In a win for privacy advocates, the U.S. Supreme Court ruled that a City of Los Angeles municipal ordinance permitting warrantless police searches of hotel registries is unconstitutional. The subject ordinance (Los Angeles Municipal Code section 41.49 3(a)) required hotel operators to hand over their guests’ information – including credit card numbers, home addresses, driver’s license details and vehicle license numbers – upon request to any Los Angeles Police Department officer. Noncompliance with the ordinance was a misdemeanor punishable by up to six months in jail and a $1,000 fine.

In City of Los Angeles v. Patel, in a 5–4 decision, the Court held that the ordinance’s disclosure requirement violated the Fourth Amendment of the U.S. Constitution, because the ordinance penalized the operators for declining to turn over their records without affording them any opportunity for pre-compliance review.

This case began in 2003, when a group of motel operators and a lodging association sued the City of Los Angeles, bringing a facial challenge to the ordinance under the Fourth Amendment. The City argued there was a need to combat gambling, prostitution and drug dealing, and that the statute would deter guests from using hotels for illegal purposes knowing their information could be accessed by police at will. After a bench trial with regard to the ordinance’s disclosure requirement only, the District Court entered judgment in favor of the City and held that the operators lacked a reasonable expectation of privacy over the records subject to inspection.

After a Ninth Circuit Court of Appeals panel affirmed the District Court, the full Court of Appeals reversed, declaring the disclosure requirement was facially unconstitutional. The Court determined (1) an officer’s nonconsensual inspection of hotel records was a Fourth Amendment “search” because the relevant business records were the operators’ private property, which afforded them the right to exclude others from reviewing the contents, and (2) the searches authorized by the ordinance were unreasonable because the ordinance authorized inspections of hotel records without giving the operators the chance to “obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.” Patel v. City of Los Angeles, 738 F.3d 1058, 1061-1065 (9th Cir. 2013)

The U.S. Supreme Court affirmed the Ninth Circuit’s decision. Writing for the majority, Justice Sonia Sotomayor first rejected the City’s argument that the ordinance could not be subjected to a facial challenge. “A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are ‘the most difficult … to mount successfully,’ (citation omitted) … the Court has never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution … Fourth Amendment challenges to statutes authorizing warrantless searches are no exception.”

With regard the disclosure requirement, the Court held that a hotel owner must be afforded an opportunity to have a neutral decision maker review an officer’s demand to search the registry before the owner faces penalties for failing to comply. Simply stated, the Court found intolerable the notion that (1) a hotel operator could be arrested on the spot for failing to comply with an officer’s demand under the ordinance and (2) that the ordinance could potentially be applied in an abusive manner. “Absent an opportunity for pre-compliance 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. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.”

The Court suggested that its ruling was limited. First, the Court’s opinion left untouched the portions of the statute that required hotel operators to maintain guest registries containing certain guest information. The ruling was specifically limited to instances in which a hotel operator refuses to comply with the ordinance as opposed to a ruling; for example, that required pre-compliance review in all instances where the ordinance was being applied. Additionally, the Court reasoned, where an officer reasonably suspected that a hotel operator could tamper with the registry during the pendency of a pre-compliance review, the officer could guard the registry until the required hearing occurs, which, given the general simplicity of an administrative review procedure, should be relatively quick.

In acknowledging the necessity for the decision, the Court pointed out that irrespective of the precise form of the review, the opportunity to obtain pre-compliance review, “…alters the dynamic between the officer and the hotel to be searched, and reduces the risk that officers will use these administrative searches as a pretext to harass business owners.”

While the decision is a win for privacy advocates, hotel and motel operators in Los Angeles should put controls in place to prepare for such a request from Los Angeles Police Department officers. They need to establish a policy or procedure outlining the steps employees should take if faced with such a request, including the process for quickly informing management. Equally important, hotel and motel operators should train their employees regarding the policy or procedure, and how to respond to any such request. If necessary or appropriate, they should challenge the request, because failing to do so in a timely manner could waive any opportunity to object in the future.