Legal Case Summary

Los Angeles v. Patel

Date Argued: Tue Mar 03 2015
Case Number:
Docket Number: 2639730
Judges:Not available
Duration: 63 minutes
Court Name:

Case Summary

**Case Summary: Los Angeles v. Patel, Docket Number 2639730** **Jurisdiction**: Supreme Court of the United States **Case Details**: Los Angeles v. Patel deals with the constitutionality of a Los Angeles ordinance requiring hotel operators to maintain and provide registries of guests to law enforcement upon request without a warrant. **Background**: The city of Los Angeles enacted a law that mandated hotel owners to keep records of guest information, including names and addresses, and to make this information available to police officers for inspection without needing a warrant. The law was intended to combat crime and promote public safety within the city. **Legal Issue**: The primary question before the court was whether the ordinance violated the Fourth Amendment, which protects against unreasonable searches and seizures. The plaintiffs, a group of hotel operators led by Patel, argued that the law was overly broad and constituted a violation of their constitutional rights. **Court's Holding**: The Supreme Court ruled in favor of Patel, holding that the ordinance was unconstitutional. The Court found that requiring hotel operators to provide guest information to the police without a warrant constituted an unreasonable search under the Fourth Amendment. The ruling underscored the necessity of warrants and the protection of personal privacy against arbitrary governmental intrusions. **Significance**: The decision reinforced the principle that individuals have a right to privacy and that government entities must obtain warrants based on probable cause before conducting searches that infringe on this right. It also emphasized the need for clear limitations on the government's ability to access personal information without due process. --- Please let me know if you need further details or a different type of summary!

Los Angeles v. Patel


Oral Audio Transcript(Beta version)

Well, your argument first this morning in case 131175, the City of Los Angeles versus Patel. Mr. Rosencrantz? Thank you, Mr. Chief Justice, and may it please the Court. This case is about whether to deprive scores of cities of one of the most effective tools that they have developed to deter human trafficking, prostitution, and drug crimes that have seized the ground in America's hotels and motels. The ordinance in question is the least intrusive inspection scheme that this court has ever encountered. It is limited to showing the police a single book containing only information that the hotels transcribed specifically for the city and that they have been turning over to the police by operation of law for 150 years. Good, you, first two questions. Is the information that they have been keeping for 150 years the same? Because looking at the requirements, the early information was basically somebody's name, and I'm not even sure they are dressed. But today's information has, or today's registry and requirements, have information that Federal law doesn't permit to be disclosed, like driver's license, credit card information. I mean, Federal law says you can't disclose that information. So, isn't there a difference? It's not the same tradition over 150 years. You are right, Your Honor, that the amount of information has increased. The privacy interests, however, have been pretty much the same. It was name and address and the rate that they were charged and so forth. And that is the information that the hotels have argued is the most private. All of the things that you say, the most effective tool for trafficking, prostitution, trial, molestation, none of that sounds like it's the purpose of the search is administrative. Well, it is administrative, Your Honor, and to understand why it's administrative you have to focus first on the target. The target here is not people who are accused of crimes. The target is the motels and the hotels who are required to keep records, to record information, and why are they required to record the information for the deterrent purpose, and the deterrent purpose more specifically is that criminals do not like to register. They do not like to record their information. So Mr. Rose, what are you saying then that the police can do this? Can we request these records on demand and they don't have to have any reason at all in a reasonable suspicion or probable cause nothing because the purpose is to deter people from staying in hotels who might do bad things. So there's nothing like a reasonable suspicion requirement. That's correct, Your Honor. It's the same rationale that this Court adopted in Berger that frequent unannounced spy inspections are necessary in order to achieve that deterrent purpose. That if the hotels do not record all the names and more specifically, they record most names but not the names of the guests that they know are criminals, there's no way to know unless you have this frequent unannounced inspection that someone is missing. So there's a real necessity here as there was in Berger and in Israel. Kagan, you tell me how many prosecutions there have been, and I use the word of both criminally or civil, for the failure to register people. Rose, there have been numerous prosecutions. I can't tell you how many of the complaints in this case, which are in the beginning of the joint appendix, refer to the plaintiffs having been prosecuted, multiple times or fine, for failing to keep the records. And I just, I do want to underscore this point about necessity. The problem is not that the registers are empty. The problem is that the hotels decline to record the names of those who they know are criminals or the motels do. But that has nothing to do with the free right to search

. Those people who are refusing to do it are going to refuse to do it. A record keeping requirement has no constitutional challenge. What does is the unfettered access to that record. Kagan, agree, Jury, and so let me just break it down. Rose, those people who don't want to do it are not going to do it anyway. Kagan, exactly. Those people who don't want to do it go somewhere else or don't commit their crimes. But if they are forced to do it, which is to say the motel won't let them stay there unless they register, then they will not commit those crimes in the motels. And the only way to make sure that the motels are enforcing that obligation is to descend on them without notice, as Justice Ginsburg was saying, and frequently, so that they never know when the police are going to come. Why? To make sure that they are indeed recording the information. And why is the real-time observation key? It's because, say, the police show up and they have a register and they notice that room number two is unoccupied according to the register, but they see someone in room number two. They know only from real-time observation that there is a violation here. If they get the register a month later, they have nothing to compare it. You mean they can walk up and down the halls and see that nobody is in a certain room? I don't know quite how you do that. Of course you do. One of the way it works in particular. You have room number two as if it's right there, but it's about as room number 12-04. So motels, for example, are out in the open. You can sit there. What about my question about room 12-04? Do you seem to say that please can wander all over the hotel? Well, the police may be allowed to wander around the hotel. They probably will not see much if what they're doing is wandering back and forth, looking at particular room. Suppose in motels they can see what rooms have cars in front of them. And I suppose as to room 12-04 they can see usually behind the desk what keys are missing, what rooms appear not to be occupied. That's correct, Your Honor. And that's why real-time observation is so key because you can't do that a month later. And that's why we have the same necessity. Sure why? I mean, what you're saying is it's easier to prosecute, but it doesn't mean that you can't devote some resources and find this out. You do a surveillance, which is what police do for a lot of crimes, and you watch people going in for two hours and reading, and you keep a record of it. You can even stop those people who are leaving to ask them. There's a whole lot of law enforcement techniques that could be used to combat the situations you're talking about. But not nearly as effectively, Your Honor. Since when has the Fourth Amendment completely been abandoned to how effective the proof that the police can get at a moment should be? Well, Your Honor, that's not the test, but do we refer to the fact that it's not as effective? And it simply doesn't work, Your Honor. Let me give you an example. If all the police are doing is looking for who's in what room and what keys are missing, they don't actually know what to look for until long after the fact they may be looking for the wrong thing

. And there are many motels where they can't do it, for example, look at the keys because they're not available and easy to see. And so it's having the information right in front of them and then comparing it to things that they might be able to observe. But Mr. Rosencrantz, why isn't this just like Barlow's really that it's not necessary on the following rationale? Number one, most people will consent so that you go the police go into a hotel and say, we'd like to say your registry, most people are going to consent. If somebody says no, and there's a real basis for believing that the evidence is going to be altered or destroyed, you can seize it, pending judicial review, or you can get an administrative warrant, exparte, and conduct a surprise examination if you want to. So we talked about all of those things in Barlow's about how, why that suggested that these warrantless searches were not necessary. What makes this different? You know, what makes this different is the distinction between Barlow's on the one hand and Berger, do we, as well, collinate on the other hand? And that is the moveability of information. That is the transience of the information that you use to verify. In Barlow's, if there is an unsafe condition, there is an unsafe condition and it's hard to see. This Court said it also in C and distinguished, in Biswold, distinguished C on that ground. If you, if it's the sort of condition that doesn't change over time, you can get a warrant and it doesn't affect your body. What's going to change here? The registry is the registry. And as I just said, if in an unusual case you have the feeling that the hotel is complicit, you can make sure to freeze the registry. But that's going to be an unusual case. And mostly the registry is going to be there. And, you know, as I said, mostly people are going to consent to the extent not, you can go get a warrant. Well, you want to, what, what, what changes is the information on the basis of which you draw that comparison. If you only compare the register, if you get the register a month later, you can't compare it to facts on the ground, too, to the, to the cause. It doesn't, you know, it, it's an hour later. Well, you, you mean get a warrant within an hour? Wants within an hour or, or not that easy to get particular. What's the probable cause for the warrant? Well, there is, if that, that's, if you haven't seen the register, what's the probable cause? Right, there is no. What do you have to have a policeman sit outside the hotel for, for days to, I mean, you don't have probable cause unless you know that they're, they're, they're not going to There, there are people who are, you know, in, in, in the room for a short time who haven't registered. Right. That's exactly right. The, I mean, the warrant's offer probable cause, that's why Berger and Beaswell said, no, you don't need to get a warrant when you're doing an administrative inspection. If you prevail in, in this case, and a member of the Court sits down to write the opinion, does he, or she, have to use the phrase, recent elective mutation of privacy? And say there is no reasonable elective mutation of privacy in our society and our culture and our, or do we just forget that phrase? In, in a way, as we all know, it's circular there. If we say there's a reasonable elective mutation, then there is. Well, you want to, the answer depends upon which Fourth Amendment rubric one uses. Under the Berger line of cases, the Court looks at the statute, asks, is this a closely regulated business? Was it necessary? Is it a legitimate non-law enforcement purpose? And so, is closely regulated another way to talk about reasonable elective mutation of privacy? Indeed it is. And we talked about that in the Katz case, the telephone booth case. I don't know, but I'm not sure that, is that still a phrase that's necessary and required for us to address in an opinion like this? If the Court adopts the Berger rubric, what the Court was doing in Berger was saying, because this is so heavily regulated in the context of this case, because everyone knows that these registers have been reviewed by the police for 15 years. No one goes into the hotel business unaware that their registers will be in such a condition. And so, there should have probably been a trial, and we're talking only about hotel against, no, your honor. But the mochelle, the plaintiffs have taken the position that this is not about the expectation of privacy of the gas

. Yes, that's what I thought it was. But only about the hotel. Yes. You can't see my register. It's dear to me. Even though I have entered a business that for 115 years has revealed these registers, and for 100 of those years actually revealed the registers to the guests. But, Mr. Roosevelt, can suppose that there's a statute that says that the taxing authority, the IRS, or the equivalent on the state level, that the taxing authority can go into businesses at any time and check payroll records. And the reason is that they need to conduct the surprise warrantless searches, because there's a serious problem with businesses jinnying up false payroll records. Is that constitutional? I would think not, Your Honor. At least not without more information. And the difference is there isn't this long history of the government reviewing payroll records. And secondly, or at least it's a close-requestion. And secondly, payroll records are not the sorts of things for which you need spot inspections of sorts. The government says that if you wait till they submit everything at the end of the year, they'll force a fire lot of records, and we really need to see what's happening right now on the ground in real time. Well, Your Honor, either a payroll record is false or it's not. You don't need a real-time verification to figure out. No, you do, because you don't want to give them the time to falsify things. Till the end of the year. I mean, we could have a thousand examples like this. And my answer is still the same. It doesn't have the same real-time need to verify against facts that are... No, no, why not? Checking to see if people are actually registered. You don't know that until you see a person working. So you got a construction site. You count the number of people, and you say, let me see, your record keeping for your employees today. Well, Your Honor, that would be... That's a real-time need. It's a.

.. But either the... Either the ultimate record that is submitted is false or it's not. You don't have the real-time ability to verify whether those records are correct. You just keep a registry falsify the registry of the way you're saying these people will. My problem with the closely regulated is I don't see one regulation that's not applicable to virtually every public accommodation entity, whether it's a telephone company or a day school or a hospital. I mean, virtually all of these requirements that you list are part of the normal state regulation of entities that serve people. Is it your position now that once we say this is closely regulated, that everything is? No, Your Honor. That shares the public in some way? No, and I see I'm eating to my rebuttal time, so if I may answer quickly. No, first of all, the closely regulated exception is not... Is way more than just closely regulated. There are three other elements to it, and you need to demonstrate the necessity. You need to demonstrate that it's not a criminal justice purpose, and you need to demonstrate that there is an attic with substitute for a warrant. So if there are no further questions, I'd like to reserve the remainder of my time for a bottle. Thank you, Council. Mr. Dredin? Thank you, Mr. Chief Justice, and may it please the Court. This Court can resolve this case on a much narrower basis than it has used in looking at other administrative inspection schemes such as the one in Barlow's. The Ninth Circuit itself recognized that this case did not involve in entry into the non-public working places of a business, did not involve an entry into a residential property, it involved an entry only into the public lobby area of a motel, and a brief inspection of the registry of the motel. Well, that's a very significant. I mean, it could well involve an entry into a drawer. We wouldn't normally say, well, because you can, our rule is not simply because you can get into a house, for example, that you're free to rummage through desks. That's certainly right, but what the statute requires is that the registry be produced for inspection, and the way in which the officer gets to the registry is to walk into the lobby. And so then I'm sorry, you're saying that if a police officer stands outside a house and says, bring me whatever it is I want from inside, I mean, brings it out, that's not a violation of the Fourth Amendment, because he under compulsion tells the person, you have to bring me what's inside, because I can't enter under the Fourth Amendment. Well, Justice Sotomayor, it would be a search, a reasonableness of it would depend on the facts, but what I point here is that this is, we're dealing here with businesses which have reduced expectations of privacy, and we are not dealing with entry into the non-public areas of the businesses, which is what Marshalls was concerned with, Colony, Biswell, Berger, all of those cases. So the Ninth Circuit itself did not apply the rules that govern those kinds of situations where the Court has sometimes said an administrative warrant is required, and other time said it is not. This is a facial challenge. Now, are there any or a substantial number of instances in which the application of this statute would be constitutional? Well, I think there would just a solido in if there were accidents, circumstances that justified the access to the registry, and most importantly, but then you don't need the statute. Well, the statute helps because it informs the, no, there are accidents, circumstances you can never get a warrant

. Yeah, well, you don't have to get a warrant. That doesn't work. No, I think it works just as Kennedy in the sense that the statute provides encouragement for a potentially recalcitrant hotel owner to produce it because it's an offense for him not to. But more importantly, I think for the Court's evaluation of the facial challenge issue is that there's no record in this case about what kind of privacy expectations actually exist with respect to hotel registries. It's largely a matter of conjection, speculation, and everybody's intuition of I don't see why we've ever required more. Always required is a person to say this is my business record. And why do they have to prove more? Because what are they supposed to prove that they don't use, that they don't show it to anyone else? We've never required that. Well, I think that they should show that there's a certain degree of confidentiality associated with it that they in the city. Well, that is today when the federal law requires that you not disclose credit card information and driver's license information and these registries contain that information. So you can't have it both way. Well, the registries by law are required to have a driver's license information taken for people who are paying cash and requires the credit card information of people who are otherwise registering. Well, the registry doesn't have to have the credit card information unless they check in at a kiosk. And this, I think, brings up a very important point. What the nice circuit did was faithfully invalidate this statute. It said that regardless of any facts, it can't be enforced against anyone. I assume that, you know, if the problem is license plates and credit card information and all of that, it's not up to the hotel to complain about that invasion of privacy. It's up to the guests, right? I would agree with that. And in this case does not involve the guests. It's just the hotel who's objecting. It's just the hotel and there are a range of situations in which different information is maintained in different ways. So I think that treating it as a facial challenge is problematic, but if you reach the merits, what the nice circuit itself did is conclude that this case doesn't trigger the very strong safeguards that are triggered when there is an invasion of a non-public space of a business. They treat it as if it's an administrative subpoena case, which does have fourth amendment requirements associated with it, but those requirements are that the subpoena should be relevant, that it be reasonable in scope, and that it be specific. And the nice circuit conceded that all three of those requirements are satisfied. Section 41-49 by itself establishes the relevance of the information for the administrative purpose that the statute serves. It is specific, and it is narrow in scope. And anybody who goes into the hotel industry knows that that is a inspection that they are subjected to. And how do you distinguish Marshall and Borlowe? Do I have the right name? You do Justice Kennedy in the distinction which the nice circuit itself drew, is that involved entry into the non-public areas of a business which exposes a much wider range of information to the inspection of the authorities. Marshall covered every industry in interstate commerce and it allowed ocean inspections without any limitation, and in that circumstance. I guess I don't understand that Mr. Dreb, and you are saying that it makes a difference constitutionally, whether you keep the registry at the front desk or in the back office? What I am saying, Justice Kagan, is that the nice circuit analyzed it precisely that way, that you can walk into the lobby of a hotel. This Court so said in the loan steer case, you are not invading any expectation of privacy. All you do is you ask the hotel keep the front desk clerk to show you the register, which can be done simply by just moving the computer screen so that the officer can see it. And that is the most minimal intrusion on privacy interests if they exist. Well, if I were running a hotel, I think I might have before to have two uniform detectives in the back rooms of the guests of the city

. I think it's quite intrusive. The nice circuit treated it as a lesser degree of intrusion than an inspection of all of the private areas of the business. And that's why it applied the subpoena line of cases. But once you apply the subpoena line of cases, you realize that the statute itself serves the purposes that that line of cases is designed to serve. And the only remaining claim that's really, well, the judicial review would be very difficult to accomplish in this case because the whole purpose of this administrative scheme is, we regularly prostitutes, we regulate narcotics activity through the criminal law. The place where they are frequently conducting it are low-budget motels that have a strong incentive to take cash, not fill out a registry, and allow this kind of criminal activity to flourish. So the regulatory purpose of 4149 is to target not the criminals but the place where they conduct their activity. And doing it in a classic administrative way. This is lawful activity. You can rent a room. You just have to not rent it to people for cash, for short terms, for no reservations. When they don't have an identification to show who they are. And you need to keep a record of what you're doing. Mr. Jim, I'm trying to figure out what you think is relevant here. So let me give you a hypo, which is say that it's not a hotel, but it's a hunting lodge. And there are record keeping requirements about how much people shoot and when they shoot them and what they shoot and so forth and so on. And the Fish and Wildlife Service, or some state equivalent of that, says we do not, I think that's something for us and periodic points, we just want to make spot inspections surprise inspections all the time. Would that be all right? It seems like a much more difficult case to me, Justice Keegan, performance, because there's a public-caugulum lodge. It's a private hunting lodge that this is a private- It's a Federal collector from downtown. It's a very goodstill. I will have to defer to the members of the Court on hunting lodgers, but I think that the interest that's being served there is far weaker than the interest that's being served here, which is a genuine problem reflected in the fact that there are 100 statutes like this across the country in different sounds. Well, that's how you're going to distinguish it just because it's more important because the Fish and Wildlife people think that it's really awfully important to make sure that all these rules are complied with. I agree with that Justice Kagan, but I do think that this Court in its classic Fourth Amendment analysis balances the government interest to be served against the nature of the intrusion. I don't know enough about the hunting lodges that you have in mind to really gauge the nature of the intrusion. I will say this that a mere requirement that you expose books and records that you're required to keep as a regulatory matter and that no one disputes you're required to keep to a law enforcement officer in a public area of your facility. That's this case. There is no dispute here that you can require the hotel to keep the record. That is correct. That's right. The hotels are not challenged. I think there would be a big dispute with regard to private hunting lodges, whether you could require them to keep the record. And there may be second amendment concerns that the Court would weigh in the balance. I think that the Court can resolve this case in an extremely narrow fact

. I think it's even more dangerous. Look at almost how many businesses, retail businesses transact their record keeping in public areas. Talk about any shop in the country that don't go to the back virtually any of them and transact their business, keep their credit card information, they put it right on the computer in front of them. So, I mean, I think it's be that merely ask, intruding on someone's private information in a public place, eliminates the Fourth Amendment. I answer. I think you're asked three questions, Justice Sonomire. First, the substantiality of the government interests. Second, the nature of the intrusion on privacy and third necessity. And there is a strong need in the case of these hotels where prostitution and narcotics activity flourish, because criminals do not want to identify themselves when they check in to have regular unannounced inspections to give the hotels the incentive to comply with the registration law. Thank you, Council. Thank you. Mr. Goldstein. Mr. Chief Justice, may please the Court. We ask the Court to hold that the city does not need to go to the judge in advance and get a warrant, but instead that it merely needs to issue us a one-page subpoena. Now, we can object to that subpoena, but it's going to be enforced unless the city isn't actually implementing a legitimate administrative scheme, because it's searching us to harass us or to investigate crime. Is it your position that there is no instance in which this statute and the implementation of it would be constitutional? It is because the hypothesis that you would use it for exigent circumstances or when you've waived the right to privacy by putting out on the desk don't actually involve the enforcement of the statute. What's necessary here to value that's in the Fourth Amendment is the requirement that there be a regularized scheme. Now, it's going to be a regularized scheme that either appears in the administrative rule itself. That doesn't exist here. There's no limit on when they can search, how often they can search, or the reason they can search. And if there isn't that, then we put a court into the process. We make pre-enforcement judicial review available. And the reason is the Fourth Amendment protects our sense of tranquility, the hotel owners, individuals in other contexts, businesses in other contexts need to know that beat officers aren't going to at their whim conduct these searches. Suppose that a city or a state wanted to establish an administrative inspection regime along the lines of bar laws. What would it have to include in your judgment? Could the warrant be issued by an administrative law judge as opposed to a superior court judge in the court? Would it require probable cause? Could it be done without prior notice? Yes. Could you have different standards for different types of hotels? If you have any doubt about inspections for all hotels, but much more frequent inspections for hotels that rent by the hour, hotels that have a large number of guests who pay in cash and so forth. Yes. All those things could be done after. If that's okay, it's really not clear to me what that would add to the ordinance that have before us. That was, and Justice Kennedy asked how would, how, how bar laws place out in this context. So, Mr. Dreeben is half right in his answer

. He is absolutely right that the court has said, look, if you're not physically inspecting the premises, then you don't have to ahead of time get a warrant. And Justice Glea, it's not a probable cause, criminal warrant. All the court has required in this line of cases is that the government show that it's part of an orderly administrative scheme. But the second part is what's missing. And the key case is mentioned in passing by Mr. Dreeben. It hasn't gotten enough attention in the case. It's called Donovan versus Lone Steer. And it was decided by an opinion by the injustice rank with its unanimous opinion. And it considers a circumstance very similar to this. And that is under the fair labor standards act. The government can do just what it does here. And that is it just demands employment records. And the reason this court said that that comports with the Fourth Amendment is there's a balance. And that is that the government has to issue a subpoena to which the employer can object. And that accomplishes two things. The first is, without burdening the government, it interjects the possibility of judicial review. And that way you know that the enforcement officer. Kagan, the nature of the objection, I'm going back to Mr. Rosenpress, answer to my question. He said, there is no notion of probable cause, reasonable cause. The hotel owner is required to keep these records. And that's not distributed. They're required to keep them. And so, and the police don't have to have any reason. What would be shown by some kind of a hearing? Kagan, this Court's consistent line of precedence. There are six cases that have dealt with this subpoena rule, have said the following. And that is the concern when you have a scheme like this one that doesn't tell the officer how often or when to search. And is that the officer will do two things that are forbidden by the Fourth Amendment. One is, they'll do it in a harassing way. And the second is, they'll use it for crime control. And the latter is a real concern here. The City is evowardly saying it wants to look at the record to, for example, find prostitutes or the Johns who are involved in renting the rooms. And so that's why what you do is you let the police issue the subpoena

. They don't go to the judge ahead of time. But the prospect that there can be an objection and that you can go to a judge is what protects the sense of tranquility of the business owner. What's the purpose? You agree that it's constitutional to require the registry? Absolutely. Okay. Why is the state interested in requiring the registry if it can't go look at it with little notice? What was the point? Well, Justice Kennedy, the fact that it's only interest is in law enforcement, I think, is a point in our favor. But just recognize that what Mr. Rosencrantz is describing is the scenario that gave rise to your question about room 1202, we think is entirely inaccurate. So if I could just play out the hypothetical, his point is this follows. An officer shows up at a motel and sees someone in room, sees the light on in room 2. We'll give him his best case. And what he wants to do then is to go and look and write then determine, look, there is a registration card for room 2. Now, I don't know what that proves because he doesn't know that anything inappropriate is going on in room 2, but it doesn't matter. What the officer does is he makes a record. There was someone in room 2 on June 1st at 12 a.m. And then he comes back two days later and he serves the subpoena. There's no reason in the world that doesn't give any advance notice to the motel owner. If he has a particular concern, then he can sequester the records so that they can have them held separately and if there's going to be an objection, which is extremely rare, there's no reason that his concern is about contemporary observation. That's not the issue in the case. He can sit outside and look outside the room. The issue in the case is do you have to go in and have no opportunity for a judge to be involved before you search the record? Seeing the light on doesn't prove anything unless you know that the hotel has not registered the person who is in the room. Justice Lee, we're not a, remember our objection is not to them being able to either require the register or inspect the register. Neither one of those is an issue. The question is, can they do that without giving us any opportunity to say to a judge what's actually going on in here is law enforcement or harassment. They've come in five times during the day. And that system, which is the issue of the subpoena, right, they don't go to the judge ahead of time. They come up, they show, they give me a subpoena, right? And they say, we want the records. And if there's an objection, the officer has made the observation about room two. And they can go ahead, telephonic warrants are easy, but there's no reason that the subpoena objection can't be heard by a judge later on. He's already observed and made a note about what's going on in the hotel. Now, I will say they could fill in while he's running off getting his subpoena. They fill in. The subpoena is already there is in that room. Justice Lee, the subpoena, he's not running off anywhere

. The subpoena is simply handed at the desk. This is an administrative one-page piece of paper, but let me just say. Sorry. I don't understand. Sorry. He handed it his pocket. Yes. That's how he, all you're asking for all this litigation is just that the one who wants to inspect it just pulls out a piece of paper and is it to them and that makes it all okay. No, there's two parts to it, Justice Lee. That's how a subpoena works. The reason this court has a serve as required, that is the bare minimum except in the very limited burger context, is that when you hand the subpoena, the person who receives the subpoena says, this is an unusual case. I'm going to go to the trouble of objecting. I think I can tell a judge, improve a judge, that this is law enforcement in disguise. He could say the same thing without the subpoena. Yes, but the judge, that's our critical point is that this guarantees him the right to say that to a judge and allows the officer, it allows him the opportunity while the policeman is getting his subpoena to fill in the name of the person in what is otherwise a blank space. Mr. Chief Justice, he's not going to get a subpoena. That's correct. So the police officer has to go somewhere to get the judicial review with whoever the hotel owner sends. Well, it might not work well, it's the hotel owner, it may have to file a motion to quash, it's not particularly important to your hypothetical. Mr. Chief Justice, here's the problem with that argument. It is important to have the help. Because we're trying to figure out how this works. The policeman goes to the subpoena, the hotel owner says, I object. Yes. Now what happens? He filed a long visit tape. It doesn't take any amount of time, which is why the court has consistently required it. And that is, he says, I'm not going to give you the records, I'm going to file a motion to quash. If the police want to enforce it right away, they can go to an administrative judge and ask that it be a court. Okay, they go somewhere. Yes. Okay, during that time, doesn't the hotel clerk take his pen and say, I didn't register this guy in room two, I'm going to get in trouble. And he fills in whatever it's left to be filled in. No, for the reason given by Justice Kagan, and that is, you can sequester the records. And that is, the question is searching the records. That is, we're talking about a set of cards. And if this is a real concern, now I will say it is a concern made up by the city's lawyers in this court when at trial, they did not introduce any evidence of this, and it would be equally applicable in every kind of required record. The same is true in a construction site or fairly. So in a standard construction subpoena, if you object, you say, well, I'm going to take these records and keep them in the police guard trunk until we resolve this. Yes, you can do that. There's authority for that. I'm sorry. There's authority for this. Oh, sure. It's very similar to what this court has said in the fourth amendment context. Remember, when the police show up at someone's house, and they're concerned about the destruction of evidence inside, what they do is simply. It's going to be this much more intrusive than this game you're objecting to. Justice Kennedy, I don't think the government can have it both ways. These are our private records, okay? And they want to do something incredibly unusual that the fourth amendment forbids. And that is they want to have a scheme that doesn't say when they'll search, how often they'll search, or the purpose they'll search. They're not in their right, right? They're not in their right, right? They're records required by law to be kept, and you are not objecting to that at all. Well, yes. Justice Scalia, that's absolutely right. The other side makes a good point, and that is these are business records that receive reduced Fourth Amendment protection. We understand that. So did the unanimous court in Loan Steer, what it said is, that's the reason we don't have a probable cause requirement here. That's why we require the minimum amount of judicial process, which is the prospect that if the owner has a good objection, they can go to a judge. That's why we don't have the Fourth Amendment's full protections. But remember that the Court of Justice, I think, they can be sequestered by the police officer, they didn't even answer before that suggested you have to have some outside approval. But now you're saying, if the hotel owner says you can't have these records, the police can say, give me the books and take them away. Yes, they cannot inspect them, just hold them aside. If this is a real problem, which there's no evidence of, but if they want to just hold them aside, then that they can be just sequestered. Nobody looks at them and tells the best of the sides. That is a seizure. What's the j- why is that justified in the and looking at the information not? This Court has held that in the identical circumstance, this arises in the Fourth Amendment context when the government is concerned about the destruction of evidence before it can acquire a warrant, it can sequester the property. That is, it can seize control of the property without searching it. That's if it has probable cause

. No, for the reason given by Justice Kagan, and that is, you can sequester the records. And that is, the question is searching the records. That is, we're talking about a set of cards. And if this is a real concern, now I will say it is a concern made up by the city's lawyers in this court when at trial, they did not introduce any evidence of this, and it would be equally applicable in every kind of required record. The same is true in a construction site or fairly. So in a standard construction subpoena, if you object, you say, well, I'm going to take these records and keep them in the police guard trunk until we resolve this. Yes, you can do that. There's authority for that. I'm sorry. There's authority for this. Oh, sure. It's very similar to what this court has said in the fourth amendment context. Remember, when the police show up at someone's house, and they're concerned about the destruction of evidence inside, what they do is simply. It's going to be this much more intrusive than this game you're objecting to. Justice Kennedy, I don't think the government can have it both ways. These are our private records, okay? And they want to do something incredibly unusual that the fourth amendment forbids. And that is they want to have a scheme that doesn't say when they'll search, how often they'll search, or the purpose they'll search. They're not in their right, right? They're not in their right, right? They're records required by law to be kept, and you are not objecting to that at all. Well, yes. Justice Scalia, that's absolutely right. The other side makes a good point, and that is these are business records that receive reduced Fourth Amendment protection. We understand that. So did the unanimous court in Loan Steer, what it said is, that's the reason we don't have a probable cause requirement here. That's why we require the minimum amount of judicial process, which is the prospect that if the owner has a good objection, they can go to a judge. That's why we don't have the Fourth Amendment's full protections. But remember that the Court of Justice, I think, they can be sequestered by the police officer, they didn't even answer before that suggested you have to have some outside approval. But now you're saying, if the hotel owner says you can't have these records, the police can say, give me the books and take them away. Yes, they cannot inspect them, just hold them aside. If this is a real problem, which there's no evidence of, but if they want to just hold them aside, then that they can be just sequestered. Nobody looks at them and tells the best of the sides. That is a seizure. What's the j- why is that justified in the and looking at the information not? This Court has held that in the identical circumstance, this arises in the Fourth Amendment context when the government is concerned about the destruction of evidence before it can acquire a warrant, it can sequester the property. That is, it can seize control of the property without searching it. That's if it has probable cause. Well, you're on it. It has the relevant level of cause that's required in the particular context. I'm confused by your answer. I thought you said in response to my earlier questions that the city could have a regime under which an administrative law judge issues a warrant, not a subpoena, for a periodic inspection. So the officer would have the warrant, go to the hotel, here's the warrant, this is your periodic inspection, there would be no prejudicial review. That's not a fact. That could be challenged to it later. No, you're on it. But when the, what this Court has said in cases like Camara and C, and it's the distinction drawn in flown star and borrow those, is that when you get the pre-enforcement judicial review, that is the judicial involvement that's required. Right. So we'd be perfectly happy with that. The difference between your hypothetical and this one is that a judge is involved and ensures that this isn't for law enforcement, it's the orderly operation of administrative scheme, whereas what the city wants is for a repeat cop to be able to go in at any time as often as he wants for any purpose. The complexity and the answers, and frankly, the surprise I have at some of your answers, may indicate that this is not a basis for a facial, not a case for a facial attack. Okay. It seems to me we have to go back and decide these issues on a case-by-case basis. Well, Justice Kennedy, I'll give you my responses to that obviously, and that is the Court in all of the colonnade line of cases and Camara cases has dealt with things on a categorical basis. It has never done it on a case-by-case basis because it is look at the structure of the scheme. That is, this is a scheme where they're not going to have any reason, they don't need any justification to come in. We know what they can see. It's still limited, right? It's a particular record, but they can do it any time. And in that kind of scheme, what the Court has consistently insisted on, and I hope that the Court will take a look at loan steer, is that there would be this minimum of a subpoena process. I'm just describing it. I'm sorry. I thought the stronger answer would be, we've always looked at a lack of procedural protection under a facial challenge. That did not do it. That did not do it. Sibran says exactly. Exactly. So any time that the challenge is to the lack of process, we've looked at it facially or as applied whatever, but it doesn't need to be as applied. Yes. And let me just add one other point that's sort of underappreciated in the case, and that is not only does our complaint assert an as applied challenge, there was a trial on the as applied challenge, and the record on the as applied challenge is the record in this case. We pursued our facial challenge only after, before the second trial, they stipulated that they had only facial defenses of the statute. That's the reason we have this oddity that we're here on a facial challenge. The evidence has already been collected

. Well, you're on it. It has the relevant level of cause that's required in the particular context. I'm confused by your answer. I thought you said in response to my earlier questions that the city could have a regime under which an administrative law judge issues a warrant, not a subpoena, for a periodic inspection. So the officer would have the warrant, go to the hotel, here's the warrant, this is your periodic inspection, there would be no prejudicial review. That's not a fact. That could be challenged to it later. No, you're on it. But when the, what this Court has said in cases like Camara and C, and it's the distinction drawn in flown star and borrow those, is that when you get the pre-enforcement judicial review, that is the judicial involvement that's required. Right. So we'd be perfectly happy with that. The difference between your hypothetical and this one is that a judge is involved and ensures that this isn't for law enforcement, it's the orderly operation of administrative scheme, whereas what the city wants is for a repeat cop to be able to go in at any time as often as he wants for any purpose. The complexity and the answers, and frankly, the surprise I have at some of your answers, may indicate that this is not a basis for a facial, not a case for a facial attack. Okay. It seems to me we have to go back and decide these issues on a case-by-case basis. Well, Justice Kennedy, I'll give you my responses to that obviously, and that is the Court in all of the colonnade line of cases and Camara cases has dealt with things on a categorical basis. It has never done it on a case-by-case basis because it is look at the structure of the scheme. That is, this is a scheme where they're not going to have any reason, they don't need any justification to come in. We know what they can see. It's still limited, right? It's a particular record, but they can do it any time. And in that kind of scheme, what the Court has consistently insisted on, and I hope that the Court will take a look at loan steer, is that there would be this minimum of a subpoena process. I'm just describing it. I'm sorry. I thought the stronger answer would be, we've always looked at a lack of procedural protection under a facial challenge. That did not do it. That did not do it. Sibran says exactly. Exactly. So any time that the challenge is to the lack of process, we've looked at it facially or as applied whatever, but it doesn't need to be as applied. Yes. And let me just add one other point that's sort of underappreciated in the case, and that is not only does our complaint assert an as applied challenge, there was a trial on the as applied challenge, and the record on the as applied challenge is the record in this case. We pursued our facial challenge only after, before the second trial, they stipulated that they had only facial defenses of the statute. That's the reason we have this oddity that we're here on a facial challenge. The evidence has already been collected. There's nothing to be gained by having a second trial. What would you? You've constantly said that one of the objections that the hotel owner can make is that you want these records for enforcement of the criminal law. Right? You say that's bad. Yes. But the whole purpose of this thing is to enable the criminal law to be enforced, isn't it? Ah, just to say there are two different points that are being made here. One is, you're quite right. They have an administrative scheme. The point of the administrative scheme is to deter criminal violations. But my point is different, and that is, imagine on Tuesday, a police officer comes in and says, look, I think there's a prostitute in Room 3. Okay? So what I'm going to do is I'm going to invoke this 4149 and see if that person's name mattress up as a prostitute. Okay? That's criminal law enforcement. It requires probable cause. The fact that they have an underlying administrative scheme doesn't mean that they can investigate crimes through using the seven. And so, the Court has said time and time again in its administrative decisions that it's really important that we involve the courts because there is this concern. And this case presents it more starkly than any other that you will misuse the administrative process. Well, I think there may be an exception to that principle where the whole purpose of the scheme is to enable the detection of criminal activity. But, and then the objection would be, the whole scheme is bad. You cannot require them to keep books because its whole purpose is to detect criminal activity. But that's not what you're arguing. You say they can keep the books in order to detect criminal activity, but if they request the book in order to detect criminal activity, it's bad. No, it doesn't make any sense at all. Because it's not the argument. And that is, or what is the argument? The argument is, their defense of the statute is not that the records are used to detect crime. It's they're used to deter crime. They don't look at the records to find criminals. All they do is look at the records to make sure we're keeping records. My point is that one day a police officer under this, and it can happen regularly, is that an beat officer will come in and say, I'm not concerned about whether you filled out the form. I think there might be a prostitute in Room 3 and use it for criminal law. And then Mr. Goldstein, I thought that an equally important purpose behind these laws is to, as you said earlier, prevent harassment. Yes. I don't like this hotel owner. I want to drive this hotel out of business. I'm going to be showing up in his lobby every day

. There's nothing to be gained by having a second trial. What would you? You've constantly said that one of the objections that the hotel owner can make is that you want these records for enforcement of the criminal law. Right? You say that's bad. Yes. But the whole purpose of this thing is to enable the criminal law to be enforced, isn't it? Ah, just to say there are two different points that are being made here. One is, you're quite right. They have an administrative scheme. The point of the administrative scheme is to deter criminal violations. But my point is different, and that is, imagine on Tuesday, a police officer comes in and says, look, I think there's a prostitute in Room 3. Okay? So what I'm going to do is I'm going to invoke this 4149 and see if that person's name mattress up as a prostitute. Okay? That's criminal law enforcement. It requires probable cause. The fact that they have an underlying administrative scheme doesn't mean that they can investigate crimes through using the seven. And so, the Court has said time and time again in its administrative decisions that it's really important that we involve the courts because there is this concern. And this case presents it more starkly than any other that you will misuse the administrative process. Well, I think there may be an exception to that principle where the whole purpose of the scheme is to enable the detection of criminal activity. But, and then the objection would be, the whole scheme is bad. You cannot require them to keep books because its whole purpose is to detect criminal activity. But that's not what you're arguing. You say they can keep the books in order to detect criminal activity, but if they request the book in order to detect criminal activity, it's bad. No, it doesn't make any sense at all. Because it's not the argument. And that is, or what is the argument? The argument is, their defense of the statute is not that the records are used to detect crime. It's they're used to deter crime. They don't look at the records to find criminals. All they do is look at the records to make sure we're keeping records. My point is that one day a police officer under this, and it can happen regularly, is that an beat officer will come in and say, I'm not concerned about whether you filled out the form. I think there might be a prostitute in Room 3 and use it for criminal law. And then Mr. Goldstein, I thought that an equally important purpose behind these laws is to, as you said earlier, prevent harassment. Yes. I don't like this hotel owner. I want to drive this hotel out of business. I'm going to be showing up in his lobby every day. But that's part of what's going on here. Isn't that right? That's, in fact, the principal thing that this Court's precedents have pointed to, and just look at what's missing in this ordinance. Every time the other side will say, look, we identify specifically the records. But the question isn't what the records are. It's the loss of the sense of tranquility provided by the Fourth Amendment, that we don't know how frequently and for what harassing purpose and how, and for what reasons at all, that a police officer is just going to come in over and over again. If we use that phrase before, which one you're on, tranquility? I don't think that that word is. I'll give you a- You talk about privacy and all that, but I'm not sure that the Fourth Amendment should be expanded to protect the sense of tranquility. I'm trying to- I'm trying to- Problem-managing tranquil hotel owners. Well, I'm just trying to- I just- I'm trying to negotiate with owning a hotel. It is the sense of certainty that the Fourth Amendment provides that what you do know is that there are going to be limits on when the police come in and say, show us your papers. Okay, and I think- You're thinking we're talking about it. I think there's some rule at least they do it. I mean, in hotels they have these notices posted all over about where the first emergency exit is and all that. Yes. And could police come in and check to make sure the hotel has those posted without- I mean, there are some public spaces that is to say- Well, I don't know- Is the back of a hotel room door? Is that a private place? So you're saying- Say, for example, in the back of the restaurant, in the back of the kitchen for- No, no, I'm talking about every hotel room. Yes, one of those- Oh, inside the room. And they go and say, look, wait, you know, this is a very important thing to make sure people don't die in a big fire. We're going to make sure you've got them. No, check. Let me go look in room 12 where nobody is. It's a great example for us. That's actually Camara NC. That's a fire inspection regime. And what has to happen is that there has to be a subpoena head of time. At the very least, the short- The lowest level- The lowest standard the Court has ever applied is in a case called DOE. And what DOE said is, at the very least, if you're not going to involve a Court, you have to have a set of rules about when these searches are going to apply- Are going to be conducted and how often- I just can't quite understand your answer about harassment. Maybe it's because- Maybe this is in the record or maybe it's because this wasn't- As applied. But the police, even if this ordinance were invalidated, The police could show up whenever they want it. Couldn't they and ask for the owner or the person at the desk voluntarily to disclose their register? So they could be- They could be in the lobby as much as they want. So exactly what- What does- How does this aid in harassment of hotels? Because of the fact that they're requiring us to produce private records. The court- It was always the case in cases like Barlow's, Camarice's, Where the police couldn't show up and inspect the premises. They could still show up in harass. But what the Court said is if you were going to invade privacy- We agreed. This is- Everyone agrees now

. But that's part of what's going on here. Isn't that right? That's, in fact, the principal thing that this Court's precedents have pointed to, and just look at what's missing in this ordinance. Every time the other side will say, look, we identify specifically the records. But the question isn't what the records are. It's the loss of the sense of tranquility provided by the Fourth Amendment, that we don't know how frequently and for what harassing purpose and how, and for what reasons at all, that a police officer is just going to come in over and over again. If we use that phrase before, which one you're on, tranquility? I don't think that that word is. I'll give you a- You talk about privacy and all that, but I'm not sure that the Fourth Amendment should be expanded to protect the sense of tranquility. I'm trying to- I'm trying to- Problem-managing tranquil hotel owners. Well, I'm just trying to- I just- I'm trying to negotiate with owning a hotel. It is the sense of certainty that the Fourth Amendment provides that what you do know is that there are going to be limits on when the police come in and say, show us your papers. Okay, and I think- You're thinking we're talking about it. I think there's some rule at least they do it. I mean, in hotels they have these notices posted all over about where the first emergency exit is and all that. Yes. And could police come in and check to make sure the hotel has those posted without- I mean, there are some public spaces that is to say- Well, I don't know- Is the back of a hotel room door? Is that a private place? So you're saying- Say, for example, in the back of the restaurant, in the back of the kitchen for- No, no, I'm talking about every hotel room. Yes, one of those- Oh, inside the room. And they go and say, look, wait, you know, this is a very important thing to make sure people don't die in a big fire. We're going to make sure you've got them. No, check. Let me go look in room 12 where nobody is. It's a great example for us. That's actually Camara NC. That's a fire inspection regime. And what has to happen is that there has to be a subpoena head of time. At the very least, the short- The lowest level- The lowest standard the Court has ever applied is in a case called DOE. And what DOE said is, at the very least, if you're not going to involve a Court, you have to have a set of rules about when these searches are going to apply- Are going to be conducted and how often- I just can't quite understand your answer about harassment. Maybe it's because- Maybe this is in the record or maybe it's because this wasn't- As applied. But the police, even if this ordinance were invalidated, The police could show up whenever they want it. Couldn't they and ask for the owner or the person at the desk voluntarily to disclose their register? So they could be- They could be in the lobby as much as they want. So exactly what- What does- How does this aid in harassment of hotels? Because of the fact that they're requiring us to produce private records. The court- It was always the case in cases like Barlow's, Camarice's, Where the police couldn't show up and inspect the premises. They could still show up in harass. But what the Court said is if you were going to invade privacy- We agreed. This is- Everyone agrees now. This is a Fourth Amendment, sir. No, but it's a private- It's a public space. I don't know whether it's dispositive, but it's- It's of some relevance. So they- They walk in. Here are two scenarios. One with the ordinance, one without. With that the ordinance, they walk in and they said, Would you- In the kindness of your heart, let us look at the register. And- And the owner says, no, I don't want to. And then they come back to the next day and they do the same thing. Okay, that's the other- The first scenario. The second one is they come in and they say, let us see the register. You show them the register and what. It's a harassment because they sit there for awhile and the guests coming in See the police and the lobby. I just don't understand- It's the fact- It's the fact that- The fact that- After- The fact that- After- The fact that- The fact that- The fact that- The fact that- It's the fact that- Let's imagine the following scenario. And, you know, we are putting this position because they've come up with this hypothetical, these hypotheticals about when it could be valid. The officers see someone come into the motel, and each time they see someone come into the motel, they come in and say, hey, where the police let us see the records. But it really can interfere if you just imagine it. That's it. If you have specific case specific example, that might be one thing. But maybe it would help if you can tell me what goes on in this pre-compliance judicial review. So the hotel owner says, sorry, you can't look at the registry. I want pre-compliance judicial review. What is the nature of that review? This Court is considered that question in the Fair Labor Standards Act, context, the tax, context, and the banking context. So California bankers, Donovan, and Loanstier, and what it has said is that the administrative off agent with the police officer, whoever enforces the law, don't have to go to a judge, he has a one-page subpoena. Then there is an objection by the business owner in any of these contexts. And remember, in banking, these are records that the government requires you to produce. And then what happens is that what generally will be the rule, it's up to the city, is that the city will put the onus on us to go to a judge. And the fact that the onus is on us to go to a judge. And the fact that our objections are very limited, which is to say, we only get to object that this is harassing or for law enforcement, means that we almost always give over the records because it's going to be a completely futile objection. But it is the prospect that we can go to a judge that tells the beat cop that he needs to behave. And there will be only objections that would be successful harassment and using this for law enforcement. Yes, that's detailed in this Court's precedence, including borrowers. That's the rule of Kamara and C. But any of these court's precedents involve a business that has been treated like a public utility

. This is a Fourth Amendment, sir. No, but it's a private- It's a public space. I don't know whether it's dispositive, but it's- It's of some relevance. So they- They walk in. Here are two scenarios. One with the ordinance, one without. With that the ordinance, they walk in and they said, Would you- In the kindness of your heart, let us look at the register. And- And the owner says, no, I don't want to. And then they come back to the next day and they do the same thing. Okay, that's the other- The first scenario. The second one is they come in and they say, let us see the register. You show them the register and what. It's a harassment because they sit there for awhile and the guests coming in See the police and the lobby. I just don't understand- It's the fact- It's the fact that- The fact that- After- The fact that- After- The fact that- The fact that- The fact that- The fact that- It's the fact that- Let's imagine the following scenario. And, you know, we are putting this position because they've come up with this hypothetical, these hypotheticals about when it could be valid. The officers see someone come into the motel, and each time they see someone come into the motel, they come in and say, hey, where the police let us see the records. But it really can interfere if you just imagine it. That's it. If you have specific case specific example, that might be one thing. But maybe it would help if you can tell me what goes on in this pre-compliance judicial review. So the hotel owner says, sorry, you can't look at the registry. I want pre-compliance judicial review. What is the nature of that review? This Court is considered that question in the Fair Labor Standards Act, context, the tax, context, and the banking context. So California bankers, Donovan, and Loanstier, and what it has said is that the administrative off agent with the police officer, whoever enforces the law, don't have to go to a judge, he has a one-page subpoena. Then there is an objection by the business owner in any of these contexts. And remember, in banking, these are records that the government requires you to produce. And then what happens is that what generally will be the rule, it's up to the city, is that the city will put the onus on us to go to a judge. And the fact that the onus is on us to go to a judge. And the fact that our objections are very limited, which is to say, we only get to object that this is harassing or for law enforcement, means that we almost always give over the records because it's going to be a completely futile objection. But it is the prospect that we can go to a judge that tells the beat cop that he needs to behave. And there will be only objections that would be successful harassment and using this for law enforcement. Yes, that's detailed in this Court's precedence, including borrowers. That's the rule of Kamara and C. But any of these court's precedents involve a business that has been treated like a public utility. I mean, there are requirements for hotels how big the room has to be, how many people you can put in the room, even in many locations, how much you can charge for the rooms. The hotel owner is not like a private business. He is a regulated provider of public services that has traditionally been regulated closely over the years. The short, the first question asks is how many times have you been asked that question? The answer is none. The second answer to your question is that, but in the relevant sense, which is to say how much of this property is protected and private, is that overwhelmingly hotels have constitutional protections. Remember, 95 percent of this hotel is going to be the guest rooms. And unlike in cases like Burger, remember they go out and search the open junkyard. Unlike cases like Colonyd and Bizwell, where you inspect the open stores or even go behind the scenes, here the police can't do it. The Fourth Amendment, everybody agrees, protects privacy at the hotel. And so there is a much greater expectation of privacy on our part. But the question that Justice Scalia is asking is there a reason to think that hotels are a more heavily regulated industry than all the other industries that we can think of? No. I mean, I just think about California bankers and Miller, our case is involving banking. Banking is incredibly heavily regulated. You have to have a charter. The government requires you to keep all kinds of records. And in both of those cases, and remember Justice Scalia, those are the bank customers records. They're about the bank customers transactions. And what this Court said in both of those cases is that with rare exceptions, like the $10,000 requirement, Title I of the Bank Secrecy Act is constitutional because it requires a subpoena. That is, there is the prospect of getting a judge involved if the Bank Secrecy requirement that the investigation is too understaff. I'll give you one other data. But then keepers have been regulated not for decades, but they've been regulated for centuries, and they have duties to the public that are enforceable. So I'm just puzzled by this. You can see the records have to be kept. There are very few reasons for keeping those records other than law enforcement. That we disagree with Justice Kennedy. Remember, we've kept these records, and in keepers have kept these records for time and memorial, we use these records for very different purposes. They are every record of our business transaction. We use this information to keep in touch with our customers. Every business does. It's quite proprietary information. And while it's the case that we, the hotel six does this, geez, I've never received anything from them. I have a goodness. You may not be in their frequent guest programs. But nobody doubts

. I mean, there are requirements for hotels how big the room has to be, how many people you can put in the room, even in many locations, how much you can charge for the rooms. The hotel owner is not like a private business. He is a regulated provider of public services that has traditionally been regulated closely over the years. The short, the first question asks is how many times have you been asked that question? The answer is none. The second answer to your question is that, but in the relevant sense, which is to say how much of this property is protected and private, is that overwhelmingly hotels have constitutional protections. Remember, 95 percent of this hotel is going to be the guest rooms. And unlike in cases like Burger, remember they go out and search the open junkyard. Unlike cases like Colonyd and Bizwell, where you inspect the open stores or even go behind the scenes, here the police can't do it. The Fourth Amendment, everybody agrees, protects privacy at the hotel. And so there is a much greater expectation of privacy on our part. But the question that Justice Scalia is asking is there a reason to think that hotels are a more heavily regulated industry than all the other industries that we can think of? No. I mean, I just think about California bankers and Miller, our case is involving banking. Banking is incredibly heavily regulated. You have to have a charter. The government requires you to keep all kinds of records. And in both of those cases, and remember Justice Scalia, those are the bank customers records. They're about the bank customers transactions. And what this Court said in both of those cases is that with rare exceptions, like the $10,000 requirement, Title I of the Bank Secrecy Act is constitutional because it requires a subpoena. That is, there is the prospect of getting a judge involved if the Bank Secrecy requirement that the investigation is too understaff. I'll give you one other data. But then keepers have been regulated not for decades, but they've been regulated for centuries, and they have duties to the public that are enforceable. So I'm just puzzled by this. You can see the records have to be kept. There are very few reasons for keeping those records other than law enforcement. That we disagree with Justice Kennedy. Remember, we've kept these records, and in keepers have kept these records for time and memorial, we use these records for very different purposes. They are every record of our business transaction. We use this information to keep in touch with our customers. Every business does. It's quite proprietary information. And while it's the case that we, the hotel six does this, geez, I've never received anything from them. I have a goodness. You may not be in their frequent guest programs. But nobody doubts. Remember, this is an ordinance that applies to the four seasons and the Ritz Carlton and everything else. They've just carved out a very specific sub-second. And Justice Kennedy, while we are attentive to the point that you can't, we are not asserting, and the guests are not asserting, Fourth Amendment rights here, let's not lose sight of the fact that these records can show very, very personal information, not just the driver's license information, but whether you stayed at a hotel during a religious or a political convention, that you're new and have complaining about the privacy interests of the guests. Justice, I'm not sure you're complaining. Justice Scalia, here's the point. They agree this is a Fourth Amendment search, point one. Then what you are doing is you have to make an honest assessment of whether this information really does further the Fourth Amendment value of privacy, and it does, because this has private stuff in it. There's just no real dispute about that. And I am sympathetic, Justice Kennedy, to the fact that in Keepers have been regulated for a long time. I will simply say that in 99.4% of the jurisdictions in this country, this is not the rule. There are 100, but there are 18,000 other jurisdictions in which this is not the rule, and apparently has never been the rule. And the nature of that regulation isn't one that, in the burger sense, impinges on our sense of privacy. We have to take guests, but what does that tell us about whether our records are private? And certainly we can identify a huge array of other businesses that are regulated. The one data point I wanted to make is that in 2002, the Department of Justice did a study, and it found that 335 different provisions of federal law use the system that I just described for you. And that is the subpoena first in order to get the records. And there was a bare handful of them, none of them involving just bare records with the possible exception of the OCC that used this exception that says you never have to get a judge involved. It is 99.4% jurisdictions. Does that include, are you comparing a little hamlet in Indian include law, Sanjulis, or New York? I mean, does New York City have something like this? I think, I don't know the answer to the question of that particular city, but Your Honor, they are including big and small, and so am I. So there are a lot of big cities that don't have this rule. My point is this, Justice Kennedy. But you're saying, oh, the hotel has a private interest because it wants to know who it's customers. But they can do that by keeping their own record consensually. You have conceded that they can require the information as a matter of law. Well, that's because your precedents say they can, Your Honor, and my point is this, because your precedents say they can't. It's true. And hence my answer, yes. But my point is this, because they can do it here, Justice Kennedy, they can do it everywhere. The government can require any business to keep track of all of its transactions and all of its customers. And if the government can then just say, all right, now give us all that information, then they've reduced the Fourth Amendment to annulity. The final point I'll make is that don't be confused with the idea that there's something special about hotels. The amount of government regulation here is massive. The reason that the Deputy Solicitor General is here on behalf of the United States is that there are hundreds and hundreds and hundreds of regulatory schemes the federal government administers where it is now required to use the subpoena

. Remember, this is an ordinance that applies to the four seasons and the Ritz Carlton and everything else. They've just carved out a very specific sub-second. And Justice Kennedy, while we are attentive to the point that you can't, we are not asserting, and the guests are not asserting, Fourth Amendment rights here, let's not lose sight of the fact that these records can show very, very personal information, not just the driver's license information, but whether you stayed at a hotel during a religious or a political convention, that you're new and have complaining about the privacy interests of the guests. Justice, I'm not sure you're complaining. Justice Scalia, here's the point. They agree this is a Fourth Amendment search, point one. Then what you are doing is you have to make an honest assessment of whether this information really does further the Fourth Amendment value of privacy, and it does, because this has private stuff in it. There's just no real dispute about that. And I am sympathetic, Justice Kennedy, to the fact that in Keepers have been regulated for a long time. I will simply say that in 99.4% of the jurisdictions in this country, this is not the rule. There are 100, but there are 18,000 other jurisdictions in which this is not the rule, and apparently has never been the rule. And the nature of that regulation isn't one that, in the burger sense, impinges on our sense of privacy. We have to take guests, but what does that tell us about whether our records are private? And certainly we can identify a huge array of other businesses that are regulated. The one data point I wanted to make is that in 2002, the Department of Justice did a study, and it found that 335 different provisions of federal law use the system that I just described for you. And that is the subpoena first in order to get the records. And there was a bare handful of them, none of them involving just bare records with the possible exception of the OCC that used this exception that says you never have to get a judge involved. It is 99.4% jurisdictions. Does that include, are you comparing a little hamlet in Indian include law, Sanjulis, or New York? I mean, does New York City have something like this? I think, I don't know the answer to the question of that particular city, but Your Honor, they are including big and small, and so am I. So there are a lot of big cities that don't have this rule. My point is this, Justice Kennedy. But you're saying, oh, the hotel has a private interest because it wants to know who it's customers. But they can do that by keeping their own record consensually. You have conceded that they can require the information as a matter of law. Well, that's because your precedents say they can, Your Honor, and my point is this, because your precedents say they can't. It's true. And hence my answer, yes. But my point is this, because they can do it here, Justice Kennedy, they can do it everywhere. The government can require any business to keep track of all of its transactions and all of its customers. And if the government can then just say, all right, now give us all that information, then they've reduced the Fourth Amendment to annulity. The final point I'll make is that don't be confused with the idea that there's something special about hotels. The amount of government regulation here is massive. The reason that the Deputy Solicitor General is here on behalf of the United States is that there are hundreds and hundreds and hundreds of regulatory schemes the federal government administers where it is now required to use the subpoena. But what self-respecting regulator wouldn't- I'm just saying that it's subpoena is worthless when what is sought is something that can be easily destroyed, hidden, or falsified. It's very useful if you're trying to get complicated records. They can't be easily altered between the time when the subpoena is issued and the time when the subpoena is enforced. But nobody issues a subpoena for the murder weapon that one is that you suspect is in somebody's house. So if these records are more like the murder weapon, or there's something that can be easily falsified, is you seem to concede when you say that the police can seize them, then the subpoena is worthless. Lone Steer says the opposite with all respect, and that is the records there are. How many hours did someone work at what amount of pay? And if you can't falsify that, just as quickly as you can falsify who's in room two, then I just don't understand the nature of record keeping. The Court has insisted on this as a bare constitutional minimum, both to keep the enforcement officer in line and to let us know the enforcement officer is kept in line. It has been attentive to the fact that we don't want to put undue burdens on the government, and that is its just a subpoena, and that we have less than fourth amendment. Do you think payroll records in general are no more complicated than the ledger at a motel that runs by the hour? In the relevant respect, Justice Lido, if the question is that the person worked 50 hours or 35, and the record says 50, and the actual record would be 50, and I just want to fill in 35? Yes. The Court didn't even think that that was a remotely plausible argument in the baton line of cases that I'm describing. Thank you, Council. Four minutes, Mr. Rosencrant. Thank you, Lido. Let me start with the facial point and then circle back to the merits. So as a here Mr. Goldstein describing the rule, the only objections that are going to be raised are harassment, and whether this is for a legitimate purpose. But if that's the concern, that's a classic as-applied challenge. If a hotel has a cop coming up to them five times a day, they come in and say, this is really harassment, these searches are inappropriate. And if it's the purpose of the officer, he's doing criminal investigation rather than actually caring about whether my records are complete, that is an as-applied challenge. Now, the plaintiffs have not even tried to demonstrate that this ordinance is unconstitutional in every circumstance. On pages 19 to 20 of our brief, we develop numerous scenarios. And Mr. Goldstein mentioned only one of them. So, for example, where the hotel is required to upload the records to the police department every day. It may not even be a search, but it's certainly less intrusive. But that's not the statute. I didn't understand those examples because some of those examples, the police could act without this. Without this? Well, so not that one, not that one. And Justice Kennedy, not that one. So, some of them, in some of them, the ordinance has the purpose of requiring someone to do something that they would not otherwise have to submit to. But the one that I just gave as an example, the scenario of uploading the documents rather than the police conducting a search on the spot, is less intrusive. And the problem here is that the plaintiffs have tried to invalidate every possible application of this ordinance, but they haven't done the intrusiveness, privacy, government, interest balance that one needs to do for each of them

. But what self-respecting regulator wouldn't- I'm just saying that it's subpoena is worthless when what is sought is something that can be easily destroyed, hidden, or falsified. It's very useful if you're trying to get complicated records. They can't be easily altered between the time when the subpoena is issued and the time when the subpoena is enforced. But nobody issues a subpoena for the murder weapon that one is that you suspect is in somebody's house. So if these records are more like the murder weapon, or there's something that can be easily falsified, is you seem to concede when you say that the police can seize them, then the subpoena is worthless. Lone Steer says the opposite with all respect, and that is the records there are. How many hours did someone work at what amount of pay? And if you can't falsify that, just as quickly as you can falsify who's in room two, then I just don't understand the nature of record keeping. The Court has insisted on this as a bare constitutional minimum, both to keep the enforcement officer in line and to let us know the enforcement officer is kept in line. It has been attentive to the fact that we don't want to put undue burdens on the government, and that is its just a subpoena, and that we have less than fourth amendment. Do you think payroll records in general are no more complicated than the ledger at a motel that runs by the hour? In the relevant respect, Justice Lido, if the question is that the person worked 50 hours or 35, and the record says 50, and the actual record would be 50, and I just want to fill in 35? Yes. The Court didn't even think that that was a remotely plausible argument in the baton line of cases that I'm describing. Thank you, Council. Four minutes, Mr. Rosencrant. Thank you, Lido. Let me start with the facial point and then circle back to the merits. So as a here Mr. Goldstein describing the rule, the only objections that are going to be raised are harassment, and whether this is for a legitimate purpose. But if that's the concern, that's a classic as-applied challenge. If a hotel has a cop coming up to them five times a day, they come in and say, this is really harassment, these searches are inappropriate. And if it's the purpose of the officer, he's doing criminal investigation rather than actually caring about whether my records are complete, that is an as-applied challenge. Now, the plaintiffs have not even tried to demonstrate that this ordinance is unconstitutional in every circumstance. On pages 19 to 20 of our brief, we develop numerous scenarios. And Mr. Goldstein mentioned only one of them. So, for example, where the hotel is required to upload the records to the police department every day. It may not even be a search, but it's certainly less intrusive. But that's not the statute. I didn't understand those examples because some of those examples, the police could act without this. Without this? Well, so not that one, not that one. And Justice Kennedy, not that one. So, some of them, in some of them, the ordinance has the purpose of requiring someone to do something that they would not otherwise have to submit to. But the one that I just gave as an example, the scenario of uploading the documents rather than the police conducting a search on the spot, is less intrusive. And the problem here is that the plaintiffs have tried to invalidate every possible application of this ordinance, but they haven't done the intrusiveness, privacy, government, interest balance that one needs to do for each of them. But let me then circle to the merits because- I'm still very confused about this. There is always a potential exception to a warrant, even, of course, amendment warrant of going into the home. Exigent circumstances, there's someone sick on the other side, if there's a fleeing felon into the place. But that doesn't eliminate the need for a warrant. It's not a tell us later issue. Police can't just keep going in and then fish around for an excuse. That's a process issue. Understood, Your Honor? You're entitled to a warrant. You're entitled to a subpoena. You're entitled, that's what they're challenging, which is they're not challenging all of the other reasons why the police could go in legitimately, or you're an exception to the Fourth Amendment. They're asking whether this kind of search, generally, without all of those other exigent circumstances or other Fourth Amendment exceptions is Constitution. Right, Your Honor. Is there a process here, right? Understood. And so let's not talk about the exceptions. Let's talk about another example where the motel continues to keep the register in the open like they did for 100 years and then snatches it away when the police come. That's a different issue. It's in the public. And for that reason, they would have no expectation of privacy, and the Fourth Amendment calculus would be totally different. But let me- Well, then it's not a search at all, and once again, it's not this statute that's doing the work. Well, no, Your Honor. If they snatch it away, it certainly is this ordinance that is doing the work. You're saying that they have no expectation of privacy. We wouldn't say it's a search at all, and the police can take it away. It doesn't depend on this statute. Well, no, exactly. We would win the Fourth Amendment case, but they would- But that has been invalidated by-by deciding this on a facial basis. Councillor, are questions intruded on your rebuttal time? Why don't you take an extra minute or so? Thank you, Your Honor. So let me just emphasize that this is a very narrow rule that we're talking about. We're talking about a rule that is unlikely to be repeated in so many of the other circumstances that have been discussed today. It's about an inspection of only a single book of information that the government requires hotels to maintain, and that Mr. Goldstein has admitted the government should- it can require hotels to maintain. It's in a context that is especially prone to criminality, but people are using these hotels precisely to commit crimes, where the gaps are quite detectable in real time, but not detectable otherwise, in an industry where there's been hundreds of years of regulation, including a history of warrantless searches that are even broader at the time of the founding, hotels were being searched without warrants at the time of the founding, and a history of 100 years of police inspections in Los Angeles itself, and even 100 years of these things being open to the public. If the Court has no further questions, we respectfully request. Thank you, counsel

. The case is submitted