Petitioner, the city of Los Angeles (City), requires hotel operators to record and keep specific information about their guests on the premises for a 90-day period. Los Angeles Municipal Code §41.49. These records “shall be made available to any officer of the Los Angeles Police Department for inspection … at a time and in a manner that minimizes any interference with the operation of the business,” §41.49(3)(a), and a hotel operator’s failure to make the records available is a criminal misdemeanor, §11.00(m). Respondents, a group of motel operators and a lodging association, brought a facial challenge to §41.49(3)(a) on Fourth Amendment grounds. The District Court entered judgment for the City, finding that respondents lacked a reasonable expectation of privacy in their records. The Ninth Circuit subsequently reversed, determining that inspections under §41.49(3)(a) are Fourth Amendment searches and that such searches are unreasonable under the Fourth Amendment because hotel owners are subjected to punishment for failure to turn over their records without first being afforded the opportunity for precompliance review.
Held:
1. Facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. Pp. 4–8.
(a) Facial challenges to statutes—as opposed to challenges to particular applications of statutes—have been permitted to proceed under a diverse array of constitutional provisions. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. ___ (First Amendment); District of Columbia v. Heller, 554 U.S. 570 (Second Amendment). The Fourth Amendment is no exception. Sibron v. New York, 392 U.S. 40, distinguished. This Court has entertained facial challenges to statutes authorizing warrantless searches, declaring them, on several occasions, facially invalid, see, e.g., Chandler v. Miller, 520 U.S. 305, 308–309. Pp. 4–7.
(b) Petitioner contends that facial challenges to statutes authorizing warrantless searches must fail because they will never be unconstitutional in all applications, but this Court’s precedents demonstrate that such challenges can be brought, and can succeed. Under the proper facial-challenge analysis, only applications of a statute in which the statute actually authorizes or prohibits conduct are considered. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833. When addressing a facial challenge to a statute authorizing warrantless searches, the proper focus is on searches that the law actually authorizes and not those that could proceed irrespective of whether they are authorized by the statute, e.g., where exigent circumstances, a warrant, or consent to search exists. Pp. 7–8.
2. Section 41.49(3)(a) is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review. Pp. 9–17.
(a) “‘[S]earches conducted outside the judicial process … are per se unreasonable under the Fourth Amendment—subject only to a few … exceptions.’” Arizona v. Gant, 556 U.S. 332, 338. One exception is for administrative searches. See Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534. To be constitutional, the subject of an administrative search must, among other things, be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See v. Seattle, 387 U.S. 541, 545. Assuming the administrative search exception otherwise applies here, §41.49 is facially invalid because it fails to afford hotel operators any opportunity for precompliance review. To be clear, a hotel owner must only be afforded an opportunity for precompliance review; actual review need occur only when a hotel operator objects to turning over the records. This opportunity can be provided without imposing onerous burdens on law enforcement. For instance, officers in the field can issue administrative subpoenas without probable cause that a regulation is being infringed. This narrow holding does not call into question those parts of §41.49 requiring hotel operators to keep records nor does it prevent police from obtaining access to those records where a hotel operator consents to the search, where the officer has a proper administrative warrant, or where some other exception to the warrant requirement applies. Pp. 9–13.
(b) Petitioner’s argument that the ordinance is facially valid under the more relaxed standard for closely regulated industries is rejected. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 313. This Court has only recognized four such industries, and nothing inherent in the operation of hotels poses a comparable clear and significant risk to the public welfare. Additionally, because the majority of regulations applicable to hotels apply to many businesses, to classify hotels as closely regulated would permit what has always been a narrow exception to swallow the rule. But even if hotels were closely regulated, §41.49 would still contravene the Fourth Amendment as it fails to satisfy the additional criteria that must be met for searches of closely regulated industries to be reasonable. See New York v. Burger, 482 U.S. 691, 702–703. Pp. 13–17.
738 F. 3d 1058, affirmed.
SOTOMAYOR, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined.
