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Opinion analysis: An “opportunity for precompliance review” is constitutionally required for most government inspection programs

Today’s opinion in City of Los Angeles v. Patel is an important development for the administration of government inspection programs. In a decision authored by Justice Sonia Sotomayor, the Court ruled five to four that a Los Angeles municipal ordinance giving police the ability to inspect (search) motel registration records without advance notice, and to arrest for noncompliance, fails under the Fourth Amendment because it lacks an “opportunity for pre-compliance review.” More generally, and significantly, the Court appears to restrict prior doctrine that freed government inspections of “closely regulated industries” from any Fourth Amendment analysis other than “reasonableness” to industries found to be “intrinsically dangerous” (“only four industries” so far: firearms dealing, liquor sales, mining, and (oddly enough) automobile junkyards). Motels, even though they can be used for “nefarious ends,” are not so characterized. The Fourth Amendment therefore requires, says the Court, a government inspection program to provide some opportunity for a “neutral decisionmaker to review an officer’s demand to search” before the search occurs.

On the way to this decision, the Court also settles that “facial challenges” to statutes under the Fourth Amendment are not “especially disfavored,” although they may be “difficult to mount.” This is an important ruling for procedural and constitutional litigation wonks. And it is apparently unanimous, as Justice Antonin Scalia’s dissent agrees that a litigant’s “self-description” of his lawsuit as a “facial” challenge provides no “independent reason to reject it, unless we [are] to delegate to litigants our duty to say what the law is” (invoking Marbury v. Madison without citing it). Nevertheless, in a separate dissent Justice Samuel Alito, joined by Justice Clarence Thomas, notes that he sees “serious arguments” that the fact-specific Fourth Amendment is “inconsistent with facial challenges” and so he proceeds only by “assuming” that “such facial challenges ever make sense conceptually.”

Brief background

         As previewed here and here, Los Angeles’s municipal code requires hotel operators to maintain guest registration information on the premises, and directs that such records “shall be made available to any [LAPD] officer for inspection.” Failure to make the records available is punishable as a misdemeanor with up to six months in jail as well as a fine. A group of motel owners challenged the statute (twelve years ago!) as authorizing an unreasonable search under the Fourth Amendment. The district court and a panel of the Ninth Circuit ruled for the City, but a seven-to-four en banc panel of the Circuit reversed.

(Interestingly, the opinion of the en banc majority was authored by Judge Paul Watford, a young 2012 appointee, and this appears to be the High Court’s first review of one of his opinions. Moreover, today’s five-to-four affirmance was one of two “wins” filed for the Ninth Circuit today. The Circuit stands at six for twelve so far this Term, a pretty good record given the common wisdom that the Court often “grants to reverse.”)

Governmental records inspections are a “search”

On the way to striking down the Los Angeles statute, the Court assumes without discussion that a compelled governmental inspection of commercial records is a “search” encompassed by the Fourth Amendment. This is significant because both the district court and the initial court of appeals panel had ruled that there was no “search” at all, asserting that motel owners had no “reasonable expectation of privacy” in their records. The en banc court ruled oppositely, noting that the records are still “the hotel’s private property” and that an owner has a “right to exclude others from prying into their contents.” Justice Sotomayor’s opinion for the court silently affirms this ruling, simply reciting the language of the Fourth Amendment (which applies to searches of, among other things, “papers”) and noting that the amendment “applies to commercial premises as well as to homes” (not explicit in the text but settled in precedent). This is an important reaffirmation of the general rule established in 1967 — prior to that the Court had ruled that governmental inspections of commercial businesses were not within the reach of the Fourth Amendment at all.

Return to the “administrative search” label

Until 1967, the Court had ruled that governmental inspections were not governed by the Fourth Amendment because they are not “criminal” in their focus. But the text of the Fourth Amendment is not limited to “criminal” searches and seizures. So in the same 1966 Term that the Court extended the Fourth Amendment to “stop and frisks” by police on the street, the Court ruled in two cases (Camara v. Municipal Court and See v. City of Seattle) that the Fourth Amendment does indeed reach non-criminal, governmental “administrative” searches. This brought large numbers of governmental inspection programs under the Fourth Amendment’s protective mantle, and led to the development of “administrative subpoenas,” meaning orders issued by an official (who is not necessarily a judge) that authorize government agents to inspect, based not upon probable cause to believe that individual crimes are being committed, but rather that as a general matter there is likely to be non-compliance within an industry or geographic area (such as restaurants or public housing) that threatens the public’s interests in health and safety.

In recent years some commentators had begun to use the label “special needs” searches to describe, at a high level of generality, any governmental search action that appears to be non-criminal in its focus. But in today’s opinion, the Court returns to the more specific label of “administrative searches” – a healthy doctrinal development in this observer’s view.

The doctrinal rule today       

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.”

Indeed, the majority stresses “the narrow nature of our holding.” First, it has no bearing on cases where exigent circumstances would permit a warrantless search, or where record owners consent to police review. Second, no “onerous burdens” are required – a simplified administrative subpoena system, with review when necessary by an “administrative law judge,” will in most cases suffice. And finally, the majority notes that in the “rare[] event that an officer reasonably suspects that a hotel owner may tamper with the registry while [a] motion to quash is pending,” the officer may “guard the registry until the required hearing can occur, which ought not take long.” With these narrowing thoughts, the majority expresses confidence that there can be “at least an opportunity to contest … without compromising the government’s ability to achieve its regulatory aims.”

Dissenting views

Justice Scalia, joined by Chief Justice John Roberts and Justice Thomas, provides a general dissenting view that the Los Angeles statute is “reasonable” under the Fourth Amendment, and suggests that the majority has not properly applied its three-part test used to uphold warrantless searches of “closely regulated industries.” In a separate dissent, Justice Alito (joined also by Justice Thomas) provides five examples of scenarios in which he believes the Los Angeles statute could be constitutionally applied, and says this demonstrates that only an “as applied injunction” is appropriate rather than complete “facial” invalidation of the statute. Justice Alito points out (and the majority agrees) that the California obstruction of justice statute might have application in some registry inspection circumstances. But the majority says this has no bearing on the validity of the specific statute at issue here; while Justice Alito says there is no “right to defy a warrant” so that arresting a motel owner for obstructing a registry inspection shows that the Los Angeles statute is not invalid in all contexts. To me, this sounds like skirmishing around the edges of the doctrine. Even if Justices Scalia and Thomas are correct on the specific facts of this case, it does not detract from the general doctrinal rule the Court endorses.


Today’s decision states a clear doctrinal rule requiring an “opportunity for precompliance review” for virtually all governmental inspection programs. While the decision on the specific Los Angeles statute is close (five to four), the Court does not seem divided on the fundamental principles. Thus the Court appears to fulfill one of its primary functions: stating general rules that can be relatively clearly implemented, to guide governmental and litigant behaviors on a national level.


Recommended Citation: Rory Little, Opinion analysis: An “opportunity for precompliance review” is constitutionally required for most government inspection programs, SCOTUSblog (Jun. 22, 2015, 9:45 PM),