City of Los Angeles v. Patel: The Supreme Court on Police Access to Hotel Guest Registries

The Los Angeles Ordinance

Section 41.49 of the Los Angeles Municipal Code requires hotel operators to keep a record of their guests. According to the Supreme Court's opinion, the record covers each guest's name and address; the number of people in the party; the make, model and license plate number of any guest vehicle parked on hotel property; the date and time of arrival and the scheduled departure date; the room number; the rate charged and amount collected; and the method of payment. Guests without reservations, guests who pay cash and guests renting a room for less than 12 hours must show photographic identification at check-in, and the operator records the document's number and expiration date. For guests who use an electronic kiosk, the record must also contain credit card information. The record could be paper or electronic, but it had to be kept in or next to the check-in area for 90 days.

The only provision in dispute was section 41.49(3)(a), which said the records "shall be made available to any officer of the Los Angeles Police Department for inspection," adding 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." Failing to make the records available was a misdemeanor under the code's general penalty provision, section 11.00(m), punishable by up to six months in jail and a $1,000 fine. Justice Alito's dissent describes the inspection requirement as 116 years old.

In 2003 a group of motel operators and a lodging association sued the city in three consolidated cases. The parties stipulated that the sole issue was a facial Fourth Amendment challenge to section 41.49(3)(a), and that the operators had been subjected to mandatory record inspections without consent or a warrant. After a bench trial the District Court ruled for the city, finding that the operators had no reasonable expectation of privacy in the records, and a divided Ninth Circuit panel affirmed. Sitting en banc, the Ninth Circuit reversed. It held that a nonconsensual inspection is a search because the records are the hotel's private property, and that the ordinance was facially invalid because it allowed inspections without an opportunity to obtain judicial review of the demand before penalties attached. The Supreme Court docket records certiorari granted on October 20, 2014 and the judgment affirmed on June 22, 2015.

The Facial Challenge Question

Justice Sotomayor wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer and Kagan. The city's first argument was structural: a law authorizing warrantless searches can never be unconstitutional in every application, because some searches it touches will be backed by a warrant, by consent or by an emergency. If that were right, no such law could ever be struck down on its face.

The Court rejected the argument on two grounds. The first was precedent. Facial challenges have proceeded under many constitutional provisions, and the Court had already invalidated search laws on their face, including a Georgia statute requiring candidates for state office to pass a drug test (Chandler v. Miller), a hospital policy of nonconsensual, suspicionless searches (Ferguson v. Charleston) and a New York statute allowing warrantless home entry to make a routine felony arrest (Payton v. New York). The Court read Sibron v. New York, which declined to rule broadly on a stop and frisk statute, as limited to laws whose categories are so elastic that their constitutionality cannot be judged in the abstract.

The second ground was method. Drawing on Planned Parenthood v. Casey, the Court held that "the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant." When a warrant or an exigency justifies a search, the search goes ahead whether or not a statute authorizes it, and a statute authorizing warrantless searches does no work when the subject consents. Those situations are not applications of the ordinance, so they could not save it. In a footnote the Court also turned aside the United States' argument that a penalty for refusing to cooperate with a lawful search could keep the ordinance alive, pointing out that California's general obstruction statute already punishes resisting an officer.

Administrative Searches and Precompliance Review

On the merits, the Court assumed without deciding that registry inspections serve a special need other than ordinary crime control: they ensure compliance with the recordkeeping requirement, which in turn deters criminals from operating on hotel premises. That placed the ordinance within the administrative search exception recognized in Camara v. Municipal Court. Under See v. City of Seattle and Donovan v. Lone Steer, the Court said, the subject of an administrative search must, absent consent or exigency, "be afforded an opportunity to obtain precompliance review before a neutral decisionmaker." The city did not argue that section 41.49(3)(a) offered any such opportunity, so the provision was facially invalid.

The opinion explained the problem in practical terms: "A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot." Without an opportunity for review, the ordinance "creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests." Even an operator searched "10 times a day, every day, for three months" without any violation found could refuse the next demand only at personal risk.

The Court called its holding narrow. An operator must be afforded an opportunity to have a neutral decisionmaker review an officer's demand before facing penalties for refusing, and actual review is needed only in the rare case where an operator objects. The opinion described several ways that opportunity could be supplied without burdening enforcement:

• An administrative subpoena, which the respondents conceded would make the searches constitutional, and which officers in the field can issue without probable cause that a regulation is being broken
• A motion to quash the subpoena before any search, decided by a neutral decisionmaker such as an administrative law judge
• Guarding the registry while a motion to quash is pending, where an officer reasonably suspects the operator may alter it
• An administrative warrant, including one issued ex parte, for a surprise inspection

The Court was equally explicit about what the decision leaves alone. The respondents had not challenged, and the opinion does not question, the parts of section 41.49 that require operators to maintain guest registries containing the listed information. Operators remain free to consent to a search, and police can still compel production with a proper administrative warrant or under another exception to the warrant requirement, including exigent circumstances. The Court cited a 2002 Department of Justice report identifying about 335 federal administrative subpoena authorities as evidence that precompliance review is common.

The Closely Regulated Industry Argument

The city's fallback, which Justice Scalia adopted in dissent, was that hotels belong to the category of closely regulated businesses whose premises may be inspected without a warrant under a more relaxed standard. The majority answered that over 45 years the Court had recognized only four such industries: liquor sales (Colonnade Catering), firearms dealing (Biswell), mining (Donovan v. Dewey) and automobile junkyards (New York v. Burger). Unlike those, it wrote, "nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare," and hotels "are not intrinsically dangerous."

The regulations the city relied on, such as licensing, tax collection, posting room rates and sanitation rules, did not in the majority's view form a comprehensive scheme that singled out hotels. Every Los Angeles business needs a license, and rules of that kind resemble the general wage and hour laws that Marshall v. Barlow's held insufficient to make all of interstate commerce closely regulated. On history, the Court said that laws obliging inns to lodge all paying travelers are not the same as laws exposing them to warrantless search, and that "modern hotel registries contain sensitive information, such as driver's licenses and credit card numbers for which there is no historic analog."

The majority added that the ordinance would fail even if hotels were closely regulated. Burger requires a substantial government interest, a showing that warrantless inspections are necessary to the regulatory scheme, and an inspection program whose certainty and regularity make it an adequate substitute for a warrant. The Court assumed the first requirement was met. It found the second unmet because the city's interest in surprise could be served by ex parte warrants or by guarding the registry, and the third unmet because the ordinance placed no limit on which hotels officers could inspect or how often, unlike the schemes in Dewey and Burger that called for inspections on a regular schedule.

The Dissents

Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, would have upheld the ordinance as a reasonable inspection of a closely regulated business. He traced the special legal duties of innkeepers to Blackstone and Justice Story, cited founding-era warrantless searches of public houses, and listed Los Angeles and California rules on occupancy taxes, registration certificates, posted rates, linen changes and sanitized drinking glasses. He noted that the city had identified more than 100 similar register-inspection laws, and cited amicus briefs stating that municipalities in at least 41 states have comparable laws and at least 8 states have their own. In his view the ordinance confined police to the pages of a register in a public area, a tighter limit than the statutes upheld in earlier cases, and requiring a warrant or subpoena would let operators who work with traffickers buy time to falsify entries. He described the guard-the-registry alternative as "equal parts 1984 and Alice in Wonderland."

Justice Alito, joined by Justice Thomas, focused on the facial ruling. He set out five scenarios in which he said section 41.49(3)(a) could be applied without any Fourth Amendment problem: an operator who hides the register from officers holding a search warrant; one who refuses to produce it while police search for a kidnapper believed to be at the motel; one who refuses during late-night activity at a motel known for child sex trafficking; a dishonest employee who hides it after the owner has consented to inspection; and a desk clerk who snatches back a register that is otherwise left open for anyone to read. His remedy for any unconstitutional application was an as-applied injunction, and he wrote that after the decision the city "can never, under any circumstances, enforce its 116-year-old requirement that hotels make their registers available to police officers."

Los Angeles After Patel: Ordinance 184711

The city's response is documented in Council File 14-0139. In January 2014, after the en banc Ninth Circuit ruling, two council members filed a motion asking the City Attorney and the Police Department to report on the decision and present enforcement options. The motion described review of registry records as "a crucial tool" and said the ruling had "hindered" coordinated local enforcement.

After the Supreme Court ruled, the City Attorney transmitted a draft ordinance with report R16-0066, dated February 29, 2016. The report said the draft would "eliminate the requirement that a hotel operator allow an officer of the Los Angeles Police Department (LAPD) to inspect a hotel guest register on demand," and that under the amended text an officer "may request the hotel operator consent" to an inspection. The Public Safety Committee approved the item on December 6, 2016.

The Council adopted Ordinance No. 184711 on January 11, 2017, and the council file records an effective date of March 10, 2017. The ordinance rewrites subdivision (a) of section 41.49.3. It keeps the requirement that the record be held in or next to the guest reception area for 90 days after the last entry, and replaces the inspection clause with this sentence: "An officer of the Los Angeles Police Department may request an operator consent to inspect the record as part of the Department's public safety responsibilities." The ordinance did not create a subpoena or warrant procedure of the kind the Court described; it moved inspection to a consent basis.

This post read the ordinance as adopted, from the City Clerk's file. It did not read the current codified text of section 41.49, which is published on a code site that could not be retrieved, so it does not say whether the section has been amended again since 2017. It also did not survey the other register-inspection laws described in the dissent, and does not address whether any of them changed after the decision.

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