Fourth Amendment Facial Challenges and Access to Hotel Guest Lists

Los Angeles has a municipal code provision requiring hotel operators to keep a list of guest names and to make that list available to the LAPD on request. Specifically, the code says that the list “shall be made available to any officers of the Los Angeles Police Department for inspection. Whenever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” In Patel v. City of Los Angeles, a hotel owner sued the city on the ground that this code section violated the Fourth Amendment. Specifically, the hotel owner brought a facial challenge to the constitutionality of the code section: On appeal, the parties have stipulated that the outcome of the litigation hinges on whether the code section is facially unconstitutional.

In my view, the correct resolution of the case is that you can’t bring a Fourth Amendment facial challenge to a municipal code section that does not involve the issuance of warrants. As the Supreme Court explained in Sibron v. New York, 392 U.S. 40 (1968), in the course of rejecting a facial challenge to a New York stop and frisk statute, statutes that may allow conduct that may be a warrantless search or seizure have to be adjudicated in the particular case rather than as a facial challenge:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of § 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of § 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect, it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U. S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E.g., Aguilar v. Texas, 378 U. S. 108 (1964); Giordenello v. United States, 357 U. S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N.Y.Code Crim Proc. § 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike § 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to “stop” people, “demand” explanations of them and “search [them] for dangerous weapon[s]” in certain circumstances upon “reasonable suspicion” that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of § 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. [Footnote 20] New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U. S. 23, 374 U. S. 34 (1963), and, in the process, it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure “is not whether the search [or seizure] was authorized by state law. The question is, rather, whether the search was reasonable under the Fourth Amendment. Just as a search authorized by State law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.”
Cooper v. California, 386 U. S. 58, 386 U. S. 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of § 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is “not so much . . . the language employed as . . . the conduct it authorizes.” People v. Peters, 18 N.Y.2d 238, 245, 219 N.E.2d 595, 599, 273 N.Y.S.2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 392 U. S. 1, that police conduct of the sort with which § 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of § 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.

The panel majority reached the same result as this suggests, in that it rejected the facial challenge. But the analysis of how the panel arrived at that conclusion was more awkward than it needed to be. The Court reasoned that under Salerno, a facial challenge could not succeed unless it was shown that all facts covered by the statute would be unconstitutional. With no facts before the court, the panel ended up rejecting the challenge primarily on the ground that was no affirmative evidence of a Fourth Amendment violation:

The Patels presented no evidence to support their contention that hotel owners and operators, including themselves, have their own expectation of privacy in the information contained in guest registers. It may be true, as they allege, that the information could be used by the hotel operators for other purposes, but that does not mean hotel owners have a reasonable expectation of privacy in the registers. Just because information can be used by a business does not mean that the business owner desires to keep the information private, or that society would accept such a desire as objectively reasonable. Here, there is no evidence that all hotel owners affected by the regulation even consider the information to be private, let alone that any such expectation is reasonable.

Moreover, the Patels have presented no evidence that hotel owners customarily maintain guest registers in a manner that would support a claim of privacy. As Miller and Cormier recognized, once information is revealed to others it is unlikely that a reasonable expectation of privacy can be established. An old-fashioned guest register may take the form of a book located on the counter in the guest reception area, a form that would appear to satisfy the ordinance. But it is unlikely society would recognize a reasonable expectation of privacy in information kept in a manner so easily accessible by anyone entering the hotel.

To be clear, we do not hold that a hotel owner or operator can never have a reasonable expectation of privacy in guest register information. To this end, we reject the argument of the City that hotel owners can never have a reasonable expectation of privacy in the guest registries simply because the regulation informs them that the police can inspect the registries on request. An individual’s otherwise reasonable expectation of privacy cannot be so easily stripped away merely by the adoption of a regulation authorizing searches of an item or location. To hold otherwise would allow the government to conduct warrantless searches just by announcing that it can. See United States v. Consol. Coal Co., 560 F.2d 214, 217 (6th Cir.1977), vacated and remanded on other grounds, 436 U .S. 942 (1978), judgment reinstated, 579 F.2d 1011 (6th Cir.1978), cert. denied 439 U.S. 1069 (1979) (“Even where a statute requires records to be maintained and authorizes on-premises inspection of them in the normal course, no precedent sanctions direct access to the records without demand in the absence of a search warrant.”); see also McLaughlin v. Kings Island, 849 F.2d 990, 995 (6th Cir.1988) (“[T]he concept of ‘required records’ is not synonymous with the absence of a privacy interest.”); Brock, 834 F.2d 994, 996 (11th Cir.1987) (concluding business had a privacy interest in records OSHA required it to keep and make available for inspection).

A customer list, for example, may be entitled to the protection of the Fourth Amendment, like other business records and premises. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978) (discussing historical background of Fourth Amendment and noting that “[a]gainst this background, it is untenable that the ban on warrantless searches was not intended to shield places of business”); United States v. Burger, 482 U.S. 691, 699 (1987) (“An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider reasonable”). Businesses may have a reasonable expectation of privacy in their information contained in their records. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 (1977) (seizure of corporate books and records implicated company’s privacy interest); See v. City of Seattle, 387 U.S. 541, 544 (1967) (Fourth Amendment applies to government’s “perusal of financial books and records”).

But the Patels have provided no evidence or other basis for us to conclude that they have an objectively reasonable expectation of privacy in the information covered by this ordinance, let alone that all hotel operators do. They cannot meet the standard for a successful facial challenge because they cannot “establish that no set of circumstances exist under which the Act would be valid.” Salerno, 481 U.S. at 745.

That’s the correct result, but I think there is a much easier way to get there: Under Sibron, you can’t adjudicate a Fourth Amendment facial challenge with no actual facts unless the procedure involves the issuance of a warrant, which this code section does not.

Thanks to How Appealing for the link.