to the ordinance.
One stipulation was that, under the law in question, the motel operators “have been subject and continue to be subject to searches and seizures of their motel registration records by the [LAPD] without consent or warrant.” The Ninth Circuit ultimately ruled that this “without a warrant” stipulation rendered the law unconstitutional under the Fourth Amendment.
In its petition for certiorari, Los Angeles presented what amounts to three questions: (1) whether facial challenges to ordinances and statutes are ever permissible under the Fourth Amendment; (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry; and, if so, (3) whether the ordinance is unconstitutional because it does not require a warrant or other “pre-compliance judicial review.” Whether the Court should answer all of these questions, or whether the first one is instead dispositive, seemed to be a primary focus of oral argument yesterday.
Tuesday’s oral argument and “expectations of privacy”
Observers, including this observer, sometimes forget how much close attention the Justices pay to the questions presented. At Tuesday’s argument, Joshua Rosenkranz (arguing on behalf of the city) went immediately to the third question – that is, the substantive constitutionality of the ordinance in question. The parties (and the Ninth Circuit) appeared to consider the second question to be moot, because they agreed by the time of argument that motel operators do have some limited expectation of privacy in their registers. But Justice Anthony Kennedy appeared to still be concerned: “If … a member of this Court sits down to write the opinion, does he or she have to use the phrase ‘reasonable expectation of privacy,’ … or do we just forget [it]?” Then referencing prior administrative search cases, he asked whether the phrase ”closely regulated” is “another way to talk about reasonable expectation of privacy?”
Both Rosenkranz and Deputy Solicitor General Michael Dreeben (arguing on behalf of the federal government in support of Los Angeles) quickly picked up on the point: noting that the ordinance has been on the books for many years, Rosenkranz argued that “no one goes into the hotel business unaware that their registers will be inspected.” Dreeben later chose to begin his argument by proposing a “much narrower basis”: the ordinance involves “an entry only into the public lobby area of a motel.” Although Chief Justice John Roberts and Justice Sonia Sotomayor quickly took issue with Dreeben’s suggestion, the second question (whether there is a “reasonable expectation of privacy” and, if so, how that affects the case) does not appear to be dead.
The substantive merits: The “warrant requirement” argument appears to be obscured.
With only twenty minutes (because the city was sharing its time with the federal government), Rosenkranz’s opening argument otherwise focused entirely on the merits of the ordinance; the “facial challenge” aspect of the case was not raised until Dreeben stood up. Rosenkranz began by dramatically asserting that “this case is about whether to deprive … cities of one of the most effective tools they have … to deter human trafficking” and other short-term criminal activity in motels. He argued that it is “necessary” to allow “frequent, unannounced spot inspections” in “real time” “without notice.”
But here is the part that seemed to be missing, at least to me: no one seemed to inquire or explain, directly, why compliance with an administrative warrant procedure would interfere with these goals? That is, going to a judge ex parte and asking for permission to make an “unannounced, real time” inspection is all that the Ninth Circuit’s opinion seems to require. Going into argument, this case seemed to be about only having to get a warrant first, or not (as the Los Angeles ordinance says) – and not about otherwise interfering with law enforcement surprise. In the normal ex parte search warrant procedure, no notice has to be given to the target of a search. Thus, at points, both Justice Sotomayor and Justice Elena Kagan disputed Rosenkranz’s assertion by noting that the police could “get an administrative warrant ex parte.” Rosenkranz’s response was ultimately not to explain how a warrant requirement would interfere with effective enforcement, but rather to argue that motels should fit the “closely regulated exception” to the general rule that administrative warrants are required. But when Justice Sotomayor objected because “virtually every public accommodation” or “entities that serve people” might be similarly described, Rosenkranz reserved his time for rebuttal before explaining why.
The Solicitor General’s argument, and a moment of laughter
Justice Samuel Alito then tried to get Dreeben to turn to the “no facial challenge” question, asking him whether there are not a “substantial number of instances” in which the Los Angeles ordinance could be constitutionally applied. Justice Kennedy appeared to take issue with Dreeben’s affirmative response – and then Dreeben went to the more obvious problem with facial challenges, the absence of a factual record. “There’s no record in this case about what kind of privacy expectations actually exist with respect to hotel registers,” said Dreeben – and the “expectation of privacy” question was suddenly back on the table, even after Dreeben conceded that there is a “reduced,” rather than non-existent, expectation of privacy. Justice Kennedy later indicated that, in his view, the ordinance was “quite intrusive,” and the Chief Justice expressed some similar views. If intrusion on some privacy interest is required to dispose of this case, the Court seems poised to find it.
Interestingly, Justice Sotomayor repeatedly pointed out that some hotel registry information, such as driver’s license and credit card numbers, are protected from disclosure by federal law. Although Justice Antonin Scalia repeatedly stressed that this case does not involve a challenge to the record-keeping requirement, or any privacy claims made by guests, the suggestion that there is a conflict between federal privacy-protection laws and the Los Angeles disclosure ordinance may simply suggest another problem with invalidating the law without a more complete development of relevant facts.
A humorous moment then arose when Justice Kagan spun a hypothetical involving a hunting lodge. When Justice Scalia countered, Dreeben demurred, telling the Justices that he would “have to defer to members of the court on hunting lodges. (Laughter.)” Of course, Justices Scalia and Kagan have previously been photographed together on a hunting excursion, and concerns about certain duck-hunting expeditions have dogged Justice Scalia in the past.
Dreeben finally argued that the Los Angeles ordinance already serves all the interests that going to a judge for an administrative subpoena would serve; and he closed by invoking “a strong need” for “regular unannounced inspections.” But again, this does not explain why requiring the police to go to a judge for a warrant (or subpoena) first, would interfere with any part of this expressed governmental interest. I am hesitant to stress a concern that the participants at argument did not – they are all far more steeped in the case than I. But a pre-search judicial approval process, which is all that the Ninth Circuit seemed to say is required under the Fourth Amendment and lacking here, simply does not appear to affect the asserted law enforcement need for “surprise” inspections. It simply requires that a judge approve the inspection, ex parte and quite confidentially, first.
The Justices express confusion about the details of the motel operators’ position.
Arguing on behalf of the motel operators, Tom Goldstein opened by asserting that for the ordinance to satisfy the Fourth Amendment, only a simple judge-issued subpoena requirement is necessary. Justice Scalia immediately asked, on the “no facial challenge” point, whether there is “no instance in which this statute … would be constitutional”; Goldstein answered in the affirmative, on the ground that there is no “pre-enforcement judicial review” at all under the ordinance. Justice Alito then got Goldstein to agree that an “administrative inspection regime along the lines of Marshall v. Barlow’s” would suffice – but Alito then said that “it’s not clear to me what that would add to the ordinance … before us.”
This exchange appeared to make the point — but a point never clearly articulated — that the case seemed to turn solely on whether a pre-search judicial approval condition is required by the Fourth Amendment. The point seems vital, because if surprise hotel registry inspections are really important to Los Angeles, then presumably they could reenact the very same ordinance, adding a simple administrative warrant or subpoena condition, and not change the reality of “surprise” motel crime deterrence one bit.
Justice Kennedy then noted that there was little point to the registry recordkeeping requirement, if the police “can’t go look at it with little notice.” This was a perfect point to explain, quite bluntly, “but they can: a warrant requirement does not interfere with no-notice inspections at all.” And Goldstein did make the point, noting that his subpoena suggestion “doesn’t give any advance notice to the motel owner.” But coming at the end of a longer answer invoking a hypothetical from the earlier arguments, the response did not evoke anything further from Justice Kennedy.
Goldstein then stressed that it is, in fact, the process of pre-search judicial approval that provides Fourth Amendment protections (of “tranquility,” a concept the Chief Justice mildly disputed, and against law enforcement “harassment” with Justice Kagan strongly agreed). But then it became clearer that Goldstein seemed to be asking for more than just judicial approval; in addition, he argued for a chance to actually object to the judge before allowing inspection of the registry.
To my uninformed mind, there was confusion here (and apparently also for both Justice Alito, who told Goldstein that he was “confused by your answer,” and – later – Justice Kennedy, who said that he was “puzzled by this case”). Are the plaintiffs asking for a pre-search, but ex parte, warrant approval by a judge? Or do they want more, that is, a chance to dispute and contest the approval as well, before the records are inspected? The former is the traditional Fourth Amendment process, while the latter seems to push against the “surprise” law enforcement interest that Los Angeles asserts. Chief Justice Roberts, as well as Justices Kennedy and Alito, seemed clearly to dispute the latter conception. As Justice Alito later said, “A subpoena is worthless when what is sought is something that can be easily hidden, destroyed, or falsified.”
Notably, Justice Stephen Breyer did not say a single word at all yesterday. I can’t recall the last criminal case before the Court in which this happened, if ever.
Conclusion: Ultimately, dissatisfaction with the facial attack?
Justice Kennedy ultimately suggested why this case may in fact turn on the first question presented: “The complexity … and, frankly, the surprise that I have at some of your answers may indicate that this is … not a case for facial attack.” Justice Ruth Bader Ginsburg also asked at one point for “a case-specific example,” suggesting discontent with the lack of an evidentiary record. While Justice Sotomayor suggested that the Court’s precedents “challeng[ing] the lack of process” have always been by facial attack, her vote alone is not sufficient to win. Rather than make precedent about administrative search ordinances when the precise contours of the arguments seem uncertain and the facts are undeveloped, rejecting the facial challenge in this case may be the more attractive option.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]