Sotomayor's 4th Amendment Time Bomb

A painfully slim 5 – 4 ruling this week by the Supreme Court in City of Los Angeles v. Patel is being greeted by many privacy advocates almost with the ebullience of Gene Kelly’s heel-clicking dance in Singin’ in the Rain.

The court struck down a Los Angeles ordinance that allowed police officers to inspect hotel guest registries for any or even no reason, and without a warrant. The ruling that the Fourth Amendment applies to businesses and that statutes may be declared unconstitutional on their face is consistent with principles as old as, and even older than, the Constitution.

Privacy advocates seem to be suffering from a bit of Stockholm Syndrome. Joyful about the court’s barely holding the line on two issues, most have yet to acknowledge how Justice Sonya Sotomayor’s majority opinion is also a blueprint for a major power grab for the administrative police state.

What’s lost in the celebration is that Justice Sotomayor’s majority opinion recommends the use of judge-less “administrative subpoenas” for these searches. That will shift costs and burdens of proof from government onto unwitting or intimidated small business owners under judicial standards that give nearly complete deference to the government, and with no need to show probable cause for searches. Her majority opinion even seems to suggest that police departments may be given power to approve their own searches using administrative subpoenas instead of going to judges to obtain warrants.

Sotomayor’s opinion starts out promisingly well. She refers to the Ninth Circuit Court of Appeals ruling below that “’[t]he business records covered by [the city ordinance] are the hotel’s private property’ and the hotel therefore ‘has the right to exclude others from prying into the[ir] contents.’” She then notes that “searches conducted outside the judicial process, without prior approval by [a] judge or magistrate . . . are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Those time-honored exceptions include consent of the property owner, or “exigent,” meaning “emergency,” circumstances.

Justice Sotomayor’s promising start then goes south with dicta promoting the use of “administrative subpoenas,” which are issued by bureaucrats, not judges, and absent probable cause required by the Fourth Amendment. Even if small business owners are not intimidated or know they can obtain hearings to suppress these search demands, that is, if they can afford going to court, the judicial standard of deference to these judge-less warrants makes it nearly impossible for citizens or businesses to block such searches.

What’s additionally disturbing is Justice Sotomayor’s suggestion about using judge-less administrative subpoenas in the context of police searches. This seems to suggest that at least five justices would consent to police departments issuing their own administrative subpoenas. Warrants are judicial acts, wrote Sir Matthew Hale in his 1736 book History of Pleas of the Crown, and not in the Founders’ wildest dreams would police be able to issue their own search warrants.

A 1946 (New Deal) opinion in Oklahoma Press Publishing Co. v. Walling upheld judge-less administrative subpoenas issued by federal bureaucrats. Justice Frank Murphy’s short but powerful and prescient dissent from his all-Democrat appointed colleagues is spot on:

I am unable to approve the use of nonjudicial subpoenas issued by administrative agents.

Administrative law has increased greatly in the past few years, and seems destined to be augmented even further in the future. But attending this growth should be a new and broader sense of responsibility on the part of administrative agencies and officials.

Excessive use or abuse of authority can not only destroy man's instinct for liberty, but will eventually undo the administrative processes themselves. Our history is not without a precedent of a successful revolt against a ruler who "sent hither swarms of officers to harass our people."

Perhaps we are too far removed from the experiences of the past to appreciate fully the consequences that may result from an irresponsible though well meaning use of the subpoena power.

To allow a nonjudicial officer, unarmed with judicial process, to demand the books and papers of an individual is an open invitation to abuse of that power. It is no answer that the individual may refuse to produce the material demanded. Many persons have yielded solely because of the air of authority with which the demand is made, a demand that cannot be enforced without subsequent judicial aid. Many invasions of private rights thus occur without the restraining hand of the judiciary ever intervening.

Only by confining the subpoena power exclusively to the judiciary can there be any insurance against this corrosion of liberty. Statutory enforcement would not thereby be made impossible. Indeed, it would be made easier. A people's desire to cooperate with the enforcement of a statute is in direct proportion to the respect for individual rights shown in the enforcement process.

Liberty is too priceless to be forfeited through the zeal of an administrative agent.

Until now, Justice Sotomayor has staked out a commendable niche in Fourth Amendment jurisprudence. For a long time, however, persons and businesses not party to this case will rue the day she issued this most recent written opinion.

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