Suspicious behavior alone is not enough to establish probable cause where none otherwise exists. Ruaro v. State, 280 P.3d 1233 (Alas. App. 2012). (From the concurring opinion: “As described by Trooper Brown when he applied for the search warrant, Leon Ruaro received an unusual series of packages over a period of months, all shipped to him in Ketchikan via Alaska Marine Lines. On a couple of occasions, Ruaro became incensed and abusive when the Marine Lines failed to promptly off-load a package from its barge, so that Ruaro could pick it up.” Who gets cocaine by barge? Alaskans apparently do. Drug dogs sniff packages by air, but not by barge.)

Aside from the CI’s basis for a stop, the officer recognized defendant as a person with a suspended DL, and that justified the stop. Pretext was thus irrelevant. United States v. Irons, 2012 U.S. Dist. LEXIS 103708 (N.D. W.Va. July 26, 2012).*

Defendant’s racial profiling IAC claim on his 2255 was barred by the result of his suppression hearing and the Third Circuit affirming on appeal. United States v. Edwards, 2012 U.S. Dist. LEXIS 104191 (E.D. Pa. July 26, 2012).*

Defendant was suspected by a Craigslist post of planning to shoot up a shopping mall, and the police came to his house after getting his location from Craigslist. Once inside the house by consent, manipulating a computer mouse to get past the screen saver was a search under Hicks. United States v. Musgrove, 845 F. Supp. 2d 932 (E.D. Wis. 2011), (adopted 2011 U.S. Dist. LEXIS 108932 (E.D. Wis. September 16, 2011)):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir. 2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir. 1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

[Orin Kerr, Taking A Computer Out of Screensaver Mode to See Suspect’s Facebook Wall Is a Fourth Amendment Search on Volokh Conspiracy noting this post; then A New Fourth Amendment Concern: “Don’t Touch That Mousepad!” by David Stout on Main Justice noting Kerr; then You Want to Click That Mouse? Bite Me, Get a Warrant! on Above the Law noting Kerr.]

Defendant was strip searched with reasonable suspicion at the St. Croix airport Customs point for flights to Puerto Rico. A quantity of cocaine was found in his underwear. After a brief investigation, there was also reasonable suspicion for search of his traveling companion who succeeded in getting past Customs into the sterile area at the airport. A dog search found cocaine hidden in the bathroom and the dog alerted on the companion’s pants. The border search was reasonable as to both. United States v. Barrett, 2011 U.S. Dist. LEXIS 107956 (D. V.I. September 22, 2011).*

Defendant’s hotel room and thumb drive were searched in Belize with a Belize search warrant which was lawful under Belize law. The fact U.S. Embassy officials passed the information on to Belize officials who got the warrant and executed it and the U.S. officials were there and watched did not make it a U.S. search governed by the Fourth Amendment. The fact a U.S. official interrogated defendant did not change the result. United States v. Flath, 845 F. Supp. 2d 951 (E.D. Wis. 2012) (posted here)*:

Generally, Fourth Amendment principles do not apply to searches by foreign authorities in their own countries, even if the targets of the search are American citizens. United States v. Stokes, 710 F.Supp.2d 689, 697 (N.D. Ill. 2009) (citing United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987)). An exception occurs, however, when the participation of United States agents in the investigation is so substantial that the action is a joint venture between the United States and foreign officials. Id. (citing United States v. Barona, 56 F.3d 1087, 1091 (9th Cir. 1995)). In other words, the court must ask whether the level of involvement of the United States government agents was sufficient enough for them to be considered participants in the actions of the foreign police. United States v. Marzano, 537 F.2d 257, 270 (7th Cir. 1976). It is well-settled that providing information to foreign authorities does not transform a subsequent search by foreign officials into a joint venture. Id. at 270-71. Likewise, the mere presence of United States officials during a search is not sufficient to make the officials participants. Id.

In this case, the U.S. officials, though present at the search of Flath’s residence and at the Inn, did not actively participate in the actual search of defendant’s property. Instead, Belizean officers obtained and executed the warrant. Even though the warrant was supported by information gathered and provided by the United States officials, that provision of information is clearly insufficient. Moreover, like the Magistrate, this court finds that the interrogation of Flath by a U.S. officer is quite distinct from the actual search of his residence and the Inn. Thus, the fact that the U.S. officer’s interrogation could be categorized as substantial has no bearing on this court’s inquiry into whether the U.S. officers’ participation in the search was substantial. Accordingly, the court finds that the facts of this case do not support a finding that the United States officers’ actions in the search were so substantial as to be considered participants in the search. In turn, the search of defendant’s Belizean residence and the Inn does not implicate Fourth Amendment protections, and, therefore, the court will deny Flath’s motion to suppress.

The lack of a video goes to the officer’s credibility, but here there wasn’t enough to undermine his credibility. The length of the stop was reasonable. “In sum, the court finds that the troopers’ actions demonstrated a ‘graduated response to emerging facts, [which] were reasonable under the totality of the circumstances, and did not unconstitutionally extend [Platt’s] detention.’” United States v. Platt, 2012 U.S. Dist. LEXIS 130141 (W.D. La. August 6, 2012).*

“The court finds that the inventory search in this case was conducted according to standardized procedures that sufficiently limited Aikens’ discretion in order to prevent the search from becoming a general investigatory search for incriminating evidence.” This is even though the officer started off asking for consent, which was denied, and he said he was going to search the car for anything illegal, and then he corrected himself and said for things of value. United States v. Carroll, 2012 U.S. Dist. LEXIS 131000 (W.D. Va. September 12, 2012).*

Officers working patrol in a housing project smelled marijuana. They followed the smell and found it coming from an apartment. They knocked on the door and the smell was far stronger. The defendant answering the door admitted to smoking marijuana. There was exigency for an entry to seize the marijuana because they couldn’t practically leave and get a warrant without the marijuana being destroyed. United States v. McMillion, 472 Fed. Appx. 138 (3d Cir. 2012):

Here, the exigency of the circumstances provided the officers with an objectively reasonable belief that a warrantless entry was justified. The officers followed the odor of marijuana to Washington’s apartment, knocked on the door and, when Washington opened the door, the odor was even stronger. It was thus reasonable for the officers to suspect that there was ongoing drug activity, and, particularly in light of McMillion’s admission to smoking marijuana, it was also reasonable for the officers to conclude that contraband was being destroyed and would continue to be destroyed or removed if they did not act immediately.

In a case of a missing teenager alleged to have hooked up with the defendant and suspected to be forced to work as a prostitute in NYC, a warrant was not required for access to defendant’s cell phone location records. Moreover, exigent circumstances justified access to the location records. United States v. Gilliam, 2012 U.S. Dist. LEXIS 130248 (S.D. N.Y. September 12, 2012):

MSP’s actions were instead justified under the Stored Communications Act, 18 U.S.C. § 1701 et seq. The statute permits a service provider to disclose customer records “to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” 18 U.S.C. § 2702(c)(4).

Under the Fourth Amendment, warrantless government searches and seizures are reasonable and, thus, do not violate the Amendment, when they are required by exigent circumstances. See Kentucky v. King, 131 S. Ct. 1849, 1856-57, 179 L. Ed. 2d 865 (2011); United States v. Klump, 536 F.3d 113, 117 (2d Cir. 2008).

The exigent circumstances exception applies where a reasonable and experienced officer would have had reason to believe that there was an urgent need to act. It is an objective test requiring an evaluation of the circumstances in their totality. United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008).

PCWorld: FBI rolling out high-tech ‘Big Brother’ monitoring system by David Jeffers:

Thanks to the FBI, the United States government will soon have a nationwide system in place capable of monitoring and identifying “persons of interest” virtually anywhere. The Next Generation Identification (NGI) system is designed to aid the FBI in tracking down and capturing criminals.

Fingerprints have been the primary unique identifier for law enforcement agencies of all levels for a century. Even with billions of samples on record, no two fingerprints have ever been found to be alike.

Fingerprints are just one unique identifier, though, and much of the accumulated fingerprint data is not merged and easily accessible. NGI will include voice recognition, iris and retina scan data, facial recognition, DNA analysis, and more in an automated system designed to help law enforcement identify and capture suspects more efficiently and effectively.

Where defendant had been hiding in the attic before the police arrived, and his wife told the police that he said he’d hide there and likely kept firearms and contraband there, a protective sweep of the attic was proper where defendant was arrested at the attic stairs. It was thus an “immediately adjoining” area subject to protective sweep. Richert v. State, 2012 Tex. App. LEXIS 7719 (Tex. App. – Houston (1st Dist.) August 30, 2012).

The magistrate heard testimony from the CI on the probable cause, and there was PC for issuance of the warrant. United States v. Peoples, 2012 U.S. Dist. LEXIS 129276 (W.D. N.Y. August 7, 2012).*

Officers had probable cause to arrest for attempted bank robbery because the defendants matched the description. United States v. DeVincenzi, 2012 U.S. Dist. LEXIS 129216 (D. Mass. July 19, 2012).*

dailykos: The Intrusion On A Mentally Ill Individual’s Fourth Amendment Rights Is Substantial… by jpmassar:

“The intrusion on a mentally ill individual’s Fourth Amendment rights is substantial…”

So says the US Department of Justice, in a just-issued report criticizing the Portland, Oregon Police Department’s use of force as it revolves around the mentally ill. A number of incidents are cited in detail in the document, describing police actions taken after officers knew or could reasonably determine that their target was mentally ill.

Here are excerpts from the detailed cases: …

Defendant’s attempt to recast his already denied-on-appeal search issue as an ineffective assistance claim that it wasn’t argued right the first time fails as an attempt to relitigate that which is already decided. Montanya v. United States, 2012 U.S. Dist. LEXIS 99324 (S.D. Tex. July 17, 2012).*

Defendant’s motion to suppress was improperly granted. When the officer approached defendant, he was sitting in his car with the door open, so it wasn’t a stop. The officer’s declining to tell defendant why he was talking to him (“wait a minute”) did not convert it to a stop. State v. Glauser, 2012 Ohio 3230, 2012 Ohio App. LEXIS 2844 (5th Dist. July 11, 2012).*

Furtive gestures in a high crime area known for narcotics and further furtive gestures toward the console after the stop was reasonable suspicion. Beasley v. Commonwealth, 60 Va. App. 381, 728 S.E.2d 499 (2012).*

Officers received a burglary call and followed fresh footprints in the new snow from one burglary to a trailer that they thought was being burglarized, too. Instead, it was defendant’s, and the entry through the open door for a sweep was valid when nobody answered. When incriminating evidence was found, they got a search warrant. Note that this was analyzed as one of those “split second decisions” for reasonableness. Washington v. Commonwealth, 60 Va. App. 427, 728 S.E.2d 521 (2012)*:

Washington contends the deputies could not be certain a burglary suspect was still in the trailer. True, but the deputies were “not required to possess either the gift of prophecy or the infallible wisdom that comes with hindsight. Their conduct in making a warrantless search must be judged by the circumstances confronting the officers at the time they act.” Hill, 18 Va. App. at 3, 441 S.E.2d at 51 (quoting Reynolds v. Commonwealth, 9 Va. App. 430, 437, 388 S.E.2d 659, 664 (1990)). In Fourth Amendment cases, the “calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Ryburn v. Huff, 132 S. Ct. 987, 992, 181 L. Ed. 2d 966 (2012) …. Police officers must often make an “on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.” United States v. Taylor, 624 F.3d 626, 634 (4th Cir. 2010) … When they do so, courts should not “engage in ‘should have/could have/would have’ hindsight” to second-guess their objectively reasonable judgments. Id.

For these reasons, the trial court correctly denied Washington’s motion to suppress the incriminating evidence obtained from the later search pursuant to the warrant. The deputies’ initial warrantless entry did not violate the Fourth Amendment’s prohibition against unreasonable searches, and thus, the observations made during their protective sweep did not taint the application for the search warrant.

[Actually posted 7/30]

Where officer could not articulate a facial legal basis for the stop, it was unreasonable as a matter of law. In addition, the trial court made a finding of fact [likely to help the officer] that was never in the testimony at the hearing. State v. Haas, 2012 Ohio 2362, 971 N.E.2d 436 (3d Dist. 2012):

[*P27] In light of the relevant case law from this and other districts, we hold that when a defendant’s conduct does not facially violate the traffic statute which provides the sole basis for the officer’s alleged reasonable articulable suspicion, the stop is unconstitutional.

. . .

[*P33] The State argues that it would be unreasonable to expect our law enforcement officers to know the details of every traffic offense and to make an accurate determination of the statute’s applicability. Such requirements, the State explains, would hamper law enforcement to the extent it would cause “paralysis by analysis.” We aver that knowledge of the traffic laws is the very essence of a patrol officer’s job. To require any less than an accurate, working knowledge of the traffic offenses and to fail to ensure that the one being seized at least reasonably appeared to have violated a statute on its face gravely deprives citizens of their constitutional right to be free from warrantless searches and seizures.

[*P34] This is the unfortunate scenario in the present case. Officer Wymer unconstitutionally seized Haas under the suspicion that Haas violated a law. However, the officer’s own testimony revealed that he did not know the requirements of this very law. Haas was not and could not have been engaged in the specific criminal activity testified to by Officer Wymer. Yet he was seized and arrested due to the officer’s lack of knowledge of the very law he was enforcing.

In what is a footnote to the GPS case, Jones’s claim previously barred by Heck can conceivably be resurrected by F.R.C.P. 60(b)(5), not by mandamus, but qualified immunity may be a problem [it will]. In re Jones, 399 U.S. App. D.C. 300, 670 F.3d 265 (2012)*:

Two years after the district court dismissed Jones’ civil case¸ this Court reversed Jones’ conviction. See United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The Supreme Court recently affirmed that ruling. See United States v. Jones, 132 S. Ct. 945 (2012). Because Jones can now show that the dismissal of his civil suit was “based on an earlier judgment that has been reversed or vacated,” he might consider filing a motion in district court under Fed. R. Civ. P. 60(b)(5). See Robinson v. Connell, No. 9:05-CV-1428 (GLS/ATB), 2010 WL 6268444, at *2 (N.D.N.Y. Sept. 8, 2010) (magistrate report and recommendation) (Second Circuit remanded civil claim, which had been dismissed under Heck, to district court to consider motion under Rule 60(b)(5) after criminal sentence was allegedly vacated), on remand from No. 08-1992-pr (2d Cir. Aug. 25, 2009). In the alternative, Jones might consider re-filing his complaint. Although Jones expresses concern that re-filing might raise “statute of limitations issues,” Pet. Br. 13–14 n.3, the Supreme Court has implied that, even if Jones’ claims had accrued before the district court dismissed them under Heck, the statutes of limitations should be tolled as long as the bar of Heck prevented Jones’ suit from going forward. See Wallace v. Kato, 549 U.S. 384, 395 n.4 (2007) (“Had petitioner filed suit upon his arrest and had his suit then been dismissed under Heck, the statute of limitations, absent tolling, would have run by the time he obtained reversal of his conviction. If under those circumstances he were not allowed to refile his suit, Heck would produce immunity from § 1983 liability, a result surely not intended.”).

Plaintiff’s claims for the wrongful towing of his car after his arrest were shown to be Heck barred. Dismissals for Heck bars are without prejudice. Rowell v. Ewing Bros. Towing Co., 471 Fed. Appx. 597 (9th Cir. 2012).*

Following state precedent, the search incident of a cell phone without any reason to believe it contains evidence of a crime is sustained. The issue is certified to the Florida Supreme Court. State v. Glasco, 90 So. 3d 905 (Fla. 5th DCA 2012):

Pursuant to Fawdry [v. State, 70 So. 3d 626 (Fla. 1st DCA 2011)] and Smallwood [v. State, 61 So. 3d 448 (Fla. 1st DCA), review granted, 68 So. 3d 235 (Fla. 2011)], we reverse the order granting the motion to suppress and remand this case to the trial court for further proceedings. We certify to the Florida Supreme Court a question of great public importance similar to the questions certified in Fawdry and Smallwood:

DOES THE HOLDING IN UNITED STATES v. ROBINSON, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH INFORMATION CONTAINED WITHIN A CELL PHONE THAT IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST?

Officers smell burning marijuana and got consent to enter an apartment. An occupant demanded a warrant, so the police took them all in while they got one. As to this defendant, his seizure was unreasonable, but it had nothing to do with the validity of the warrant; the seizure was for only a few hours, and the court would not suppress. State v. Tillman, 2012 SD 57, 817 N.W.2d 812 (2012).

Defense counsel was found not ineffective, and the record supports that finding. Defense counsel made a strategic choice not to call defendant at the suppression hearing [not telling us why or the effect]. After the suppression hearing, defendant pled guilty. [It doesn’t tell us that the guilty plea cured the problem or not.] Defense counsel was accused of not preparing for the suppression hearing, too, but the record shows extensive questioning. Defense counsel had no notes from the examination and testified that he often prepares in his head so he can go with it as it develops. Guerrero v. State, 47 A.3d 289 (R.I. 2012).*

The officer had reasonable suspicion for a “patfrisk” during a traffic stop, and defendant was “agitated” when it was happening. Defendant was put in the patrol car, and a frisk of the car for a weapon was justified by defendant’s demeanor because the officer didn’t want the defendant to later come out of the car and get a hidden weapon. Commonwealth v. Myers, 82 Mass. App. Ct. 172, 971 N.E.2d 815 (2012).

Trial court found consent, but defendant did not raise the scope of consent in the trial court. He asked for remand to settle that, but it was waived by not having raised it in the first place. State v. Bell, 2012 N.C. App. LEXIS 868 (July 17, 2012).*

Defendant’s failure to renew his motion to suppress after trial testimony became pertinent precludes use of the trial testimony to attack the suppression finding. United States v. Howard, 687 F.3d 13 (1st Cir. 2012):

Whether Howard’s theorem on the chronology of VanZandt’s actions is or is not accurate, we need not say. VanZandt did not testify at the suppression hearing; he only testified at trial. Similarly, the photograph of the cigarette was only introduced at trial. Although Howard acknowledges this point, he nonetheless urges us to consider the testimony and photograph in our review of the district court’s denial of his motion to suppress and, in particular, the court’s factual finding on the search’s timing. While it is true that we may consider evidence adduced at trial when reviewing the denial of a motion to suppress, we may do so only if the defendant renewed his suppression motion at trial. See United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009); United States v. de Jesus-Rios, 990 F.2d 672, 675 n.2 (1st Cir. 1993). Howard did not renew his motion at trial and so our review does not include VanZandt’s testimony or the photograph. Our examination of the propriety of the suppression ruling is limited to the evidence presented at the suppression hearing. See Scott, 566 F.3d at 245. At the suppression hearing, documentary evidence, in the form of the grand jury transcript, Knowles’ statement to police, her consent waiver, and photographs of the house, was introduced. Additionally, Knowles and six Springfield police officers testified. The officers were those involved in arresting Howard, obtaining Knowles’ consent, searching the house, booking Howard, taking Knowles’ statement, or some combination of these things. This evidence, taken as a whole, supports the court’s finding that consent preceded the search.

OFAC violated due process and the Fourth Amendment in its seizure of an Islamic foundation’s assets under an Executive Order without a warrant claiming the special needs exception, held not to apply. Al Haramain Islamic Found. v. United States Dep’t of the Treasury, 686 F.3d 965 (9th Cir. 2012):

AHIF-Oregon argues that OFAC’s failure to obtain a warrant supported by probable cause violated its Fourth Amendment right to be free of unreasonable seizures. “In the ordinary case, the [Supreme] Court has viewed a seizure of personal property as per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” United States v. Place, 462 U.S. 696, 701 (1983). In most circumstances, searches and seizures conducted without a warrant are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Here, OFAC argues that its seizure falls within one of those well-delineated exceptions to the warrant requirement: the “special needs” exception.

. . .

In any event, OFAC has not given us any reason why it could not have obtained a warrant here. We hold that the “special needs” exception does not apply to the seizure of AHIF-Oregon’s assets by OFAC under EO 13,224. See Kind-Hearts II, 647 F. Supp. 2d at 879-82 (holding that the “special needs” exception did not apply to very similar facts).

. . .

Most of our reasoning above, concerning the special needs exception, applies equally here. The cases in which the Court has found warrantless searches to be reasonable all involve very special circumstances and greatly diminished privacy interests—a point repeatedly emphasized by the Court. For instance, in Flores-Montano, 541 U.S. at 154, the Court held that a person’s privacy interest in the interior of an automobile’s gas tank is not sufficient to overcome the government’s interest in preventing drug smuggling at the border. Similarly, in Samson and Knights, the Court explained at length that probationers and parolees, who are subject to a clearly disclosed search condition of parole or probation, have greatly diminished expectations of privacy such that warrantless searches survived Fourth Amendment scrutiny. Samson, 547 U.S. at 850-52; Knights, 534 U.S. at 119-21. Here, however, as we have explained, the reach of OFAC’s authority extends to all persons and entities, without limitation. Nothing diminishes the privacy expectation of persons and entities potentially subject to seizure by OFAC because that class includes everyone.

We reiterate that OFAC’s interest in preventing terrorism is extremely high. But we cannot accept OFAC’s contention that its blocking orders are per se reasonable in all circumstances, solely by virtue of that vital mission. As we noted above, an exception to the warrant requirement would permit OFAC to seize assets without obtaining a warrant in some situations. But, because there is no diminished expectation of privacy and because nothing prevents OFAC from obtaining a warrant in the normal course, we reject OFAC’s argument that its blocking orders are per se reasonable under the “general reasonableness” approach.

In summary, no exception applies to OFAC’s warrantless seizure of AHIF-Oregon’s assets and the seizure is not justified under a “general reasonableness” test. We therefore hold that OFAC violated AHIF-Oregon’s Fourth Amendment right to be free of unreasonable seizures. Because the district court did not reach the issue of remedy and because the parties did not brief that issue before us, we remand to the district court to determine, in the first instance, what remedy, if any, is available.

Officers came to defendant’s house for a knock-and-talk about child pornography traced back to his IP address. He wasn’t home but his parents were. Because the computers were used by all, sitting in the dining room, and his parents paid the internet bill, his parents had apparent authority to consent to a search of the computers. The fact he had an individual profile was not enough to create a reasonable expectation of privacy because it was not password protected. United States v. Trejo, 471 Fed. Appx. 442 (6th Cir. 2012).

Officers found a marijuana patch outside defendant’s curtilage and followed footprints in the mud to defendant’s house. Officers came close to the curtilage, in making their observations, and they actually entered an outbuilding within the curtilage arguing protective sweep because of fresh footprints. That incursion, however, never was revealed to the issuing magistrate, so it was valid under inevitable discovery. United States v. Witherspoon, 467 Fed. Appx. 486 (6th Cir. 2012).*

A Los Angeles ordinance requiring motel operators to open their registration records to the police does not violate the Fourth Amendment. Patel v. City of Los Angeles, 686 F.3d 1085 (9th Cir. 2012) (2-1):

Plaintiffs Naranjibhai Patel and Ramilaben Patel are owners and operators of motels in Los Angeles. They challenge the constitutionality of Los Angeles Municipal Code (LAMC) § 41.49, which requires operators of hotels in the City to maintain certain guest registry information and to make that information available to police officers on request. Appellants contend that LAMC § 41.49 is facially unconstitutional under the Fourth Amendment because it authorizes unreasonable invasions of their private business records without a warrant or pursuant to any recognized warrant exception. Following a bench trial on stipulated evidence, the district court held that the ordinance was reasonable and granted judgment in favor of the City, concluding that the hotel operators did not establish that they had a privacy interest in the guest registry information.

A facial challenge is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987); see Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008) (“i.e., that the law is unconstitutional in all of its applications”). That the ordinance might operate unconstitutionally under some circumstances is not enough to render it invalid against a facial challenge. The Patels have not satisfied that high standard. As a result, this facial challenge to the ordinance fails. We affirm.

See Orin Kerr on Volokh Conspiracy: Fourth Amendment Facial Challenges and Access to Hotel Guest Lists.