A Los Angeles ordinance, which requires hotels to keep, and make available for inspection at any time, detailed records of guests' names, addresses, number of party members, make, model, and license plate number of guests' vehicles, date and time of arrival, time of scheduled departure,
cholesterol level, room number, rate charged, payment method, amount collected, and more (extra information is required for those who pay cash, don't make reservations, or rent for less than 12 hours), has been struck down by an en banc Ninth Circuit.
The ruling has nothing to do with guests' privacy rights, however. After all, if you give the information to a third-party, you have no reasonable expectation of privacy. (Should that still apply if the ordinance requires innkeepers to give guests' figurative cavity searches upon check-in? Give us your info, or sleep on Skid Row. Not much of a choice, is it?) The district court held that the hotels couldn't assert their guests' privacy rights. A Ninth Circuit panel agreed.
The en banc court sidestepped the issue completely, and held that the ordinance was facially invalid due to its encroachment upon the hotel's privacy rights, as the inspections "involve both a physical intrusion upon a hotel's papers and an invasion of the hotel's protected privacy interest in those papers." And business records are protected by the Fourth Amendment.
(Oral arguments, preserved for posterity in video form? Take that, SCOTUS!)
The majority, while noting that a more lenient standard applies to searches of administrative records, took issue with the possibility of penalties for non-compliance that were possible even without judicial review.
"The Supreme Court has made clear that, to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review, an element that § 41.49 lacks.
Only by refusing the officer's inspection demand and risking a criminal conviction may a hotel operator challenge the reasonableness of the officer's decision to inspect. To comply with the Fourth Amendment, the city must afford hotel operators an opportunity to challenge the reasonableness of the inspection demand in court before penalties for non-compliance are imposed."
Two dissents were filed in the case. In one, Judge Richard Tallman took issue with the hypothetical nature of the challenge, noting that the ordinance required the records to be kept, and to be made available. The facial challenge assumes that the LAPD will skip the Fourth Amendment processes, though they have not yet done so. The majority, however, noted that the ordinance lacks essential procedural safeguards against arbitrary or abusive inspection demands.
A second dissent took issue with the en banc majority's shift from the lower court's holding, and the panel's holding (involving guests' privacy rights) to a facial challenge based on the administrative subpoena exception. "By concluding that a search under the ordinance is necessarily unreasonable because it does not fit the administrative subpoena exception, the majority opinion has knocked over a straw man," Judge Richard Clifton argued.
- Patel v. City of Los Angeles (Ninth Circuit Court of Appeals)
- 9th, SCOTUS Each Asked to Review Facebook Privacy Settlements (FindLaw's Ninth Circuit Blog)
- Circuit Creates Electronics Exception to Border Search Exception (FindLaw's Ninth Circuit Blog)