Los Angeles v. Patel ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF LOS ANGELES, CALIFORNIA v. PATEL ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–1175. Argued March 3, 2015—Decided June 22, 2015
Petitioner, the city of Los Angeles (City), requires hotel operators to
record and keep specific information about their guests on the prem-
ises for a 90-day period. Los Angeles Municipal Code §41.49. These
records “shall be made available to any officer of the Los Angeles Po-
lice Department for inspection . . . at a time and in a manner that
minimizes any interference with the operation of the business,”
§41.49(3)(a), and a hotel operator’s failure to make the records avail-
able is a criminal misdemeanor, §11.00(m). Respondents, a group of
motel operators and a lodging association, brought a facial challenge
to §41.49(3)(a) on Fourth Amendment grounds. The District Court
entered judgment for the City, finding that respondents lacked a rea-
sonable expectation of privacy in their records. The Ninth Circuit
subsequently reversed, determining that inspections under
§41.49(3)(a) are Fourth Amendment searches and that such searches
are unreasonable under the Fourth Amendment because hotel own-
ers are subjected to punishment for failure to turn over their records
without first being afforded the opportunity for precompliance re-
view.
Held:
1. Facial challenges under the Fourth Amendment are not categor-
ically barred or especially disfavored. Pp. 4–8.
(a) Facial challenges to statutes—as opposed to challenges to
particular applications of statutes—have been permitted to proceed
under a diverse array of constitutional provisions. See, e.g., Sorrell v.
IMS Health Inc., 564 U. S. ___ (First Amendment); District of Colum-
bia v. Heller, 554 U.S. 570 (Second Amendment). The Fourth
Amendment is no exception. Sibron v. New York, 392 U.S. 40, dis-
tinguished. This Court has entertained facial challenges to statutes
2 LOS ANGELES v. PATEL
Syllabus
authorizing warrantless searches, declaring them, on several occa-
sions, facially invalid, see, e.g., Chandler v. Miller, 520 U.S. 305,
308–309. Pp. 4–7.
(b) Petitioner contends that facial challenges to statutes author-
izing warrantless searches must fail because they will never be un-
constitutional in all applications, but this Court’s precedents demon-
strate that such challenges can be brought, and can succeed. Under
the proper facial-challenge analysis, only applications of a statute in
which the statute actually authorizes or prohibits conduct are consid-
ered. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833. When addressing a facial challenge to a statute authoriz-
ing warrantless searches, the proper focus is on searches that the law
actually authorizes and not those that could proceed irrespective of
whether they are authorized by the statute, e.g., where exigent cir-
cumstances, a warrant, or consent to search exists. Pp. 7–8.
2. Section 41.49(3)(a) is facially unconstitutional because it fails to
provide hotel operators with an opportunity for precompliance re-
view. Pp. 9–17.
(a) “ ‘[S]earches conducted outside the judicial process . . . are
per se unreasonable under the Fourth Amendment—subject only to a
few . . . exceptions.’ ” Arizona v. Gant, 556 U.S. 332, 338. One ex-
ception is for administrative searches. See Camara v. Municipal
Court of City and County of San Francisco, 387 U.S. 523, 534. To be
constitutional, the subject of an administrative search must, among
other things, be afforded an opportunity to obtain precompliance re-
view before a neutral decisionmaker. See See v. Seattle, 387 U.S.
541, 545. Assuming the administrative search exception otherwise
applies here, §41.49 is facially invalid because it fails to afford hotel
operators any opportunity for precompliance review. To be clear, a
hotel owner must only be afforded an opportunity for precompliance
review; actual review need occur only when a hotel operator objects to
turning over the records. This opportunity can be provided without
imposing onerous burdens on law enforcement. For instance, officers
in the field can issue administrative subpoenas without probable
cause that a regulation is being infringed. This narrow holding does
not call into question those parts of §41.49 requiring hotel operators
to keep records nor does it prevent police from obtaining access to
those records where a hotel operator consents to the search, where
the officer has a proper administrative warrant, or where some other
exception to the warrant requirement applies. Pp. 9–13.
(b) Petitioner’s argument that the ordinance is facially valid un-
der the more relaxed standard for closely regulated industries is re-
jected. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 313. This Court
has only recognized four such industries, and nothing inherent in the
Cite as: 576 U. S. ____ (2015) 3
Syllabus
operation of hotels poses a comparable clear and significant risk to
the public welfare. Additionally, because the majority of regulations
applicable to hotels apply to many businesses, to classify hotels as
closely regulated would permit what has always been a narrow ex-
ception to swallow the rule. But even if hotels were closely regulated,
§41.49 would still contravene the Fourth Amendment as it fails to
satisfy the additional criteria that must be met for searches of closely
regulated industries to be reasonable. See New York v. Burger, 482
U.S. 691, 702–703. Pp. 13–17.
738 F.3d 1058, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which KENNE-
DY, GINSBURG, BREYER, and KAGAN, JJ., joined. SCALIA, J., filed a dis-
senting opinion, in which ROBERTS, C. J., and THOMAS, J., joined.
ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1175
_________________
CITY OF LOS ANGELES, CALIFORNIA, PETITIONER
v. NARANJIBHAI PATEL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Respondents brought a Fourth Amendment challenge to
a provision of the Los Angeles Municipal Code that com-
pels “[e]very operator of a hotel to keep a record” contain-
ing specified information concerning guests and to make
this record “available to any officer of the Los Angeles
Police Department for inspection” on demand. Los Ange-
les Municipal Code §§41.49(2), (3)(a), (4) (2015). The
questions presented are whether facial challenges to stat-
utes can be brought under the Fourth Amendment and, if
so, whether this provision of the Los Angeles Municipal
Code is facially invalid. We hold facial challenges can be
brought under the Fourth Amendment. We further hold
that the provision of the Los Angeles Municipal Code that
requires hotel operators to make their registries available
to the police on demand is facially unconstitutional be-
cause it penalizes them for declining to turn over their
records without affording them any opportunity for pre-
compliance review.
2 LOS ANGELES v. PATEL
Opinion of the Court
I
A
Los Angeles Municipal Code (LAMC) §41.49 requires
hotel operators to record information about their guests,
including: the guest’s name and address; the number of
people in each guest’s party; the make, model, and license
plate number of any guest’s vehicle parked on hotel prop-
erty; the guest’s date and time of arrival and scheduled
departure date; the room number assigned to the guest;
the rate charged and amount collected for the room; and
the method of payment. §41.49(2). Guests without reser-
vations, those who pay for their rooms with cash, and any
guests who rent a room for less than 12 hours must pre-
sent photographic identification at the time of check-in,
and hotel operators are required to record the number and
expiration date of that document. §41.49(4). For those
guests who check in using an electronic kiosk, the hotel’s
records must also contain the guest’s credit card infor-
mation. §41.49(2)(b). This information can be maintained
in either electronic or paper form, but it must be “kept on
the hotel premises in the guest reception or guest check-in
area or in an office adjacent” thereto for a period of 90
days. §41.49(3)(a).
Section 41.49(3)(a)—the only provision at issue here—
states, in pertinent part, that hotel guest records “shall be
made available to any officer of the Los Angeles Police
Department for inspection,” provided that “[w]henever
possible, the inspection shall be conducted at a time and in
a manner that minimizes any interference with the opera-
tion of the business.” A hotel operator’s failure to make
his or her guest records available for police inspection is a
misdemeanor punishable by up to six months in jail and a
$1,000 fine. §11.00(m) (general provision applicable to
entire LAMC).
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
B
In 2003, respondents, a group of motel operators along
with a lodging association, sued the city of Los Angeles
(City or petitioner) in three consolidated cases challenging
the constitutionality of §41.49(3)(a). They sought declara-
tory and injunctive relief. The parties “agree[d] that the
sole issue in the . . . action [would be] a facial constitu-
tional challenge” to §41.49(3)(a) under the Fourth Amend-
ment. App. 195. They further stipulated that respondents
have been subjected to mandatory record inspections
under the ordinance without consent or a warrant. Id., at
194–195.
Following a bench trial, the District Court entered
judgment in favor of the City, holding that respondents’
facial challenge failed because they lacked a reasonable
expectation of privacy in the records subject to inspection.
A divided panel of the Ninth Circuit affirmed on the same
grounds. 686 F.3d 1085 (2012). On rehearing en banc,
however, the Court of Appeals reversed. 738 F.3d 1058,
1065 (2013).
The en banc court first determined that a police officer’s
nonconsensual inspection of hotel records under §41.49 is
a Fourth Amendment “search” because “[t]he business
records covered by §41.49 are the hotel’s private property”
and the hotel therefore “has the right to exclude others
from prying into the[ir] contents.” Id., at 1061. Next, the
court assessed “whether the searches authorized by §41.49
are reasonable.” Id., at 1063. Relying on Donovan v. Lone
Steer, Inc., 464 U.S. 408 (1984), and See v. Seattle, 387
U.S. 541 (1967), the court held that §41.49 is facially
unconstitutional “as it authorizes inspections” of hotel
records “without affording an opportunity to ‘obtain judi-
cial review of the reasonableness of the demand prior to
suffering penalties for refusing to comply.’ ” 738 F.3d, at
1065 (quoting See, 387 U.S., at 545).
Two dissenting opinions were filed. The first dissent
4 LOS ANGELES v. PATEL
Opinion of the Court
argued that facial relief should rarely be available for
Fourth Amendment challenges, and was inappropriate
here because the ordinance would be constitutional in
those circumstances where police officers demand access
to hotel records with a warrant in hand or exigent circum-
stances justify the search. 738 F.3d, at 1065–1070 (opin-
ion of Tallman, J.). The second dissent conceded that
inspections under §41.49 constitute Fourth Amendment
searches, but faulted the majority for assessing the rea-
sonableness of these searches without accounting for the
weakness of the hotel operators’ privacy interest in the
content of their guest registries. Id., at 1070–1074 (opin-
ion of Clifton, J.).
We granted certiorari, 574 U. S. ___ (2014), and now
affirm.
II
We first clarify that facial challenges under the Fourth
Amendment are not categorically barred or especially
disfavored.
A
A facial challenge is an attack on a statute itself as
opposed to a particular application. While such challenges
are “the most difficult . . . to mount successfully,” United
States v. Salerno, 481 U.S. 739, 745 (1987), the Court has
have never held that these claims cannot be brought
under any otherwise enforceable provision of the Constitu-
tion. Cf. Fallon, Fact and Fiction About Facial Chal-
lenges, 99 Cal. L. Rev. 915, 918 (2011) (pointing to several
Terms in which “the Court adjudicated more facial chal-
lenges on the merits than it did as-applied challenges”).
Instead, the Court has allowed such challenges to proceed
under a diverse array of constitutional provisions. See,
e.g., Sorrell v. IMS Health Inc., 564 U. S. ___ (2011) (First
Amendment); District of Columbia v. Heller, 554 U.S. 570
 Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
(2008) (Second Amendment); Chicago v. Morales, 527 U.S.
41 (1999) (Due Process Clause of the Fourteenth Amend-
ment); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and
Finance, 505 U.S. 71 (1992) (Foreign Commerce Clause).
Fourth Amendment challenges to statutes authorizing
warrantless searches are no exception. Any claim to the
contrary reflects a misunderstanding of our decision in
Sibron v. New York, 392 U.S. 40 (1968). In Sibron, two
criminal defendants challenged the constitutionality of a
statute authorizing police to, among other things, “ ‘stop
any person abroad in a public place whom [they] reason-
ably suspec[t] is committing, has committed or is about to
commit a felony.” Id., at 43 (quoting then N. Y. Code
Crim. Proc. §180–a). The Court held that the search of
one of the defendants under the statute violated the
Fourth Amendment, 392 U.S., at 59, 62, but refused to
opine more broadly on the statute’s validity, stating that
“[t]he constitutional validity of a warrantless search is
pre-eminently the sort of question which can only be de-
cided in the concrete factual context of the individual
case.” Id., at 59.
This statement from Sibron—which on its face might
suggest an intent to foreclose all facial challenges to stat-
utes authorizing warrantless searches—must be under-
stood in the broader context of that case. In the same
section of the opinion, the Court emphasized that the
“operative categories” of the New York law at issue were
“susceptible of a wide variety of interpretations,” id., at 60,
and that “[the law] was passed too recently for the State’s
highest court to have ruled upon many of the questions
involving potential intersections with federal constitutional
guarantees,” id., at 60, n. 20. Sibron thus stands for the
simple proposition that claims for facial relief under the
Fourth Amendment are unlikely to succeed when there is
substantial ambiguity as to what conduct a statute au-
thorizes: Where a statute consists of “extraordinarily
6 LOS ANGELES v. PATEL
Opinion of the Court
elastic categories,” it may be “impossible to tell” whether
and to what extent it deviates from the requirements of
the Fourth Amendment. Id., at 59, 61, n. 20.
This reading of Sibron is confirmed by subsequent prec-
edents. Since Sibron, the Court has entertained facial
challenges under the Fourth Amendment to statutes
authorizing warrantless searches. See, e.g., Vernonia
School District 47J v. Acton, 515 U.S. 646, 648 (1995)
(“We granted certiorari to decide whether” petitioner’s
student athlete drug testing policy “violates the Fourth
and Fourteenth Amendments to the United States Consti-
tution”); Skinner v. Railway Labor Executives’ Assn., 489
U.S. 602, 633, n. 10 (1989) (“[R]espondents have chal-
lenged the administrative scheme on its face. We deal
therefore with whether the [drug] tests contemplated by
the regulation can ever be conducted”); cf. Illinois v. Krull,
480 U.S. 340, 354 (1987) (“[A] person subject to a statute
authorizing searches without a warrant or probable cause
may bring an action seeking a declaration that the statute
is unconstitutional and an injunction barring its imple-
mentation”). Perhaps more importantly, the Court has on
numerous occasions declared statutes facially invalid
under the Fourth Amendment. For instance, in Chandler
v. Miller, 520 U.S. 305, 308–309 (1997), the Court struck
down a Georgia statute requiring candidates for certain
state offices to take and pass a drug test, concluding that
this “requirement . . . [did] not fit within the closely
guarded category of constitutionally permissible suspicion-
less searches.” Similar examples abound. See, e.g., Fer-
guson v. Charleston, 532 U.S. 67, 86 (2001) (holding that
a hospital policy authorizing “nonconsensual, warrantless,
and suspicionless searches” contravened the Fourth
Amendment); Payton v. New York, 445 U.S. 573, 574, 576
(1980) (holding that a New York statute “authoriz[ing]
police officers to enter a private residence without a war-
rant and with force, if necessary, to make a routine felony
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
arrest” was “not consistent with the Fourth Amendment”);
Torres v. Puerto Rico, 442 U.S. 465, 466, 471 (1979) (hold-
ing that a Puerto Rico statute authorizing “police to search
the luggage of any person arriving in Puerto Rico from the
United States” was unconstitutional because it failed to
require either probable cause or a warrant).
B
Petitioner principally contends that facial challenges to
statutes authorizing warrantless searches must fail be-
cause such searches will never be unconstitutional in all
applications. Cf. Salerno, 481 U.S., at 745 (to obtain
facial relief the party seeking it “must establish that no
set of circumstances exists under which the [statute]
would be valid”). In particular, the City points to situa-
tions where police are responding to an emergency, where
the subject of the search consents to the intrusion, and
where police are acting under a court-ordered warrant.
See Brief for Petitioner 19–20. While petitioner frames
this argument as an objection to respondents’ challenge in
this case, its logic would preclude facial relief in every
Fourth Amendment challenge to a statute authorizing
warrantless searches. For this reason alone, the City’s
argument must fail: The Court’s precedents demonstrate
not only that facial challenges to statutes authorizing
warrantless searches can be brought, but also that they
can succeed. See Part II–A, supra.
Moreover, the City’s argument misunderstands how
courts analyze facial challenges. Under the most exacting
standard the Court has prescribed for facial challenges, a
plaintiff must establish that a “law is unconstitutional in
all of its applications.” Washington State Grange v. Wash-
ington State Republican Party, 552 U.S. 442, 449 (2008).
But when assessing whether a statute meets this stand-
ard, the Court has considered only applications of the
8 LOS ANGELES v. PATEL
Opinion of the Court
statute in which it actually authorizes or prohibits con-
duct. For instance, in Planned Parenthood of Southeast-
ern Pa. v. Casey, 505 U.S. 833 (1992), the Court struck
down a provision of Pennsylvania’s abortion law that
required a woman to notify her husband before obtaining
an abortion. Those defending the statute argued that
facial relief was inappropriate because most women volun-
tarily notify their husbands about a planned abortion and
for them the law would not impose an undue burden. The
Court rejected this argument, explaining: The
“[l]egislation is measured for consistency with the Consti-
tution by its impact on those whose conduct it affects. . . .
The proper focus of the constitutional inquiry is the group
for whom the law is a restriction, not the group for whom
the law is irrelevant.” Id., at 894.
Similarly, when addressing a facial challenge to a stat-
ute authorizing warrantless searches, the proper focus of
the constitutional inquiry is searches that the law actually
authorizes, not those for which it is irrelevant. If exigency
or a warrant justifies an officer’s search, the subject of the
search must permit it to proceed irrespective of whether it
is authorized by statute. Statutes authorizing warrantless
searches also do no work where the subject of a search has
consented. Accordingly, the constitutional “applications”
that petitioner claims prevent facial relief here are irrele-
vant to our analysis because they do not involve actual
applications of the statute.1
——————
1 Relatedly, the United States claims that a statute authorizing war-
rantless searches may still have independent force if it imposes a
penalty for failing to cooperate in a search conducted under a warrant
or in an exigency. See Brief for United States as Amicus Curiae 19.
This argument gets things backwards. An otherwise facially unconsti-
tutional statute cannot be saved from invalidation based solely on the
existence of a penalty provision that applies when searches are not
actually authorized by the statute. This argument is especially uncon-
vincing where, as here, an independent obstruction of justice statute
imposes a penalty for “willfully, resist[ing], delay[ing], or obstruct[ing]
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
III
Turning to the merits of the particular claim before us,
we hold that §41.49(3)(a) is facially unconstitutional be-
cause it fails to provide hotel operators with an opportu-
nity for precompliance review.
A
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” It
further provides that “no Warrants shall issue, but upon
probable cause.” Based on this constitutional text, the
Court has repeatedly held that “ ‘searches conducted out-
side the judicial process, without prior approval by [a]
judge or [a] magistrate [judge], are per se unreasonable . . .
subject only to a few specifically established and well-
delineated exceptions.’ ” Arizona v. Gant, 556 U.S. 332,
338 (2009) (quoting Katz v. United States, 389 U.S. 347,
357 (1967)). This rule “applies to commercial premises as
well as to homes.” Marshall v. Barlow’s, Inc., 436 U.S.
307, 312 (1978).
Search regimes where no warrant is ever required may
be reasonable where “ ‘special needs . . . make the warrant
and probable-cause requirement impracticable,’ ” Skinner,
489 U.S., at 619 (quoting Griffin v. Wisconsin, 483 U.S.
868, 873 (1987) (some internal quotation marks omitted)),
and where the “primary purpose” of the searches is
“[d]istinguishable from the general interest in crime con-
trol,” Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).
Here, we assume that the searches authorized by §41.49
serve a “special need” other than conducting criminal
investigations: They ensure compliance with the record-
——————
any public officer . . . in the discharge or attempt to discharge any duty
of his or her office of employment.” Cal. Penal Code Ann. §148(a)(1)
(West 2014).
10 LOS ANGELES v. PATEL
Opinion of the Court
keeping requirement, which in turn deters criminals from
operating on the hotels’ premises.2 The Court has referred
to this kind of search as an “administrative searc[h].”
Camara v. Municipal Court of City and County of San
Francisco, 387 U.S. 523, 534 (1967). Thus, we consider
whether §41.49 falls within the administrative search
exception to the warrant requirement.
The Court has held that absent consent, exigent circum-
stances, or the like, in order for an administrative search
to be constitutional, the subject of the search must be
afforded an opportunity to obtain precompliance review
before a neutral decisionmaker. See See, 387 U.S., at 545;
Lone Steer, 464 U.S., at 415 (noting that an administra-
tive search may proceed with only a subpoena where the
subpoenaed party is sufficiently protected by the oppor-
tunity to “question the reasonableness of the subpoena,
before suffering any penalties for refusing to comply with
it, by raising objections in an action in district court”).
And, we see no reason why this minimal requirement is
inapplicable here. While the Court has never attempted to
prescribe the exact form an opportunity for precompliance
review must take, the City does not even attempt to argue
that §41.49(3)(a) affords hotel operators any opportunity
whatsoever. Section 41.49(3)(a) is, therefore, facially
invalid.
A hotel owner who refuses to give an officer access to his
or her registry can be arrested on the spot. The Court has
held that business owners cannot reasonably be put to this
kind of choice. Camara, 387 U.S., at 533 (holding that
“broad statutory safeguards are no substitute for individ-
ualized review, particularly when those safeguards may
——————
2 Respondents contend that §41.49’s principal purpose instead is to
facilitate criminal investigation. Brief for Respondents 44–47. Because
we find that the searches authorized by §41.49 are unconstitutional
even if they serve the City’s asserted purpose, we decline to address
this argument.
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
only be invoked at the risk of a criminal penalty”). Absent
an opportunity for precompliance review, the ordinance
creates an intolerable risk that searches authorized by it
will exceed statutory limits, or be used as a pretext to
harass hotel operators and their guests. Even if a hotel
has been searched 10 times a day, every day, for three
months, without any violation being found, the operator
can only refuse to comply with an officer’s demand to turn
over the registry at his or her own peril.
To be clear, we hold only that a hotel owner must be
afforded an opportunity to have a neutral decisionmaker
review an officer’s demand to search the 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. Moreover,
this opportunity can be provided without imposing oner-
ous burdens on those charged with an administrative
scheme’s enforcement. For instance, respondents accept
that the searches authorized by §41.49(3)(a) would be
constitutional if they were performed pursuant to an
administrative subpoena. Tr. of Oral Arg. 36–37. These
subpoenas, which are typically a simple form, can be
issued by the individual seeking the record—here, officers
in the field—without probable cause that a regulation is
being infringed. See See, 387 U.S., at 544 (“[T]he demand
to inspect may be issued by the agency”). Issuing a sub-
poena will usually be the full extent of an officer’s burden
because “the great majority of businessmen can be ex-
pected in normal course to consent to inspection without
warrant.” Barlow’s, Inc., 436 U.S., at 316. Indeed, the
City has cited no evidence suggesting that without an
ordinance authorizing on-demand searches, hotel opera-
tors would regularly refuse to cooperate with the police.
In those instances, however, where a subpoenaed hotel
operator believes that an attempted search is motivated
by illicit purposes, respondents suggest it would be suffi-
12 LOS ANGELES v. PATEL
Opinion of the Court
cient if he or she could move to quash the subpoena before
any search takes place. Tr. of Oral Arg. 38–39. A neutral
decisionmaker, including an administrative law judge,
would then review the subpoenaed party’s objections
before deciding whether the subpoena is enforceable.
Given the limited grounds on which a motion to quash can
be granted, such challenges will likely be rare. And, in the
even rarer event that an officer reasonably suspects that a
hotel operator may tamper with the registry while the
motion to quash is pending, he or she can guard the regis-
try until the required hearing can occur, which ought not
take long. Riley v. California, 573 U. S. ___ (2014) (slip
op., at 12) (police may seize and hold a cell phone “to
prevent destruction of evidence while seeking a warrant”);
Illinois v. McArthur, 531 U.S. 326, 334 (2001) (citing
cases upholding the constitutionality of “temporary re-
straints where [they are] needed to preserve evidence until
police could obtain a warrant”). Cf. Missouri v. McNeely,
569 U. S. ___ (2013) (slip op., at 12) (noting that many
States have procedures in place for considering warrant
applications telephonically).3
Procedures along these lines are ubiquitous. A 2002
report by the Department of Justice “identified
approximately 335 existing administrative subpoena
authorities held by various [federal] executive branch
entities.” Office of Legal Policy, Report to Congress
on the Use of Administrative Subpoena Authorities by
Executive Branch Agencies and Entities 3, online
at http://www.justice.gov/archive/olp/rpt_to_congress.htm
(All Internet materials as visited June 19, 2015, and
available in Clerk of Court’s case file). Their prevalence
——————
3 JUSTICE SCALIA professes to be baffled at the idea that we could
suggest that in certain circumstances, police officers may seize some-
thing that they cannot immediately search. Post, at 10–11 (dissenting
opinion). But that is what this Court’s cases have explicitly endorsed,
including Riley just last Term.
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
confirms what common sense alone would otherwise lead
us to conclude: In most contexts, business owners can be
afforded at least an opportunity to contest an administra-
tive search’s propriety without unduly compromising the
government’s ability to achieve its regulatory aims.
Of course administrative subpoenas are only one way in
which an opportunity for precompliance review can be
made available. But whatever the precise form, the avail-
ability of precompliance review alters the dynamic be-
tween the officer and the hotel to be searched, and reduces
the risk that officers will use these administrative searches
as a pretext to harass business owners.
Finally, we underscore the narrow nature of our hold-
ing. Respondents have not challenged and nothing in our
opinion calls into question those parts of §41.49 that re-
quire hotel operators to maintain guest registries contain-
ing certain information. And, even absent legislative
action to create a procedure along the lines discussed
above, see supra, at 11, police will not be prevented from
obtaining access to these documents. As they often do,
hotel operators remain free to consent to searches of their
registries and police can compel them to turn them over
if they have a proper administrative warrant—including
one that was issued ex parte—or if some other exception
to the warrant requirement applies, including exigent
circumstances.4
B
Rather than arguing that §41.49(3)(a) is constitutional
——————
4 In suggesting that our holding today will somehow impede law en-
forcement from achieving its important aims, JUSTICE SCALIA relies on
instances where hotels were used as “prisons for migrants smuggled
across the border and held for ransom” or as “rendezvous sites where
child sex workers meet their clients on threat of violence from their
procurers.” See post, at 2. It is hard to imagine circumstances more
exigent than these.
14 LOS ANGELES v. PATEL
Opinion of the Court
under the general administrative search doctrine, the City
and JUSTICE SCALIA contend that hotels are “closely regu-
lated,” and that the ordinance is facially valid under the
more relaxed standard that applies to searches of this
category of businesses. Brief for Petitioner 28–47; post, at
5. They are wrong on both counts.
Over the past 45 years, the Court has identified only
four industries that “have such a history of government
oversight that no reasonable expectation of privacy . . .
could exist for a proprietor over the stock of such an en-
terprise,” Barlow’s, Inc., 436 U. S., 313. Simply listing
these industries refutes petitioner’s argument that hotels
should be counted among them. Unlike liquor sales, Col-
onnade Catering Corp. v. United States, 397 U.S. 72
(1970), firearms dealing, United States v. Biswell, 406
U.S. 311, 311–312 (1972), mining, Donovan v. Dewey, 452
U.S. 594 (1981), or running an automobile junkyard, New
York v. Burger, 482 U.S. 691 (1987), nothing inherent in
the operation of hotels poses a clear and significant risk to
the public welfare. See, e.g., id., at 709 (“Automobile
junkyards and vehicle dismantlers provide the major
market for stolen vehicles and vehicle parts”); Dewey, 452
U.S., at 602 (describing the mining industry as “among
the most hazardous in the country”).5
Moreover, “[t]he clear import of our cases is that the
closely regulated industry . . . is the exception.” Barlow’s,
Inc., 436 U.S., at 313. To classify hotels as pervasively
regulated would permit what has always been a narrow
exception to swallow the rule. The City wisely refrains
from arguing that §41.49 itself renders hotels closely
regulated. Nor do any of the other regulations on which
——————
5 JUSTICE SCALIA’s effort to depict hotels as raising a comparable de-
gree of risk rings hollow. See post, at 1, 14. Hotels—like practically all
commercial premises or services—can be put to use for nefarious ends.
But unlike the industries that the Court has found to be closely regu-
lated, hotels are not intrinsically dangerous.
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
petitioner and JUSTICE SCALIA rely—regulations requiring
hotels to, inter alia, maintain a license, collect taxes,
conspicuously post their rates, and meet certain sanitary
standards—establish a comprehensive scheme of regula-
tion that distinguishes hotels from numerous other busi-
nesses. See Brief for Petitioner 33–34 (citing regulations);
post, at 7 (same). All businesses in Los Angeles need a
license to operate. LAMC §§21.03(a), 21.09(a). While
some regulations apply to a smaller set of businesses, see
e.g. Cal. Code Regs., tit. 25, §40 (2015) (requiring linens
to be changed between rental guests), online at
http://www.oal.ca.gov/ccr.htm, these can hardly be said to
have created a “ ‘comprehensive’ ” scheme that puts hotel
owners on notice that their “ ‘property will be subject to
periodic inspections undertaken for specific purposes,’ ”
Burger, 482 U.S., at 705, n. 16 (quoting Dewey, 452 U.S.,
at 600). Instead, they are more akin to the widely appli-
cable minimum wage and maximum hour rules that the
Court rejected as a basis for deeming “the entirety of
American interstate commerce” to be closely regulated in
Barlow’s, Inc. 436 U.S., at 314. If such general regula-
tions were sufficient to invoke the closely regulated indus-
try exception, it would be hard to imagine a type of busi-
ness that would not qualify. See Brief for Google Inc. as
Amicus Curiae 16–17; Brief for the Chamber of Commerce
of United States of America as Amicus Curiae 12–13.
Petitioner attempts to recast this hodgepodge of reg-
ulations as a comprehensive scheme by referring to a
“centuries-old tradition” of warrantless searches of hotels.
Brief for Petitioner 34–36. History is relevant when deter-
mining whether an industry is closely regulated. See,
e.g., Burger, 482 U.S., at 707. The historical record here,
however, is not as clear as petitioner suggests. The City
and JUSTICE SCALIA principally point to evidence that
hotels were treated as public accommodations. Brief for
Petitioner 34–36; post, at 5–6, and n. 1. For instance, the
16 LOS ANGELES v. PATEL
Opinion of the Court
Commonwealth of Massachusetts required innkeepers to
“ ‘furnish[ ] . . . suitable provisions and lodging, for the
refreshment and entertainment of strangers and travel-
lers, pasturing and stable room, hay and provender . . . for
their horses and cattle.’ ” Brief for Petitioner 35 (quoting
An Act For The Due Regulation Of Licensed Houses
(1786), reprinted in Acts and Laws of the Commonwealth
of Massachusetts 209 (1893)). But laws obligating inns to
provide suitable lodging to all paying guests are not the
same as laws subjecting inns to warrantless searches.
Petitioner also asserts that “[f]or a long time, [hotel] own-
ers left their registers open to widespread inspection.”
Brief for Petitioner 51. Setting aside that modern hotel
registries contain sensitive information, such as driver’s
licenses and credit card numbers for which there is no
historic analog, the fact that some hotels chose to make
registries accessible to the public has little bearing on
whether government authorities could have viewed these
documents on demand without a hotel’s consent.
Even if we were to find that hotels are pervasively
regulated, §41.49 would need to satisfy three additional
criteria to be reasonable under the Fourth Amendment:
(1) “[T]here must be a ‘substantial’ government interest
that informs the regulatory scheme pursuant to which the
inspection is made”; (2) “the warrantless inspections must
be ‘necessary’ to further [the] regulatory scheme”; and (3)
“the statute’s inspection program, in terms of the certainty
and regularity of its application, [must] provid[e] a consti-
tutionally adequate substitute for a warrant.” Burger, 482
U.S., at 702–703 (internal quotation marks omitted). We
assume petitioner’s interest in ensuring that hotels main-
tain accurate and complete registries might fulfill the first
of these requirements, but conclude that §41.49 fails the
second and third prongs of this test.
The City claims that affording hotel operators any op-
portunity for precompliance review would fatally under-
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
mine the scheme’s efficacy by giving operators a chance to
falsify their records. Brief for Petitioner 41–42. The
Court has previously rejected this exact argument, which
could be made regarding any recordkeeping requirement.
See Barlow’s, Inc., 436 U.S., at 320 (“[It is not] apparent
why the advantages of surprise would be lost if, after
being refused entry, procedures were available for the
[Labor] Secretary to seek an ex parte warrant to reappear
at the premises without further notice to the establish-
ment being inspected”); cf. Lone Steer, 464 U.S., at 411,
415 (affirming use of administrative subpoena which
provided an opportunity for precompliance review as a
means for obtaining “payroll and sales records”). We see
no reason to accept it here.
As explained above, nothing in our decision today pre-
cludes an officer from conducting a surprise inspection by
obtaining an ex parte warrant or, where an officer reason-
ably suspects the registry would be altered, from guarding
the registry pending a hearing on a motion to quash. See
Barlow’s, Inc., 436 U.S., at 319–321; Riley, 573 U. S., at
___ (slip op., at 12). JUSTICE SCALIA’s claim that these
procedures will prove unworkable given the large number
of hotels in Los Angeles is a red herring. See post, at 11.
While there are approximately 2,000 hotels in Los Ange-
les, ibid., there is no basis to believe that resort to such
measures will be needed to conduct spot checks in the vast
majority of them. See supra, at 11.
Section 41.49 is also constitutionally deficient under the
“certainty and regularity” prong of the closely regulated
industries test because it fails sufficiently to constrain
police officers’ discretion as to which hotels to search and
under what circumstances. While the Court has upheld
inspection schemes of closely regulated industries that
called for searches at least four times a year, Dewey, 452
U.S., at 604, or on a “regular basis,” Burger, 482 U.S., at
711, §41.49 imposes no comparable standard.
18 LOS ANGELES v. PATEL
Opinion of the Court
* * *
For the foregoing reasons, we agree with the Ninth
Circuit that §41.49(3)(a) is facially invalid insofar as it
fails to provide any opportunity for precompliance review
before a hotel must give its guest registry to the police for
inspection. Accordingly, the judgment of the Ninth Circuit
is affirmed.
It is so ordered.
Cite as: 576 U. S. ____ (2015) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1175
_________________
CITY OF LOS ANGELES, CALIFORNIA, PETITIONER
v. NARANJIBHAI PATEL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
The city of Los Angeles, like many jurisdictions across
the country, has a law that requires motels, hotels, and
other places of overnight accommodation (hereinafter
motels) to keep a register containing specified information
about their guests. Los Angeles Municipal Code (LAMC)
§41.49(2) (2015). The purpose of this recordkeeping re-
quirement is to deter criminal conduct, on the theory that
criminals will be unwilling to carry on illicit activities in
motel rooms if they must provide identifying information
at check-in. Because this deterrent effect will only be
accomplished if motels actually do require guests to pro-
vide the required information, the ordinance also author-
izes police to conduct random spot checks of motels’ guest
registers to ensure that they are properly maintained.
§41.49(3). The ordinance limits these spot checks to the
four corners of the register, and does not authorize police
to enter any nonpublic area of the motel. To the extent
possible, police must conduct these spot checks at times
that will minimize any disruption to a motel’s business.
The parties do not dispute the governmental interests at
stake. Motels not only provide housing to vulnerable
transient populations, they are also a particularly attrac-
tive site for criminal activity ranging from drug dealing
2 LOS ANGELES v. PATEL
SCALIA, J., dissenting
and prostitution to human trafficking. Offering privacy
and anonymity on the cheap, they have been employed
as prisons for migrants smuggled across the border and
held for ransom, see Sanchez, Immigrant Smugglers Be-
come More Ruthless, Washington Post, June 28, 2004,
p. A3; Wagner, Human Smuggling, Arizona Republic,
July 23, 2006, p. A1, and rendezvous sites where child sex
workers meet their clients on threat of violence from their
procurers.
Nevertheless, the Court today concludes that Los Ange-
les’s ordinance is “unreasonable” inasmuch as it permits
police to flip through a guest register to ensure it is being
filled out without first providing an opportunity for the
motel operator to seek judicial review. Because I believe
that such a limited inspection of a guest register is emi-
nently reasonable under the circumstances presented, I
dissent.
I
I assume that respondents may bring a facial challenge
to the City’s ordinance under the Fourth Amendment.
Even so, their claim must fail because, as discussed infra,
the law is constitutional in most, if not all, of its applica-
tions. See United States v. Salerno, 481 U.S. 739, 751
(1987). But because the Court discusses the propriety of a
facial challenge at some length, I offer a few thoughts.
Article III limits our jurisdiction to “Cases” and “Con-
troversies.” Accordingly, “[f]ederal courts may not ‘decide
questions that cannot affect the rights of litigants in the
case before them’ or give ‘opinion[s] advising what the law
would be upon a hypothetical state of facts.’ ” Chafin v.
Chafin, 568 U. S. ___, ___ (2013) (slip op., at 5). To be
sure, the reasoning of a decision may suggest that there is
no permissible application of a particular statute, Chicago
v. Morales, 527 U.S. 41, 77 (1999) (SCALIA, J., dissenting),
and under the doctrine of stare decisis, this reasoning—to
Cite as: 576 U. S. ____ (2015) 3
SCALIA, J., dissenting
the extent that it is necessary to the holding—will be
binding in all future cases. But in this sense, the facial
invalidation of a statute is a logical consequence of the
Court’s opinion, not the immediate effect of its judgment.
Although we have at times described our holdings as
invalidating a law, it is always the application of a law,
rather than the law itself, that is before us.
The upshot is that the effect of a given case is a function
not of the plaintiff ’s characterization of his challenge, but
the narrowness or breadth of the ground that the Court
relies upon in disposing of it. If a plaintiff elects not to
present any case-specific facts in support of a claim that a
law is unconstitutional—as is the case here—he will limit
the grounds on which a Court may find for him to highly
abstract rules that would have broad application in future
cases. The decision to do this might be a poor strategic
move, especially in a Fourth Amendment case, where the
reasonableness of a search is a highly factbound question
and general, abstract rules are hard to come by. Cf.
Sibron v. New York, 392 U.S. 40, 59 (1968). But even had
the plaintiffs in this case presented voluminous facts in a
self-styled as-applied challenge, nothing would force this
Court to rely upon those facts rather than the broader
principle that the Court has chosen to rely upon. I see no
reason why a plaintiff ’s self-description of his challenge as
facial would provide an independent reason to reject it
unless we were to delegate to litigants our duty to say
what the law is.
II
The Fourth Amendment provides, in relevant part, that
“[t]he 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.” Grammatically, the two
clauses of the Amendment seem to be independent—and
4 LOS ANGELES v. PATEL
SCALIA, J., dissenting
directed at entirely different actors. The former tells the
executive what it must do when it conducts a search, and
the latter tells the judiciary what it must do when it issues
a search warrant. But in an effort to guide courts in ap-
plying the Search-and-Seizure Clause’s indeterminate
reasonableness standard, and to maintain coherence in
our case law, we have used the Warrant Clause as a
guidepost for assessing the reasonableness of a search,
and have erected a framework of presumptions applicable
to broad categories of searches conducted by executive
officials. Our case law has repeatedly recognized, how-
ever, that these are mere presumptions, and the only consti-
tutional requirement is that a search be reasonable.
When, for example, a search is conducted to enforce an
administrative regime rather than to investigate criminal
wrongdoing, we have been willing to modify the probable-
cause standard so that a warrant may issue absent indi-
vidualized suspicion of wrongdoing. Thus, our cases say a
warrant may issue to inspect a structure for fire-code
violations on the basis of such factors as the passage of
time, the nature of the building, and the condition of the
neighborhood. Camara v. Municipal Court of City and
County of San Francisco, 387 U.S. 523, 538–539 (1967).
As we recognized in that case, “reasonableness is still the
ultimate standard. If a valid public interest justifies the
intrusion contemplated, then there is probable cause to
issue a suitably restricted search warrant.” Id., at 539.
And precisely “because the ultimate touchstone of the
Fourth Amendment is ‘reasonableness,’ ” even the pre-
sumption that the search of a home without a warrant is
unreasonable “is subject to certain exceptions.” Brigham
City v. Stuart, 547 U.S. 398, 403 (2006).
One exception to normal warrant requirements applies
to searches of closely regulated businesses. “[W]hen an
entrepreneur embarks upon such a business, he has vol-
untarily chosen to subject himself to a full arsenal of
Cite as: 576 U. S. ____ (2015) 5
SCALIA, J., dissenting
governmental regulation,” and so a warrantless search to
enforce those regulations is not unreasonable. Marshall v.
Barlow’s, Inc., 436 U.S. 307, 313 (1978). Recognizing that
warrantless searches of closely regulated businesses may
nevertheless become unreasonable if arbitrarily conducted,
we have required laws authorizing such searches to satisfy
three criteria: (1) There must be a “ ‘substantial’ govern-
ment interest that informs the regulatory scheme pursu-
ant to which the inspection is made”; (2) “the warrantless
inspections must be ‘necessary to further [the] regulatory
scheme’ ”; and (3) “ ‘the statute’s inspection program, in
terms of the certainty and regularity of its application,
[must] provid[e] a constitutionally adequate substitute for
a warrant.’ ” New York v. Burger, 482 U.S. 691, 702–703
(1987).
Los Angeles’s ordinance easily meets these standards.
A
In determining whether a business is closely regulated,
this Court has looked to factors including the duration of
the regulatory tradition, id., at 705–707, Colonnade Cater-
ing Corp. v. United States, 397 U.S. 72, 75–77 (1970),
Donovan v. Dewey, 452 U.S. 594, 606 (1981); the compre-
hensiveness of the regulatory regime, Burger, supra, at
704–705, Dewey, supra, at 606; and the imposition of
similar regulations by other jurisdictions, Burger, supra,
at 705. These factors are not talismans, but shed light on
the expectation of privacy the owner of a business may
reasonably have, which in turn affects the reasonableness
of a warrantless search. See Barlow’s, supra, at 313.
Reflecting the unique public role of motels and their
commercial forebears, governments have long subjected
these businesses to unique public duties, and have estab-
lished inspection regimes to ensure compliance. As Black-
stone observed, “Inns, in particular, being intended for the
lodging and receipt of travellers, may be indicted, sup-
6 LOS ANGELES v. PATEL
SCALIA, J., dissenting
pressed, and the inn-keepers fined, if they refuse to enter-
tain a traveller without a very sufficient cause: for thus to
frustrate the end of their institution is held to be disorderly
behavior.” 4 W. Blackstone, Commentaries on the Laws
of England 168 (1765). Justice Story similarly recognized
“[t]he soundness of the public policy of subjecting particu-
lar classes of persons to extraordinary responsibility, in
cases where an extraordinary confidence is necessarily
reposed in them, and there is an extraordinary temptation
to fraud, or danger of plunder.” J. Story, Commentaries
on the Law of Bailments §464, pp. 487–488 (5th ed. 1851).
Accordingly, in addition to the obligation to receive any
paying guest, “innkeepers are bound to take, not merely
ordinary care, but uncommon care, of the goods, money,
and baggage of their guests,” id., §470, at 495, as travel-
lers “are obliged to rely almost implicitly on the good faith
of innholders, whose education and morals are none of the
best, and who might have frequent opportunities of asso-
ciating with ruffians and pilferers,” id., §471, at 498.
These obligations were not merely aspirational. At the
time of the founding, searches—indeed, warrantless
searches—of inns and similar places of public accommoda-
tion were commonplace. For example, although Massa-
chusetts was perhaps the State most protective against
government searches, “the state code of 1788 still allowed
tithingmen to search public houses of entertainment on
every Sabbath without any sort of warrant.” W. Cuddihy,
Fourth Amendment: Origins and Original Meaning 602–
1791, 743 (2009).1
As this evidence demonstrates, the regulatory tradition
governing motels is not only longstanding, but comprehen-
——————
1 As Beale helpfully confirms, “[f ]rom the earliest times the funda-
mental characteristic of an inn has been its public nature. It is a public
house, a house of public entertainment, or, as it is legally phrased, a
common inn.” J. Beale, The Law of Innkeepers and Hotels §11, p. 10
(1906).
Cite as: 576 U. S. ____ (2015) 7
SCALIA, J., dissenting
sive. And the tradition continues in Los Angeles. The
City imposes an occupancy tax upon transients who stay
in motels, LAMC §21.7.3, and makes the motel owner
responsible for collecting it, §21.7.5. It authorizes city
officials “to enter [a motel], free of charge, during business
hours” in order to “inspect and examine” them to deter-
mine whether these tax provisions have been complied
with. §§21.7.9, 21.15. It requires all motels to obtain a
“Transient Occupancy Registration Certificate,” which
must be displayed on the premises. §21.7.6. State law
requires motels to “post in a conspicuous place . . . a
statement of rate or range of rates by the day for lodging,”
and forbids any charges in excess of those posted rates.
Cal. Civ. Code Ann. §1863 (West 2010). Hotels must
change bed linens between guests, Cal. Code Regs., tit. 25,
§40 (2015), and they must offer guests the option not to
have towels and linens laundered daily, LAMC §121.08.
“Multiuse drinking utensils” may be placed in guest rooms
only if they are “thoroughly washed and sanitized after
each use” and “placed in protective bags.” Cal. Code Regs.,
tit. 17, §30852. And state authorities, like their municipal
counterparts, “may at reasonable times enter and inspect
any hotels, motels, or other public places” to ensure com-
pliance. §30858.
The regulatory regime at issue here is thus substan-
tially more comprehensive than the regulations governing
junkyards in Burger, where licensing, inventory-recording,
and permit-posting requirements were found sufficient to
qualify the industry as closely regulated. 482 U.S., at
704–705. The Court’s suggestion that these regulations
are not sufficiently targeted to motels, and are “akin to . . .
minimum wage and maximum hour rules,” ante, at 15, is
simply false. The regulations we have described above
reach into the “minutest detail[s]” of motel operations,
Barlow’s, supra, at 314, and those who enter that business
today (like those who have entered it over the centuries)
8 LOS ANGELES v. PATEL
SCALIA, J., dissenting
do so with an expectation that they will be subjected to
especially vigilant governmental oversight.
Finally, this ordinance is not an outlier. The City has
pointed us to more than 100 similar register-inspection
laws in cities and counties across the country, Brief for
Petitioner 36, and n. 3, and that is far from exhaustive. In
all, municipalities in at least 41 States have laws similar
to Los Angeles’s, Brief for National League of Cities et al.
as Amici Curiae 16–17, and at least 8 States have their
own laws authorizing register inspections, Brief for Cali-
fornia et al. as Amici Curiae 12–13.
This copious evidence is surely enough to establish that
“[w]hen a [motel operator] chooses to engage in this perva-
sively regulated business . . . he does so with the
knowledge that his business records . . . will be subject to
effective inspection.” United States v. Biswell, 406 U.S.
311, 316 (1972). And that is the relevant constitutional
test—not whether this regulatory superstructure is “the
same as laws subjecting inns to warrantless searches,” or
whether, as an historical matter, government authorities
not only required these documents to be kept but permit-
ted them to be viewed on demand without a motel’s con-
sent. Ante, at 16.
The Court’s observation that “[o]ver the past 45 years,
the Court has identified only four industries” as closely
regulated, ante, at 14, is neither here nor there. Since we
first concluded in Colonnade Catering that warrantless
searches of closely regulated businesses are reasonable,
we have only identified one industry as not closely regu-
lated, see Barlow’s, 436 U.S., at 313–314. The Court’s
statistic thus tells us more about how this Court exercises
its discretionary review than it does about the number of
industries that qualify as closely regulated. At the same
time, lower courts, which do not have the luxury of picking
the cases they hear, have identified many more businesses
as closely regulated under the test we have announced:
Cite as: 576 U. S. ____ (2015) 9
SCALIA, J., dissenting
pharmacies, United States v. Gonsalves, 435 F.3d 64, 67
(CA1 2006); massage parlors, Pollard v. Cockrell, 578
F.2d 1002, 1014 (CA5 1978); commercial-fishing opera-
tions, United States v. Raub, 637 F.2d 1205, 1208–1209
(CA9 1980); day-care facilities, Rush v. Obledo, 756 F.2d
713, 720–721 (CA9 1985); nursing homes, People v. First-
enberg, 92 Cal. App. 3d 570, 578–580, 155 Cal. Rptr. 80,
84–86 (1979); jewelers, People v. Pashigian, 150 Mich.
App. 97, 100–101, 388 N.W.2d 259, 261–262 (1986) (per
curiam); barbershops, Stogner v. Kentucky, 638 F. Supp. 1,
3 (WD Ky. 1985); and yes, even rabbit dealers, Lesser v.
Espy, 34 F.3d 1301, 1306–1307 (CA7 1994). Like auto-
mobile junkyards and catering companies that serve alco-
hol, many of these businesses are far from “intrinsically
dangerous,” cf. ante, at 14, n. 5. This should come as no
surprise. The reason closely regulated industries may be
searched without a warrant has nothing to do with the
risk of harm they pose; rather, it has to do with the expec-
tations of those who enter such a line of work. See Bar-
low’s, supra, at 313.
B
The City’s ordinance easily satisfies the remaining
Burger requirements: It furthers a substantial govern-
mental interest, it is necessary to achieving that interest,
and it provides an adequate substitute for a search
warrant.
Neither respondents nor the Court question the sub-
stantial interest of the City in deterring criminal activity.
See Brief for Respondents 34–41; ante, at 15. The private
pain and public costs imposed by drug dealing, prostitu-
tion, and human trafficking are beyond contention, and
motels provide an obvious haven for those who trade in
human misery.
Warrantless inspections are also necessary to advance
this interest. Although the Court acknowledges that law
10 LOS ANGELES v. PATEL
SCALIA, J., dissenting
enforcement can enter a motel room without a warrant
when exigent circumstances exist, see ante, at 13, n. 4, the
whole reason criminals use motel rooms in the first place
is that they offer privacy and secrecy, so that police will
never come to discover these exigencies. The recordkeep-
ing requirement, which all parties admit is permissible,
therefore operates by deterring crime. Criminals, who
depend on the anonymity that motels offer, will balk when
confronted with a motel’s demand that they produce iden-
tification. And a motel’s evasion of the recordkeeping
requirement fosters crime. In San Diego, for example,
motel owners were indicted for collaborating with mem-
bers of the Crips street gang in the prostitution of under-
age girls; the motel owners “set aside rooms apart from
the rest of their legitimate customers where girls and
women were housed, charged the gang members/pimps a
higher rate for the rooms where ‘dates’ or ‘tricks’ took
place, and warned the gang members of inquiries by law
enforcement.” Office of the Attorney General, Cal. Dept. of
Justice, The State of Human Trafficking in California 25
(2012). The warrantless inspection requirement provides
a necessary incentive for motels to maintain their regis-
ters thoroughly and accurately: They never know when
law enforcement might drop by to inspect.
Respondents and the Court acknowledge that inspec-
tions are necessary to achieve the purposes of the record-
keeping regime, but insist that warrantless inspections are
not. They have to acknowledge, however, that the motel
operators who conspire with drug dealers and procurers
may demand precompliance judicial review simply as a
pretext to buy time for making fraudulent entries in their
guest registers. The Court therefore must resort to argu-
ing that warrantless inspections are not “necessary” be-
cause other alternatives exist.
The Court suggests that police could obtain an adminis-
trative subpoena to search a guest register and, if a motel
Cite as: 576 U. S. ____ (2015) 11
SCALIA, J., dissenting
moves to quash, the police could “guar[d] the registry
pending a hearing” on the motion. Ante, at 17. This pro-
posal is equal parts 1984 and Alice in Wonderland. It
protects motels from government inspection of their regis-
ters by authorizing government agents to seize the regis-
ters2 (if “guarding” entails forbidding the register to be
moved) or to upset guests by a prolonged police presence
at the motel. The Court also notes that police can obtain
an ex parte warrant before conducting a register inspec-
tion. Ante, at 17. Presumably such warrants could issue
without probable cause of wrongdoing by a particular
motel, see Camara, 387 U.S., at 535–536; otherwise, this
would be no alternative at all. Even so, under this regime
police would have to obtain an ex parte warrant before
every inspection. That is because law enforcement would
have no way of knowing ahead of time which motels would
refuse consent to a search upon request; and if they wait
to obtain a warrant until consent is refused, motels will
have the opportunity to falsify their guest registers while
the police jump through the procedural hoops required to
obtain a warrant. It is quite plausible that the costs of
this always-get-a-warrant “alternative” would be prohibi-
tive for a police force in one of America’s largest cities,
juggling numerous law-enforcement priorities, and con-
fronting more than 2,000 motels within its jurisdiction.
E. Wallace, K. Pollock, B. Horth, S. Carty, & N. El-
yas, Los Angeles Tourism: A Domestic and Interna-
tional Analysis 7 (May 2014 online at http:
//www.lachamber.com/clientuploads/Global_Programs/
WTW/2014/LATourism_LMU_May2014.pdf (as visited
June 19, 2015, and available in Clerk of Court’s
——————
2 We are not at all “baffled at the idea that . . . police officers may
seize something that they cannot immediately search.” Ante, at 12,
n. 3. We are baffled at the idea that anyone would think a seizure of
required records less intrusive than a visual inspection.
12 LOS ANGELES v. PATEL
SCALIA, J., dissenting
case file). To be sure, the fact that obtaining a warrant
might be costly will not by itself render a warrantless
search reasonable under the Fourth Amendment; but it
can render a warrantless search necessary in the context
of an administrative-search regime governing closely
regulated businesses.
But all that discussion is in any case irrelevant. The
administrative search need only be reasonable. It is not
the burden of Los Angeles to show that there are no less
restrictive means of achieving the City’s purposes. Se-
questration or ex parte warrants were possible alternatives
to the warrantless search regimes approved by this Court
in Colonnade Catering, Biswell, Dewey, and Burger. By
importing a least-restrictive-means test into Burger’s
Fourth Amendment framework, today’s opinion implicitly
overrules that entire line of cases.
Finally, the City’s ordinance provides an adequate
substitute for a warrant. Warrants “advise the owner of
the scope and objects of the search, beyond which limits
the inspector is not expected to proceed.” Barlow’s, 436
U.S., at 323. Ultimately, they aim to protect against
“devolv[ing] almost unbridled discretion upon executive
and administrative officers, particularly those in the field,
as to when to search and whom to search.” Ibid.
Los Angeles’s ordinance provides that the guest register
must be kept in the guest reception or guest check-in area,
or in an adjacent office, and that it “be made available to
any officer of the Los Angeles Police Department for in-
spection. Whenever possible, the inspection shall be con-
ducted at a time and in a manner that minimizes any
interference with the operation of the business.” LAMC
§41.49(3). Nothing in the ordinance authorizes law en-
forcement to enter a nonpublic part of the motel. Compare
this to the statute upheld in Colonnade Catering, which
provided that “ ‘[t]he Secretary or his delegate may enter,
in the daytime, any building or place where any articles or
Cite as: 576 U. S. ____ (2015) 13
SCALIA, J., dissenting
objects subject to tax are made, produced, or kept, so far as
it may be necessary for the purpose of examining said
articles or objects,’ ” 397 U.S., at 73, n. 2 (quoting 26
U.S. C. §7606(a) (1964 ed.)); or the one in Biswell, which
stated that “ ‘[t]he Secretary may enter during business
hours the premises (including places of storage) of any
firearms or ammunition importer . . . for the purpose of
inspecting or examining (1) any records or documents
required to be kept . . . , and (2) any firearms or ammuni-
tion kept or stored,’ ” 406 U.S., at 312, n. 1 (quoting 18
U.S. C. §923(g) (1970 ed.)); or the one in Dewey, which
granted federal mine inspectors “ ‘a right of entry to, upon,
or through any coal or other mine,’ ” 452 U.S., at 596
(quoting 30 U.S. C. §813(a) (1976 ed., Supp. III)); or the
one in Burger, which compelled junkyard operators to
“ ‘produce such records and permit said agent or police
officer to examine them and any vehicles or parts of vehi-
cles which are subject to the record keeping requirements
of this section and which are on the premises,’ ” 482 U.S.,
at 694, n. 1 (quoting N. Y. Veh. & Traf. Law §415–a5
(McKinney 1986)). The Los Angeles ordinance—which
limits warrantless police searches to the pages of a guest
register in a public part of a motel—circumscribes police
discretion in much more exacting terms than the laws we
have approved in our earlier cases.
The Court claims that Los Angeles’s ordinance confers
too much discretion because it does not adequately limit
the frequency of searches. Without a trace of irony, the
Court tries to distinguish Los Angeles’s law from the laws
upheld in Dewey and Burger by pointing out that the
latter regimes required inspections at least four times a
year and on a “ ‘regular basis,’ ” respectively. Ante, at 17.
But the warrantless police searches of a business “10
times a day, every day, for three months” that the Court
envisions under Los Angeles’s regime, ante, at 11, are
entirely consistent with the regimes in Dewey and Burger;
14 LOS ANGELES v. PATEL
SCALIA, J., dissenting
10 times a day, every day, is “at least four times a year,”
and on a (much too) “ ‘regular basis.’ ” Ante, at 17.
That is not to say that the Court’s hypothetical searches
are necessarily constitutional. It is only to say that Los
Angeles’s ordinance presents no greater risk that such a
hypothetical will materialize than the laws we have al-
ready upheld. As in our earlier cases, we should leave it to
lower courts to consider on a case-by-case basis whether
warrantless searches have been conducted in an unrea-
sonably intrusive or harassing manner.
III
The Court reaches its wrongheaded conclusion not
simply by misapplying our precedent, but by mistaking
our precedent for the Fourth Amendment itself. Rather
than bother with the text of that Amendment, the Court
relies exclusively on our administrative-search cases,
Camara, See v. Seattle, 387 U.S. 541 (1967), and Barlow’s.
But the Constitution predates 1967, and it remains the
supreme law of the land today. Although the categorical
framework our jurisprudence has erected in this area may
provide us guidance, it is guidance to answer the constitu-
tional question at issue: whether the challenged search is
reasonable.
An administrative, warrantless-search ordinance that
narrowly limits the scope of searches to a single business
record, that does not authorize entry upon premises not
open to the public, and that is supported by the need to
prevent fabrication of guest registers, is, to say the least,
far afield from the laws at issue in the cases the Court
relies upon. The Court concludes that such minor intru-
sions, permissible when the police are trying to tamp down
the market in stolen auto parts, are “unreasonable” when
police are instead attempting to stamp out the market in
child sex slaves.
Because I believe that the limited warrantless searches
Cite as: 576 U. S. ____ (2015) 15
SCALIA, J., dissenting
authorized by Los Angeles’s ordinance are reasonable
under the circumstances, I respectfully dissent.
Cite as: 576 U. S. ____ (2015) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1175
_________________
CITY OF LOS ANGELES, CALIFORNIA, PETITIONER
v. NARANJIBHAI PATEL, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 22, 2015]
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
dissenting.
After today, the city of Los Angeles can never, under any
circumstances, enforce its 116-year-old requirement that
hotels make their registers available to police officers.
That is because the Court holds that §41.49(3)(a) of the
Los Angeles Municipal Code (2015) is facially unconstitu-
tional. Before entering a judgment with such serious
safety and federalism implications, the Court must con-
clude that every application of this law is unconstitu-
tional—i.e., that “ ‘no set of circumstances exists under
which the [law] would be valid.’ ” Ante, at 7 (quoting United
States v. Salerno, 481 U.S. 739, 745 (1987)). I have
doubts about the Court’s approach to administrative
searches and closely regulated industries. Ante, at 9–17.
But even if the Court were 100% correct, it still should
uphold §41.49(3)(a) because many other applications of
this law are constitutional. Here are five examples.
Example One. The police have probable cause to believe
that a register contains evidence of a crime. They go to a
judge and get a search warrant. The hotel operator, how-
ever, refuses to surrender the register, but instead stashes
it away. Officers could tear the hotel apart looking for it.
Or they could simply order the operator to produce it. The
Fourth Amendment does not create a right to defy a war-
2 LOS ANGELES v. PATEL
ALITO, J., dissenting
rant. Hence §41.49(3)(a) could be constitutionally applied
in this scenario. Indeed, the Court concedes that it is
proper to apply a California obstruction of justice law in
such a case. See ante, at 8–9, n. 1; Brief for Respondents
49. How could applying a city law with a similar effect be
different? No one thinks that overlapping laws are uncon-
stitutional. See, e.g., Yates v. United States, 574 U. S. ___,
___ (2015) (KAGAN, J. dissenting) (slip op., at 10–11)
(“Overlap—even significant overlap—abounds in criminal
law”) (collecting citations). And a specific law gives more
notice than a general law.
In any event, the Los Angeles ordinance is arguably
broader in at least one important respect than the Califor-
nia obstruction of justice statute on which the Court relies.
Ante, at 8–9, n. 1. The state law applies when a person
“willfully resists, delays, or obstructs any public officer . . .
in the discharge or attempt to discharge any duty of his or
her office.” Cal. Penal Code Ann. §148(a)(1) (West 2014).
In the example set out above, suppose that the hotel oper-
ator, instead of hiding the register, simply refused to tell
the police where it is located. The Court cites no Califor-
nia case holding that such a refusal would be unlawful,
and the city of Los Angeles submits that under California
law, “[o]bstruction statutes prohibit a hotel owner from
obstructing a search, but they do not require affirmative
assistance.” Reply Brief 5. The Los Angeles ordinance, by
contrast, unequivocally requires a hotel operator to make
the register available on request.
Example Two. A murderer has kidnapped a woman
with the intent to rape and kill her and there is reason to
believe he is holed up in a certain motel. The Fourth
Amendment’s reasonableness standard accounts for exi-
gent circumstances. See, e.g., Brigham City v. Stuart, 547
U.S. 398, 403 (2006). When the police arrive, the motel
operator folds her arms and says the register is locked in a
safe. Invoking §41.49(3)(a), the police order the operator
Cite as: 576 U. S. ____ (2015) 3
ALITO, J., dissenting
to turn over the register. She refuses. The Fourth
Amendment does not protect her from arrest.
Example Three. A neighborhood of “pay by the hour”
motels is a notorious gathering spot for child-sex traffick-
ers. Police officers drive through the neighborhood late
one night and see unusual amounts of activity at a partic-
ular motel. The officers stop and ask the motel operator
for the names of those who paid with cash to rent rooms
for less than three hours. The operator refuses to provide
the information. Requesting to see the register—and
arresting the operator for failing to provide it—would be
reasonable under the “totality of the circumstances.” Ohio
v. Robinette, 519 U.S. 33, 39 (1996). In fact, the Court has
upheld a similar reporting duty against a Fourth Amend-
ment challenge where the scope of information required
was also targeted and the public’s interest in crime pre-
vention was no less serious. See California Bankers Assn.
v. Shultz, 416 U.S. 21, 39, n. 15, 66–67 (1974) (having “no
difficulty” upholding a requirement that banks must
provide reports about transactions involving more than
$10,000, including the name, address, occupation, and
social security number of the customer involved, along
with a summary of the transaction, the amount of money
at issue, and the type of identification presented).
Example Four. A motel is operated by a dishonest
employee. He has been charging more for rooms than he
records, all the while pocketing the difference. The owner
finds out and eagerly consents to a police inspection of the
register. But when officers arrive and ask to see the regis-
ter, the operator hides it. The Fourth Amendment does
not allow the operator’s refusal to defeat the owner’s
consent. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369–
370 (1968). Accordingly, it would not violate the Fourth
Amendment to arrest the operator for failing to make the
register “available to any officer of the Los Angeles Police
Department for inspection.” §41.49(3)(a).
4 LOS ANGELES v. PATEL
ALITO, J., dissenting
Example Five. A “mom and pop” motel always keeps its
old-fashioned guest register open on the front desk. Any-
one who wants to can walk up and leaf through it. (Such
motels are not as common as they used to be, but Los
Angeles is a big place.) The motel has no reasonable
expectation of privacy in the register, and no one doubts
that police officers—like anyone else—can enter into the
lobby. See, e.g., Florida v. Jardines, 569 U.S. 1, ___
(2013) (slip op., at 6); Donovan v. Lone Steer, Inc., 464
U.S. 408, 413 (1984). But when an officer starts looking
at the register, as others do, the motel operator at the desk
snatches it away and will not give it back. Arresting that
person would not violate the Fourth Amendment.
These are just five examples. There are many more.
The Court rushes past examples like these by suggesting
that §41.49(3)(a) does no “work” in such scenarios. Ante,
at 8. That is not true. Under threat of legal sanction, this
law orders hotel operators to do things they do not want to
do. To be sure, there may be circumstances in which
§41.49(3)(a)’s command conflicts with the Fourth Amend-
ment, and in those circumstances the Fourth Amendment
is supreme. See U. S. Const., Art VI, cl. 2. But no differ-
ent from any other local law, the remedy for such circum-
stances should be an as-applied injunction limited to the
conflict with the Fourth Amendment. Such an injunction
would protect a hotel from being “searched 10 times a day,
every day, for three months, without any violation being
found.” Ante, at 11. But unlike facial invalidation, an as-
applied injunction does not produce collateral damage.
Section 41.49(3)(a) should be enforceable in those many
cases in which the Fourth Amendment is not violated.
There are serious arguments that the Fourth Amend-
ment’s application to warrantless searches and seizures is
inherently inconsistent with facial challenges. See Sibron
v. New York, 392 U.S. 40, 59, 62 (1968) (explaining that
because of the Fourth Amendment’s reasonableness re-
Cite as: 576 U. S. ____ (2015) 5
ALITO, J., dissenting
quirement, “[t]he constitutional validity of a warrantless
search is pre-eminently the sort of question which can only
be decided in the concrete factual context of the individual
case”); Brief for Manhattan Institute for Policy Research
as Amicus Curiae 33 (“A constitutional claim under the
first clause of the Fourth Amendment is never a ‘facial’
challenge, because it is always and inherently a challenge
to executive action”). But assuming such facial challenges
ever make sense conceptually, this particular one fails
under basic principles of facial invalidation. The Court’s
contrary holding is befuddling. I respectfully dissent.