Wednesday, October 22, 2014

Cert. Grant: Facial Challenges to the Fourth Amendment: Hotel Records In The Crosshairs

In December 2013, the Ninth Circuit, sitting en banc, issued this decision in Patel v. City of Los Angeles: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/24/08-56567.pdf
over the dissent of 4 Judges.
The decision does two things: it not only allows a facial challenge to a municipal code provision, premised on a Fourth Amendment violation, but accepts the challenge and strikes down the provision as unconstitutional. The Los Angeles municipal code provision at issue required hotel operators to collect and record guest information (name, address, number of guests, vehicle information, date and time of arrival/departure, room number, rate charged, amount, method of payment). No one had a problem with this. But the provision went further and allowed any police officer to inspect these records "at a time and in a manner that minimizes any interference with the operation of the business."  An inspection was done without a warrant and without consent. This, said the Ninth Circuit, was an unconstitutional search in every case. The municipal code provision was unconstitutional, and the Ninth struck it down.

The Supreme Court has agreed to review the Ninth Circuit's decision in two respects.

First, the Court will determine the propriety of facial challenges under the Fourth Amendment. According to the dissent in Patel, the Supreme Court rejected such facial challenges over 40 years ago in Sibron v. New York, 392 U.S. 40 (1968). According to the City's petition for a writ of certiorari, at least one Circuit (the Sixth), has held that facial challenges under the Fourth Amendment are unavailable (Warshak v. United States, 532 F.3d 521 (6th Cir. 2008)) (the petition is available here: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-1175-Patel-Cert.-Petition.pdf)
This leads to this practice tip: if you are raising a constitutional issue, and that issue is (or appears to be) a facial challenge to a statute, always (always) include an as-applied challenge as well.

Assuming the answer to this first question does not moot the second, the Court will address the municipal code provision head on to determine whether the hotel operators have an expectation of privacy in guest information (is it a "search" under the Fourth Amendment), and, if so, whether the statute fails because it does not provide for pre-compliance judicial review prior to an officer's inspection.
This is where it gets complicated. For one, the information sought is not about the hotel operators, but about its guests. Yet, it is the hotel, and not the guests, that claims an expectation of privacy. Beyond that, the City tells us, in its cert. petition, that there are 70 similar ordinances, none of which require pre-compliance judicial review, and that the ordinances exist to combat nuisances such as prostitution, gambling, and even terrorism (no -- not that word). In other words, this type of ordinance is reasonable, and that is all that the Fourth Amendment requires. But, is that true? And do these purported justifications move the search (if there is one) from the administrative realm to the criminal realm (and thus requiring some sort of suspicion?) If still an administrative search, why is it unreasonable to require pre-compliance judicial review?
If you have a case involving an analogous municipal code provision, stay tuned.
 

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