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The 9th U.S. Circuit Court of Appeals has struck down § 41.49 of the Los Angeles Municipal Code that allowed any LAPD officer to wander into a hotel at will and call for an inspection of visitors’ registers without an warrant. An Indian origin couple, Naranjibhai Patel and Ramilaben Patel, exasperated by frequent incursions of swaggering cops using the unconstitutional law, filed the lawsuit. A lower court sided dutifully with the city, but the appeals court struck down the provision as unconstitutional.
The en banc court reversed the district court’s judgment in favor of the City of Los Angeles, and held that the provision of the law that required hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection” was facially invalid under the Fourth Amendment in so far as it authorized inspection of the records without affording an opportunity to obtain prior judicial review.
In their opinion, the court held that a police officer’s “non-consensual inspection of hotel guest records” under the challenged provision, constituted a Fourth Amendment “search” and was facially invalid.
The court also concluded that in order for the city to comply with the Fourth Amendment, it must afford hotel operators an opportunity to challenge the reasonableness of the police officer’s inspection demand in court before penalties for non-compliance were imposed.
The court observed that according to the challenged provision, “The city stipulated that this provision authorizes police officers to inspect hotel guest records at any time without consent or a search warrant. Failure to comply with an officer’s inspection demand is a misdemeanor, punishable by up to six months in jail and a $1000 fine.
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The court of appeals held the hotel registers are private property and the owner has a reasonable expectation of privacy in them. In dissent it was submitted that the business records must be proved to have a reasonable expectation of privacy. The court distinguished by holding that business records that are publicly accessible do not have an expectation of privacy, but records that are not on display for the public or are not publicly accessible are private.
The court observed, “The dissent asserts that plaintiffs were required to prove, as a factual matter, that their business records are subject to a reasonable expectation of privacy. We do not believe business owners are required to prove that proposition, any more than homeowners are required to prove that papers stored in a desk drawer are subject to a reasonable expectation of privacy. So long as a business’s records are ‘private,’ they fall within the scope of the ‘papers’ protected by the Fourth Amendment.”
