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.