Block on Trump's Asylum Ban Upheld by Supreme Court
Your local No Tell Motel can truly live up to its name, thanks to a recent ruling by the Supreme Court. Last week, the High Court gave a wink and nod to secret lovers and hotel clerks throughout the land, ruling that laws allowing police to inspect hotel registries without a warrant are unconstitutional.
Of course, those registries weren't just tracking your evening visits to the love shack, they were often used to investigate all sorts of criminal behavior, from murder to meth making. The laws required hotels to record guest information and turn it over to the police on demand. Such laws are a facially unconstitutional violation of the Fourth Amendment, the Court ruled.
The Fourth Allows for Facial Challenges
First, the Court determined that you can bring facial challenges under the Fourth Amendment. While facial challenges are common under the First Amendment, equal protection, and due process, apparently the Court had never decided whether facial challenges were permissible under the Fourth.
Los Angeles, whose statute was at issue in the case, argued that such facial challenges were prohibited. At least one prior case, Sibron v. New York, could be read to indicate as much, saying that the validity of warrantless searches are "pre-eminently the sort of questions which can only be decided in the concrete factual context of the individual case."Preeminently? Maybe. Exclusively? No.
The Court, in an opinion by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, said Sibron involved a statute with highly elastic categories, unlike the specific record keeping and inspection requirements of the Los Angeles municipal code. So yes, Virginia, you can bring a facial challenge under the Fourth Amendment -- in fact, Sotomayor writes, they're not even disfavored.
Administrative Searches Require Precompliance Review
The Los Angeles municipal code requires that operators of hotels and motels maintain guest registration for 90 days, making it available for LAPD inspection. Failure to comply, either by not maintaining records or not making them available, is a misdemeanor. Inspecting those records is a search, the Court assumed -- though, as Rory Little points out at SCOTUSblog, the Court neglected to openly discuss this assumption. For an administrative search to be constitutional, it must allow for an opportunity precompliance review.
Precompliance review protects business operators from being forced to choose between turning over their records and being arrested on the spot. Further, it reduces the risk that statutes will be abused. As Sotomayor noted, under the current statute, the LAPD could search a motels registry ten times a day, every day, without the operator having any recourse.