No Peeking! Supreme Court Holds Police Cannot Demand Access to Hotel Registries Without Opportunity for Pre-Compliance Review
In a 5-4 decision, the United States Supreme Court ruled in City of Los Angeles v. Patel, 576 U.S. ____(2015), that Los Angeles Municipal Code § 41.49 requiring hotel operators to turn over guest registries to police upon demand is unconstitutional. A group of hotel operators brought the facial challenge to § 41.49 claiming that it violates the Fourth Amendment’s prohibition on unreasonable searches. The Court ruled that there were no set of circumstances under which § 41.49 would be constitutional because in all cases it requires hotel operators to turn over guest registries upon demand and does not provide them any opportunity for pre-compliance review.
The Court assumed that the search of guest registries is an “administrative search.” There are two primary features of an administrative search: (1) due to special circumstances, the typical warrant and probable-cause requirements are impracticable; and (2) the primary purpose of the search is something other than criminal investigation. When conducting an administrative search, the government is not required to obtain a warrant. However, the Court maintained that while a warrant may not be required, in order to be constitutional, administrative searches must provide the subject an opportunity to obtain pre-compliance review before a neutral decision-maker.
The Court stressed that an opportunity for pre-compliance review need not be an overly burdensome or lengthy process; it must simply be an opportunity to object to the search before suffering a penalty. The Court particularly observed that under § 41.49, a hotel operator who refuses to give an officer access to his or her hotel registry could be arrested on the spot. The Court found this type of arrangement to be unreasonable and lacking safeguards to ensure that police do not use searches to harass or intimidate operators or guests.
The Court contemplated the type of pre-compliance review that would be necessary in order for § 41.49 to be constitutional. The Court stated that the provision could be constitutional if the police sought access to registries pursuant to an administrative subpoena because under those circumstances, a hotel operator could move to quash the subpoena before any search took place. If an operator requested review, the police could guard the registry during the pendency of the third-party review, to ensure that the registry was not altered or destroyed.
Based on the Court’s decision, public agencies should review their transient occupancy tax or similar ordinances that require business operators to maintain records and provide access to those records upon request. If the ordinances allow for arrest or other criminal sanctions for non-compliance and do not provide for pre-compliance review, public agencies should consider amending them consistent with the Court’s direction.