Thursday, July 19, 2012

The past is a foreign country.

To me one of the most foreign things about European travel is being asked, in some countries, to surrender one's passport at the hotel desk. Behind that polite but firm request is the notion that one's presence is being recorded, one's papers accounted for, one's reasons for presence in the city perhaps being checked. All of it nothing personal, just an absolute matter of routine. Just part of the basic, unquestioned need of the authorities to know who and where all of the people are and whether they are in their proper places. Based in turn on the notion that people have assigned proper places, absence from which is a privilege granted on condition of good behavior.

Having glimpsed other notions in the dustier American classics -- Twain and Whitman and suchlike -- it bugs me to see this Ninth Circuit decision in Patel v. City of Los Angeles, upholding a city ordinance that requires motels to make certain guest register information available to police for warrantless inspection. It's 2 to 1, Judge Harry Pregerson dissenting indignantly, saying the law "violates the Fourth Amendment on its face."

Apart from its general degradation of founding principle, the majority decision seems unfair to travelers. It seems even more unfair to poor people who may be living in weekly-rental hotels that fall under the ordinance. One more way in which precarity reduces privacy.

Prof. Orin Kerr, writing on the Volokh site, argues the majority's decision was not only the right one but could have been reached faster because "you can’t bring a Fourth Amendment facial challenge to a municipal code section that does not involve the issuance of warrants."

With respect, and with the suspicion that I may be missing something here, this argument strikes me as insane troll logic. Kerr (citing iffily to the Supremes in Sibron v. New York) seems to be arguing that if there's no mention of a procedure for issuing warrants in a law authorizing warrantless police intrusions, then you can't know if the intrusion in question conflicts with the Fourth Amendment, so you can only contest its application in particular circumstances, not across the board. Does he really think it matters if you paste a new label on a law that purports to exempt particular kinds of searches from the Fourth Amendment warrant requirement? That if you call an intrusion something bureaucratic like a "routine inspection" instead of a "warrantless search" then it's therefore not as clearly unconstitutional? 

So, I mean, suppose a police department issues an instruction that says officers are allowed to beat up suspects, except that instead of calling a beating a "beating," it's now to be called a "potato." Would the courts really insist on waiting for someone to come in all limping and bruised from a "potato" before deciding that "potatoes" are wrong?

The Sibron decision itself, in the very section quoted by Kerr, says that New York State, in passing its own search and seizure laws, "...may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct." Well, yeah, exactly.

I think Kerr is only leaning on Sibron because the Supreme Court, in finding that a policeman's search behavior violated Fourth Amendment rights, said it was pointless to spend time along the way deciding the constitutionality of a state "stop and frisk" statute that the policeman had cited as authority for his conduct. Especially because the Court was already saying a few important things about stopping and frisking in Terry v. Ohio, decided the very same day. Not really the same situation at all.

Via Kerr's cite to How Appealing, veteran legal writer Pam MacLean has her own post about the decision, mentioning the classic crime-movie scene of "the detective checking out the hotel guest registry" and illustrated by a still from the very Continental classic Grand Hotel. Funny how that movie's a theme around here today.

The Crime and Consequences blog says, "Look for this one to go en banc." Hope that's right. Patel v. City of Los Angeles certainly needs another look.


  1. "Same in ze hotel!" cried the Professor. "Nobody hass -- how do you say -- an identification. Why could I not sign _any_ name?"
    Clyde became red in the ears when he heard the refugee from the system of tyranny advocating the fingerprinting of non-aliens.
    "In America," he said, restraining himself, "we have the principle that a man is innocent until proven guilty. This is Anglo-Saxon law."
    "Ah so! it iss very interesting to study ze comparative law of different peoples."
    -- Paul Goodman, "The University in Exile" (1941). I just happened to be rereading it today.

  2. Hey Joe -- good to hear from you, thanks for stopping by. Yes, this notion of free citizens not having to prove or explain themselves -- are we aging out of it?