Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records.
The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.
Writing for the majority, Justice Sotomayor concluded the law was unconstitutional under the Court’s Fourth Amendment jurisprudence. 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,” and states that “no Warrants shall issue, but upon probable cause.” The Court has long interpreted this provision to mean that, absent a warrant based upon probable cause as determined by a neutral decisionmaker, a search will be deemed unreasonable. There is an exception to this rule for administrative searches, such as those contemplated by the Los Angeles law.
For an administrative search to be constitutional, Sotomayor explained, “the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Absent this opportunity, searches under the ordinance potentially could exceed statutory limits or become tools for harassment. An opportunity to obtain such review is a minimal protection—there would be no need for probable cause to search—and, Sotomayor concluded, could be provided without “imposing onerous burdens on those charged with an administrative scheme’s enforcement.” She also noted that searches authorized by the Los Angeles law did not fall within the narrow category that involve closely regulated businesses, in which the government need not afford any opportunity to object to the search.
In dissent, Justice Scalia would have none of it. He argued that “[t]he Court reaches its wrongheaded conclusion not simply by misapplying … precedent, but by mistaking … precedent for the Fourth Amendment itself.” The only constitutional question, in his view, was “whether the challenged search [was] reasonable.” He concluded, “the limited warrantless searches authorized by Los Angeles’s ordinance [were] reasonable under the circumstances” because, in large part, hotels are “closely regulated businesses.”
Scalia’s approach to the Fourth Amendment begs a question: what does it mean for a search to be constitutionally reasonable?
The constitutional text, of course, does not define reasonableness. And so—as noted above—the Court has held a search as reasonable if it is supported by a warrant based upon probable cause. This is the default rule.
But this is not the only way to implement the reasonableness requirement. Professor Tom Clancy has concluded that the Framers likely understood “reasonableness” to require government agents to have a reason to search a particular person or place. (See The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. MEMPHIS. L. REV. 483 (1995)). This is in contrast to the regime authorized under the Los Angeles ordinance, which permitted law enforcement to search hotel records arbitrarily—and, as the Court noted, as “a pretext to harass business owners.”
We should prefer an approach to reasonableness that will not work to diminish the scope of the Fourth Amendment’s commitment to privacy. An understanding that search regimes need only be reasonable, in a rational-basis way—as suggested in Scalia’s dissenting opinion—eventually will undermine that commitment. For the scope of this kind of reasonableness could be quite elastic—if arbitrary records searches are reasonable in the context of hotels, why not in the context of any business where members of the public may congregate? Or any business, like hotels, that is subject to generally applicable regulations?
At bottom, there is an important difference between viewing a rule as essentially reasonable simply because it serves a legitimate government interest—in Patel, deterring criminals from operating on hotel premises—and viewing it as essentially unreasonable because, regardless of its salutary purpose, it allows police to search indiscriminately. Judges are understandably reluctant to critically review legislative rules under the former approach, while the latter gives them an objective and consistent basis upon which to ensure that the constitutional protection of privacy is not diminished to a point of irrelevance.
Regulation of hotels is important and the deterrence of criminal activity arguably more so. Under the Fourth Amendment, courts should not allow privacy interests—including those of businesses—to be sacrificed in an effort to achieve either.