Hotels possess a treasure trove of private information about their guests. Everything from the guest’s name, address, credit card and vehicle information to the number of guests in the party, arrival and departure dates and the amount paid for the stay. Needless to say, that data can be extremely useful to law enforcement. Indeed, many municipalities across the country, including the city of Los Angeles, have ordinances that not only require hotels to record and maintain such information in guest registries, but also require the establishment to make the data available to police for inspection. Moreover, failure to produce guest records for inspection can be a crime. But is a law that requires businesses to provide data about their customers to police absent a search warrant, subpoena or some exigent circumstance, constitutional? It is not, according to the Supreme Court last week.
A group of motel operators challenged the constitutionality of Los Angeles’ guest registry ordinances and, specifically, the authority of police to inspect, unannounced and without judicial review, data about their guests. In City of Los Angeles v. Patel et al, 576 U.S. ____ (2015), the Supreme Court in a 5-4 decision, struck down the law as facially unconstitutional under the Fourth Amendment. While most citizens recognize that the Fourth Amendment protects against unreasonable searches and seizures, and that police generally cannot search without a warrant, this is actually a much nuanced area of law.
Searches without prior judicial review are per se unreasonable, except for certain well established exceptions. So called “administrative searches” are one such exception to the warrant requirement. An administrative search occurs when the primary purpose of the search is distinguishable from general crime control, such as ensuring compliance with a record keeping requirement. Therefore, the majority determined that police inspecting a hotel registry is akin to an administrative search. And although administrative searches may be conducted without a warrant, they are not without limitation. The subject of an administrative search “must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” In other words, the hotel operator must have a mechanism to challenge the legitimacy of the search before complying. Further, the majority rejected the City’s argument that hotels are a closely regulated industry and, thus, entitled to only minimal privacy protection. Indeed, the Supreme Court has only identified four industries – liquor sales, firearms dealing, mining and automobile junkyards – that are so highly regulated to lose a reasonable expectation of privacy. Hotels, on the other hand, do not fall into that category. Finally, while the majority declined to prescribe the specific means of precompliance review necessary for the ordinance to pass constitutional muster, it suggested that issuing a subpoena to the hotel operator would suffice. A subpoena would permit, but not require, a hotel operator to challenge the search before submitting to inspection. And would only mandate judicial review in the limited instances where a hotel operator actually objected.
This decision has broader implications than simply to hotel operators in Los Angeles (and their registered guests). Privacy advocates have applauded the ruling for supporting a business’s right to protect customer data, and for opening the door to future challenges to the constitutionality of similar government searches. The ruling also demonstrates that facial challenges to a statute or ordinance under the Fourth Amendment, although difficult, can be successful. And while the majority’s opinion did not specifically focus on the privacy rights of hotel guests, the Supreme Court has found the right to privacy to be at the core of the Fourth Amendment.