Transcripts For CSPAN House Pro Forma Session 20150310 : vim

The chaplain loving and gracious god, we ask that you pour out your blessings on our nation this day. May these men and women who are called here today as representatives of the people of this country be given an inspired vision of the common good and may they meet the challenges they face with resolve and righteousness. May your grace bestow upon the members of this house a lively hope and the virtues of justice, wisdom, and compassion. That they may be instruments of your holy will, in carrying out their noble vocation as public servants. We pray that the work of this house will contribute to the flourishing of this nation so that all peoples and families will be raised in dignity, encouraged in solidarity, and blessed with ordered liberty. We ask this through christ our lord who raines forever and ever. Amen. The speaker pro tempore pursuant to sks 2a of House Resolution 134, the journal of the last days proceedings is approved. The chair will lead the house in the pledge of allegiance. I pledge allegiance to the flag of the United States of america and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. Pursuant to section 2b of House Resolution 134, the house stands adjourned until 11 00 a. M. On friday, march for official business while at the state department. Polls continue to show favorable ratings. Well bring you her statement about those emails in her press conference expected this afternoon. And president obama has signed his memorandum on the student aid bill of rights to streamline government interactions on Student Loans as part of an effort to make college more affordable. The memorandum would clamp down on companies that Service Federal Student Loans making them informed borrowers better about their repayment options and delinquent payments. And extra payments would have to be applied first to the loans with the highest interest rates. Secretary of state john kerry and defense secretary Ashton Carter will be on capitol hill tomorrow to answer questions from the Senate Foreign Relations Committee to talk about the administrations request for authorization of force against isis. And efforts towards military and diplomatic solutions. Well have live coverage 9 30 a. M. Eastern. This sunday on q a, dr. Adrian berman, director of the Georgetown University Medical Center watchdog project, farmed out, on how pharmaceutical companies Lobby Congress and influence doctors in what medications to prescribed. The promotion of a drug actually starts seven to 10 years before a drug comes on the market. And while its illegal for a company to market a drug before approved for the f. D. A. Its not illegal to market a disease. So Drug Companies have sometimes invented diseases or exaggerated the importants of certain conditions or exaggerated the importance of a particular mechanism of a drug, for example. And then blanketed medical journals and medical meetings and other venues with these messages that are meant to prepare the minds of clinicians to accept a particular drug. And also to prepare the minds of consumers to accept a particular condition. Sunday night at 8 00 eastern and pacific on cspans q a. The Supreme Court heard oral argument a week ago on whether police can conduct a warranted search of hotel guess registries. The says of city of los angeles vs. Pa tell that allows city law to allow police to inspect hotel and motel guest registries at any time without a warrant. This is about an hour. Argument first this morning in case 131175, the city of los angeles vs. Pa tell. Patel. Mr. Rosen crants. Thank you, mr. Chief justice 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 and drug crimes that have seized the ground in Americas Hotels and motels. The ordnance in question is the least intrusive ordinance in questions is the least instreuselive inspection scheme 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. Could 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 somebodys name and im not even sure their address. Todays registry and requirements have information that federal law doesnt permit to be disclosed. Like drivers license. Credit card information. You cant disclose that information. The interest, however, have been pretty much the same. It was name and address in the rate that they were charged and so forth. And that is the information that the hotels have argued is the most all of the things that you say, the most effective tool for trafficking prostitution, child molestation, none of that sounds like its the purpose of the search is administrative. It is administrative, your honor. To understand why. You have to focus first on the target. The target here not people who are accused of crimes, the target is the motels and hotels who are required to keep records to record information. Why are they required to record the information . For the deterrent purpose. And the deterrent purpose more specifically is the criminals do not like to register. They do not like to record mr. Rosenkranz, are you saying that the police will do this see the records on demand and they dont have to have any reason at all, reasonable suspicion of probable cause, nothing, because the purpose is to deter people from staying at hotels who might do bad things . Nothing like a suspicion requirement. Thats correct, your honor. Its the same rationale this court adopted in berger. That frequent unannounced spot 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 they know are criminals theres no way to know unless you have this frequent unannounced inspection, that someone is missing. So theres a real necessity here as there was in berger and bizwell. Tell me how many prosecutions there have been i use the word both criminally or civil, for the failure to register people . There have been numerous prosecutions. I cant tell you how many. The complaints in this case, which are the beginning of the joint appendix, refer to the plaintiffs having been prosecuted multiple times or fined for failure failing to keep the records. I do want to underscore this point about necessity. The problem is not that the registers are empty. The problem is that the hoe tells decline to record the names of those who they know are criminals or the motels do. That has nothing to do with the free right to search. Those people who are refusing to do it are going to lee fuse refuse to do it. A Record Keeping requirement has no has no constitutional challenge. What does is the unfettered access to that record. Agreed, your honor. Those people who dont want to do it wont do it. They go somewhere else or dont commit their crimes. But if they are if they are forced to do it, which is to say the motel wont 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 Ginsberg was saying, and frequently so that they never know when the police are going to come. Why . To make sure that they are indeed, reporting the information. Why is the real time observation key . Its because say the police show up and they have a register and they notice the room number 2 is unoccupied according to the register, but they see someone in room number 2. 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 to. You mean they can walk up and down the halls and see that nobody is a certain room . I dont know how you do that. Its not the way it works in particular. You have room number two as if its right there. What if its room 1204 . Motels, for example, are out in the open. You may be allowed to Wander Around the hotel. They probably will not see much if what they are doing is wandering back and forth looking at particular supposing noles they can see what rooms have cars in front of them. And i suppose as to room 1204 they can see usually behind the desk what keys are missing. What rooms appear not to be occupied. Thats correct, your honor. Thats why real time observation is so key. Because you cant do that a month later. And thats why we have the same necessary why . I mean what youre saying is its easier to prosecute, but it doesnt mean that you cant 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 leaving. And you keep a record of it. You can even stop those people who are leaving to ask them. Theres a whole lot of Law Enforcement techniques that could be used to combat the situations youre 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 the moment should be . Your honor, thats not the test, but dewy refers to the fact that its not as effective. It simply doesnt work, your honor. Let me give you an example. If all the police are doing is looking for who is in what room and what keys are missing, they dont know what to look for until long after the fact. They may be looking for the wrong thing. There are many motels where they cant where they cant do it, for example, look at the keys because they are not available in easy to see. Its having the information right in front of them. And then comparing it to things they might be able to observe. Mr. Rosenkranz, why isnt this like bar lows . Its not necessary on the following rationale. Number one, most people will consent. So you go, the police go into a hotel and say wed like to see your registry, most people are going to consent. If somebody says no, and theres 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 ex parte and conduct a surprise examination if you want to. We talked about all of those things in bar lows about why that suggested that these warrantless searches were not necessary. What makes this different . Your honor, what makes this different is the distinction between bar lows on the one hand and berger, dewy, bizwell on the other hand. That is the movibility of information. That is the transens of the information that you use to verify. In bar lows, if there is an unsafe condition there is an unsafe condition. Its hard to see. This court said it also and distinguished this was distinguished on that ground. If you if its the sort of condition that doesnt change over time, you can get a warrant and it doesnt affect whats going to change here . The registry is the registry. And as i just said, if an unusual case you have the feeling that the hotel is complicit, you can make sure to freeze the registry. But thats not going an unusual case. And mostly the registry is going to be there. As i said, mostly people are going to consent to the extent not, you can go get a warrant. 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 cant compare it to facts on the ground. Its an hour later. You mean get warrant within an hour . Warrants within an hour are not that easy to get. Whats the probable cause for the warrant . If you havent seen the register, whats the probable cause . There is you have to have a policeman sit outside the hotel for days . You dont have probable cause unless you know there are people who are in the room for a short term, who havent registered. Thats exactly right. Warrants are for probable cause. Thats why berger and bizwell said, no, you dont need to get a warrant when youre doing an administrative inspection. If you prevail in this case and a member of the court sits down to write the opinion, does he or she have to use the phase reasonable expectation of privacy and say there is no reasonable expectation of privacy in our Society Culture . Do we just forget that phrase . Under the berger case, the court looks at the statute, asks is this a closely regulated business was it necessary, is it a legitimate nonLaw Enforcement purpose. And so forth. Another way to talk about reasonable expectation of prifecy. Indeed it is. Talk about that in the katz case. Telephone booth case. Im not sure is that still a phrase thats necessary and required for us to address in an opinion like this . If the court adopts the berger rubric, what the court was doing is saying because this is so heavily regulated in the condecks 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 what are we talking about . Hotel guests right . No, your honor. The motel, the plaintiffs have taken the position that this is not about the expectation of privacy of the guests. Yes thats what i thought its a hotel. You cant see my register. Its 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. Suppose that there is a statute that says they need to conduct the surprise warrantless searches because theres a serious problem with businesses turning up false payroll records s that constitutional . I would think not your honor. At least not without more information. The difference is there isnt this long history of the government reviewing payroll records. And secondly, at least a closer question, and secondly, payroll records are not the sorts of things which you need spot inspections. They do. The government says that if you wait until they submit everything at the end of the year theyll falsify a lot of records and we really need to see whats happening right now on the ground in real time. Either a record is false or not. You dont need real time verification. You do. Because you dont want to give them the time to falsify things until the end of the year. We could have 1,000 examples like this. My answer is still the same. It doesnt have the same real time need to verify against facts that are why not . Im checking to see if people are actually registered. You dont know until you see a person working. You at a construction site you count the number of people, and say let me see your Record Keeping for your employees today. Thats real time need. But either the ultimate record that is submitted is false or its not. You dont have the real time ability to verify whether theres you just keep a register you falsify the register the way youre saying these people would. My problem with the closely held closely regulated is i dont see one regulation thats not applicable to virtually every public accommodation entity whether its a Telephone Company or a hospital. I mean virtually all of these requirements that you list are part of the normal state regulation of entities serve people. Is it your position now once we say this is closely regulated that everything is . No, your honor. That sounds im heeding to my time, so if i may answer, quickly. First of all, the closely regulated exception is not is way more than just closely regulated. There are three other elements to it. You need to demonstrate the necessity. You need to demonstrate that its not a criminal justice purpose. And you need to demonstrate that there is an adequate substitute for a warrant. There are no further questions id like to reserve the remainder of my time. Thank you, counsel. Mr. David. Thank, mr. Chief justice. May it please the court. The court can resolve this case on a much narrower basis than it has used in looking at other administrative inspections schemes such as the one in bar lows. This case did not involve entry into the nonpublic working places of a business. It did not involve an entry into the a Residential Property t involved an entry only into the public lobby area of a motel and brief inspection of the registry of the motel. Its very significant. It could well involve an entry into a drawer. We wouldnt normally say well because you can our rules not simply because you can get into a house youre free to rummage through desks. Thats certainly right. But what this 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. So youre saying if a Police Officer stands outside a house and says bring me whatever it is i want from inside, he brings it out, thats not a violation of the Fourth Amendment . Because the compulsion tells the person you have to bring me whats inside. Justice sotomayor, it would be a search. Reasonableness would depend on the facts. My point here we are dealing we are dealing with businesses which have reduced expectations of privacy and not dealing with entry into the nonpublic areas of the businesses which is what marshalls was concerned with. Kohlon made, berger, all those cases. The ninth circuit itself did not apply the rules that often those kinds of situations where the court has sometimes said an administrative warrant is required and other times said it is not. This is a challenge. Are there any where a substantial number of instances in which the application of this thought would be constitutional . I think there would justice athleteo. If there were circumstances to justify the access to the registry. Most importantly then you dont need the statute. The statute helps because it informs the no. Under circumstances you could get a warrant. Well, you that doesnt work . I think it works, Justice Kennedy, in the sense that the statute provides encouragement for a potentially recalcitrant hotel owner to produce it because its an offense for him not to. More importantly, i think for the courts evaluation of the challenge issue, there is no record in this case about what kind of privacy expectations actually exist with respect to hotel registries. Its largely a matter of conjecks, speculation, and everybodys intuition. I dont see why it was 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 . They dont use that they dont show it to anyone else . We never required that . I think they should so there is a certain degree of confidentiality associated with. There is today when the federal law requires that you not disclose credit card information and drivers license information and these registries contain that information. You cant have it both ways. The registry is by law they are required to have the drivers license information taken from people who are paying cash. Thats right. And requires the credit card information of people who are otherwise registering. The registry doesnt have to have the credit card information unless they check in at a key os being. Which brings kiosks. What the ninth circuit did was invalidate the statute. Regardless of any fact it cant be enforced against anyone. I asusme, if the problem is license plates and credit card information and all that, its not up to the hotel to complain about that invasion of privacy, its up to the guests, right . I would agree with that. This case does not involve guests. Its just the hotel. Just the hoele it. And there are a range of situations in which different information is maintained in different ways. I think treating the spatial challenge is problematic. If you reach the merits, what the ninth circuit did was conclude this case doesnt trigger the very strong safe wards triggered when there is an invasion of a nonpublic space of a business. They treat it as an administrative subpoena case, which does have Fourth Amendment requirements associated with it, but those requirements are that the subpoena be relevant. That it be reasonable in scope. And that it be specific. And the ninth circuit conceded that all three of those requirements are satisfied. Section 4149 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. How do you distinguish marshall and bar low . You do, justice kendy. The distinction which is the ninth circuit itself, is that involved entry into the nonpublic areas of the business. Which exposes a much wider range of information to the inspection of the authorities. Marshal covered every industry in interstate commerce and allowed osha inspections without any limitation. In that circumstance i dont understand that. Youre saying it makes a difference actually whether you keep the registry at the front desk or back office . What im saying is that the ninth circuit analyzed it precisely that way. Walk into the lobby of a hotel, the court so said in the case, youre not invading any expectation of prifecy. All you do is ask the hotel keeper, 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. If i were running a hotel, i think i might prefer to have two uniformed detectives in the backroom where the guest doesnt see it. I think its quite intrusive. The ninth circuit treated it as a lesser degree of intrusion than inspection of all the private areas of the business. Thats why it applied to this line of cases. Once you apply the subpoena livene cases, you realize the statute itself serves the purposes that that line of cases is designed to serve. The only remaining claim thats really the judicial review would be very difficult to accomplish in this case because the whole purpose of this administrative scheme is we are not we regulate prostitutes. Narcotics activity through the criminal law. The place where they are frequently conducted are low budget motels. 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 flaul 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 dont have an identification to show who they are. And you need to keep a record of what youre doing. Im trying to figure out what you think is relevant here. Let me give you a high poe its not a hotel but 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. The fish and Wildlife Service or some state equivalent of that says we do not we do not want to rely on people reporting this to us. At 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 in part because a public Hunting Lodge . Private Hunting Lodge. This is a private hotel. Theres a difference. Will i have to defer to the members of the court. I think the interest thats being served there is far weaker than the interest thats being served here. Which is a genuine problem reflected in the fact there are 100 statutes like this across the country. Thats how youre going to distinguish it because its more important . Because the fish and wildlife people think its awfully important to make sure that all these rules are complied with. I agree with that, justice kagen. Do i think this court and its classic Fourth Amendment analysis governs the government interest to make sure of the intrusion. I dont know enough about the Hunting Lodges you have in mind. I will say this, that a mere requirement you expose books and records youre required to keep at a regulatory matter and no one disputes that, to a Law Enforcement officer in a public area of your facility, thats this case. There is no dispute here that you can require the hotel to keep the records. That is correct. We are not challenging that. I think there would be a big dispute with regard to private Hunting Lodges whether you require them to deep the record. There may be Second Amendment concerns the court would weigh in the balance. I think that the court can resolve this case in an extremely narrow fashion. I think its even more dangerous. Look at almost how many businesses, Retail Businesses transact their Record Keeping in public areas. Talk about any shop in the contry. They dont 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. Intruding on someones intruding on someones private information in a public place eliminates the Fourth Amendment. I think you asked three questions. First the substantiality of the government interest. Second the nature of the intrusion on privacy. And third on necessity. 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 counsel. Thank you. Mr. Goldstein. Mr. Chief justice, may it 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 onepage subpoena. We can object to that subpoena, but its going to be enforced unless the city isnt actually implementing a legitimate administrative scheme because its searching to harass us or investigate crimes. 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 waive the right to privacy dont actually involve the epformente of the statute. Whats necessary here, the value in the Fourth Amendment, is the requirement that there be a regularized scheme. Its going to be a regularized scheme that either appears in the administrative rule itself. That doesnt exists here. Theres no limit on when they can search. How often they can search. Or the reason they can search. If there isnt that, then you put a court into the process. We make preenforcement judicial review available. The reason is the Fourth Amendment protects our sense of tranquility. The hotel owners and individuals and other context businesses and other context need to know these officers arent going to at their whim conduct these searches. Suppose a city or state wanted to establish an administrative inspection regime along the lines of bar lows. 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 . Yes. Would it require probable cause . No. Could they could it be done without prior notice . Yes. Could you have different standards for different types of hotels . Inspections for all hotels you, 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. If thats ok, its not clear to me what that would add to the ordinance before us . That was, and Justice Kennedy asked how bar lows plays out in this context. Mr. Dreeben is half right in his answer. He is absolutely right the court said if youre not physically inspecting the premises, then you dont have to ahead of time get warrant. Justice scalia, its not a problem cause criminal warrant. All the court is required in this line of cases is that the government show its part of an administrative scheme. The second part is whatses missing. The key case mentioned in passing it hasnt gotten enough attention, its called donovan vs. Lone stare. It was decided by justice rehnquist, unanimously opinion, and it considers a circumstance similar to this. That is under the fair labor standards act, the government can do what it does here. It demands employment records. The reason this court said that that comports with the Fourth Amendment, there is a balance. 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 revue. That way you know the enforcement each of the objections, mr. Rosenkranz, in answer to my question there is no notion of probable cause, reasonable cause. The hotel owner is required to keep these records. Thats not disputed t they are required to keep them. The police dont have to have any reason. What would be shown by that hearing . Your honor, this courts consistent line of precedence there are six case that is have dealt with the subpoena rule have said the following. That is the concern when you have a scheme like this one that doesnt tell the officer how often or when to search, is that the officer will do two things forbidden by the Fourth Amendment. One is theyll do it in a harassing way, and second theyll use it for crime control. The real concern here, the city is validly saying they want to look at the record for example find prostitutes or the johns who are involved in renting the rooms. So thats why what you do is you let the police issue the subpoena. They dont go to the judge ahead of time. But the prospect there can be an objection, you can go to a judge, is what protects the sense of tranquility of the Business Owner. Whats the purpose you agree its constitutional to require the register . Absolutely. Why is the state interested in requiring the register if it cant look at it with little notice . Whats the point . Justice ken dirks the fact that its only interested in Law Enforcement i think is a point in our favor. But just recognize that what mr. Rosenkranz is describing is the scenario that gave rise to your question about 1204 is inaccurate. If i play out a hypothetical. His point is follows. An officer shows up at a hotel and sees someone sees a light on. What he wants to do then is look and right then determine, look, there is a registration card for room 2. I dont know what that proves because he doesnt know anything inappropriate is going on in room two, it doesnt matter. What the officer does is makes a record. There was someone in room two on june 1 at 12 00 a. M. And comes back two days later and serves the subpoena. There is no reason in the world that doesnt give any advance notice to the motel owner. If he has a particular concern, he can sequester the records. So they can have them held separately. If theres going to be an objection, which is rare theres no reason his concern is about contell prainous observation. Thats 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 doesnt prove anything unless you know that the hotel has not registered the person who is in the room. Justice scalia, remember, our objection is not to them being able to either require the register or inspect the register. Neither one of those is at issue. The question is, can they do that without giving us any opportunity to say to a judge whats actually going on in here is Law Enforcement or harassment, they have come in five times during the day. And that system, which is they issue the subpoena they dont go to the judge ahead of time. They give me a subpoena, right. They say, we want the records. And if there is an objection the officer has made the observation about room 2. And they can go ahead, telephone warrants are easy. There is no reason the subpoena objection cant be heard by a judge late on. Hes observed and made a note about whats going on in the hotel. They could fill in while hes running off getting a subpoena. The subpoena who is in that room. Hes not running off anywhere. The subpoena is simply handed at the desk. This is an administrative onepage piece of paper. Let me say i dont understand. He has it in his pocket . All youre asking for from this litigation the one who wants to inspect it just pulls out a piece of paper and hands it to him and makes it ok . Theres two parts. Thats how the subpoena works the reason this court has the has required at the bear minimum, accepting the very limited berger context, when you hand the subpoena, the person who receives the seen kwla says, this is an unusual case, im going to go to the trouble of objecting. I think can i tell a judge and prove to the judge this is Law Enforcement in disguise. I could say the same thing without the subpoena. Yes. Our critical point is this guarantees him the right to say that to a judge. Allows him the opportunity while the policeman is getting the subpoena to fill in the name of the person in what is otherwise a blank space. Mr. Chief justice hes not going to get a subpoena. Subpoenas dont work that way. I thought you said if he serves the subpoena, the other person can demand judicial review. Thats correct. The Police Officer has to go somewhere to get the judicial review with whoever the hotel owner sends. It might not work that way. That is the hotel owner may have to file a motion to quash. Its not particularly important. Mr. Chief justice, heres the problem with that argument. It is important. Because we are trying to figure out how this works. The subpoena, the hotel owner says i object. What happens . How long does it take . It doesnt take any amount of time which is why the court has consistently required it. That is he says, im not going to give you the records. Im going to file a motion to quash. If the police want to enforce it right warkse they can go to an administrative judge. They go somewhere. Yes. During that time, doesnt the hotel clerk take his pen and say, i didnt register this guy in room 2, im going to get in trouble, and he fills in no, for the reason given by justice kagen. You can sequester the records. We are talking about a set of cards. This is a real concern. It is a concern made up the by the citys lawyers in this court when at trial they did not produce any evidence of this. It would be equally applicable in every kind of required record same is true in a construction site if you object and say im going to take these records and keep them in the police car trunk until we resolve this . Yes, can you do that. There is authority . Sure. Its very similar to what this court has said on the Fourth Amendment context. Remember when the police show up at someones house and they are concerned about the destruction of evidence inside what they do is simply thats much more intrusive than Justice Kennedy dont think the government can have it both ways. These are our private records. They want to do something incredible unusual that the Fourth Amendment forbids. They want a scheme 245 doesnt say when theyll search, how often they are records required by law to be kept. And you are are not objecting to that at all. Justice scalia, thats right. The other side makes a good point. And that is these are Business Records that receive reduced Fourth Amendment protections. We understand that. So did the Unanimous Court in stare. What it said thats the reason we dont have a probable cause requirement here. Thats 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. Thats why we dont have the Fourth Amendments full protections. They can be sequester by the Police Officer even asked by the chief justice, do you have to have some kind of outsite approval. If the hotel owner says you cant have these records, the police can say, give me the books and take them away. Yes. Not inspect them. Hold them aside. This is a real problem, which there is no evidence of, if they want to hold them aside, then they can be just sequestered. Nobody looks at them. That is the seizure. Absolutely. Why is that justified in 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. It can seize control of the property without searching it. Thats just if it has probable cause. Your honor, it has the relevant level of cause thats required in the particular context. 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, would go to the hotel. Heres the warrant. This is your periodic inspection. There would be no prejudicial review. There would be a challenge later. No, your honor. What this court has said in cases, is when you get the preenforcement judicial review, that is the judicial involvement required. We would be perfectly happy with that of the the difference between your hypothetical and this one is that a judge is involved and shows that this isnt for Law Enforcement, its the orderly operation of administrative scheme. Whereas what the city wants is for a beat cop to go in at any time as often as he wants for any purpose. The complexity in the answers and frankly surprise i have at some of your answers may indicate that this is not a basis for a spatial not a case for a spatial attack. We have to go back and decide these issues on a case by case bycies. Justice kennedy, ail give you my response to that. That is the court in all of the colonnade lineup cases has dealt with things on a categorical cases. Never on a case buy case basis because it looked at the structure of the scheme. This is a scheme where they are not going to have any reason they dont need justification to come in. We know they can seize. Its a particular record. They can do it any time. That kind of scheme what the court has insisted on, host the court will take a look at loanstare is there be this minimum of a subpoena process. Im sorry. I thought the stronger answer would be we have always looked at a lack of procedural protection under a challenge. Any time that the challenge is to the lack of process we have looked at it, implied whatever, it doesnt need to be. Let me add one other point thats underappreciated in the case. Not only does our complaint assert an as applied challenge, there was a trial on that, and the record on the as applied challenge in the record in this case, we pursued our spatial challenge only after before the second trial it stipulated they only had spatial defenses of the statute. Thats the reason we had this oddity we are here on the facial challenge. The evidence had a been collected. There is nothing to be gained by having a second trial. You 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 thats bad. Yes. But the whole purpose of this thing is to enable the criminal law to be enforced isnt it . There are two different points being made here. One is, you are quite right. They have an administrative scheme. The point of the administrative scheme is to judge for criminal violations. Imagine on tuesday, a Police Officer comes in and says, look, i think theres a prostitute in room 3. What aim going to do im going to invoke this 4149 and see if that persons name matches up as a prostitute. Thats criminal Law Enforcement. It requires probable cause. The fact that they have an underlying administrative scheme doesnt mean they can investigate crimes through using this evidence. The court has said time and time again in its administrative decisions that its really important that we involve the courts because those in this case has presented more starkly than any other, that you misuse the administrative process i think there may be an exception to that principal where the whole purpose of that scheme is to enable the detection of criminal activity. 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. Thats not what youre arguing. They can deep the books in order to detect criminal activity, but if they request the book in order to detect criminal activity, its bad. It doesnt make sense at all. Because its not the argument. And that is what is the argument . Their defense of the statute is not that the records are used to detect crime. If they are used to deter crime. They dont look at the records to find criminals. All they do is look at the records to make sure we are keeping records. My point is that one day a Police Officer under this it can happen regularly. If an officer will come in and say im not concerned about whether you filled tout the form. I think there might be a prostitute in room 3 and use it for criminal law. Mr. Goldstein, i thought an equally important purpose behind this law is, as you said earlier, prevent harassment. I dont like this hotel owner. I want to drive this hotel out of business. Im going to be showing number his lobby every day. Thats part of whats going on here, right . In fact the principal thing this courts precedence has pointed to look whats missing in this ordinance. Every time they say we identify specifically the records. The question isnt what the records are. Its the loss of sense of tranquility provided by the Fourth Amendment. We dont know how frequently and harassing purpose and what reasons at all if Police Officer will come in over and over again. Have we used that phrase before . Which one . Tranquility . I dont think that word is. Talk about privacy and all that. Im not sure that the Fourth Amendment should be expanded to protkt the sense of tranquility. The problem with tranquil hotel owners. I associate 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. Thats what we are talking about. I think theres some they do it. In hotels they have these notices posted all over about where the first emergency exit is and all that. Could police come in and check to make sure the hotel has those posted . Yes. Without any warrant . Because they are in public spaces. Is the back of a hotel room door, is that a private place . Take for example in the back of the restaurant, in the back of the kitchen im talking about every hotel room. Inside the room . They say, look, this is a very important thing to make sure people dont die in a big fire. We want to make sure you have them. Let me look at room 12. Great example for us. Thats a fire inspection regime. What has to happen is there has to be a subpoena ahead of time. At the very least this court the lowest level standard the court has ever applied is in a case called dewy. What dewy said is at the very least if youre not going to involve a court, you have to have a set of rules when these searches are going to be conducted and how often. I didnt understand your answer about harassment. Maybe it is in the record. Or maybe its because this wasnt as applied. The police, even if this ordinance were invalidated, the police could show up whenever they wanted, couldnt they, and ask for the owner or person at the desk voluntarily to disclose the register . They could be in the lobby as much as they want. Exactly how does this aid in harassment of hotels . Because of the fact that they are requiring us to produce private records. It was always the case in cases like bar lows, where the police couldnt show up and inspection the premises they could harass. The court said if youre going everyone agrees this is a fourment amendment search. Its a public space. I dont know whether its dispositive, but its of some relevance. They walk in. Two scenarios, one with the ordinance, one without. Without, they walk in and said would you in the kind anyof your heart look at the register . And the owner says no. I dont want to. And they come back the next day and do the same thing. Thats the first scenario. Second is, they come in and say letis see the register. You show them the register. And what . Its a harassment because they sit there for a while and the guests coming in see the police in the lobby . I dont understand its the fact that day after day after day we have to give them our private information. And it really will involve a problem, it can harass and put us out of business. Imagine the following scenario. We are put in this position because they come up with this hypothetical about when it could be valid. The officers see someone come into the mowle it. Each time they see someone come into the motel they come in and say we are the police. Let us see the records. It can interfere if you had case specific example, that might be one thing. It would help if you could tell me what goes on in this precompliance judicial review. The hotel owner says, sorry. You cant look at the registry. I want judicial review. What is the nature of that review . This court has considered that question in the fair labor standards act. Banking context and tacks context. California bankers, donovan and loan stare what it has said is the Administrative Agent with the Police Officer, whoever enforces the law, dont have to go to a judge, is a onepage subpoena. Then there is an objection by the Business Owner in any of these context. In banking, these are records that the government requires you to produce. And then what happens is that the what generally will be the rule, its up to the city. The city will put the onus on us to go to a judge. The fact the onus is on us to go to a judge and the objections are limited. Which is to say we only get to object this harassment. Rule is they almost over give the records. It is the prospect we can go to a judge that tells the beat cop he needs to behave. Those are the only objections that yes. Harassment and using this for Law Enforcement. Yes. Thats in courts precedence. Thats the rule how many of these courts precedents involve a business that has been treated like a public utility . There are requirements for hotels how big the room has to be. How many people you can put in a room. Even in many locations how much you can charge for the room. The hotel owner is not like the private business. He is a regulated provider of Public Services that has traditionally been regulated closely over the years. The first question you asked is how many times you have been asked that question, the answer is none. The second answer to your question is, 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 of this hotel is going to be the guest rooms. And unlike in cases like remember they search the open junkyard. Unlike cases like bizwell where you inspect the open storage or go behind the scenes, here the police cant 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. 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. Just think about it. California bankers and miller are cases involving banking. Banking is incredibly heavily regulated. You have to to have a charter. The government requires all types of records. Remember, Justice Scalia, those are the Bank Customers records. They are about the Bank Customers transactions. What the court said in both those cases, in rare exceptions like the 10,000 requirement. Title 1 is unconstitutional because it requires a subpoena. There is a prospect of getting a judge involved if the bank secrecy requirement is too onerous. Inn keepers have been regulated for centuries. They have duties. To the public. Im just pizzled puzzled by this. You concede the record has to be kept. But there are very few reasons for keeping those records other than Law Enforcement. That we disagree with, Justice Kennedy. We have kept these records and inkeepers have kept these records fortime immemorial. We use these records for different purposes. Every record of our business transaction. We use them to keep in touch with our customers. Its quite proprietary information. Motel 6 does this . I never received anything from them. My goodness. You may not be in their frequent guests. Nobody doubts. Remember, this is an ordinance that applies to the four seasons, and Ritz Charlton and everything else. They carve out a subsefment while we are attentive to the point we are not asserting the guests are not asserting fourment amendment rights here lets not lose sight of the fact that these records can show very, very personal information. Not just the drivers license information, but whether you stayed at a hotel during a religious or political convention. Complaining about the privacy interest of the guests. Justice scalia, heres the point. They agree this is a Fourth Amendment search point one. Then, what you are doing you have to make an honest assessment whether this information really does further the Fourth Amendment valu of privacy. It does. Because this has private stuff in it. Theres just no real dispute about that. Im sympathetic to the fact that inn keepers have been regulated for a long time. In 99. 4 of the jurisdictions in this contry this is not the rule. There are hundreds, 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 isnt one that inpings on our sense what does that tell us about whether our records are private . Certainly, we can identify a huge array of other businesses that are regulated. 1. I wanted to make was in 2002 the department of justice did a study and it found that 335 different of federal law is what i described to you. Subpoena first in order to get the records. There was a handful of them are none of them involving the records with the possible exception that you never have to