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No. 13-1175

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CTrv or.LoS ANGELES,

Petitioner,v.

NeneNJBHar Perpl, RAMTLABnN PATnL,Los ANcslns Loocrivc AssocrATroN,

Respondents.

On Petition for a Writ of Certiorarito the United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

FrankA. WeiserCounsel of Record

3460 Wilshire Blvd.Suite 1212Los Angeles, CA 90010(213) [email protected]

C ounsel for respondents

I

QUESTIONS PRESENTED

1. Whether motel owners may even attempt tobring a facial Fourth Amendment challenge against acity ordinance that authorizes warrantless,suspicionless searches of motel guest registries by thepolice.

2. Whether motels in Los Angeles, which areconcededly not a closely regulated industry, have areasonable expectation of privacy in motel guestregistries, when such records are concededly "papers"within the meaning of the Fourth Amendment; and, ifso, whether a city ordinance that authorizeswarrantless, suspicionless searches of those papersviolates the Fourth Amendment because it providesno pre-compliance safeguards whatsoever.

iiPARTIES TO THE PROCEEDING BELOW

The caption to the petition does not identifr all ofthe parties to the dispute. Petitioner is correctlyidentified as the City of Los Angeles.

The respondents correctly identified in thecaption are Naranjibhai Patel, Ramilaben Patel, andthe Los Angeles Lodging Association.

In addition to those respondents, the followingindividuals were plaintiffs and appellants in theconsolidated cases below, and are thereforerespondents in this Court: Rajendrakumar N.Bhakta, Manjula Bhakta, Manharbhai G. Bhakta,Sarojben D. Bhakta, Praful K. Bhakta, Hitendra D.Bhakta, Pankaj Patel, Naranbhai Patel, DeepakPatel, Dinesh Patel, Jitubhai Bhakta, RatlalbhaiPatel, Ashokbhai Patel, IGmalbhai Patel, DilipDenaplya, Sanmukh Patel, Kishor Bhakta, RamanBhakta, Jayesh Bhakta, Mahendra Bhakta, YogeshPatel, Sanmukh Bhakta, Pratap Bhakta, JitendraBhakta, Praful Patel, Nilesh Bhakta, KiranbhajBhakta, Dilip Patel, Naresh Bhakta, Vijay Patel,Rambhai Patel, Pravin Bhakta, R.N. Ghandi,Hasmukh Patel, and Bharatbhai Bhakta, all of whomare named individual plaintiffs and appellants in therelated and consolidated cases CV04-2192 DSF andcv03-3610 DSF.

iiiTABLE OF COI{TENTS

QUESTTONS PRESENTED.......... .................i

PARTIE S TO THE PROCE E DING BELOW ............... iiTABLE OF AUTHORITIES. ......iv

BRIEF IN OPPOSITION .............1

STATEMENT OF THE CASE .1

REASONS FOR DEIVYTNG THE WRIT ....................... 6

I. The First Question Presented Does NotWarrant Certiorari.......

II. The Second QuestionWarrant Certiorari. .....

coNcLUSroN........

Presented Does NotL4

2l

lV

TABLE OF AUTHORITIES

Cases

Berger u. New York,388 U.S. 4t (t967). ..............9, 11

Clapper u. Amnesty Int'l USA,133 S. Ct. 1138 (2013) ............11

C omrnonwealth u. Blinn,503 N.E.2d 25 (Mass. 1987).... ..........passim

Donouan u. Lone Steer,Inc.,464 U.S. 409 (1994) ................ .........4, t2,2L

Florida u. Jardines,r.33 S. Ct. t409 (2013) ............15

Hale u. Henkel,201U.S. 43 (1906). ....................4

Marshall u. Barlow's, Inc.,436 U.S. 307 (1978) ................ 5, t2

Mastrobuono u. Shearson Lehman Hutton,Inc.,514 U.S. 52 G995). ...................14

New York u. Burger,482 U.S. 691 (1987) ................ .........3, 11, 18

Payton u. New York,445 U.S. 573 (1980) ................ .....................9

See u. City of Seattle,387 U.S. 54t (L967 ) ................ ........4, t2,2L

Sibron u. New York,392 U.S. 40 (1968). .........5, g, 13

Skinner u. Railway Labor Executiues Ass'n,489 U.S. 602 (1989) ................ ...................11

Susan B- Anthony List u. Driehaus,134 S. Ct. 2334 (2014) ..............9

v

Torres u. Puerto Rico,442U.5.465 (t979) ................ .....................9

United States u. Jones,132 S. Ct.945 (2012) ..............16

Warshak u. United States,532 F.3d 52L (6th Cir.2008) ............passim

Statutes42 U.S.C. $ 1983 .........1

Electronic Communications Privacy Act of 1986,Pub. L. No. 99-508, codifi.ed as amended at 18u.s.c. $$ 2701-11 ......................7

L.A. Mun. Code $ 11.00(m) ..................... 1

L.A. Mun. Code $ 41.49 ......passim

Other AuthoritiesFinal Pretrial Conference Order,

Patel u. City of Los Angeles, No. 2:05-cv-0157I-DSF-AJW, ECF No. 59 (Sept. 2,2008) ......2,3

Stipulation to Consolidate and Dismiss,Patel u. City of Los Angeles, No. 2:05-cv-0157I-DSF-AJW, ECF No. 22 (Feb. L7,2006) .....L,2

s. ct. R. 10......... .........13

BRIEF IN OPPOSITION

Petitioner seeks review of the court of appeals'decision holding petitioner's motel registry inspectionordinance unconstitutional. Because the court ofappeals' decision does not itself merit this Court'sreview, the petition attempts to reframe the case inbroad terms, reaching as far as it can to manufacture1-1 circuit splits on issues of little practicalconsequence. This Court should deny review.

STATEMEI{T OF THE CASE

Respondents own and operate motels in LosAngeles. A municipal ordinance, Los AngelesMunicipal Code $ 41.49, requires respondents, whoare motel owners and operators in Los Angeles, tocollect and keep detailed information about theirguests. The ordinance further provides that therecords "shall be made available to any officer of theLos Angeles Police Department for inspection."Failure to comply with the inspection requirement isa misdemeanor. See L.A. Mun. Code $ 11.00(m).Because respondents have been and will continue tobe subject to warrantless inspections under $ 41.49,they brought this action under 42 U.S.C. $ 1983alleging that the ordinance violates the FourthAmendment,

Multiple plaintiffs had challenged theconstitutionality of $ 41.49, and the parties filed astipulation to consolidate and streamline thelitigation. See Stipulation to Consolidate andDismiss, Patel u. City of Los Angeles, No. 2:05-cv-01571-DSF-AJW, ECF No. 22 (Feb. L7,2006). Inaddition to consolidating the cases, the stipulationdismissed without prejudice damages claims against

2

a number of individual defendants. Id,. at 2. Thestipulation also narrowed the claims to be decided,providing: "The parties agree that the sole issue inthe consolidated action is the constitutionality of LosAngeles Municipal Code Section 41.4g; that there areno damages claims; and that Monell claims are not atissue." 1d.

On the eve of trial, the parties entered into afurther stipulation, agreeing that certain *facts areadmitted and require no proof.,, See Final pretrialConference Order, Patel u. City of Los Angeles, No.2:05-cv-01571-DSF-AJW, ECF No. 59, at 2 (Sept. 2,2008). Among these, petitioner admitted thatrespondents "have been subject and continue to besubject to searches and seizures of their motelregistration records by the Los Angeles policeDepartment (hereinafter'LApD,) without consent orwarrant pursuant to Los Angeles Municipal Code(hereinafter'LAMC') section 4L.49 which permits lawenforcement to demand inspection of motel registersat any time without consent or warrant.,, Id,. at 2-5.The pretrial stipulation reiterated that ,,the sole issuein the consolidated action is a facial constitutionalchallenge to LAMC section 41.49 under the FourthAmendment." Id. at}.

In the same pretrial order, petitioner laid out itsdefenses to the lawsuit in detail, stating that itintended to show that there was no reasonableexpectation of privacy in motel registers; that theinspection of motel registers did not infoinge uponvalues protected by the Fourth Amendment becausethe contents of motel registers did not warrantconstitutional protection; and that the inspectionswere valid administrative inspections because motels

3

were "closely regulated" and because the inspectionswere necessary to further a substantial governmentinterest in a regulatory scheme, and limited in time,place, and scope. Id. at 4-5. The stipulation furtherprovided that no additional exhibits or witnesseswould be presented at tnal. Id. at 6.

After the trial, the district court enteredjudgment for petitioner. It again acknowledged theconcessions made in the stipulations. See Pet. App.53. The court further noted that petitioner had"submit[ted] no evidence that hotels or motels inCalifornia or Los Angeles have been subjected to thesame kind of pervasive and regular regulations asother recognized'closely regulated' businesses," andthus concluded that respondents' motels were not"closely regulated," and therefore did not fall withinthe administrative search exception to the warrantrequirement established by New York u. Burger, 482U.S. 691 (1987). Pet. App. 54. Nevertheless, thedistrict court ruled in petitioner's favor by concludingthat hotels and motels do not have an ownership orpossessory interest that gives rise to a privacy rightin their guest registries because those registries werecreated in order to comply with the ordinance. ld.56.

The Ninth Circuit initially affirmed, but the enbanc court reversed. The court held first, and with"little difficulty," that the warrantless inspectionsauthorized by $ 4l-.49 constituted a FourthAmendment "search." Pet. App. 6. Because theFourth Amendment expressly protects "papers"-andbecause the guest registries are business records,which have for more than a century been regarded as"papers"-the court of appeals held that the FourthAmendment applies. Id. (citing Hale u. Henkel,20J-

4

U.S. 43, 76-77 (1906)). The court reasoned that theregistries "are the hotel's private property, and thehotel therefore has both a possessory and anownership interest in the records," and that these"property-based interests" create a "right to excludeothers from prying into the contents of its records.,,Id. 7. For similar reasons, the majority concludedthat respondents have a privacy interest in therecords in addition to their independent propertyinterest. [d.8.

The court of appeals went on to decide whetherthe warrantless searches authorized by $ 41.49comply with the Fourth Amendment. The courtassumed that $ 41.49 authorizes administrativerecord inspections (and not searches for evidence ofcrime, which would ordinarily require a warrant),and assumed that it only authorized searches in thepublic areas of the hotel. Pet. App. 10. It concludedthat even under these generous assumptions, which"give the city the benefit of the doubt at each turn,,,id. II, the answer was "no" because "[t]he SupremeCourt has made clear that, to be reasonable, anadministrative record-inspection scheme . . . must ata minimum afford an opportunity for pre-compliancejudicial review, an element that $ 41.49 lacks." Id. g-10. The court of appeals relied on this Court,sdecisions in See u. City of Seattle,3SZ U.S. E4l, E44-45 (1967), and Donouan u. Lone Steer,Inc., 464 U.S.408, 415 (1984), both of which emphasized the needfor pre-compliance judicial review for administrativerecord searches. Because "section 4L.49 lacks thisessential procedural safeguard against arbitrary orabusive inspection demands," it rendered hoteloperators "subject to the 'unbridled discretion' of

5

officers in the field, who are free to choose whom toinspect, when to inspect, and the frequency withwhich those inspections occur." Pet. App. 12 (quotingMarshall u. Barlow's, lnc.,436 U.S.307,323 (1978)).

The court recognized that the absence of pre-compliance judicial review would not necessarilyrender every search unreasonable under the FourthAmendment. But it concluded that the requirementwas necessary for "the particular searches at issuehere-administrative inspections of business recordsin industries that are not closely regulated." Id. 13.Thus, because $ 41.49 suffered from a "proceduraldeficiency" that "affects the validity of all searchesauthorized by" the ordinance, the court held it"facialLy invalid." Id. L3-L4.

Four judges dissented in two opinions. Thedissents argued first that even if respondents couldhave prevailed on an as-applied challenge, a facialchallenge was inappropriate because there werecircumstances, e.9., searches with a warrant, orexigent circumstances, where the inspection ofregistries would be constitutional. See Pet. App. 17-18. The dissent relied principally on Sibron u. NewYork,392 U.S. 40 (1968), a case that petitioner hadnever cited, to argue that Fourth Amendment facialchallenges are disfavored. Pet. App. l6-L7. Thedissent also argued that there was no evidence in therecord establishing that hotels generally have anexpectation of privacy in the information in theirguest registries. Id. 30.

The petition followed.

6

REASONS FOR DEI{YING THE WRIT

The petition nominally presents two questions:whether Fourth Amendment facial challenges arepermitted at all,; and whether hotels have areasonable expectation of privacy in their guestregistries. For each question, the best-case scenariofor petitioner is a shallow and underdeveloped circuitsplit-the Ninth versus the Sixth Circuit for the firstquestion, and the Ninth Circuit versus a state courtfor the second. Even taking the petition at facevalue, these conflicts would not warrant this Court'sattention. Upon closer examination, the case forcertiorari disintegrates altogether because theconflicts are illusory, and the questions unimportant.

I. The First Question Presented Does NotWarrant Certiorari.

The first question presented does not present atrue circuit split, as the distinctions between thiscase and the Sixth Circuit case petitioner cites arelegion. Additionally, the question presented isphrased at such a broad level of abstraction that itsresolution would not meaningfully assist the lowercourts in resolving the cases before them. Finally,petitioner waived its ability to bring this argumentbelow, and cannot raise it for the first time now.

1. Petitioner argues that the decision below-which decided a Fourth Amendment question on themerits, and which contained literally no discussion ofjusticiability-is in conflict with Worshak u. UnitedStates,532 F.3d 52L,525 (6th Cir. 2008) (en bancl-acase in which the court's analysis "start[ed]-andendled]-with ripeness." Yet petitioner does notargue that the challenge in this case was unripe;

7

instead, it contends that Warshak stands for theremarkable proposition that facial FourthAmendment challenges to municipal ordinances arenever permitted.

That is inaccurate. Warshak never stated that acourt cannot hear a facial Fourth Amendmentchallenge to a statute. Instead, the court determined,on the facts and circumstances of that particularcase, that it was not ripe for adjudication. InWarshak, the federal government relied on Title II ofthe Electronic Communications Privacy Act of 1986,Pub. L. No. 99-508, codified as amended at 18 U.S.C.$$ 2701-11, to read Mr. Warshak"s e-mails withoutprobable cause and without providing advance notice.See 532 F.3d at 523. Warshak was notified a yearlater, and he brought suit seeking a declaration thatthe statute was unconstitutional, and an injunctionpreventing its further enforcement. Id. at 524.Warshak was subsequently indicted and convicted offraud, partially on the basis of the e-mail evidence.Id. at 525.

On these facts, the court of appeals held thatWarshak's separate lawsuit was not ripe foradjudication. It noted that he had a ready avenue tochallenge the searches that had been conductedagainst him-by appealing his criminal convictionand urging suppression, or by bringing a Biuensaction against the agents who conducted the search.See id. at 528. However, the parallel lawsuitchallenging the statute was not ripe because thecourt had "no idea whether the government willconduct an ex parte search of Warshak"s e-mailaccount in the future and plenty of reason to doubtthat it will" because the government had already

8

obtained the evidence that it needed to secure aconviction, and there was no evidence that it plannedto search Warshak's e-mails again. Id. at 526. Thecourt further noted that the reason the governmenthad previously searched Warshak's e-mails in secretwas to avoid tipping him off about its ongoinginvestigation; but because that investigation wasconcluded, the likelihood of another secretinvestigation was very low. See id. Moreover, thecourt was unable to determine'\vhat e-mail accounts,or what types of e-mail accounts, the governmentmight investigate." Id.

That problem was particularly salient in anelectronic privacy case because the answer turned "inpart on the expectations of privacy that computerusers have in their e-mails-an inquiry that may wellshift over time, that assuredly shifts from internet-service agreement to internet-service agreement andthat requires considerable knowledge about ever-evolving technologies." Id. The electronic-privacyimplications of the case therefore made it undesirableto litigate the constitutionality of the statute before aplan to investigate emerged.

Contrast the facts of this case. This case doesnot involve a federal statute that potentially appliesto electronic searches of every possible typeeverywhere in the country; it involves a single sectionof a municipal ordinance, which applies only to hoteland motel guest registries in Los Angeles. This casealso does not involve rapidly shifting technologicaland contractual realities. And in this case, petitionerstipulated that respondents have been and willcontinue to be subject to warrantless searches of theirregistries-where failure to comply is a criminal

Ioffense. See, e.g., Susan B. Anthony List u. Driehaus,134 S. Ct. 2334,2345 (2014) (finding controversy ripewhen "the threat of future enforcement" was"substantial" and noncompliance carried criminalpenalties). The narrowness of the factual context,and the dramatically higher probability of futureenforcement, make a ripeness challenge in this case

unlikely to succeed. It is unsurprising that petitionernever even raised such a challenge below, andindeed, does not purport to do so now.

To be sure, the Sixth Circuit in Warshaksupported its reasoning \,\rith some discussion ofSibron u. New York,392 U.S. 40, 59 (1968), whichheld that certain Fourth Amendment facialchallenges are disfavored. See Warshak,532 F.3d at529. However, that citation is a far cry from adoptinga rule of law stating that such challenges can neverbe brought. Indeed, the Sixth Circuit acknowledgedthat in Berger u. New York,388 U.S. 41 (1967), thisCourt "appeared to invalidate a New Yorkeavesdropping statute on its face." 532 F.3d at 530.Warshak also acknowledged that in a number ofcases, this "Court has issued Fourth Amendmentrulings that effectively invalidated statutes in wholeor in part." Id. at 531 (citing Payton u. New York,445U.S. 573, 589-90, 598 & n.46 (1980); Torces u. PuertoRico, 442 U.S. 465, 47L, 474 (L979)). Thus, whileWarshak may stand for the proposition that facialchallenges are not preferred (a proposition withwhich respondents do not quibble), it cannot meanthat they are prohibited in all instances. Especiallywhen, as here, the ordinance in question is appliedconsistently to authorize unconstitutional searches-indeed, the entire point of the ordinance is to permit

10

warrantless searches outside the bounds of normalexceptions to the warrant requirement.

2. Even if this case did present a true circuitsplit-which it does not-that would not justifizcertiorari because the question presented isunimportant. Taking the question at face value,petitioner asks this Court to decide whether a facialFourth Amendment challenge is euer permitted.Petitioner's goal, at least nominally, is to establishthat the answer is "no."

What would that accomplish? The decision belowwould be reversed. But petitioner provides noevidence that there is some epidemic of pendingfacial Fourth Amendment challenges that isconfusing the lower courts and demanding thisCourt's attention. Indeed, such challenges areextremely rare-in most cases, when a facialchallenge is brought, it is accompanied by an as-applied challenge, a form of challenge to whichpetitioner does not object.l

Moreover, facial challenges are already difficultto win. Many such challenges will be dismissed on

1 Indeed, respondents themselves could bring an as-appliedchallenge to $ 41.49. The result of that case would be the sameas this one: the ordinance would be deemed unconstitutional.Other parties could rely on that precedent to bring their ownchallenges to the ordinance. The outcome would be identical,but all parties would endure substantial additional eflort andexpense to reproduce it. The en banc dissent conceded as much.See Pet. App. 15 ("The Patels may be right in asserting that as apractical matter the Los Angeles Police Department has appliedthe ordinance to undertake searches that violate the FourthAmendment.").

11

justiciability grounds, like the challenge in Warshak,or the challenge in Clapper u. Amnesty InternationalUSA, 133 S. Ct. 11"38, 1L46 (2013). The onesadjudicated on the merits are also unlikely to succeedbecause the standard for winning afacial challenge ishigh. But petitioner can provide no reason why, if aplaintiff meets that standard, the courts should rejecthis challenge anyway-which is all that the questionpresented seeks to establish.

The categorical prohibition on facial FourthAmendment challenges that petitioner seeks is alsoflatly inconsistent with this Court's precedents. Asexplained above, this Court has already identified atleast some circumstances where a facial FourthAmendment challenge is appropriate. See Berger,388 U.S. at 55 ("[T]he statute is deficient on its face");see also Skinner u. Railway Labor Executiues Ass'n,489 U.S. 602, 6t4 (1989) (considering a "facialchallenge" to "breath and urine tests required byprivate railroads," even though ultimately not findingthe challenge meritorious). These cases hold thatwhen a legislature attempts to hobble the proceduralprotections that the Fourth Amendment requires, thelegislative enactment can be struck down. And forgood reason. Imagine that a jurisdiction enacted astatute permitting general warrants, or warrantless,suspicionless searches of the home. There can belittle doubt that such statutes would beunconstitutional on their face, and that theirinvalidation would be fully consistent with settledFourth Amendment principles.

This Court has also authoized facial challengesin the administrative search context. In New York u.

Burger, 482 U.S. 691 (1987), this Court set forth

I2three criteria that warrantless administrativesearches must meet. The last of these is that "theregulatory statute must perform the two basicfunctions of a warrant: it must advise the owner ofthe commercial premises that the search is beingmade pursuant to the law and has a properly definedscope, and it must limit the discretion of theinspecting officers." Id. at 703. By its terms, thisinquiry calls for an examination of the statute on itsface. See also Marshall u. Barlow's, Inc.,486 U.S.307, 325 (1978) (holding that an inspection statuteswas "unconstitutional insofar as it purports toauthorize inspections without warrant or itsequivalent" aft,er conducting this statutory analysis).

The decision below is consistent with thoseprinciples as well. The court of appeals held thatunder this Court's precedents, a warrantlessadministrative search of business records is onlypermissible if the search mechanism includes aprovision for pre-compliance judicial review. ThisCourt has reached precisely that result before. See,See u. City of Seattle,387 U.S. 541,544-4b (1962) CTtis now settled that" a demand to inspect "corporatebooks or records . . . may not be made and enforced bythe inspector in the field," and the party subject tosearch "may obtain judicial review of thereasonableness of the demand prior to sufferingpenalties for refusing to comply."); Donoudn u. LoneSteer, Inc., 464 U.S. 408, 4L5 (L984) (holding that aparty receiving an administrative subpoena mayquestion its reasonableness "before suffering anypenalties for refusing to comply with it, by raisingobjections in an action in district court").

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What petitioner actually wants this Court todecide is that the court of appeals misapplied thestandard for facial challenges-but that questiondoes not implicate a circuit conflict or othervrrisewarrant this Court's review. See S. Ct. R. 10(providing that a petition is rarely granted when theasserted error consists of "the misapplication of aproperly stated rule of law"). Instead of acceptingthat it lost because particular features of $ 41.49offend the Fourth Amendment, petitioner has soughtto inflate the issue by describing it at a higher level ofgenerality. This Court should not hesitate to burstpetitioner's bubble.

3. Finally, petitioner has waived its ability toraise this issue. In its two pre-trial stipulations,petitioner conceded that the sole issue to be decidedin this case is a facial challenge to $ 41.49. It laid outin detail the defenses it intended to prove. Never-not once-did petitioner argue that that facial FourthAmendment challenges are not permitted, nor did itever cite Sibron. That silence continued through thetrial and the appeal. Indeed, Sibron and its progenywere never mentioned at all in connection with thiscase until the eve of the en banc oral argument, whenChief Judge Kozinski issued an order requesting theparties to be prepared to address the import of thatdecision. The subsequent en banc majority opinion(which Chief Judge Kozinski joined), however, neverdiscussed the issue that petitioners now seek to raise.It was mentioned only in the dissenting opinions.

Based on the procedural history of this case, thebroad question whether facial Fourth Amendmentchallenges are permitted was certainly never pressed,and was at least arguably never passed upon. This is

T4

because petitioner expressly-and not onlyimpliedly-waived the point. By stipulating that thecourt would consider the facial challenge to thestatute, and by enumerating its defenses butexcluding this one, petitioner gave up any reliance onits broader argument. And because the argument isnot jurisdictional, that waiver should be treated asbinding-even if the availability of facial challengesis an antecedent question to whether a particularfacial challenge should have succeeded. SeeMastrobuono u. Shearson Lehman Hutton, Inc.,514U.S. 52, 64 n.1 (1995) (Thomas, J., dissenting)(declining to determine the appropriate standard ofreview, even though it was "an antecedent question,"because "petitioners waived the argument that adeferential standard was appropriate").

II. The Second Question Presented Does NotWanrant Certiorari.

The second question presented is a two-parter:first, whether motels have an expectation of privacyunder the Fourth Amendment in their guestregistries, when the creation of those registries wasrequired by law and an ordinance authorizes thepolice to inspect the registry; and second, whether, ifthere is a reasonable expectation of privacy in thoseregistries, an ordinance authoizing a search of thoseregistries is unconstitutional unless it permits pre-compliance judicial review.

The first part of this question alludes to a 1-1split between this case and a L987 MassachusettsSupreme Court case, Commonwealth u. Blinn, 503N.E.2d 25 (Mass. 1987). That this is the bestpetitioner can do-contrasting a single decision from

15

a state court, issued twenty-seven years ago-illustrates just how rarely this issue arises, and howunimportant it is.

On closer inspection, the split with Blinn isillusory as well. In that case, Mr. Blinn, a motelmanager in Danvers, MA, was convicted of an offenseafter refusing to turn over a motel guest registry forwarrantless inspection. Id. at 26. The court heldthat the manager had no reasonable expectation ofprivacy in the registry. To reach this conclusion, itnoted that businesses generally have a lesserexpectation of privacy than homes, that "though notdeterminative," the fact that the registry wasrequired to be kept and furnished diminished theexpectation of privacy in it, and that the managercould not rely on the guests' expectations of privacyfor the same reasons. Id. at 27. The court rejectedthe argument that the search was an administrativesearch, deciding that those standards applied onlywithin the confines of a particular statutoryframework. See id. at 28.

The most significant distinction between thiscase and Blinn is that in this case, the court ofappeals reached an alternative holding that rendersany split over reasonable expectations of privacyirrelevant. In addition to holding that respondentshave an expectation of privacy in their registries, thecourt of appeals held that those registries are"papers" within the meaning of the FourthAmendment, and therefore protected on a property-based rationale. This Court has recently reiteratedthat a property-based rationale provides anindependent basis for Fourth Amendment protection.See Florida u. Jardines, L33 S. Ct. L4O9,l4L4 (20L3);

16

United States u. Jones,132 S. Ct.945,95L (20L2). Asthe en banc majority noted, not even the dissentquibbled with the conclusion that the registries wereprotected "papers." See Pet. App. 7, 29. Blinn neverconsidered, Iet alone addressed, that argument-andindeed it appears likely that Mr. Blinn never made it.Petitioner identifies no court that has reached acontrary result as to whether guest registries are"papers," and indeed does not even ask this Court toreview that conclusion. Consequently, the secondquestion presented amounts to nothing more than arequest for an advisory opinion regarding reasonableexpectations of privacy.

Additionally, Blinn concluded that the search inquestion was not an administrative search. See 503N.E.2d at 28. Thus, the court in Blinn had nooccasion to comment on whether the registryinspection statute met the constitutional standardsgoverning such searches. This case is different.Here, the crux of petitioner's argument below wasthat "examination of hotel registers is a validadministrative inspection designed to enforce LosAngeles Municipal Code $ 41.49." Petitioner's C.A.Br. 15 (capitalization altered). Petitioneracknowledged, however, that in order to takeadvantage of that exception, it would have to showthat motels were "closely regulated"-a point onwhich it submitted literally no evidence. See Pet.App. 54. That is why the district court and the courtof appeals rejected petitioner's argument. See id. 54,L3 n.2. Moreover, both the majority and the dissentbelow agreed that in order for a warrantlessadministrative search to be constitutional, it must

T7

include an opportunity for pre-compliance judicialreview. See id. L2-I3,27-28.2

The circuit split is also illusory because nonnsrelating to privacy shift over time. Petitioner has notshown that Blinn, which arose in Danvers,Massachusetts twenty-seven years ago (when thetown had a population of approximately 24,000according to U.S. Census records), had a factualcontext similar to this case, which arose in LosAngeles in 2006. Here, the majority held thatrespondents have a legitimate expectation of privacyin the registries because "businesses do not ordinarilydisclose, and are not expected to disclose, the kind ofcommercially sensitive information contained in therecords---e.g., customer lists, pricing practices, andoccupancy rates." Pet. App. 7. It is unclear whatnorms relating to business records prevailed inDanvers in t987, and in any event, there is noevidence that Blinn even made the argument that hisregistries contained business information. Instead, itappears that Blinn attempted to argue that hiscustomers had a right to privacy that he had a rightto enforce-a rationale that the majority in this case

2 To be sure, the dissent argued that the ordinance was notfacially unconstitutional because it also permits searchespursuant to a warrant, or searches pursuant to other exceptionsto the warrant requirement besides the administrative-searchexception, e.g., searches under exigent circumstances. Pet. App.28. But that is beside the point, because no officer would haveto rely on $ 41.49 to execute one of those searches. The onlywork the ordinance does is to permit additional warrantlesssearches when well-established exceptions to the warrantrequirement do not apply.

18

disclaimed. Compare 503 N.E.2d at 27 ("[T]hedefendant's argument that he could withhold theregister in order to protect the privacy of his guestsmust fail.") with Pet. App. 8 ("To be sure, the guestslack any privacy interest of their own in the hotel'srecords.").

In sum, although the Ninth Circuit and theMassachusetts Supreme Court reached differentresults as to whether particular motels in particulartimes and places had reasonable expectations ofprivacy in their guest registries, that does notamount to a disagreement on an important issue offederal law, and therefore does not warrant thisCourt's review.

2. In addition to not implicating a circuit split,the lower court's decision regarding expectations ofprivacy should be left intact because it was correct. Areasonable expectation of privacy constitutes anexpectation that is subjectively held and regarded bysociety as reasonable. In this case, petitioner doesnot contend that respondents lacked a subjectiveexpectation of privacy in their registries, and so theonly question is whether that expectation wasreasonable. It was. Guest registries, like otherbusiness records, contain information that businessesordinarily do not display to the public. Moreover, as

this Court explained in New York u. Burger,482 U.S.691, 699-700 (1987), "[a]n owner or operator of abusiness . . . has an expectation of privacy incommercial property, which society is prepared toconsider to be reasonable," so long as the business isnot "closely regulated." The fact that respondents arerequired to keep the records by law may play into the

19

reasonableness of their expectation of privacy, but itdoes not eliminate it altogether.

3. The second part of the second question-whether the lack of pre-compliance judicial reviewmakes a hotel registry search ordinanceunconstitutional on its face-is also not the subject ofa circuit split. Blinn did not even reach that questionbecause the court concluded that on the facts beforeit, Blinn had no legitimate expectation of privacy.And petitioner identifies no other court that hasdisagreed with the court of appeals on the ultimatequestion in this case.

4. Even if this case implicated an actual split inauthority, this Court should still deny review becausethe second question presented is unimportant.Petitioner's argument that this case will lead to theinvalidation of a broad number of hotel registry lawsis overwrought. In this case, petitioner stipulatedthat its ordinance authorizes warrantless,suspicionless searches of business records at anytime. It further refused to submit any evidence thatmotels are closely regulated in Los Angeles. Theseconcessions were critical to establishing the egregiousnature of the Fourth Amendment violation. But theresults in other jurisdictions may vary based ondifferent facts. The mere fact that many ordinancesdo not expressly mention the need for pre-compliancejudicial review does not mean that authorities arenot, in fact, implementing procedural safeguards thatcomply with the Fourth Amendment in thosejurisdictions.

Equally important, the decision below did notinvalidate the portion of the ordinance that requiresmotels to collect and keep the relevant registry

20

information. See Pet. App. 5 ("Plaintiffs do notchallenge these requirements. But they do challenge

$ 41.49's warrantless inspection requirement."). Inthe court below, petitioner argued that the ordinancedeters the unlawful use of hotel rooms by makingsure that everybody who comes into a motel knowsthat his whereabouts will have been recorded. See

Petitioner's C.A. Br. 20. Because the ruling belowdoes not disturb the record-keeping requirement, thedeterrent effect remains intact. Furthermore, thereis no evidence that warrantless inspections arenecessary to further petitioner's law enforcementinterest. As petitioner admitted below, respondents"recogrtize the City's regulatory interest surrounding$ 41.49 and have engaged in a practice to further theobjectives of the regulatory scheme" by committingnot to let their rooms for the purposes of prostitutionor other criminal activity. Id. 19. The point ofwarrantless inspections is to ensure thatnoncompliant operators cannot doctor or destroytheir registries in anticipation of an announcedinspection, or while a warrant issues. But when, as

here, there is no evidence that the books are beingcooked, petitioner cannot explain why it even needsthe ability to search without a warrant.

Moreover, the court of appeals providedpetitioner with a roadmap that will permit it to enacta constitutional version of the ordinance. At most,the decision below requires petitioner to offer pre-

compliance judicial review to hotels and motels in LosAngeles facing a registry inspection. That is not abad result: it is the nortn under this Court'sadministrative search cases, and it protects

businesses from undue burdens on their rights while

2t

imposing minimal restraints on law enforcement.See, e.g., See u. City of Seattle,387 U.S' 541, 544-45(1967); Donouan u. Lone Steer,Inc.,464 U.S. 408, 415(1984).

Finally, as noted by the court below, petitioner'sofficers remain free to inspect hotel guest registriespursuant to a warrant or one of the well-recognizedexceptions to the warrant requiremettt, see Pet. App.

14, including consent, when appropriate.

CONCLUSION

For the foregoing reasons, the petition for a writof certiorari should be denied.

Respectfully submitted,

FrankA. WeiserCounsel of Record

3460 Wilshire Blvd.Suite 1212Los Angeles, CA 90010(213) [email protected]

C ounsel for respondent s

August 12,2014