In a decision heralded as a big win for privacy rights, the U.S. Supreme Court decided, on 5–4 lines Monday morning, that the Fourth Amendment prevents the city of Los Angeles from enforcing a 116-year-old ordinance that compels hotel operators to turn over certain records to the police. In an opinion authored by Justice Sonia Sotomayor and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Anthony Kennedy, the majority struck down the ordinance punishing hotel operators that refuse to turn over such records “without affording them any opportunity for pre-compliance review.” Justice Antonin Scalia penned a feisty rebuttal in response, accusing the majority of making it vastly more difficult for cops to break up drug rings, human trafficking, and prostitution operations.
City of Los Angeles v. Patel not only offers a peek at two radically different views of the contours of the Fourth Amendment’s prohibition on warrantless searches, but also divergent views of the hotel industry (Sotomayor’s cozy Holiday Inn pitted against Scalia’s Crack Den Homewood Suites). But perhaps the best part is the court’s guided tour through the delightful constitutional history of lodgings and hostelries, with which many of us may find ourselves unfamiliar.
In her majority opinion, Sotomayor invalidated the code at issue (similar codes exist in more than 100 cities around the country), which requires a hotel operator to create a record of a guest’s name, address, the number of people in his party; the make, model, and license plate number of his car; the rate charged; and the method of payment. A guest who pays for his room with cash and any guest who rents a room for less than 12 hours must show a photo ID at check-in, and the hotel operator is required to record the number and expiration date of that document. If you check in at a kiosk, your credit information is stored, and all of this information must be preserved in the hotel office for 90 days. The municipal law says these records are to be “made available to any officer of the Los Angeles Police Department for inspection.” Failure to turn the records over is a misdemeanor punishable by up to six months in jail and a $1,000 fine.
A Los Angeles lodging association and 40 hotel owners challenged the law as a violation of the Fourth Amendment’s prohibition on warrantless searches. The city of L.A. won in the trial court, won again at the 9th U.S. Circuit Court of Appeals, but then lost, 7–4, after a 9th Circuit rehearing. The guts of the dispute between Sotomayor and Scalia is over whether the search of hotels and motels is closer to an “administrative search” of a highly regulated industry, for which the reasonable expectation of privacy is lowered. Sotomayor doesn’t think this is the kind of industry subject to that kind of search. Scalia does.
Sotomayor notes that over the past 45 years the court has identified only four industries that “have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor”—liquor sales, firearms dealing, mining, or “running an automobile junkyard.” She adds that “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare.” She writes that “unlike the industries that the Court has found to be closely regulated, hotels are not intrinsically dangerous.”
Sotomayor further worries that the municipal law allows cops to harass proprietors: “A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot,” she explains. She notes that “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.” Sotomayor then emphasizes that today’s decision is quite narrow: The rest of the record-keeping law stands, and police—so long as they are complying with existing Fourth Amendment doctrine—can still examine the records. They just can’t search without affording the owner a chance to have the request reviewed. And she adds that the exception for exigent circumstances still allows cops to effectuate quick searches.
In his dissent, Scalia, joined by Chief Justice John Roberts and Clarence Thomas, is less sanguine, describing hotels as “an obvious haven for those who trade in human misery,” which was probably not the tag line for any hotel’s ad campaign. (“Trading in Human Misery since 1976 … ”) Noting that “the private pain and public costs imposed by drug dealing, prostitution, and human trafficking are beyond contention,” Scalia writes that “the purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in.”
Scalia adds that “offering privacy and anonymity on the cheap” (a slogan jettisoned by Marriott), motels are more like those heavily regulated industries than not, then turns to the history of the regulatory tradition surrounding hotels, aka What Would James Madison Think of the Econo Lodge?
As it turns out, not much. As Scalia explains, “[G]overnments have long subjected these businesses to unique public duties, and have established inspection regimes to ensure compliance.” Scalia hearkens all the way back to William Blackstone, who wrote in 1765 that “Inns, in particular, being intended for the lodging and receipt of travellers, may be indicted, suppressed, and the inn-keepers fined, if they refuse to entertain a traveller without a very sufficient cause: for thus to frustrate the end of their institution is held to be disorderly behavior.”
He notes that Justice Joseph Story, writing in 1851, recognized that travelers “are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are none of the best, and who might have frequent opportunities of associating with ruffians and pilferers.” (“Please join us tonight for happy hour next to the concierge desk where you can mingle with fellow ruffians and pilferers.”)
Scalia reminds us that at the time of the founding, Massachusetts, despite being “the State most protective against government searches,” still provided in the state code of 1788, that “tithingmen” were allowed “to search public houses of entertainment on every Sabbath without any sort of warrant.”
Scalia adds that as Joseph H. Beale helpfully confirmed in 1906, “From the earliest times the fundamental characteristic of an inn has been its public nature. It is a public house, a house of public entertainment, or, as it is legally phrased, a common inn.”
Noting that hotels are already heavily regulated, Scalia writes that, at least in California, they “must change bed linens between guests,” wash and sanitize “multiuse drinking utensils,” and allow for state inspections. Scalia also notes that although it’s true that the Supreme Court has found only four classes of industry to be so heavily regulated that a proprietor’s expectations of privacy are diminished, the lower courts have expanded that category to include massage parlors, commercial fishing operations, jewelers, and “yes, even rabbit dealers.”
Responding to Scalia’s tour through the Fourth Amendment and the founders, Sotomayor acknowledges that although the city of L.A. is correct to observe that “[f]or a long time, [hotel] owners left their registers open to widespread inspection,” it’s also the case that “modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog.”
In other words, as Sotomayor notes, although Massachusetts’ 1893 acts and laws required innkeepers to “furnish suitable provisions and lodging, for the refreshment and entertainment of strangers and travellers, pasturing and stable room, hay and provender … for their horses and cattle,” hotels have changed a good deal in the intervening 122 years. And although you just can’t really find good provender at a Hyatt anymore, the information you give at the check-in desk can be a good deal more sensitive than it was back in the days when one wrote “Ben Franklin, Philadelphia” with a flourish, in the register.
I asked Steven R. Shapiro, the national legal director of the American Civil Liberties Union, why Patel is being hailed as such a big win for privacy. This was his response:
“It’s an important decision that makes it more difficult for the government to argue for piecemeal challenges to laws and programs that broadly infringe privacy rights, including mass surveillance problems. It thus increases the likelihood of meaningful judicial oversight.”
In the end, this is not really a case about whether hotels are more like junkyards and liquor stores. It’s about whether the warrant requirement still means something to hotel owners, even if it inconveniences the cops.