Los Angeles Motel Rules May Not Survive Appeal

     SEATTLE (CN) - Motel 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.
     After Los Angeles motel owners Naranjibhai and Ramilaben Patel filed suit, U.S. District Judge Dale Fisher found that the Patels did not show they have a privacy interest in the registry information. A divided three-judge panel of the 9th Circuit affirmed but the court agreed later to rehear the case en banc.
     As that 11-judge panel met in Seattle last week, the Patels' attorney, Frank Weiser, said the touchstone for any Forth Amendment case was "reasonableness."
     Here, the ordinance does not pass muster because it allows police to regularly inspect motel records "for any reason," Weiser said. It is unreasonable to give police "boundless" authority, and there should be some sort of limitation written into the law, the lawyer added.
     Weiser said the Patels were not challenging the requirement that the records be maintained, just the portion of the law that allowed warrantless search and seizure.
     Judge Paul Watford asked if the owners would still claim a Fourth Amendment violation if the ordinance said a subpoena was required.
     Weiser replied that "it's got to be a warrant, not a subpoena, if it's being used for law enforcement purposes."
     Los Angeles admitted the information was used in crime control as well as administrative purposes, and Judge Fisher found in the bench trial that the ordinance "could be reasonable interpreted for crime control," Weiser said.
     "If it is found not to be an administrative search program, and really for law enforcement purposes, then the ordinance fails," Weiser argued.
     Several of the judges brought up last year's Supreme Court ruling in U.S. v. Jones , which found that police violated the Constitution by placing a tracking device on Antoine Jones' vehicle without a warrant. The majority opinion said that the GPS device was a "trespass" on private property and was also a "search."
     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."
     Holding fast to the meaningful interference, Leung spoke of the difference between tracking someone's car and looking at a motel register.
     Smith asked: "Are you denying that that's a search?"
     Leung said, "It doesn't rise to the level of a trespass," but that failed to end the debate.
     "I didn't say that," Smith said. "I said is it a search under the case law? There's really no question, is there?"
     Leung paused and said, "It's a viewing of the motel registration records."
     As he kept peppering Leung about the Jones precedent, Smith said told the lawyer "you've got a real problem" if a search is assumed to take place.
     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.
     Judge Marsha Berzon and Smith talked over each other, correcting Leung's assertion.
     "It's in the Fourth Amendment," Smith said, while Berzon exclaimed, "But they're directly in the Fourth Amendment."
     Leung ran into trouble when he tried to explain how the ordinance works.
     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.
     "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.
     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."