Court Says LA Police Warrantless Access Of Hotel Records Is 'Unconstitutional'

from the still-leaves-several-exploitable-holes-in-the-Third-Party-Doctrine dept

There hasn't exactly been a plethora of good news Fourth Amendment-wise lately. Every positive decision that restores a little protection seems to be followed by another decision that sets the bar back to where it was.

An appeals court decided back in October that attaching a GPS device to a car should require a warrant. This followed a Fifth Circuit Court of Appeals decision that declared warrantless cellphone location tracking to be perfectly legal and not a violation of the Fourth Amendment. Two different court decisions on the NSA's Section 215 bulk phone metadata collection came to opposite conclusions. Judge Leon (DC district court) declared the program was "likely unconstitutional" while Judge Pauley (SDNY) found the program to be completely legal (and a good way of stopping terrorists despite a complete lack of evidence supporting that theory).

A little more good news has arrived on the Fourth Amendment front, but if the recent past is any indication of what the future holds, an opposing decision is lurking just around the corner. In an en banc hearing, the 9th Circuit Court has found that a Los Angeles ordinance granting warrantless access to hotel records violates the constitutional rights of hotel/motel owners.

"The Supreme Court has made clear that, to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review, an element that § 41.49 lacks," Judge Paul Watford wrote for the appellate panel.

"Hotel operators are thus subject to the 'unbridled discretion' of officers in the field, who are free to choose whom to inspect, when to inspect, and the frequency with which those inspections occur," Watford added. "Only by refusing the officer's inspection demand and risking a criminal conviction may a hotel operator challenge the reasonableness of the officer's decision to inspect. To comply with the Fourth Amendment, the city must afford hotel operators an opportunity to challenge the reasonableness of the inspection demand in court before penalties for non-compliance are imposed."
As the law stands now, the only way for an owner to challenge access to the records is to simply refuse, opening them up to criminal charges. The court's decision doesn't go so far as to require police obtain a warrant, but it does state that the ordinance needs to be altered to give hotel operators a way to challenge police requests that won't result in fines and/or jail time.

This decision doesn't do anything to carve holes in the government's expansive reading of the Third Party Doctrine. Guests staying at hotels aren't being given any additional privacy protection. Anything they gain from this is only a side effect of the court's direction to alter the Los Angeles statute governing law enforcement access to hotel records.

The four dissenting judges found plenty to complain about in the majority's decision.
Writing in one of two dissents to the majority ruling, Judge Richard Tallman argued that the panel should have ordered dismissal of the case because there was not enough evidence for a facial challenge.

"They leave us with no evidence to prove that all requests made under the ordinance must violate the Fourth Amendment," Tallman wrote.

"The majority's decision to nonetheless entertain the facial challenge eschews Supreme Court guidance to the contrary."

The ordinance's language says that the hotel owner must provide the guest register if the police request it, he noted.

"The ordinance does not claim to alter the LAPD's constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information," Tallman's dissent states. "We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination."
Tallman's assertion doesn't do the Fourth Amendment any favors. He seems to believe that the LAPD would voluntarily adhere to Fourth Amendment limitations even though the ordinance (as written) doesn't ask it to do any such thing. It simply says operators have to turn the info over to police when requested or face fines and jail time.

Tallman's rosy view of the LAPD's deference to the Fourth Amendment has very little basis in real life. If an ordinance provides for unquestioned, warrantless access to information, you can safely assume the information is being accessed without warrants 100% of the time. Everything flows down the path of least resistance. By erecting the tiniest of roadblocks, the court is deterring lazy law enforcement fishing expeditions.

Judge Tallman seems to think the case should never have been entertained because doing so assumes the worst about the LAPD. Someone needs to point out to him that assuming the best about the PD doesn't make the court an effective check against systemic abuse. By providing a small avenue of recourse for operators, the court has made a minimal contribution towards making the Fourth Amendment's protections meaningful.

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  • identicon
    Anonymous Coward, 6 Jan 2014 @ 3:58pm

    It's amazing how booksmart some of these judges are, yet somewhere along the line they've lost all of their common sense. Perhaps they never had any to begin with.

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

  • icon
    Alana (profile), 6 Jan 2014 @ 7:32pm

    "And we would have gotten away with it too, if it weren't for those pesky kids, and that mangy constitution!"

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

  • identicon
    Anonymous Coward, 6 Jan 2014 @ 8:36pm

    In Tallahassee and Las Vegas (cities that presumably attracts a lot of fugitives for some reason) many hotels have worked hand-in-hand with police for years. Even before the era of computerized records and internet access, a stack of photocopies of driver's licenses of all the people who had checked in would be handed over to police at the end of each day. This system could not have been to the hotel's benefit (as compared to notifying police AFTER the person left) because if someone turned out to have an arrest warrant, no hotel could possibly want an armed-to-the-teeth SWAT team busting down doors and screaming obscenities (or worse) in the middle of the night as they taze, club, and hog-tie the barely-awake guy who forgot to pay his traffic fine.

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  • identicon
    DaveXanatos, 6 Jan 2014 @ 10:03pm

    Half a step forward, two steps back.

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

  • icon
    Jeremy Lyman (profile), 7 Jan 2014 @ 4:09am

    I like to think of this as Schrödinger's Police Action. There is a search which may be either legal or illegal, but we have no way of knowing which until we challenge said search. If we challenge and it was illegal then no-harm, no-foul; however if it indeed was legal we are prosecuted for obstruction/treason/terrorism.

    We therefore live in a Superposition of being simultaneously violated and detained. And they wonder why some people have "fear of authority" even if they've done nothing wrong.

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

  • identicon
    Anonymous Coward, 7 Jan 2014 @ 5:55am

    They will abuse you as long as you will allow. And that is fundamentally wrong. Challenge is a healthy mechanismi a democtratic society. Especially that cops are not rocket scientists.

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

  • identicon
    Andrew D. Todd, 7 Jan 2014 @ 6:31am

    Smith vs. Maryland is a Bad Foundation

    I think the basic complication in such cases is the idea that the customer has no privacy interest in data held by a service provider.

    Smith vs. Maryland (1979) involved two customers, not one customer, specifically, the maker of harassing telephone calls, and the recipient, who had complained to the police. Smith vs. Maryland was a bad decision, because it failed to recognize that that a telephone call involves two customers and the telephone company, and to methodically lay out their respective interests. It happened at a time when the telephone system was a lot less automatic than it is now. Many people now have Caller ID, and for the rest, there is a code to dial if you receive a harassing telephone call. That needs to require at least "one-party-consent," for accessing the telephone number, which is the standard for actually recording telephone calls in many states. The essence of the "one-party-consent" rule is that privacy rights in a particular call or other transaction arise out of the meshing of the respective privacy rights of the two parties against a third external party.

    Suppose the justices in Smith had been technologically foresighted. They might have taken the view that the telephone company had a fiduciary duty of confidentiality in its call records, subject to one-party-consent, and subject to the necessities of billing, etc. That would have covered the actual facts of Smith admirably, without providing open-ended extensions. The justices in the year 1979 were acting in the immediate aftermath of Watergate and Vietnam. I think we can safely assume that they were not disposed to give G. Gordon Liddy powers of universal surveillance. At the time, there was a very widespread belief that the CIA had assassinated President Kennedy back in 1963 ("grassy-knoll-ism"). The men of 1979 would simply have assumed that, by some technological subterfuge, the NSA had hijacked the computerized autopilots of the airliners on September 11, and caused them to fly into their targets, and that the NSA had done this because it had wet-dreams about fighting a war in the Middle East. That was the legacy of Tonkin Gulf. One cannot credibly argue that the justices intended a regime of universal surveillance. ext/442/735

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    Anonymous Coward, 7 Jan 2014 @ 8:08pm

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