Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how a Monday Supreme Court ruling provides a new layer of privacy protection to hotel guests and owners.
THE STATEMENT AT ISSUE:
“To be clear, we hold only that a hotel owner must be afforded an opportunity to have a neutral decision-maker review a [police] officer’s demand to search the [guest] registry before he or she faces penalties for failing to comply. Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry.”
– Excerpt from an opinion by Justice Sonia Sotomayor, writing for a Supreme Court majority on Monday as it barred all enforcement of a Los Angeles local ordinance giving city police the power to inspect hotel and motel guest lists without warning and without a court order.
WE CHECKED THE CONSTITUTION, AND…
When a traveler checks into a hotel or motel anywhere in America, the Constitution may go at least part of the way to assure that the visit will be shielded by privacy, at least from the police and other government officials. No agent of the government would be able to simply push open the door – or even peek through the curtains -- to see what is happening behind that door, any more than such an agent could do that at a private home.
The Constitution’s Fourth Amendment is the main source of individual privacy from government intrusion. It says specifically that “the right of the people to be secure in their persons, houses, papers and effects…shall not be violated.” And it reinforces that promise by generally requiring police to get a warrant before they may gain access to those private places and things. Until 1949, these limitations applied only to actions of federal government agents; from then on, it also has applied to state and local police.
The operating assumption of the Fourth Amendment is simply that private individuals can generally be trusted to run their own lives when they are in private places. It does not assume that they will use the cover of privacy or anonymity to commit crimes. It thus is not supposed to be easy for police to invade truly private spaces.
When a visitor checks into a hotel or motel room, the Fourth Amendment does not apply to the owner of the establishment; the Amendment does not apply to private persons or businesses.
In cities located in 41 states, however, the fact that a specific individual is a guest at a hotel or motel is not private, because police in those communities have been given the authority to inspect guest registries without having to first get a court order. The theory behind most if not all of these ordinances is that hotels and motels are convenient places for crime to occur out of the public view. They are not dangerous places as such, but the uses of them can become threatening or downright dangerous, so police routinely check them when they are investigating crimes.
This kind of police access will not be forbidden by a new Supreme Court ruling, but the operators of those establishments – and their private guests – now have a new layer of privacy protection in the wake of that decision by the Justices on Monday. The decision, in the case of Los Angeles v. Patel, struck down an ordinance in that city requiring hotel and motel owners to keep detailed records of everyone who stays, and give the police unrestricted access to those registries, without a court order and with no advance warning that those files will be inspected.
It is, in some ways, a curious decision. The main opinion, written by Justice Sonia Sotomayor for a 5 to 4 majority, nowhere discusses the nature of the privacy interests that the hotel and motel operators or their guests have. Usually, in Fourth Amendment cases, the Justices will discuss whether a person claiming that Amendment’s protection has a “legitimate expectation of privacy.” This time, the court simply assumed that, apparently because of the firm language of the Amendment itself counseling against searches by government agents who do not have a warrant.
The ruling will have a secondary benefit to the hotel and motel guests, but the court never discussed that, either. The focus of the decision is on the rights of the operators of these lodgings, and the presumed interest that they have in the privacy of their business records; that, of course, is quite a strong business interest, because guests would hardly flock to a place where they knew or even suspected there was no privacy in the information they give as they check in.
Still, this decision is not a full guarantee of privacy for the guest lists, or for the information that those registries contain about the guests themselves. The ruling does not bar the police from eventually getting access to that information, but it does require that, if the operator of the place objects to a police demand, some “neutral decision-maker” must be consulted to determine whether the police have a valid reason for inspecting the registries.
The court did not spell out precisely how this new constitutional regime is going to work, although there is a good deal of language in the Sotomayor opinion suggesting that, in operation, that regime is not likely to be a significant obstacle for police to overcome. Much of that language appeared to have been inserted by Justice Sotomayor to counter the dire predictions in the dissenting opinions about how the ruling is going to threaten public safety.
Even so, since before this ruling there was no obstacle at all to police access to guest lists in scores of cities, privacy interests definitely have made something of a gain. It is not easy to win a Fourth Amendment case, because the constitutional test of government action challenged under that Amendment demands on that the actions of government be “reasonable.” Now, it is clear, unrestricted police access to guest registries is, indeed, unreasonable.
