Vol. 30 No. 15 U.S. Supreme Court Rules That a Warrant is Needed to View Hotel Guest Registers

On June 22, 2015, the United States Supreme Court, in a 5-4 decision, in the case of City of Los Angeles v. Patel, held that “the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional be­cause it penalizes them for declining to turn over their records without affording them any opportunity for pre­compliance review.”


In 2003, respondents, a group of motel operators, along with a lodging association, sued the city of Los Angeles (City or petitioner) in three consolidated cases challenging the constitutionality of [Los Angeles Municipal Code] §41.49(3)(a).  Following a bench trial, the District Court entered judgment in favor of the City, holding that respondents’ facial challenge failed because they lacked a reasonable expectation of privacy in the records subject to inspection. A divided panel of the Ninth Circuit affirmed on the same grounds. On rehearing en banc, however, the Court of Appeals reversed.

[JONES & MAYER, submitted an amicus curiae brief to the U. S. Supreme Court on behalf of the California Police Chiefs’ Association, the California State Sheriffs’ Association, the California Peace Officers’ Association, the National State Sheriffs’ Association, the Major County Sheriffs’ Association, and the Los Angeles County Police Chiefs’ Association, in support of the right to access such records without a warrant.]

Facial Challenge to the Statute

A significant issue addressed by the Court was whether the ordinance was “facially unconstitutional?”  A law is facially unconstitutional when it can never be applied in a lawful manner.  It is contrasted with an “as-applied” challenge, which alleges that a particular application of a statute would be authorized under certain circumstances and, therefore, not unconstitutional.

The Supreme Court held that its “precedents demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed.”

In the instant case, the Court said that “when addressing a facial challenge to a stat­ute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional ‘applications’ that petitioner claims prevent facial relief here are irrele­vant to our analysis because they do not involve actual applications of the statute.”

As such, ruled the Court, “we hold that §41.49(3)(a) is facially unconstitutional be­cause it fails to provide hotel operators with an opportunity for precompliance review.”

Warrentless Searches

“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ It further provides that ‘no Warrants shall issue, but upon probable cause.’ Based on this constitutional text, the Court has repeatedly held that ‘searches conducted out­side the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per seunreasonable . . . subject only to a few specifically established and well-delineated exceptions.’” (Emphasis in original.)

“Search regimes where no warrant is ever required maybe reasonable where ‘special needs . . . make the warrant and probable-cause requirement impracticable,’ and where the ‘primary purpose’ of the searches is [d]istinguishable from the general interest in crime con­trol.’”

The Court found that “the searches authorized by §41.49 serve a ‘special need’ other than conducting criminal investigations: They ensure compliance with the record­ keeping requirement, which in turn deters criminals from operating on the hotels’ premises.  This would be considered an administrative search.”

However, “absent consent, exigent circum­stances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain pre compliance review before a neutral decision maker.  And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for pre compliance review must take, the City does not even attempt to argue that §41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid.”

“Absent an opportunity for precompliance 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.”

Furthermore, “(t)o be clear, we hold only that a hotel owner must be afforded an opportunityto have a neutral decision maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply. Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry.” (Emphasis in original.)

The Court did note that the searches would be lawful if conducted pursuant to an administrative subpoena.  Such subpoenas “are typically a simple form, can be issued by the individual seeking the record – here, officers in the field – without probable cause that a regulation is being infringed.”  If the hotel operator still refused to allow access and if “an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the regis­try until the required hearing can occur, which ought not take long.”

Closely Regulated Business

The Court addressed the position taken by the City [and amici] that “hotels are ‘closely regu­lated,’ and that the ordinance is facially valid under the more relaxed standard that applies to searches of this category of businesses.” The Court disagreed with those positions.

“Over the past 45 years, the Court has identified only four industries that ‘have such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an en­terprise . . . . ‘”  They include businesses which involve the sale of liquor, firearm sales, mining, or operating an automobile junkyard.  There is “nothing inherent in the operation of hotels [which] poses a clear and significant risk to the public welfare,” which would justify classifying them as a “closely regulated” business.

The Court majority appeared to virtually ignore the concerns raised by the City, and amici which represented law enforcement personnel from across the country.  Rampant prostitution, drug dealing and, more importantly, human trafficking were identified as major problems and the data showed that warrantless inspection of hotel registers deterred such activity. Other than a footnote, stating that such activity would constitute exigent circumstances, the majority avoided these concerns.

Ironically, the Court did recognize that the warrantless access “ensure[d] compliance with the record­ keeping requirement, which in turn deters criminals from operating on the hotels’ premises.”  Nonetheless, this did not, in the Court’s opinion, justify classifying them as closely regulated businesses.

“Petitioner attempts to recast [a list of various] reg­ulations as a comprehensive scheme by referring to a ‘centuries-old tradition’ of warrantless searches of hotels. History is relevant when determining whether an industry is closely regulated. The historical record here, however, is not as clear as petitioner suggests.”

Further, the fact that hotels are treated as public accommodations does not suffice to classify them as closely regulated.  “(L)aws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches.”

“The City claims that affording hotel operators any op­portunity for precompliance review would fatally under­mine the scheme’s efficacy by giving operators a chance to falsify their records. The Court has previously rejected this exact argument, which could be made regarding any recordkeeping requirement.”


The Court emphasizes that “nothing in our decision today pre­cludes an officer from conducting a surprise inspection by obtaining an ex parte warrant or, where an officer reason­ably suspects the registry would be altered, from guarding the registry pending a hearing on a motion to quash.”  The Court’s statement that an administrative subpoena can be easily obtained appears to be somewhat overly optimistic and, perhaps, inaccurate.

We are unclear as to what California Code authorizes an officer to issue and serve an “administrative subpoena” – it may exist, but we are just unaware of it.  For example, in California, an “inspection warrant,” which is not a subpoena, must be signed by a judge, and contains numerous restrictions and limitations on its use.

In addition, if the “administrative subpoena” is challenged, the Court states that “(a) neutral decision maker, including an administrative law judge, would then review the subpoenaed party’s objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare.”

This process is not something accomplished quickly, nor is it an easy process to implement. Nonetheless, it is now unconstitutional to require hotel or motel owners to provide access to law enforcement if they object.

As a result of this decision, without consent or exigent circumstances, a warrant (of some sort, according to the Court) would be necessary.  It is obvious that this decision will have a significant impact on jurisdictions throughout the state which have had such statutes in place for years.

It is imperative that agencies consult with, and secure advice and guidance from, their designated legal counsel when applying the law, especially when significant changes, such as this, occur.  However, and as always, should you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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