Commentary Forum: 10/28

Debate Center: Lost Angeles

By Sarah Sidlow

Illustration: Jed Helmers 

Last week, the Supreme Court decided it would consider a legislative push by the City of Los Angeles that would allow police to inspect hotel and motel guest registries without obtaining search warrants or permission from judges. This is the latest in a series of questions to reach the Supreme Court regarding the balance between privacy rights and unconditional law enforcement access.

The ordinance Los Angeles is pushing has two parts: the first is a requirement that hotel and motel owners keep detailed records on each of their guests. The second part requires those records to “be made available to any officer of the Los Angeles Police Department for inspection.”

Other cities, including Atlanta, Denver and Seattle, allow such unconditional searches. According to law enforcement officials, access to such records would help catch fugitives and fight vices like prostitution and drug dealing. Officials in these cities claim immediate access to guest registries could also be vital in the aftermath of a terrorist attack.

But a group of Los Angeles motel owners is challenging the proposed law. Though they have no issue with the ordinance’s record-keeping requirement, as guests forfeit their right to privacy when providing personal information upon registration, owners are questioning their own right against unreasonable searches as protected by the Fourth Amendment.

Last December, the United States Court of Appeals for that region supported the motel owners by striking down the proposed L.A. ordinance. Judge Paul J. Watford, writing for the majority, said such a law would make hotel owners guilty of a misdemeanor, forcing each of them to pay a $1,000 fine and serve up to six months in jail if they refused to comply with a police registry records request.

“Businesses do not ordinarily disclose, and are not expected to disclose, the kind of commercially sensitive information contained in the records,” Watford wrote. “[Hotel owners have] the right to exclude others from prying into the contents of its records.”

Determined, the City of Los Angeles has appealed the case to the Supreme Court. Their argument: local government and law enforcement has an undeniable interest in the information contained within guest registries since it helps them keep citizens safe. Such information typically includes forms of identification, such as driver’s license and license plate numbers, as well as methods and amounts of payment.

The motel owners are seeking some level of judicial involvement prior to a police search of their businesses, claiming such action would not lead to excessive delays or loss of evidence because these records are being kept regardless of the city ordinance. Moreover, they say, they are troubled by the fact the city is seeking blanket access to their records without being able to explain exactly why authorities need the ability to conduct searches without warrants.

In response, the city said, “[The owners’ legal brief] falsely and cynically assumes the operators of these parking meter motels are honest people who follow the rules so the immutable records always will be available for inspection.”

This is only the latest of a slew of privacy rights cases in recent sessions. It is a topic that will no doubt continue to gain steam as technology eases the process of information harvesting, leaving adjudicators with the task of interpreting how much of a right to privacy we can reasonably expect.

Reach DCP Editor Sarah Sidlow at Editor@DaytonCityPaper.com

 

Commentary Forum Question of the Week:

Should law enforcement have the ability to search the guest registries at hotels and motels without warrants?

Commentary Left: It’s $30 for the room and $5 per amendment after that

By Ben Tomkins

It’s pretty sad when a Fourth Amendment case is so transparent it requires nothing more than a consistent viewing of Law & Order for the layman to articulate what is wrong with a law. After perusing the particulars of City of Los Angeles v. Patel, all I could hear echoing through my head was Jack McCoy chewing Lennie Briscoe’s ass meat like bubblegum for pulling his gun on a guy sitting on a park bench. Five minutes into the City of Los Angeles v. Patel episode about the police being able to randomly look over hotel records without a warrant, I was already slumping back into my sofa’s Law & Order marathon dent of wasted dreams muttering, “Nah, son. Jack is definitely going to be making one of his running-out-of-Maalox-and-gagging-on-a-chicken-bone-in-court faces.”

The law, as it is written, begins very unassumingly. There’s the opening chunk you see in every bill that annoyingly lays out definitions for words like “record,” as if someone was going to stand up in front of a judge and casually exercise their Fourth Amendment right to refuse handing over their LP collection. Bill Clinton’s whole “what do you mean by ‘sex’?” escapade appears to have done far more damage to our country’s forests than any of President Bush’s environmental policies.

After two pages of that, it rolls into what appears to be another banal page of bureaucratic regulations about hotel recordkeeping, the kind of paper you’re supposed to write it on and the minimum dimensions of the book you are allowed to use as a registry. (That’s not a joke by the way. There’s one less Colombian ocelot habitat out there because of this crap.)

Fine. Blah, blah, blah … Why did the DCP staff waste my time with this crap? Oh, how fascinating, it needs to be “written legibly” instead of scrawled onto the pages with a spit-encrusted fingertip … and then, all of a sudden:

a) … “The record shall be maintained at that location on the hotel premises for a period of 90 days from and after the date of the last entry in the record and shall be made available to any officer of the Los Angeles Police Department for inspection.

Come on. You’re not serious. If you tag that phrase onto the back of virtually any “thing,” (see section 1. Definitions) you’d have to expect to wind up in front of an appellate court someday. It’s not possible that a thinking person could not see that coming, and my gut is telling me the city was banking on the fact that it takes far less time to pass a law than it does to get it struck down by the Supreme Court.

In case you missed it, here is the section of definitions: “For the purposes of this document:

‘Thing’ means persons, houses, papers, and effects, against which unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

I feel bad about even writing the obligatory little example of my point that is required for pieces like this, because there’s no way to do it without being patronizing. Therefore, I decided that the least I could do would be to openly mock it at the same time. I got on YouTube and typed in the word “patronizing,” with the intention of writing it in the style of whatever came up. My choices were, literally and in this order: (1) John Cleese doing a Monty Python sketch explaining soccer; (2) a religious scholar explaining their religion; (3) a Simpsons clip with the provocative tag “Screw Flanders,” and (4) let’s enjoy ourselves and make it an op-ed choose-your-own-adventure.

(1) I’m a douchebag YouTuber who puts pictures of funny things like Monty Python as my video teaser to get you to listen to my own hatefully annoying vlog. I should be shot in the temple, because there is no discernible difference between this behavior and enticing a child into a car with a lollipop, the flavor of which shall be made available to any officer of the Los Angeles Police Department for inspection.

(2) No matter what you think, I reserve the right to say and do anything I want because when I make up a god, he always seems to agree with me. This fact shall be made available to any officer of the Los Angeles Police Department for inspection.

(3) Screw Flanders, and he shall be made available to any officer of the Los Angeles Police Department for inspection.

Look, I get that this is ridiculous, but I’m really over the edge on this one. Without getting a warrant, every single person who checks into a hotel can now have that fact used as a basis for a potential collateral warrant. For starters, imagine being a political figure and having a cop spot your name in the “hourly rate” section of the registry. Without the oversight of a warrant articulating what is in bounds and what is not for a search, the police can use anything they find to pursue any potential crime they care to dream up.

Every time I read something like this all I can think about is G.W. Bush telling us it’s patriotic to crap on the Bill of Rights to stop the terrorists from winning.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at
BenTomkins@DaytonCityPaper.com.

Commentary Right: High court will side with privacy again and again

By Rob Scott

The issue of privacy rights continues to rise to the nation’s highest court. In the past year, several decisions from the high court regarding privacy have been issued, including a landmark decision affecting law enforcement when a suspect’s smart phone is confiscated. The high court mandates a warrant requirement.

Now, the U.S. Supreme Court seems poised to take on a case regarding police wanting to look at hotel registries without warrants. In City of Los Angeles v. Patel, the high court has been asked to resolve a circuit split between the U.S. Courts of Appeals for the Ninth and the Sixth Circuits regarding the constitutionality of hotel guest registry inspection ordinances that authorize unwarranted police inspections of such registries.

The Ninth Circuit, sitting en banc, held such an ordinance in Los Angeles was “facially unconstitutional under the Fourth Amendment because it does not provide pre-compliance judicial review.”

The Sixth Circuit ruled en banc that the challenge was not ripe, while the Massachusetts Supreme Court held that its state’s hotel guest registry statute, closely analogous to the City of Los Angeles’ ordinance, was permissible because hotel operators did not have a reasonable expectation of privacy in the registries.

As U.S. citizens, our rights come from the U.S. Constitution, and the Fourth Amendment deals mostly with our privacy. The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment originally enforced the notion that “each man’s home is his castle,” secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps and other forms of surveillance. It is also central to many other criminal law topics and to privacy law.

Only judges and magistrates may issue search warrants. To obtain a warrant, law enforcement officers must show there is probable cause to believe a search is justified. Officers must support this demonstration with sworn statements (affidavits) and must describe in particularity the place they will search and the items they will seize. Judges must consider the totality of the circumstances in each case when deciding whether or not to issue a warrant. When issuing a search warrant, the judge may restrict how and when the police conduct the search.

Under the Fourth Amendment, officers seeking a warrant do not need to show that the people being searched (or those whose property is being searched) committed any crime. Rather, officers merely need to show probable cause that the sought-after evidence is there.

The City of Los Angeles and law enforcement do have a legitimate reason to protect and serve their citizens. They can pass legislation doing just that under the confines of the U.S. Constitution and their state constitution.

In the case at bar, Los Angeles wants access to private business records (i.e. hotel and motel guest registries) without having to comply with the Fourth Amendment and obtain search warrants. Their reasoning is that they need this access in order to catch criminals, such as drug dealers, terrorists and those involved in prostitution rings. The owners of the hotels and motels object that this is a violation of their Fourth Amendment rights.

Let’s change the context. A warrant would be required to enter someone’s home or business in order to search it. A warrant is now required to look into a smart phone. So will the high court allow Los Angeles to be able to legislate and operate around the Fourth Amendment? Not likely.

Ultimately, there is another option for Los Angeles and police. If police think illegal activity is happening, then, like in any other criminal investigation and not in violation of privacy rights, they can go through the constitutional process. This process happens every day in 50 states throughout the United States.

An officer of the law can provide a sworn statement before a judge and allow the judge to decide whether there is enough probable cause. If there is enough evidence and cause for suspicion, then a warrant will be issued and, most likely, privacy concerns will be protected. Alternatively, if there is not enough evidence and cause for suspicion, the warrant will not be issued and privacy concerns will be protected.

Los Angeles will be able to pass legislation requiring hotels and motels to keep registries of all of their guests. Constitutionally, that is part of their purview in regulating businesses. However, it is unlikely their legislation circumventing the U.S. Constitution will hold up in the U.S. Supreme Court. The Founding Fathers were ahead of their time in requiring government to prove to a neutral decision maker that it has probable cause before violating our privacy rights.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is also a Kettering City Councilman, founder of the Dayton Tea Party, and a member of both the Dayton Masonic Lodge and Kettering Rotary. He can be contacted at
rob@oldhamdeitering.com or gemcitylaw.com.

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Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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