Sunday, June 28, 2015

Random Search of Guest Registries Unconstitutional

By Sunita Sohrabji, India-West - In a landmark decision, in which the concerns of Indian American motel owners were addressed for the first time at the highest level of the U.S. justice system, the Supreme Court determined June 22 that the Los Angeles Police Department’s random inspection of motel guest registries constituted unwarranted search and seizure, violating Fourth Amendment constitutional rights.

“This is a huge victory for the hotel and motel industry,” Indian American businessman Balu Patel told India-West shortly after the decision was released. Patel – who owns seven motels in south central Los Angeles and Hollywood, Calif., and has been in the business since 1973 — said the LAPD has come unannounced into his motels at any time day or night and demanded to see guest registries under Section 41.49(3) of the city’s legal code. Police have searched his motels – without warrants – harassing his employees and charging them with misdemeanors for clerical errors on the registries, he alleged.

In one of the most egregious cases, Patel recalled an incident at an acquaintance’s motel where a female employee was pinned to the ground late night and handcuffed as police searched through the registry.

The City of Los Angeles – which brought the case to the Supreme Court – said such random searches are necessary to stem human trafficking, drug dealing and other criminal activities on motel premises.

Patel said he has always been cooperative with police. “If they show us a picture and say ‘we are looking for this person,’ we will tell them if we have seen this person and help them find him,” said the veteran hotelier.

Ray Patel, president of the North East Los Angeles Hotel Owners Association (NELAHOA), told India-West: “No hotel owner wants to see human trafficking or crime on his premises, but the tactics used by the LAPD were not preventing crimes.”

“We were unable to see the connection. And the Supreme Court saw through the LAPD’s claims,” he said.

Section 41.49(3) has no specific penalty, therefore, the code defaults to a misdemeanor crime. Ray Patel said rotating rounds of desk clerks often mean that the wrong person is given the misdemeanor citation for a clerical error on the registry. He alleged that police would often ask for weeks of registries, hoping to find an error.

“It was a harassment tool,” he stated, adding, however, that motel owners have a good relationship with the majority of the LAPD force.

NELAHOA was founded in 2006, when the LAPD began aggressively enforcing Section 41.49(3), which has been on the books since the early 1960s.

The Supreme Court upheld a Ninth Circuit Court of Appeals ruling that determined that the random inspections violated Fourth Amendment rights, which guard against illegal search and seizure of property. Justice Sonia Sotomayor wrote the decision, noting: “Nothing inherent in the operation of hotels poses a clear and significant danger to the public welfare.”

“Section 41.49(3) is unconstitutional because it fails to provide hotel operators with an opportunity for pre-compliance review,” she wrote, noting that hotel owners are subjected to punishment for failure to turn over their records.

Sotomayor clarified that the Supreme Court ruling does not exempt motel owners from records compliance, nor does it prevent police from obtaining access to those records when a hotel operator consents to the search or when the officer has a proper administrative warrant.

Sotomayor, along with Justices Ruth Bader Ginsburg, Anthony Kennedy, Elena Kagan and Stephen Breyer ruled in favor of the hotel owners. Justices Antonin Scalia and Samuel Alito each delivered dissents, with Clarence Thomas and John Roberts also dissenting.

“This was a huge surprise to everyone,” attorney Frank Weiser, who represented the hoteliers, told India-West, adding that his co-counsel had predicted a 7-2 split in favor of the City of Los Angeles. During oral arguments, Scalia had argued that the case could not make the Fourth Amendment challenge, but he did not make that argument in his written dissent, said Weiser, noting that the dissent also represented a big victory for all businesses required to keep third party records, such as banks and Google, which had filed an amicus curiae – “friends of the court – brief in the case, supporting the hotel owners.

Weiser restated Sotomayor’s position, noting that the ruling does not limit LAPD officers from coming out to inspect registries. “But if a motel owner objects, he now has the right to say ‘go get a subpoena,’” said Weiser, who has represented Indian American motel owners in a number of individual matters.

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