The Ninth Circuit Court recently remanded a Lose Angeles city ordinance that allowed police to conduct on-site inspection of hotel records without first seeking a warrant. In the court’s ruling, 5-4, the majority affirmed the right of two hotel owners to have a “reasonable expectation of privacy” with respect to their records, thus making the ordinance unconstitional under the Fourth Amendment. The dissent argued that that the requirements to win the facial challenge—specifically a challenge that asserts the law is always unconstitutional, specifically because of how it was written—were not met by the plaintiffs as no specific searches were detailed in the case. In a sense, the whole argument is hypothetical.
In Judge Richard C. Tallman’s dissent, he writes that the defendants asked the court “to partake in the gymnastics of the hypothetical, focusing on the ‘language employed’ instead of the ‘conduct [the ordinance] authorizes.’” Essentially the ordinance is only being considered unconstitutional, according to the dissent, because the majority sees it as “warrantless searches” rather than a tool officers can employ as a “nuisance abatement measure designed to deter drug dealing and prostitution,” the position the State used to defend the ordinance. Tallman writes that the “majority opinion is rife with assumptions about the police conduct that must occur for the ordinance to be applied.” Specifically Tallman means illicit conduct by the police with the intent to violate the defendants’ privacy as business-owners, which according to the dissenting opinions was never proven to have actually happened.
However, the dissenters also engage in hypothetical. In Judge Richard R. Clifton’s dissent, he writes, that “a guest registry may be a publicly accessible book in a publicly accessible hotel lobby. Society likely does not recognize a legitimate expectation of privacy in information kept in a manner so easily accessible to anyone entering a hotel.” As an argument against the privacy of hotel records this is almost laughable, since even the cheapest of hotels keeps that information on a computer. The majority opinion contends throughout that hotel records are, in essence, private records protected by the modern definition of the Fourth Amendment phrase promising security of “persons, houses, papers, and effects.”
Also, the majority makes clear that it is most likely that any such warrant for hotel records would be granted, but recognizes the value of judicial review. For example, the ordinance language states that the records inspection could take place “in an office adjacent” to public areas of the hotel. Thus, it could amount to an illegal search of that office since it is not open to the public. The majority opinion also states that “the guests lack any privacy interest of their own in the hotel’s records” since they gave that information to the hotel as required by law. The majority also counters the dissent’s assertion that simply because some hotels voluntarily give up their records to police negates their status as private property. Judge Paul J. Watford, author of the majority opinion, compares it to a homeowner consenting to a warrantless search of his or her home negating others’ rights to refuse such a search.
Essentially, this ruling just adds another judicial step for police to take while investigating a crime. There are “exigent circumstances” as well, that can allow police to conduct an inspection, such as if attempting to locate a potentially suicidal person or “under their community care-taking exception.”