Court Skeptical That LA Cops Can Just Look At Any Motel Guest Record Without A Warrant

from the no-time-to-make-this-legal!-we've-got-laws-to-enforce! dept

It seems that no matter where you leave behind some sort of personal data, there's a member of law enforcement or a security agency looking to get ahold of it. Much of this happens online (where various corporations do plenty of their own data harvesting), but even back in the physical world, everything is up for grabs until someone makes enough noise to get it stopped.

The city of Los Angeles has enacted a law that further loosens the already rather lax restrictions on gathering information voluntarily provided to a third party. The information in question here is motel guest records, which the LAPD can currently search without a warrant or a subpoena.

Motels owners fighting a Los Angeles ordinance allowing warrantless searches of registration records told the 9th Circuit that the law is unconstitutional.

The ordinance requires owners to record guest information, including names and addresses; total number of guests; make, type and license number of the guest's vehicle; date and time of arrival; scheduled date of departure; room number; rate charged; method of payment, and name of employee who checked the guest in. Upon request, motel owners must then give such information to police.
As the ordinance stands now, police have "boundless authority'" to search and seize these records. The plaintiff's lawyer argued that because the records serve a "crime control" purpose for Los Angeles law enforcement, there needs to be additional requirements written into the law. The judges went back to U.S. vs. Jones to see if law enforcement's requests for these records constituted a "search" or "trespass," which led to some rather interesting defensive moves by the city's attorney.
Weiser said that the ordinance is unconstitutional under Jones because it allows trespass on the motel owners' private property of registration records. Judge Milan Smith told Todd Leung, the deputy city attorney for Los Angeles, that the papers are supposed to be private unless there is an exception under Jones.

Though Leung said there may not be an exception, he added that requiring production of the motel records would have to cause "meaningful interference" under case law, and the ordinance did not do that. Judge Consuelo Callahan asked how the city could "possibly come in look at the records and not have a physical interference with private property." Leung replied: "It's not so much a physical interference. Things of this nature are kept in electronic format." Unmoved, Callahan said, "well, you still have to get at it. I can't envision a circumstance where they wouldn't have to at least manipulate a computer."
This sort of goalpost-moving wordplay is often found on both sides of courtroom arguments, but it doesn't make Leung's linguistic maneuvering any less ridiculous. The interference isn't "meaningful," and even if it is, it isn't "physical" because nobody has to dig through file cabinets. Sooner or later, though, the motel owners have to do something to comply with the requests that they wouldn't be doing otherwise.
Judge Callahan also told the city's lawyer that the city needs to look at the Jones case in regards to this ordinance.

Callahan also told Leung the city must look at the Jones decision. "Whether we like it or not, it is the precedent," she said. The decision holds that a person does not have to show a "reasonable expectation of privacy" when the government physically trespasses on their person, papers, house or effects, Callahan explained.

"Don't the police physically trespass on the Patels' papers or effects when they search their guest register?" she asked. Leung responded that papers are different than peoples' homes.
Papers are different than homes, but all are included under the decision and, more importantly, under the Fourth Amendment. Leung went from this misstep to something even worse when attempting to portray compliance with the ordinance as somewhat optional for motel owners as nothing is actually "seized."
He told the panel that there is no "seizure" under the ordinance. He said that owners who refuse to turn over the registration details to police officers would be cited for a misdemeanor and required to appear in court. Then they could challenge the ticket if they felt their Fourth Amendment rights were violated.
Wrong move. Cue Kozinski.
"Oh that's so much better!" Chief Judge Alex Kozinski sarcastically exclaimed. "So this is the coercion - they say show me your computer, or I will write you up and you go to jail. Why is that not a trespass?" he asked.
At that point, Leung finally coughed up the real purpose of the ordinance.
Leung then explained police might need the registration information to investigate illegal activity. He said officers "find out there's activity of this nature going on through sting operations or because of what they see."

Berzon said: "Then they don't need the statute. They can get a warrant."
This isn't done being argued yet, but the details emerging clearly indicate that law enforcement, much like many other government entities, would prefer to take the path of least resistance, even if that means violating civil liberties or skirting existing laws. Once resistance appears, their route alters, but almost always seeks the quickest route around the new roadblock. It's almost as though these entities assume they have an innate right to access personal data without warrants, subpoenas or any consideration for the rights of those whose information they're sweeping up.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That Anonymous Coward (profile), Jul 8th, 2013 @ 4:39am

    When did we make the left turn to Dystopia and can we get them to stop and ask for directions back to reality?

     

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  2.  
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    Anonymous Coward, Jul 8th, 2013 @ 4:44am

    They should just ask the NSA for it.

     

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  3.  
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    Anonymous Coward, Jul 8th, 2013 @ 5:10am

    At this rate they will be requiring all shops to hand over till receipts. Further either cash payments will be banned, or they will require a anyone paying with cash to provide proof of identity.

     

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  4.  
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    Anonymous Coward, Jul 8th, 2013 @ 5:19am

    At least...

    We now have a case where the courts and the government entities attempting to acquire it are recognizing that this sort of information, qualifies as "papers" that are covered by the 4th amendment. This is good legal precedent being set here.

     

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  5.  
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    RyanNerd (profile), Jul 8th, 2013 @ 5:24am

    CISPA to the rescue

    Since motel records are kept in a computer I am sure CISPA will be able to be used by police without a warrant to "find out there's [illegal] activity of this nature going on through sting operations or because of what they see."

     

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  6.  
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    Marak, Jul 8th, 2013 @ 5:36am

    Now not american, but from what we hear around the world is some sort of rumor saying land of the free and home of the brave. Did we miss the memo on the change to land of the watched and home of the cowed?

     

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  7.  
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    Anonymous Coward, Jul 8th, 2013 @ 5:42am

    This really isn't a surprise, they have been doing this all over in the U.S. and Canada for years. All they really do is flash a badge and ask and the hotel front desk may consult with a manager but they usually comply no warrant needed.

    While I don't believe they should be able to just turn it over on a whim, I would suffice to guess that the hotels have a clause allowing them to use/provide your information (sans credit card) when you sign in.

    Most companies nowadays stick in a clause to use your info in their agreements. The mere fact this is a constant occurrence just tells you how information is now a commodity.

    If you want my opinion unless the hotel has called the police because you trashed their room or are busting furniture up, then ok I can see them giving it to the cops.

    With that being said if the police are there on a fishing expedition with no real cause for the hotel to provide it, I think they should have to get a warrant for it.

    Back in 2003 the FBI grabbed records of over 250,000 people that were in Las Vegas over the New Year Holiday because of information about a possible Al Qaida attack that may take place and that was over a period of a few days.

    All the hotel and rental records the FBI had collected had been shipped back to Washington for comparison against federal terrorism watch lists.

    This isn't new but it has been going on for years, it's just now they are better at it, civil rights are out the window nowadays as is the expectation of privacy.

     

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  8.  
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    Anon E. Mous (profile), Jul 8th, 2013 @ 5:44am

    This really isn't a surprise, they have been doing this all over in the U.S. and Canada for years. All they really do is flash a badge and ask and the hotel front desk may consult with a manager but they usually comply no warrant needed.

    While I don't believe they should be able to just turn it over on a whim, I would suffice to guess that the hotels have a clause allowing them to use/provide your information (sans credit card) when you sign in.

    Most companies nowadays stick in a clause to use your info in their agreements. The mere fact this is a constant occurrence just tells you how information is now a commodity.

    If you want my opinion unless the hotel has called the police because you trashed their room or are busting furniture up, then ok I can see them giving it to the cops.

    With that being said if the police are there on a fishing expedition with no real cause for the hotel to provide it, I think they should have to get a warrant for it.

    Back in 2003 the FBI grabbed records of over 250,000 people that were in Las Vegas over the New Year Holiday because of information about a possible Al Qaida attack that may take place and that was over a period of a few days.

    All the hotel and rental records the FBI had collected had been shipped back to Washington for comparison against federal terrorism watch lists.

    This isn't new but it has been going on for years, it's just now they are better at it, civil rights are out the window nowadays as is the expectation of privacy.

    (Sorry about the double post folks, didn't realise it went through the first time)

     

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  9.  
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    Bob V (profile), Jul 8th, 2013 @ 6:12am

    Re: At least...

    Except another lawyer somewhere else will argue that of course its not a violation and these types of activities will continue for decades before it ever gets to the point of being challengable and then the government will just say its in the interest of public saftey/national security/for the children.

     

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  10.  
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    Bergman (profile), Jul 8th, 2013 @ 6:56am

    As I understand the warrant requirement...

    Police need to have a warrant to do things that, essentially, would be crimes without the warrant.

    It would logically follow that if there is no warrant requirement, then the collection of the data or action in question is not illegal.

    I wonder how police would react if someone published such data on cops' stays at motels in a newspaper?

     

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  11.  
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    PopeRatzo (profile), Jul 8th, 2013 @ 7:30am

    Pulp

    I've read enough crime novels to know that cops have never needed a warrant to look at a motel guest registry.

    They either slip the clerk a pair of twenties or give him a pistol whipping and then they just whip that registry book around and have a look.

     

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  12.  
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    Chris Rhodes (profile), Jul 8th, 2013 @ 7:47am

    Kozinski

    Kozinski is consistently one of my favorite judges. I wish we could get him into the supreme court . . .

     

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  13.  
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    Rekrul, Jul 8th, 2013 @ 8:31am

    The ordinance requires owners to record guest information, including names and addresses; total number of guests; make, type and license number of the guest's vehicle; date and time of arrival; scheduled date of departure; room number; rate charged; method of payment, and name of employee who checked the guest in. Upon request, motel owners must then give such information to police.

    What? No Fingerprints, mugshot and DNA?

     

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  14.  
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    art guerrilla (profile), Jul 8th, 2013 @ 8:34am

    Re:

    'sad but true' button needed...

    *not* that we have not been on the road to heartless Empire for some time, but it sure is picking up speed...

     

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  15.  
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    That One Guy (profile), Jul 8th, 2013 @ 11:39am

    Re: As I understand the warrant requirement...

    Very poorly I'd imagine.

    You're forgetting the 'one rule for me, and another for thee' mentality that so many of those in power seem to have, and police in particular have demonstrated over and over that while they have no problem bending or ignoring the rules and laws to violate the privacy of others, they consider their own privacy untouchable, to the extent that merely filming them doing their job in public is considered an arrestable offense.

    Mind, I like your idea, if for no other reason than it would be downright hilarious for the police to actually defend personal privacy for once, and any argument they made could then be turned around and used against them the next time one of them decided on going on a fishing expedition for a massive amount of data 'just in case'.

     

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  16.  
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    R.H. (profile), Jul 8th, 2013 @ 12:07pm

    Re:

    I think you may have misunderstood the thing in question here. The argument isn't over whether a motel has the right to hand over your information to law enforcement agencies without requiring a warrant; the argument is over whether law enforcement agencies can require that motels hand over said information without a warrant. Regardless of the outcome of this case, a motel would still be allowed to give your information to law enforcement willingly if they wished to do so.

     

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  17.  
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    R.H. (profile), Jul 8th, 2013 @ 12:08pm

    Re:

    Oops, I replied to your AC comment without noticing that it was a duplicate.

     

    reply to this | link to this | view in thread ]

  18.  
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    Anonymous Coward, Jul 9th, 2013 @ 12:02am

    Re: As I understand the warrant requirement...

    What would be really brilliant is having all taxpayer paid officials wired/cam at all times to ensure they live up to their oaths ..

     

    reply to this | link to this | view in thread ]

  19.  
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    Greg, Jul 9th, 2013 @ 1:18pm

    Rights

    The last line of the article is really sad: "It's almost as though these entities assume they have an innate right to access personal data without warrants, subpoenas or any consideration for the rights of those whose information they're sweeping up."

    The sad part is that almost all government entities these days assume they have rights. Government does not have rights. We grant government limited powers. Very big difference.

     

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  20.  
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    btr1701 (profile), Jul 9th, 2013 @ 3:16pm

    Ruling

    Here's something I don't normally say:

    Bravo, Ninth Circuit. You're usually batshit crazy, but you got this one right.

     

    reply to this | link to this | view in thread ]


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