Tuesday, October 21, 2014

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High Court to Review Local Rules on Hotel Guest Data

From Staff and Wire Service Reports

The U.S. Supreme Court yesterday agreed to decide whether the City of Los Angeles may require hotel owners to collect specified information about guests and turn it over to the police upon request, without a warrant.

The court, without comment, granted the city’s petition for a hearing in the case. The Ninth U.S. Circuit Court of Appeals ruled en banc last December in City of Los Angeles v. Patel that §41.49 of the Los Angeles Municipal Code violates the Fourth Amendment.

Hoteliers Naranjibhai and Ramilaben Patel are challenging the city ordinance as an unlawful invasion of their private business records.

The code section says hoteliers must record and keep for 90 days information about each guest, including their names and addresses, details about their vehicles, arrival and departure dates, room numbers, the rate charged and payment method. Moreover, if a police officer requests the information, hotel owners must submit to a warrantless, onsite inspection of their guest registries or face up to six months in jail and a $1,000 fine.

U.S. District Judge Dale Fischer sided with the city of Los Angeles after a bench trial, and a Ninth Circuit panel affirmed in July 2012. Both courts concluded that the Patels had failed to show a privacy interest in the registry information, but the en banc court disagreed in a 7-4 decision.

It had been baited perhaps by the panel majority’s finding that “the Supreme Court has made clear that, to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review, an element that § 41.49 lacks.”

“Hotel operators are thus subject to the ‘unbridled discretion’ of officers in the field, who are free to choose whom to inspect, when to inspect, and the frequency with which those inspections occur,” Judge Paul Watford continued. “Only by refusing the officer’s inspection demand and risking a criminal conviction may a hotel operator challenge the reasonableness of the officer’s decision to inspect. To comply with the Fourth Amendment, the city must afford hotel operators an opportunity to challenge the reasonableness of the inspection demand in court before penalties for non-compliance are imposed.”

Writing in one of two dissents to the majority ruling, Judge Richard Tallman argued that the panel should have ordered dismissal of the case because there was not enough evidence for a facial challenge.

“They leave us with no evidence to prove that all requests made under the ordinance must violate the Fourth Amendment,” Tallman wrote. “The majority’s decision to nonetheless entertain the facial challenge eschews Supreme Court guidance to the contrary.”

The ordinance’s language says that the hotel owner must provide the guest register if the police request it, he noted.

“The ordinance does not claim to alter the LAPD’s constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information,” Tallman argued “We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination.”

Judges Consuelo Callahan, Diarmuid O’Scannlain, and Richard Clifton, who also wrote his own dissent, joined Tallman.

Clifton argued that the Patels had failed to show that the ordinance is unreasonable under the Fourth Amendment.

“The most that the majority opinion has established is that an inspection of guest registry information under the ordinance might not qualify under the established administrative subpoena exception,” Clifton wrote. “But that is not the ground upon which the district court concluded that plaintiffs’ facial challenge failed. Instead, it took on the harder question and concluded that the plaintiffs failed to demonstrate that they and hotel owners in general had a legitimate privacy interest in guest registry information such that the ordinance was facially unreasonable. By concluding that a search under the ordinance is necessarily unreasonable because it does not fit the administrative subpoena exception, the majority opinion has knocked over a straw man.”

Courts in other parts of the country have upheld similar laws.

Cities argue that the ordinances help fight prostitution and illegal gambling, aid in the pursuit of fugitives and even could be a tool to track suspects following a terrorist attack. Los Angeles has said the ordinance makes prostitutes and drug dealers less likely to use hotels if they know that the facilities must collect information about guests and make them available to police on a moment’s notice.