Hotel Record Inspection Statute Declared Facially Unconstitutional

The Supreme Court ruled yesterday in City of Los Angeles v. Patel, No. 13-1175, that a Los Angeles City Ordinance that compels “[e]very operator of a hotel to keep a record” containing specific information concerning guests and to make that record “available to any officer of the Los Angeles Police Department for insepection” on demand is facially unconstitutional.

The Court ruled, in a 5-4 opinion written by Justice Sotomayor, that non-compliant individuals could not constitutinally be subjected to criminal penalties, including 6 months imprisonment, without the benefit of a precompliance review by a judicial official. What in the world does that mean? We’ll get to it, but let’s look at the stricken ordinance first.

Los Angeles Municipal Code ยง41.49 required hotel operators to collect certain information about their guests including: a guests name, address, the number of people in the guest’s party, and the make, model, and license plate number of the guest’s vehicle parked on hotel property. The ordinance required this, and other, information to be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days. Further, the hotel gust records shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” The opinion describes that “[a] hotel operator’s failure to make his or her guest records available for police inspection is a misdemeanor punishible by up to six months in jail and a $1,000 fine.”

Justice Sotameyor begins her analysis of the stricken ordinance (after more generally discussing facial challenges under the Fourth Amendment) by pointing out that “the Court has repeatedly held that searches conducted outside of the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable . . . subject only to a few specifically established and well-dilineated exceptions.” 576 U.S. ___, 2 (2015) (internal quotation marks omitted). “Search regimes where no warrant is ever required may be 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[.]” Id. (citations and internal quotation marks omitted). These “special needs” searches are also referred to as “administrative searches,” and in this particlar case, the Court noted that the administrative search contemplated by the ordinance was to ensure compliance with the record-keeping requirement, which deterred criminals from operating on hotels’ premises.

Justice Sotameyor explains that “[t]he Court has held that absent consent, exigent circumstances, or the like, in order for an administratiev search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Id. at 10. Thus, the problem with the LA ordinance was that a hotel owner who refused to give an officer acces to his or her registry could have been arrested on the spot, without having any opportunty to challenge the breadth or scope of the search. “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.” Id. at 11. The Court cites, as a reasonable alternative, an officer’s abilility to obtain an administrative subpoena. The ordinance had no such flexibility, and therefore, was stricken as facially unconstitutional.

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