Warrant Exception: Administrative Searches

Our next warrant exception concerns “administrative searches,” which involve government functions largely (if not entirely) unknown when the Fourth Amendment was ratified. For example, fire code and housing code inspections are important to the safety of densely populated cities. On the other hand, some might question whether inspectors should be allowed to search their homes without a warrant, perhaps even without probable cause.

Notes, Comments, and Questions 

Consider a city zoning law that restricts who may live in a certain residence on the basis of family status. For example, the city code might state that no more than three unrelated persons may live in a house zoned for “single-family” occupancy.54 In such a house, an adult could live with her four children, but four unrelated roommates could not share the house (even though the four roomates would constitute one fewer total person than the alternative group of occupants). In a neighborhood near a university campus, students might occasionally rent houses (with two or three names on a lease) and use them in a way that violates the code (for example, six students living together). If a neighborhood busybody—concerned with a perceived threat to property values or simply interested in policing how neighbors behave—calls city officials with vague reports of overoccupancy, may a judge issue a warrant allowing city officials to inspect every house in the neighborhood to see who lives there and whether they are related to one another? May such warrants issue every year—allowing searches of houses in “single-family” neighborhoods near campus—even if no one complains?

In See v. City of Seattle, 387 U.S. 541 (1967), decided the same day as Camara, the Court held that the rule of Camara applied to commercial warehouses. “As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.”

Two decades later, however, the Court was less protective of a business owner’s right to avoid warrantless administrative searches. In New York v. Burger, 482 U.S. 691 (1987), the Court considered a different kind of business premises—a junkyard. After stating (somewhat implausibly) that the junkyard was a “closely regulated industry,” the Court held that proprietors of such businesses have lowered expectations of privacy. That finding, combined with the state interest in supervising such industries (in this case, to combat car theft by preventing stolen parts from being bought and sold at junkyards), made the warrantless search reasonable. Students should note that the Burger Court went even further than the Court’s decision in Camara. In Camara, the Court required inspectors to obtain a warrant, which if suspiciously similar to the detested “general warrants” of old was at least issued by a judge. In Burger, the Court held that New York’s statute allowing for the inspection of junkyards was a “constitutionally adequate substitute for a warrant.”

In a dissent joined in full by Justice Marshall and in part by Justice O’Connor, Justice Brennan argued that “Burger’s vehicle-dismantling business is not closely regulated (unless most New York City businesses are).” Objecting to the Court’s acceptance of the New York statute in lieu of a warrant, he argued that “the Court also perceives careful guidance and control of police discretion in a statute that is patently insufficient to eliminate the need for a warrant.” Accordingly, he concluded that the decision “renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.”

The Court revisited administrative searches in City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015), deciding by a 5-4 vote that certain regulations of Los Angeles hotels violated the Fourth Amendment. In particular, the city required “hotel operators to record and keep specific information about their guests on the premises for a 90-day period” and to make the records “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.” Refusal to make the records available was a crime. Hotel operators brought a facial challenge to the regulation and prevailed.

The majority noted that it did not strike down the provisions of the regulation requiring that the records be kept, nor did it prevent officers from viewing the records by consent or by obtaining a proper administrative warrant (or with some other exception to the warrant requirement). Instead, the Court struck down only the provision forcing hotel owners to show the records on demand to any officer without a warrant, on pain of criminal prosecution—without even the opportunity for a precompliance judicial review. The Court rejected the city’s argument that the regulation was valid under prior precedents related to “closely regulated industries.” Perhaps retreating a bit from the broad definition of such industries in Burger, the Patel Court stated, “Over the past 45 years, the Court has identified only four industries that ‘have such a history of government oversight that no reasonable expectation of privacy … could exist for a proprietor over the stock of such an enterprise.’” Those industries are “liquor sales,” “firearms dealing,” “mining,” and—of course—“running an automobile junkyard.”

In a dissent joined by Chief Justice Roberts and Justice Thomas, Justice Scalia wrote: “[T]he Court today concludes that Los Angeles’s ordinance is ‘unreasonable’ inasmuch as it permits police to flip through a guest register to ensure it is being filled out without first providing an opportunity for the motel operator to seek judicial review. Because I believe that such a limited inspection of a guest register is eminently reasonable under the circumstances presented, I dissent.” He noted “that the motel operators who conspire with drug dealers and procurers may demand precompliance judicial review simply as a pretext to buy time for making fraudulent entries in their guest registers.”

Justice Alito dissented as well, joined by Justice Thomas. Objecting in particular to the Court’s finding that the regulation was facially invalid—as opposed to invalid in limited cases—he presented five examples of circumstances in which he believed it would be reasonable for the city to enforce the law as written. Here is one:

“Example Two. A murderer has kidnapped a woman with the intent to rape and kill her and there is reason to believe he is holed up in a certain motel. The Fourth Amendment’s reasonableness standard accounts for exigent circumstances. When the police arrive, the motel operator folds her arms and says the register is locked in a safe. Invoking [the challenged regulation], the police order the operator to turn over the register. She refuses. The Fourth Amendment does not protect her from arrest.”

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DNA Tests of Arrestees

We conclude with a case challenging a Maryland policy under which police collected DNA from arrestees as part of “routine booking procedure.”