Thursday, June 25, 2015

Sotomayor's 4th Amendment Time Bomb

A painfully slim 5 – 4 ruling this week by the Supreme Court in City of Los Angeles v. Patel is being greeted by many privacy advocates almost with the ebullience of Gene Kelly’s heel-clicking dance in Singin’ in the Rain.

The court struck down a Los Angeles ordinance that allowed police officers to inspect hotel guest registries for any or even no reason, and without a warrant. The ruling that the Fourth Amendment applies to businesses and that statutes may be declared unconstitutional on their face is consistent with principles as old as, and even older than, the Constitution.

Privacy advocates seem to be suffering from a bit of Stockholm Syndrome. Joyful about the court’s barely holding the line on two issues, most have yet to acknowledge how Justice Sonya Sotomayor’s majority opinion is also a blueprint for a major power grab for the administrative police state.

What’s lost in the celebration is that Justice Sotomayor’s majority opinion recommends the use of judge-less “administrative subpoenas” for these searches. That will shift costs and burdens of proof from government onto unwitting or intimidated small business owners under judicial standards that give nearly complete deference to the government, and with no need to show probable cause for searches. Her majority opinion even seems to suggest that police departments may be given power to approve their own searches using administrative subpoenas instead of going to judges to obtain warrants.

Sotomayor’s opinion starts out promisingly well. She refers to the Ninth Circuit Court of Appeals ruling below that “’[t]he business records covered by [the city ordinance] are the hotel’s private property’ and the hotel therefore ‘has the right to exclude others from prying into the[ir] contents.’” She then notes that “searches conducted outside the judicial process, without prior approval by [a] judge or magistrate . . . are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Those time-honored exceptions include consent of the property owner, or “exigent,” meaning “emergency,” circumstances.
Justice Sotomayor’s promising start then goes south with dicta promoting the use of “administrative subpoenas,” which are issued by bureaucrats, not judges, and absent probable cause required by the Fourth Amendment. Even if small business owners are not intimidated or know they can obtain hearings to suppress these search demands, that is, if they can afford going to court, the judicial standard of deference to these judge-less warrants makes it nearly impossible for citizens or businesses to block such searches.

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