If your business is regulated by the government, do the Fourth Amendment's protections evaporate? On Monday, the Supreme Court in City of Los Angeles v. Patel held that the answer is "no," invalidating a Los Angeles ordinance that compelled hotel owners to create guest records and make them available to the police upon request, without a warrant. In so doing, it affirmed that people affected by laws that authorize unconstitutional searches need not wait for those laws to be enforced to challenge them and helped to ensure that exceptions to the Fourth Amendment's warrant requirement do not swallow the rule.
The Los Angeles ordinance at issue required hotel owners to record information about their guests, including name and address; make, model, and license number of vehicles; rate charged (as well as method of payment); and credit card information for guests who checked in using an electronic kiosk. Hotel owners were required to make those records "available to any officer of the Los Angeles Police Department for inspection," without either a warrant or an opportunity for judicial review before being subjected to penalties for refusing to comply. Refusing to comply was a misdemeanor punishable by up to six months in jail and a $1,000 fine. Noncompliant hotel owners could be arrested on the spot.
In 2003, a group of motel owners sued the city, arguing that the ordinance was unconstitutional on its face -- that although the ordinance had not yet been enforced, it authorized warrantless searches that unquestionably violated the Fourth Amendment. The Ninth Circuit Court of Appeals agreed, holding that the ordinance was unconstitutional on its face because "it authorizes inspections ... without affording an opportunity to 'obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.'" The Institute for Justice filed an amicus brief, arguing that tenants, as well as landlords and other property owners, should not have to wait for inspectors to come knocking to challenge laws that authorize unconstitutional government intrusions.
In an opinion authored by Justice Sonia Sotomayor, the Court first held that plaintiffs can mount facial challenges to laws authorizing warrantless searches. Justice Sotomayor recounted how the Court has not only allowed facial challenges to proceed "under a diverse array of constitutional provisions," but it has also done so under the Fourth Amendment specifically.
But did the ordinance actually violate the Fourth Amendment? The Supreme Court has interpreted the Fourth Amendment to generally bar nonconsensual governmental searches of private property absent a warrant issued upon probable cause by an impartial magistrate -- whether the property is residential or commercial. However, the Court has carved out a set of exceptions to this rule. In several cases, the Court has identified "closely regulated" industries that have been so long subject to comprehensive government oversight that property owners can have no reasonable expectation of privacy and thus cannot complain of warrantless inspections pursuant to a regulatory scheme, so long as (1) a substantial government interest informs the regulatory scheme; (2) warrantless inspections are necessary to the scheme; and (3) the inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for warrants.
The Court rightly refused to broaden this exception, exemplifying the fact-sensitive judicial engagement that is required to ensure that the Fourth Amendment does not become, in Justice Sotomayor's words, "a useless piece of paper." She pointed out that, unlike the handful of closely regulated industries identified by the Court in the past, such as mining (described as "among the most hazardous [industries] in the country"), "nothing inherent in the operation of hotels poses a comparable clear and significant risk to the public welfare." Against the argument that "regulations requiring hotels to ... maintain a license, collect taxes conspicuously post their rates, and meet certain sanitary standards" are enough to make them "closely regulated," she responded, "[i]f such general regulations were sufficient ... it would be hard to imagine a type of business that would not qualify." Responding to the claim that, "[f]or a long time, [hotel] owners left their registers open to widespread inspection," Justice Sotomayor distinguished between private choice and government mandate: "[T]he fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel's consent." Finally, she determined that even if the closely regulated exception obtained, the government had not demonstrated either that warrantless inspections were "necessary" or that the inspection program operated as a "constitutionally adequate substitute" for warrants.
No American should have to wait for an inspector to show up at their doorstep before challenging an unconstitutional regulation, nor should they under any circumstances be subjected to unwanted governmental intrusions upon their property without any opportunity to appeal to an impartial adjudicator. In upholding the rights of the challengers in Patel, the Supreme Court sent an unmistakable message: You don't forfeit your Fourth Amendment rights when you go into business.
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