Los Angeles v. Patel,
576 U.S. ___ (2015)

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  • Syllabus  | 
  • Opinion (Sonia Sotomayor)  | 
  • Dissent (Antonin Scalia)  | 
  • Dissent (Samuel A. Alito, Jr.)

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 13–1175

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CITY OF LOS ANGELES, CALIFORNIA, PETITIONER v. NARANJIBHAI PATEL, et al.

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 22, 2015]

Justice Sotomayor delivered the opinion of the Court.

Respondents brought a Fourth Amendment challenge to a provision of the Los Angeles Municipal Code that compels “[e]very operator of a hotel to keep a record” containing specified information concerning guests and to make this record “available to any officer of the Los Angeles Police Department for inspection” on demand. Los Angeles Municipal Code §§41.49(2), (3)(a), (4) (2015). The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review.

I

A

Los Angeles Municipal Code (LAMC) §41.49 requires hotel operators to record information about their guests, including: the guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel property; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. §41.49(2). Guests without reservations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must present photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. §41.49(4). For those guests who check in using an electronic kiosk, the hotel’s records must also contain the guest’s credit card information. §41.49(2)(b). This information can be maintained in either electronic or paper form, but it must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days. §41.49(3)(a).

Section 41.49(3)(a)—the only provision at issue here—states, in pertinent part, that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” A hotel operator’s failure to make his or her guest records available for police inspection is a misdemeanor punishable by up to six months in jail and a $1,000 fine. §11.00(m) (general provision applicable to entire LAMC).

B

In 2003, respondents, a group of motel operators along with a lodging association, sued the city of Los Angeles (City or petitioner) in three consolidated cases challenging the constitutionality of §41.49(3)(a). They sought declaratory and injunctive relief. The parties “agree[d] that the sole issue in the . . . action [would be] a facial constitu-tional challenge” to §41.49(3)(a) under the Fourth Amend-ment. App. 195. They further stipulated that respondents have been subjected to mandatory record inspections under the ordinance without consent or a warrant. Id., at 194–195.

Following a bench trial, the District Court entered judgment in favor of the City, holding that respondents’ facial challenge failed because they lacked a reasonable expectation of privacy in the records subject to inspection. A divided panel of the Ninth Circuit affirmed on the same grounds. 686 F. 3d 1085 (2012). On rehearing en banc, however, the Court of Appeals reversed. 738 F. 3d 1058, 1065 (2013).

The en banc court first determined that a police officer’s nonconsensual inspection of hotel records under §41.49 is a Fourth Amendment “search” because “[t]he business records covered by §41.49 are the hotel’s private property” and the hotel therefore “has the right to exclude others from prying into the[ir] contents.” Id., at 1061. Next, the court assessed “whether the searches authorized by §41.49 are reasonable.” Id., at 1063. Relying on Donovan v. Lone Steer, Inc., 464 U. S. 408 (1984) , and See v. Seattle, 387 U. S. 541 (1967) , the court held that §41.49 is facially unconstitutional “as it authorizes inspections” of hotel records “without affording an opportunity to ‘obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.’ ” 738 F. 3d, at 1065 (quoting See, 387 U. S., at 545).

Two dissenting opinions were filed. The first dissent argued that facial relief should rarely be available for Fourth Amendment challenges, and was inappropriate here because the ordinance would be constitutional in those circumstances where police officers demand access to hotel records with a warrant in hand or exigent circumstances justify the search. 738 F. 3d, at 1065–1070 (opinion of Tallman, J.). The second dissent conceded that inspections under §41.49 constitute Fourth Amendment searches, but faulted the majority for assessing the reasonableness of these searches without accounting for the weakness of the hotel operators’ privacy interest in the content of their guest registries. Id., at 1070–1074 (opinion of Clifton, J.).

We granted certiorari, 574 U. S. ___ (2014), and now affirm.

II

We first clarify that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored.

A

A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are “the most difficult . . . to mount successfully,” United States v. Salerno, 481 U. S. 739, 745 (1987) , the Court has have never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution. Cf. Fallon, Fact and Fiction About Facial Chal-lenges, 99 Cal. L. Rev. 915, 918 (2011) (pointing to several Terms in which “the Court adjudicated more facial challenges on the merits than it did as-applied challenges”). Instead, the Court has allowed such challenges to proceed under a diverse array of constitutional provisions. See, e.g., Sorrell v. IMS Health Inc., 564 U. S. ___ (2011) ( First Amendment); District of Columbia v. Heller, 554 U. S. 570 (2008) ( Second Amendment); Chicago v. Morales, 527 U. S. 41 (1999) (Due Process Clause of the Fourteenth Amendment); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U. S. 71 (1992) (Foreign Commerce Clause).

Fourth Amendment challenges to statutes authorizing warrantless searches are no exception. Any claim to the contrary reflects a misunderstanding of our decision in Sibron v. New York, 392 U. S. 40 (1968) . In Sibron, two criminal defendants challenged the constitutionality of a statute authorizing police to, among other things, “ ‘stop any person abroad in a public place whom [they] reason-ably suspec[t] is committing, has committed or is about to commit a felony.” Id., at 43 (quoting then N. Y. Code Crim. Proc. §180–a). The Court held that the search of one of the defendants under the statute violated the Fourth Amendment, 392 U. S., at 59, 62, but refused to opine more broadly on the statute’s validity, stating that “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.” Id., at 59.

This statement from Sibron—which on its face might suggest an intent to foreclose all facial challenges to statutes authorizing warrantless searches—must be understood in the broader context of that case. In the same section of the opinion, the Court emphasized that the “operative categories” of the New York law at issue were “susceptible of a wide variety of interpretations,” id., at 60, and that “[the law] was passed too recently for the State’s highest court to have ruled upon many of the questions involving potential intersections with federal constitutional guarantees,” id., at 60, n. 20. Sibron thus stands for the simple proposition that claims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute authorizes: Where a statute consists of “extraordinarily elastic categories,” it may be “impossible to tell” whether and to what extent it deviates from the requirements of the Fourth Amendment. Id., at 59, 61, n.  20.

This reading of Sibron is confirmed by subsequent precedents. Since Sibron, the Court has entertained facial challenges under the Fourth Amendment to statutes authorizing warrantless searches. See, e.g., Vernonia School District 47J v. Acton, 515 U. S. 646, 648 (1995) (“We granted certiorari to decide whether” petitioner’s student athlete drug testing policy “violates the Fourth and Fourteenth Amendments to the United States Constitution”); Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 633, n. 10 (1989) ([R]espondents have challenged the administrative scheme on its face. We deal therefore with whether the [drug] tests contemplated by the regulation can ever be conducted”); cf. Illinois v. Krull, 480 U. S. 340, 354 (1987) (“[A] person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its implementation”). Perhaps more importantly, the Court has on numerous occasions declared statutes facially invalid under the Fourth Amendment. For instance, in Chandler v. Miller, 520 U. S. 305 –309 (1997), the Court struck down a Georgia statute requiring candidates for certain state offices to take and pass a drug test, concluding that this “requirement . . . [did] not fit within the closely guarded category of constitutionally permissible suspicionless searches.” Similar examples abound. See, e.g., Ferguson v. Charleston, 532 U. S. 67, 86 (2001) (holding that a hospital policy authorizing “nonconsensual, warrantless, and suspicionless searches” contravened the Fourth Amendment); Payton v. New York, 445 U. S. 573, 574, 576 (1980) (holding that a New York statute “authoriz[ing] police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest” was “not consistent with the Fourth Amendment”); Torres v. Puerto Rico, 442 U. S. 465, 466, 471 (1979) (holding that a Puerto Rico statute authorizing “police to search the luggage of any person arriving in Puerto Rico from the United States” was unconstitutional because it failed to require either probable cause or a warrant).

B

Petitioner principally contends that facial challenges to statutes authorizing warrantless searches must fail because such searches will never be unconstitutional in all applications. Cf. Salerno, 481 U. S., at 745 (to obtain facial relief the party seeking it “must establish that no set of circumstances exists under which the [statute] would be valid”). In particular, the City points to situations where police are responding to an emergency, where the subject of the search consents to the intrusion, and where police are acting under a court-ordered warrant. See Brief for Petitioner 19–20. While petitioner frames this argument as an objection to respondents’ challenge in this case, its logic would preclude facial relief in every Fourth Amendment challenge to a statute authorizing warrantless searches. For this reason alone, the City’s argument must fail: The Court’s precedents demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed. See Part II–A, supra.

Moreover, the City’s argument misunderstands how courts analyze facial challenges. Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a “law is unconstitutional in all of its applications.” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 (2008) . But when assessing whether a statute meets this standard, the Court has considered only applications of the statute in which it actually authorizes or prohibits conduct. For instance, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , the Court struck down a provision of Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women voluntarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The “[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id., at 894.

Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.[1]

III

Turning to the merits of the particular claim before us, we hold that §41.49(3)(a) is facially unconstitutional because it fails to provide hotel operators with an opportu-nity for precompliance review.

A

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further provides that “no Warrants shall issue, but upon probable cause.” Based on this constitutional text, the Court has repeatedly held that “ ‘searches conducted outside the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” Arizona v. Gant, 556 U. S. 332, 338 (2009) (quoting Katz v. United States, 389 U. S. 347, 357 (1967) ). This rule “applies to commercial premises as well as to homes.” Marshall v. Barlow’s, Inc., 436 U. S. 307, 312 (1978) .

Search regimes where no warrant is ever required may be reasonable where “ ‘special needs . . . make the warrant and probable-cause requirement impracticable,’ ” Skinner, 489 U. S., at 619 (quoting Griffin v. Wisconsin, 483 U. S. 868, 873 (1987) (some internal quotation marks omitted)), and where the “primary purpose” of the searches is “[d]istinguishable from the general interest in crime control,” Indianapolis v. Edmond, 531 U. S. 32, 44 (2000) . Here, we assume that the searches authorized by §41.49 serve a “special need” other than conducting criminal investigations: They ensure compliance with the recordkeeping requirement, which in turn deters criminals from operating on the hotels’ premises.[2] The Court has referred to this kind of search as an “administrative searc[h].” Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967) . Thus, we consider whether §41.49 falls within the administrative search exception to the warrant requirement.

The Court has held that absent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See, 387 U. S., at 545; Lone Steer, 464 U. S., at 415 (noting that an administrative search may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the opportunity to “question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court”). And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that §41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid.

A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril.

To be clear, we hold only that a hotel owner must be afforded an opportunity to have a neutral decisionmaker review an officer’s demand to search the registry before he or she faces penalties for failing to comply. Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry. Moreover, this opportunity can be provided without imposing onerous burdens on those charged with an administrative scheme’s enforcement. For instance, respondents accept that the searches authorized by §41.49(3)(a) would be constitutional if they were performed pursuant to an administrative subpoena. Tr. of Oral Arg. 36–37. These subpoenas, which are typically a simple form, can be issued by the individual seeking the record—here, officers in the field—without probable cause that a regulation is being infringed. See See, 387 U. S., at 544 (“[T]he demand to inspect may be issued by the agency”). Issuing a subpoena will usually be the full extent of an officer’s burden because “the great majority of businessmen can be expected in normal course to consent to inspection without warrant.” Barlow’s, Inc., 436 U. S., at 316. Indeed, the City has cited no evidence suggesting that without an ordinance authorizing on-demand searches, hotel operators would regularly refuse to cooperate with the police.

In those instances, however, where a subpoenaed hotel operator believes that an attempted search is motivated by illicit purposes, respondents suggest it would be sufficient if he or she could move to quash the subpoena before any search takes place. Tr. of Oral Arg. 38–39. A neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party’s objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare. And, in the even rarer event that an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the registry until the required hearing can occur, which ought not take long. Riley v. California, 573 U. S. ___ (2014) (slip op., at 12) (police may seize and hold a cell phone “to prevent destruction of evidence while seeking a warrant”); Illinois v. McArthur, 531 U. S. 326, 334 (2001) (citing cases upholding the constitutionality of “temporary restraints where [they are] needed to preserve evidence until police could obtain a warrant”). Cf. Missouri v. McNeely, 569 U. S. ___ (2013) (slip op., at 12) (noting that many States have procedures in place for considering warrant applications telephonically).[3]

Procedures along these lines are ubiquitous. A 2002 report by the Department of Justice “identifiedapproximately 335 existing administrative subpoena authorities held by various [federal] executive branch entities.” Office of Legal Policy, Report to Congresson the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities 3, onlineat http://www.justice.gov/archive/olp/rpt_to_congress.htm(All Internet materials as visited June 19, 2015, andavailable in Clerk of Court’s case file). Their prevalenceconfirms what common sense alone would otherwise lead us to conclude: In most contexts, business owners can be afforded at least an opportunity to contest an administrative search’s propriety without unduly compromising the government’s ability to achieve its regulatory aims.

Of course administrative subpoenas are only one way in which an opportunity for precompliance review can be made available. But whatever the precise form, the availability of precompliance review alters the dynamic between the officer and the hotel to be searched, and reduces the risk that officers will use these administrative searches as a pretext to harass business owners.

Finally, we underscore the narrow nature of our holding. Respondents have not challenged and nothing in our opinion calls into question those parts of §41.49 that require hotel operators to maintain guest registries containing certain information. And, even absent legislative action to create a procedure along the lines discussed above, see supra, at 11, police will not be prevented from obtaining access to these documents. As they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them overif they have a proper administrative warrant—including one that was issued ex parte—or if some other exceptionto the warrant requirement applies, including exigent circumstances.[4]

B

Rather than arguing that §41.49(3)(a) is constitutional under the general administrative search doctrine, the City and Justice Scalia contend that hotels are “closely regulated,” and that the ordinance is facially valid under the more relaxed standard that applies to searches of this category of businesses. Brief for Petitioner 28–47; post, at 5. They are wrong on both counts.

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,” Barlow’s, Inc., 436 U. S., 313. Simply listing these industries refutes petitioner’s argument that hotels should be counted among them. Unlike liquor sales, Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) , firearms dealing, United States v. Biswell, 406 U. S. 311 –312 (1972), mining, Donovan v. Dewey, 452 U. S. 594 (1981) , or running an automobile junkyard, New York v. Burger, 482 U. S. 691 (1987) , nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare. See, e.g., id., at 709 (“Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts”); Dewey, 452 U. S., at 602 (describing the mining industry as “among the most hazardous in the country”).[5]

Moreover, “[t]he clear import of our cases is that the closely regulated industry . . . is the exception.” Barlow’s, Inc., 436 U. S., at 313. To classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule. The City wisely refrains from arguing that §41.49 itself renders hotels closely regulated. Nor do any of the other regulations on which petitioner and Justice Scalia rely—regulations requiring hotels to, inter alia, maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards—establish a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses. See Brief for Petitioner 33–34 (citing regulations); post, at 7 (same). All businesses in Los Angeles need a license to operate. LAMC §§21.03(a), 21.09(a). While some regulations apply to a smaller set of businesses, see e.g. Cal. Code Regs., tit. 25, §40 (2015) (requiring linensto be changed between rental guests), online at http://www.oal.ca.gov/ccr.htm, these can hardly be said to have created a “ ‘comprehensive’ ” scheme that puts hotel owners on notice that their “ ‘property will be subject to periodic inspections undertaken for specific purposes,’ ” Burger, 482 U. S., at 705, n. 16 (quoting Dewey, 452 U. S., at 600). Instead, they are more akin to the widely applicable minimum wage and maximum hour rules that the Court rejected as a basis for deeming “the entirety of American interstate commerce” to be closely regulated in Barlow’s, Inc. 436 U. S., at 314. If such general regulations were sufficient to invoke the closely regulated industry exception, it would be hard to imagine a type of business that would not qualify. See Brief for Google Inc. as Amicus Curiae 16–17; Brief for the Chamber of Commerce of United States of America as Amicus Curiae 12–13.

Petitioner attempts to recast this hodgepodge of reg-ulations as a comprehensive scheme by referring to a “centuries-old tradition” of warrantless searches of hotels. Brief for Petitioner 34–36. History is relevant when deter-mining whether an industry is closely regulated. See,e.g., Burger, 482 U. S., at 707. The historical record here, however, is not as clear as petitioner suggests. The City and Justice Scalia principally point to evidence that hotels were treated as public accommodations. Brief for Petitioner 34–36; post, at 5–6, and n. 1. For instance, the Commonwealth of Massachusetts required innkeepers to “ ‘furnish[ ] . . . suitable provisions and lodging, for the refreshment and entertainment of strangers and travellers, pasturing and stable room, hay and provender . . . for their horses and cattle.’ ” Brief for Petitioner 35 (quoting An Act For The Due Regulation Of Licensed Houses (1786), reprinted in Acts and Laws of the Commonwealth of Massachusetts 209 (1893)). But laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches. Petitioner also asserts that “[f]or a long time, [hotel] owners left their registers open to widespread inspection.” Brief for Petitioner 51. Setting aside that modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog, the fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel’s consent.

Even if we were to find that hotels are pervasively regulated, §41.49 would need to satisfy three additional criteria to be reasonable under the Fourth Amendment: (1) “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary’ to further [the] regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.” Burger, 482 U. S., at 702–703 (internal quotation marks omitted). We assume petitioner’s interest in ensuring that hotels maintain accurate and complete registries might fulfill the first of these requirements, but conclude that §41.49 fails the second and third prongs of this test.

The City claims that affording hotel operators any opportunity for precompliance review would fatally undermine the scheme’s efficacy by giving operators a chance to falsify their records. Brief for Petitioner 41–42. The Court has previously rejected this exact argument, which could be made regarding any recordkeeping requirement. See Barlow’s, Inc., 436 U. S., at 320 (“[It is not] apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the [Labor] Secretary to seek an ex parte warrant to reappear at the premises without further notice to the establishment being inspected”); cf. Lone Steer, 464 U. S., at 411, 415 (affirming use of administrative subpoena which provided an opportunity for precompliance review as a means for obtaining “payroll and sales records”). We see no reason to accept it here.

As explained above, nothing in our decision today precludes an officer from conducting a surprise inspection by obtaining an ex parte warrant or, where an officer reasonably suspects the registry would be altered, from guarding the registry pending a hearing on a motion to quash. See Barlow’s, Inc., 436 U. S., at 319–321; Riley, 573 U. S., at ___ (slip op., at 12). Justice Scalia’s claim that these procedures will prove unworkable given the large number of hotels in Los Angeles is a red herring. See post, at 11. While there are approximately 2,000 hotels in Los Angeles, ibid., there is no basis to believe that resort to such measures will be needed to conduct spot checks in the vast majority of them. See supra, at 11.

Section 41.49 is also constitutionally deficient under the “certainty and regularity” prong of the closely regulated industries test because it fails sufficiently to constrain police officers’ discretion as to which hotels to search and under what circumstances. While the Court has upheld inspection schemes of closely regulated industries that called for searches at least four times a year, Dewey, 452 U. S., at 604, or on a “regular basis,” Burger, 482 U. S., at 711, §41.49 imposes no comparable standard.

*  *  *

For the foregoing reasons, we agree with the Ninth Circuit that §41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection. Accordingly, the judgment of the Ninth Circuit is affirmed.

It is so ordered.

Notes

1  Relatedly, the United States claims that a statute authorizing warrantless searches may still have independent force if it imposes a penalty for failing to cooperate in a search conducted under a warrant or in an exigency. See Brief for United States as Amicus Curiae 19. This argument gets things backwards. An otherwise facially unconstitutional statute cannot be saved from invalidation based solely on the existence of a penalty provision that applies when searches are not actually authorized by the statute. This argument is especially unconvincing where, as here, an independent obstruction of justice statute imposes a penalty for “willfully, resist[ing], delay[ing], or obstruct[ing] any public officer . . . in the discharge or attempt to discharge any duty of his or her office of employment.” Cal. Penal Code Ann. §148(a)(1) (West 2014).
2  Respondents contend that §41.49’s principal purpose instead is to facilitate criminal investigation. Brief for Respondents 44–47. Because we find that the searches authorized by §41.49 are unconstitutional even if they serve the City’s asserted purpose, we decline to address this argument.
3  Justice Scalia professes to be baffled at the idea that we could suggest that in certain circumstances, police officers may seize something that they cannot immediately search. Post, at 10–11 (dissenting opinion). But that is what this Court’s cases have explicitly endorsed, including Riley just last Term.
4  In suggesting that our holding today will somehow impede law enforcement from achieving its important aims, Justice Scalia relies on instances where hotels were used as “prisons for migrants smuggled across the border and held for ransom” or as “rendezvous sites where child sex workers meet their clients on threat of violence from their procurers.” See post, at 2. It is hard to imagine circumstances more exigent than these.
5  Justice Scalia’s effort to depict hotels as raising a comparable degree of risk rings hollow. See post, at 1, 14. Hotels—like practically all commercial premises or services—can be put to use for nefarious ends. But unlike the industries that the Court has found to be closely regulated, hotels are not intrinsically dangerous.
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