City of Los Angeles v. Patel involves a couple of technical but important issues about the scope of Fourth Amendment protections in the context of administrative searches. Los Angeles has passed an ordinance which requires all hotel operators to keep records of all of their guests, and to make those records available for inspection by any member of the Los Angeles Police Department. A hotel operator who fails to comply with this regulation faces up to six months in jail and a $1,000 fine. The Patel family, who run a hotel in Los Angeles, brought a facial challenge to the statute under Section 1983, arguing that the statute violated the Fourth Amendment.
In a split en banc decision, the Ninth Circuit held that the government was indeed conducting a Fourth Amendment search when it looked through the hotel’s records, and that the search should be analyzed as an “administrative search.” The court then held that even under the low standards of administrative searches, the Los Angeles ordinance that authorized these searches was facially invalid because it did not provide the hotel operators an opportunity to challenge the reasonableness of the search request in court before penalties were assessed.
The Supreme Court granted cert on two questions:
First, whether it is ever appropriate to bring a facial challenge based on the Fourth Amendment to an ordinance or a statute; and
Second, whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry,
and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.
First we should discuss what is not at stake in Patel: the Supreme Court will not (and should not) use this case to re-visit the third-party doctrine. Some commentators have argued (here and here) that this might be a chance for the Court to reform dismantle or reform this much-maligned doctrine. After all, most individuals would believe that the true victims of the invasion of privacy are the hotel guests, not the hotel itself.
As much as this argument has intuitive appeal, Patel appears to be a very weak case for a re-examination of the third-party doctrine. Most of the modern critiques of the third-party doctrine have to do with the “passive” sort of sharing that is the inevitable consequence of using modern technology, such as disclosing the content of your e-mail to your internet service provider or your location to your cell phone company. This sort of “disclosure” to third parties could never have been imagined by the Court that authored Smith v. Maryland; thus, the argument goes, Smith should not apply to this type of third-party disclosure. Other critiques of the third party doctrine revolve around the potential abuse of meta-data: using an algorithm to sift through all the phone numbers that a suspect calls over a multi-year period, or using a computer program to review the recipients of all of your e-mails. Again, this kind of mass processing of meta-data is arguably beyond the scope of the humble pen register used in Smith.
But the third-party disclosure in Patel bears a much stronger resemblance to the phone numbers dialed in Smith than to the passive sharing of data that is inherent in the use of new technologies. In fact, the disclosure in Patel is more like the sharing of bank records in Smith‘s less controversial precursor, Miller v. United States. There is no question that the guests in Patel knew they were giving information to a third party, and no particular reason why they would think that the government would be unable to access that information.
The two issues that the Patel case does involve are important enough, however. The first question is purely procedural: whether a party can bring a facial challenge to a statute under the Fourth Amendment. The dissenters in the Ninth Circuit argued that a statute should survive a facial challenge as long as “a court can find any circumstance in which it could constitutionally be applied.” Thus, in order to succeed in their facial challenge, the Patels must prove that “all requests made under the ordinance must violate the Fourth Amendment.” But, as the dissent pointed out, if the police demanded the records after having obtained a warrant, or pursuant to exigent circumstances, or pursuant to the community caretaking function, the demand would obviously not violate the Fourth Amendment. Thus, there is a strong preference for as-applied challenges, since they are the “basic building blocks of constitutional adjudication.”
The question asked by the Supreme Court goes beyond this argument, however, and asks whether there can ever be a Fourth Amendment facial challenge. It would be logical for the Court to answer this question in the negative and prohibit all such facial challenges, since (as the Ninth Circuit dissent pointed out), courts would otherwise be called upon to give advisory opinions by trying to imagine all possible hypothetical cases in which a law might be applied.
If the Court does indeed prohibit facial challenges, it need not reach the second question, since the Patels did not allege any actual actions by the police which violated their Fourth Amendment rights. If the Court allows these challenges, however, it should have no problem concluding that a demand for information pursuant to the ordinance constitutes a “search” under the Fourth Amendment. The Patels (and other hotel operators) clearly have a reasonable expectation of privacy in this information; even the dissenters in the Ninth Circuit agreed that this was true. The real issue in the second question is its second part, in which the Court must decide whether a demand for this information is a reasonable exercise of police power. The Court’s answer should provide useful guidance regarding the underdeveloped administrative search doctrine, in two ways.
First, the purpose of these searches of hotel registries (according to the government) is to deter drug dealing and prostitution, which sounds much more like a law enforcement purpose than the regulatory purposes usually associated with administrative searches. Administrative searches, like other special needs searches, are supposed to have a non-law enforcement purpose, although the Court has applied the administrative search doctrine to searches which have a distinctively crime-control flavor to them. If the Court upholds this law, it will be taking another unwelcome step towards broadening the allowable purpose of administrative searches.
Second, if the Court does hold that this is a permissible purpose for administrative searches, it will need to decide what procedure is necessary to ensure that the search is “reasonable.” The majority opinion in the Ninth Circuit stated that a demand to inspect should not be “made and enforced by the inspector in the field”–rather, the ordinance must allow for judicial review of the demand for records before any punishment can be imposed. If not, the majority argued that there would be no way of ensuring that the demand is “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” The Supreme Court will probably agree with the Ninth Circuit and require some kind of judicial review of these searches. The sheer breadth of the authorization allowed by the ordinance seems to invite law enforcement abuses, and the narrowness of the administrative search doctrine’s purpose would be gutted even further if there is no judicial oversight of the police action.
But my prediction is that the Court will not even reach the second question. Instead, it will deny the facial challenge and tell plaintiffs who wish to attack statutes on Fourth Amendment grounds that they must wait until the government takes some specific action against them before taking the police to court.
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