A smallish victory for Fourth Amendment protections comes today as the Supreme Court has struck down a Los Angeles ordinance that allowed police warrantless, on-demand access to hotel/motel guest records. This win is very limited, and the court’s discussion of the issue at hand pertains solely to the Los Angeles statute and doesn’t address the potential unconstitutionality of other, similar records sweeps granted by the Third Party Doctrine. Nor does it address the potential Fourth Amendment violations inherent to “pervasive regulation” of certain businesses — like the records legally required to be collected and handed over on demand to law enforcement by entities like pawn shops, junk yards and firearms dealers.

The 5-4 decision focuses on the specifics of the Los Angeles statute, and it’s those specifics that are problematic. The court finds that merely accessing these records without a warrant isn’t necessarily unconstitutional, but rather that any demand for records cannot be challenged and that any challenging party can be fined or jailed.

The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.

Because there is no reasonable avenue to challenge these searches, business owners are really only given one option: comply. This has the potential to lead to abusive behavior.

A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance 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.

In the end, there’s no warrant requirement. All that’s needed is for the city’s statute to provide an avenue for searches to be challenged. The court suggests administrative subpoenas but notes that it could take any form that similarly allows business owners to challenge the records search before the search occurs and helps prevent police from using the statute as a “pretext for harassment.”

The dissent, written by Justice Scalia, claims that even this very narrow decision is too expansive. Scalia argues that the new requirement places an undue burden on law enforcement officers by potentially forcing them to obtain ex parte search warrants for every motel they visit, simply because they won’t know in advance which owners will challenge the search. In a city with over 2,000 hotels, the dissent sees this as unreasonable and untenable.

The prevailing opinion refers to the dissent’s fears as “overblown,” stating that a vast majority of businesses will still be compliant with law enforcement requests. In both Scalia’s and the government’s eyes, any alteration of the existing statute can only lead to a majority of motel owners refusing instant access to registry information, but this narrow view turns rare exceptions into the rule and fails to consider the numerous options still available to law enforcement to perform unchallenged searches.

The decision doesn’t demand warrants or subpoenas for every motel registry check. It only orders these measures be in place for when they are needed, giving business owners the chance to challenge warrantless searches without facing jail time or fines. This is more consistent with the Fourth Amendment, and it still provides the LAPD plenty of leeway to perform motel spot checks without worrying about extra paperwork. It’s a small, extremely narrow win for the Fourth Amendment rights of Los Angeles motel owners, but beyond that, it’s of very limited use elsewhere.

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