Metropolitan News-Enterprise


Thursday, December 26, 2013


Page 1


Ninth Circuit Strikes Down L.A. Hotel Registration Inspection Law




A Los Angeles city ordinance that allows police officers to inspect hotel registration records without a warrant is unconstitutional on its face, the Ninth U.S. Circuit Court of Appeals ruled Tuesday.

A limited en banc court voted 7-4 to strike down a portion of Los Angeles Municipal Code §41.49, which the court said violates the Fourth Amendment insofar as it allows police to review the records without affording an opportunity for prior judicial review.

The law, which the city enacted to deter drug dealing and prostitution, requires hotels to obtain—and to preserve in either paper or electronic form for at least 90 days—each guest’s name and address; the number of people in the guest’s party; and the make, model, and license plate number of the guest’s vehicle if the vehicle will be parked on hotel property. The hotel must also record the guest’s date and time of arrival and scheduled date of departure; the room number assigned to the guest; the rate charged and the amount collected for the room; and the method of payment.

Additional information must be obtained from any guest who pays cash, walks in without a reservation, or rents a room for less than 12 hours.

Recordkeeping Requirements

The plaintiffs, hotel owners seeking declaratory and injunctive relief, did not object to the recordkeeping requirements. But they argued that their privacy was being unduly invaded by the requirement that the guest records “be made available to any officer of the Los Angeles Police Department for inspection,” which the city said gave it the right to inspect the records at any time.

Failure to comply with an inspection demand is punishable by up to six months in jail and a $1,000 fine.

U.S. District Judge Dale Fischer of the Central District of California ruled for the city, saying the plaintiffs could not assert their guests’ privacy rights. A three-judge panel affirmed, but the court voted earlier this year to rehear the case en banc.

Judge Paul Watford, writing Tuesday for the court, said that while the guests had no reasonable expectation of privacy in the information they provided to the hotel, the innkeepers could sue because 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.”

Property owners, he noted, have privacy interests founded upon their general right to exclude others from the property, and have both a possessory and ownership interest in their records. The records, he said, are not “publicly accessible,” as argued by the city and the dissenting judges.

Reasonable Privacy Expectations

Because the plaintiffs’ privacy expectations are reasonable, Watford went on to say, the Supreme Court cases on administrative inspections apply. And under those cases, he concluded, the ordinance lacks the “essential procedural safeguard” of judicial review of the reasonableness of the inspection demand before the person of whom the demand is made is subject to penalties for non-compliance.

A lack of pre-compliance judicial review, Watford acknowledged, does not necessarily make a search unreasonable in the Fourth Amendment sense. “But it does render unreasonable the particular searches at issue here—administrative inspections of business records in industries that are not closely regulated,” the judge wrote.

He was joined by Chief Judge Alex Kozinski, Judges Marsha S. Berzon, Milan D. Smith Jr., Mary H. Murguia, and Morgan Christen and Senior Judge Raymond C. Fisher.

Dissenting Judges Darmuid F. O’Scannlain, Richard C. Tallman, Richard R. Clifton, and Consuelo M. Callahan joined in opinions authored by Tallman and Clifton,

Tallman noted that the plaintiffs dropped their as-applied challenge to the ordinance before trial, and argued that the majority, in order to strike down the ordinance, had made a number of unwarranted assumptions.

“But even if, as the majority suggests, all searches authorized by the ordinance were without warrant and consent—which the statute clearly does not dictate—the majority has still not accounted for ‘exigent circumstances’ that would allow the police to request the guest register without a warrant or consent,” Tallman wrote.

Clifton argued that the majority was wrong both in failing to apply the “very high bar” that plaintiffs had to meet in order to succeed in a facial challenge, and in accepting the plaintiffs’ claim that warrantless inspections of guest records are unreasonable, “supported by no evidence whatsoever.”

The case was argued in the Ninth Circuit by Frank Weiser for the plaintiffs and Deputy City Attorney Todd T. Leung for the defendant.

The case is Patel v. City of Los Angeles, 08-56567.


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