June 22, 2015

"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... 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...."

Writes Justice Sotomayor in today's 5-to-4 decision in Los Angeles v. Patel.

In dissent, Justice Scalia paints a dark picture of motels:
Motels not only provide housing to vulnerable transient populations, they are also a particularly attractive site for criminal activity ranging from drug dealing and prostitution to human trafficking. Offering privacy and anonymity on the cheap, they have been employed as prisons for migrants smuggled across the border and held for ransom, see Sanchez, Immigrant Smugglers Become More Ruthless, Washington Post, June 28, 2004, p. A3; Wagner, Human Smuggling, Arizona Republic, July 23, 2006, p. A1, and rendezvous sites where child sex workers meet their clients on threat of violence from their procurers....

An administrative, warrantless-search ordinance that narrowly limits the scope of searches to a single business record, that does not authorize entry upon premises not open to the public, and that is supported by the need to prevent fabrication of guest registers, is, to say the least, far afield from the laws at issue in the cases the Court relies upon. The Court concludes that such minor intrusions, permissible when the police are trying to tamp down the market in stolen auto parts, are “unreasonable” when police are instead attempting to stamp out the market in child sex slaves.
Scalia is joined by Roberts and Thomas, but not Alito, who writes his own dissenting opinion, which is joined by Roberts and Thomas. Alito also expresses concern about what he calls "child-sex traffickers":
But even if the Court were 100% correct, it still should uphold [Los Angeles Municipal Code] §41.49(3)(a) because many other applications of this law are constitutional [so it is not facially unconstitutional]. Here are five examples....

Example Three. A neighborhood of “pay by the hour” motels is a notorious gathering spot for child-sex traffickers. Police officers drive through the neighborhood late one night and see unusual amounts of activity at a particular motel. The officers stop and ask the motel operator for the names of those who paid with cash to rent rooms for less than three hours. The operator refuses to provide the information. Requesting to see the register—and arresting the operator for failing to provide it—would be reasonable under the “totality of the circumstances.”
In case you're wondering what kept Alito from signing on to the Scalia opinion, Alito restricts himse.f to the problem with making a facial challenge to the ordinance:
There are serious arguments that the Fourth Amendment’s application to warrantless searches and seizures is inherently inconsistent with facial challenges....  But assuming such facial challenges ever make sense conceptually, this particular one fails under basic principles of facial invalidation. The Court’s contrary holding is befuddling.
Justice Scalia looks not only at the problem of making a facial challenge but also at the "exception to normal warrant requirements" that applies to "searches of closely regulated businesses," which he thinks should include motels:
Reflecting the unique public role of motels and their commercial forebears, governments have long subjected these businesses to unique public duties, and have established inspection regimes to ensure compliance. As Blackstone observed, “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.” 4 W. Blackstone, Commentaries on the Laws of England 168 (1765). Justice Story similarly recognized “[t]he soundness of the public policy of subjecting particular classes of persons to extraordinary responsibility, in cases where an extraordinary confidence is necessarily reposed in them, and there is an extraordinary temptation to fraud, or danger of plunder.” J. Story, Commentaries on the Law of Bailments §464, pp. 487–488 (5th ed. 1851). Accordingly, in addition to the obligation to receive any paying guest, “innkeepers are bound to take, not merely ordinary care, but uncommon care, of the goods, money, and baggage of their guests,” id., §470, at 495, as travellers “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,” id., §471, at 498.
Sotomayor's answer to that is:
Petitioner attempts to recast this hodgepodge of regulations as a comprehensive scheme by referring to a “centuries-old tradition” of warrantless searches of hotels. Brief for Petitioner 34–36. History is relevant when deter-mining whether an industry is closely regulated. See,e.g., Burger, 482 U. S., at 707. The historical record here, however, is not as clear as petitioner suggests. The City and Justice Scalia principally point to evidence that hotels were treated as public accommodations. Brief for Petitioner 34–36; post, at 5–6, and n. 1. For instance, the Commonwealth of Massachusetts 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.’ ” Brief for Petitioner 35 (quoting An Act For The Due Regulation Of Licensed Houses (1786), reprinted in Acts and Laws of the Commonwealth of Massachusetts 209 (1893)). But laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches. Petitioner also asserts that “[f]or a long time, [hotel] owners left their registers open to widespread inspection.” Brief for Petitioner 51. Setting aside that modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog, the fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel’s consent.

20 comments:

YoungHegelian said...

Gotta side with the Sotomayor & the liberals on this one.

If the cops want to build a case, they now can get a warrant to examine security camera footage & to examine cell phone records, which, by the way, now often include where the suspect's phone was located at a given time. Let's also not forget just good-old fashion on-site police surveillance.

To make a business cough up private business transactions that contain confidential customer information just because it makes the cops' lives easier seems dubious, at best, to me. It looks like a good idea when it's the No-Tell Motel in Sausilito, but apply it multiple times to the Ritz-Carlton in downtown Manhattan, and you start to see how it allows the cops to build a "blackmail" spreadsheet in no time at all. For example, Alderman X is having a very private & discreet affair, which he would prefer the voters & Mrs Alderman not to know about. Not moral, but not illegal either, and something the cops have no business knowing about.

traditionalguy said...

It is still the Fourth Amendment doing its designed job, which is to put a stop to the police who are trying to put a stop to smuggling.

Smuggling is an honorable profession that evades criminal prosecution from Revenuers.

The day Cash is outlawed more that the current Money Laundering Crimes already do it, will be the day blackmarketers and smugglers are Kaput

Michael K said...

Sotomayor is the "wise latina" like the one that is the head of the OPM and who ignored the Chinese hackers for years in spite of warnings by the IG since 2010.

Despite massive cyber attacks at the Office of Personnel Management, President Obama still has confidence in OPM Director Katherine Archuleta, the White House said Wednesday.

“The president does have confidence that she’s the right person for that job,” said White House press secretary Josh Earnest.

Mr. Earnest said that when she took the job, Ms. Archuleta identified as “one of her first priorities” the upgrading of the office’s computer networks. It was during that upgrade in April that officials discovered a massive breach of sensitive personnel data , allegedly stolen by agents of China.


Why not ? She is a wise Latina.


Lem the artificially intelligent said...

"Sanchez, Immigrant Smugglers Become More Ruthless,"

Donald Trump... there, I said it.

Arrest me under a broken windows ordinance.

Bryan C said...

Recycled "Law & Order" plots hardest hit.

I agree with this Sotomayor. If it's important, get a warrant. Police officers should have no individual authority to "demand" records from private individuals or businesses. That's why we have judges, and warrants.

MadisonMan said...

I approve of this decision. The Police need fewer powers, not more.

tim maguire said...

I also think the majority got it right and once again am disappointed in the rather selective analytical skills of Scalia. It's not society's job to make police work as easy as possible, it is the police's job to work within a framework of individual rights.

Getting a warrant is not exactly a high bar these days. How easy does it have to get before we stop trying to waive the requirement any time a cop doesn't want to pick up a phone?

TreeJoe said...

This is an area where the court shows it's strength in division - a proper 5-4 split that shows this is a delicate issue but the rights of citizens outweigh the desire of police for expedited review of private/personal information.

Sigivald said...

Setting aside that modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog

While I tend to think the Majority got the decision right, this is ludicrous.

If a hotel registry holds a credit card number that is readable to someone looking at the registry, it's incompetently produced.

And I mean that in a "they'll get their merchant account revoked after a PCI audit" way, not a "they're just dumb" way; you cannot store plaintext or two-way-encrypted credit card data like that in retail or hospitality, not if you want to keep handling credit cards as part of your business model.

Who cares about cops seeing a credit card? I'm worried about the minimum wage desk staff or the cleaners - and this is why nobody does that.

Cheap hotels have a little card terminal that doesn't leave them the number, and expensive ones have a real point-of-sale system that also doesn't.

(I'm also not at all sure that a DL number is very "sensitive"; what's the abuse case for it compared to your name alone? Especially in the hands of police who can see license plates in the parking lot?)

B said...

Child sex trafficking is the new bogeyman that strips people of their rights.

Wilbur said...

The police conduct warrantless searches of auto body repair shops all the time. Many large city departments have trained detectives assigned to do little else.

Anybody got a problem with that?

JCC said...

First, I think that many here misunderstand what is required to obtain a search warrant. The police need to articulate specific probable cause to search for a specfic article or thing (or information) which is the fruits of a crime or evidence of a crime, within a specific place, held in violation of law. So, if the police wanted to know if a specific person was registered in a hotel, and the hotel owner said "Pound sand.", there is no way for the cops to obtain a warrant for that information, unless they have PC to believe the hotel owner is, say, knowingly harboring a fugitive, for instance. Or, say, the cops found a car used in a crime in the parking lot, and wished to know if anyone actually listed that same auto on a registration card, and the hotel owner said "Pound sand." etc. Same with "How did the known robber in room #22 pay for his room?" or "Who (of the hunded people registered) used the stolen credit card taken in the murder?" Or even "are you, the motel owner, keeping the records you are required to maintain by ordinance?' Hos is anyone supposed to check compliance by the hotel owners? Who knows?

Oh, and in the real world, search warrants usually take more than a few hours to obtain in most jurisdictions, espcially in times off normal business hours. Time enough the the management to call the person involved and tell them the cops are asking, before the cops can come back with that search warrant. It's only on TV that the police pick up the phone, and in 5 minutes have a warrant. In the real world, a cop has to create an affidavit of probable cause, then print up the 2 copies of the affidavit and warrant, get them approved by the on-duty prosecutor (if he'll answer his phone). Then you just have to wake up the duty magistrate, who more often than not will tell you to come by the office at 8 AM because he/she doesn't feel like dealing with you at 2 in the morning.

The decision says, to be fair, the cops could issue an administrative subpoena demanding the info. But the owner can ignore the subpoena and demand a hearing. The decision goes on to say that the cops could then "guard the register" while the hearing is scheduled and proceeds. The decision says this would be "rare".

Seriously? The wise Latina thought this one up?

The law can require hotels have to keep records as a legitimate government interest, but now, no one is allowed to review those records without a subpoena, which can be ignored. Perfect logic. So, this decision hampers the cops who are trying to catch bad guys, not collect credit card info or find out who's doing the horozontal mambo with whom. It's intended for the rent-by-the-hour hot sheet Blue Lagoon Motel, which specializes in crooks and hookers and dopers, and has management which is, to use a phrase, in bed with the bad guys. It will makes things a little harder for the police, and help some criminals escape the law, and make the overall environment a little less safe for everyone else.

But go ahead and gloat. It's a victory.

JCC said...

@ Wilbur -

Some closely regulated businesses, like liquor licensed establishments, food service places, nursing homes, pharmacies, etc, are allowed to be subject to warrantless searches - or "inspections" - during normal business hours. They waive their right against warrantless search as part of the licensing scheme, much like licensed drivers do in implied consent states. The rationale is government interest in the licensing scheme, usually based on public health, but as in auto body shops and say, parking lots, the issue of auto theft and marketing of stolen components.

Everyone pays in terms of your auto insurance. Why would you object to inspections of auto body shops?

Wilbur said...

What leads you to conclude I'm objecting?

JCC said...

Oh...never mind.

Joe said...

Scalia consistently goes off the rails when a case is about something he personally finds very distasteful, in this case motels. For a guy all about original intent, why is he using Blackstone?

Robert Cook said...

JCC said: "But go ahead and gloat. It's a victory."

A small one, but yes, a victory. After all, the purpose of the Bill of Rights is to protect the people from the overwhelming power of the state. It is meant to place impediments before agents of the state who seek to take action against citizens.

If anything, there are too few such impediments.

prairie wind said...

Child sex trafficking is the new bogeyman that strips people of their rights.

Exactly.

Kirk Parker said...

JCC,

"Or, say, the cops found a car used in a crime in the parking lot, and wished to know if anyone actually listed that same auto on a registration card..."

Wait, wait--are you suggesting the police would have a hard time getting a warrant in this scenario? Really???


Oh, and if you want further conversation from me, don't take it personally if I don't get back to you right away. I find myself agreeing with Robert Cook... so I'm off to buy a Lotto ticket! :-)

JCC said...

@ Kirk -

Yes, in exactly that scenario, based only on the presence of the car in the parking lot, the cops would have a hard time obtaining a search warrant, especially in time for the search under the authority of the warrant to do any good. Keep in mind the warrant, especially if needed at 2:00 AM, is going to take 6 or 8 hours to obtain. By that time, the bad guys will have been informed of the police interest and will have long since hit the road.

You would have to have probable cause that the hotel records would MORE LIKELY THAN NOT show a registration including the auto information. You could never show that. A judge would not give you a warrant in this circumstance.

You must have probable cause to believe a specific thing, which is either contraband or evidence, is in a specific place. It can't be based on hearsay, rumor, anonymous tips, guesswork, etc. One of the cops or someone identified who spoke with the cops must have first hand knowledge, or you can't get the warrant. The information also has to be fresh, say, within 10 days.

So, in this case, the judge would probably ask "How do you know the person driving the car wasn't just visiting the hotel and not registered?" That's the end of your search warrant application for the hotel records.

Yeah, I know, on TV, they just pick up the phone and get a warrant in 2 minutes to search, you know, the White House or someplace. Sorry.

So, how does this decision place impediment before the agents of government who want to take action against the citizens, as someone else posted? Or is it just more stupid, misguided nonsense? "Guard the register while they get a warrant" my foot.

Apparently the wise Latina has been watching the same TV shows. Which is scary since she's making the law now instead of he elected officials, but doesn't seem to have too much experience with the way it actually works. Maybe she should have called a cop before writing this decision and asked him or her about how the search warrant thing happens in the real world.

Wise.