                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MAHESH PATEL; HOSPITALITY                         No. 13-55632
 FRANCHISE SERVICE, INC., DBA
 Galleria Motel,                                     D.C. No.
                 Plaintiffs-Appellants,           2:11-cv-08637-
                                                     MWF-SP
                     v.

 CITY OF MONTCLAIR, a municipal                      OPINION
 corporation; G. FONDARIO, Badge
 No. F943,
               Defendants-Appellees.


       Appeal from the United States District Court
           for the Central District of California
      Michael W. Fitzgerald, District Judge, Presiding

                    Submitted June 1, 2015*
                     Pasadena, California

                      Filed August 18, 2015




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                 PATEL V. CITY OF MONTCLAIR

    Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit
    Judges and Royce C. Lamberth,** Senior District Judge.

                  Opinion by Judge N.R. Smith


                           SUMMARY***


                             Civil Rights

    The panel affirmed the district court’s order dismissing a
complaint brought pursuant to 42 U.S.C. § 1983 alleging that
police officers violated plaintiff’s Fourth Amendment rights
when they came onto the public areas of his motel and cited
him for code violations observed in plain view.

    The panel held that police officers do not conduct a search
within the meaning of the Fourth Amendment merely by
entering an area of private, commercial property that is open
to the public.




    **
   The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
  ***
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  PATEL V. CITY OF MONTCLAIR                             3

                             COUNSEL

Frank A. Weiser, Los Angeles, California, for Plaintiffs-
Appellants.

William Litvak and Gilbert Mikalian, Dapeer Rosenblit &
Litvak LLP, Los Angeles, California, for Defendants-
Appellees.


                              OPINION

N.R. SMITH, Circuit Judge:

    Police officers do not conduct a search within the
meaning of the Fourth Amendment merely by entering an
area of private, commercial property that is open to the
public. Therefore, we affirm the district court’s order
dismissing Mahesh Patel’s complaint alleging that City of
Montclair police officers violated his Fourth Amendment
rights.

                          BACKGROUND

   Mahesh Patel owned the corporation, Hospitality
Franchise Service, Inc. (“HSF)” and the Galleria Motel, in
Montclair, California.1 As its business, the Galleria Motel


  1
    We have been informed by the parties that Patel passed away during
the pendency of this appeal. Therefore, the case is moot with regard to his
personal claims. See Ulaleo v. Paty, 902 F.2d 1395, 1397–98 (9th Cir.
1990). As a result, only the interest of the corporate plaintiff, HFS, may
be determined. Although corporations enjoy “some Fourth Amendment
rights,” G.M. Leasing Corp. v. United States, 429 U.S. 338, 353 (1977),
4                 PATEL V. CITY OF MONTCLAIR

primarily rented rooms on an extended basis to middle-aged
and elderly low-income residents receiving public assistance.
These residents often could not find or afford other low-
income housing.

    Police officers for the City of Montclair came onto the
public areas of the Galleria Motel and cited Patel for code
violations observable in plain view. Pursuant to 42 U.S.C.
§ 1983, Patel filed a lawsuit on behalf of himself and HFS
against the City of Montclair and its police officers in 2011.
The only allegation in the complaint (relevant to this appeal)
was Patel’s claim that the officers violated the Fourth
Amendment. Defendants filed a motion to dismiss for failure
to state a claim. The district court granted the motion,
holding that neither Patel nor HFS had a reasonable
expectation of privacy in the areas of the Galleria Motel that
were open to the public. Patel timely appeals this
determination.

                   STANDARD OF REVIEW

   “A dismissal for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) is reviewed de
novo.” Gant v. Cty. of Los Angeles, 772 F.3d 608, 614 (9th


“corporations can claim no equality with individuals in the enjoyment of
a right to privacy.” United States v. Morton Salt Co., 338 U.S. 632, 652
(1950). The scope of a corporation’s Fourth Amendment rights is not
settled in this circuit. See Spahr v. United States, 409 F.2d 1303, 1305–06
(9th Cir. 1969) (recognizing that corporation had Fourth Amendment
rights in its own records). However, we need not decide that question in
this case. We will assume, as the question before us relates to a business
owner’s rights in the public areas of his business against routine law
enforcement, that HFS stands in the same position as its owner on this
limited question. We continue to refer to the parties as “Patel.”
               PATEL V. CITY OF MONTCLAIR                     5

Cir. 2014) (citing Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
Cir. 2005)). “All allegations of material fact are taken as true
and construed in the light most favorable to the nonmoving
party.” Id.

                       DISCUSSION

    We must here determine whether police officers conduct
a “search” within the meaning of the Fourth Amendment
when they come onto private, commercial property that is
open to the public. In this case, police officers entered the
public areas of the Galleria Motel and issued citations based
on code violations they observed in plain view. Patel does
not contend that he had a reasonable expectation of privacy
in the public areas of the Galleria Motel, which would be
necessary under the line of cases beginning with Katz v.
United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring), to state a claim for violation of the Fourth
Amendment. See California v. Ciraolo, 476 U.S. 207, 211
(1986) (“The touchstone of Fourth Amendment analysis is
whether a person has a ‘constitutionally protected reasonable
expectation of privacy.’”) (quoting Katz, 389 U.S. at 360
(Harlan, J., concurring)). Instead, Patel contends that, under
the Supreme Court’s recent decisions in United States v.
Jones, 132 S. Ct. 945 (2012), and Florida v. Jardines, 133 S.
Ct. 1409 (2013), the police officers violated his Fourth
Amendment rights by entering his property for the purpose of
conducting an investigation.

    The Fourth Amendment provides “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV. Under United States v.
6              PATEL V. CITY OF MONTCLAIR

Jones, the government conducts a search within the meaning
of the Fourth Amendment when it “physically occupie[s]
private property for the purpose of obtaining information.”
132 S. Ct. at 949. However, Jones does not suggest that all
technical trespasses constitute a search under the Fourth
Amendment. Instead, the Supreme Court held that “[t]he
Fourth Amendment protects against trespassory searches only
with regard to those items (‘persons, houses, papers, and
effects’) that it enumerates.” Id. at 953 n.8. In Jones, the
Court explicitly reaffirmed the “open fields” doctrine, which
states that a mere trespassory entry onto private property does
not constitute a search. Id. at 953 (citing Oliver v. United
States, 466 U.S. 170 (1984)). As the Supreme Court
explained in Florida v. Jardines: “[t]he Fourth Amendment
does not . . . prevent all investigations conducted on private
property . . . because [open] fields are not enumerated in the
Amendment’s text.” 133 S. Ct. at 1414. Private commercial
property is not one of the enumerated items that the Fourth
Amendment protects.

    Indeed, Patel has never asserted that the Galleria Motel is
within one of the enumerated areas of the Fourth
Amendment. He argues instead for a technical trespass rule
that the Supreme Court has never adopted. See Orin Kerr,
The Curious History of Fourth Amendment Searches, 2012
Sup. Ct. Rev. 67, 77 (2012) (“The Supreme Court never tied
the definition of a ‘search’ to trespass law.”). The plain
language of Jones refutes Patel’s contention: “The
Government’s physical intrusion on [a privately owned but
unenumerated] area—unlike its intrusion on the ‘effect’ at
issue here—is of no Fourth Amendment significance.” Jones,
132 S. Ct. at 953; see United States v. Mathias, 721 F.3d 952,
956 (8th Cir. 2013) (“A Jones trespassory search . . . requires
the challenged intrusion to be into a constitutionally protected
                 PATEL V. CITY OF MONTCLAIR                           7

area enumerated within the text of the Fourth Amendment.”).
Accordingly, the district court did not err when it held that the
police officers’ entry onto the areas of the Galleria Motel
open to the public did not constitute a search within the
meaning of the Fourth Amendment.2

    Patel makes a second, but related, argument to support his
claim. Patel contends that the Supreme Court’s decisions in
Camara v. Municipal Court of City and County of San
Francicso, 387 U.S. 523 (1967), and See v. City of Seattle,
387 U.S. 541 (1967), when read in conjunction with Jones,
extend the reach of the Fourth Amendment to protect against
any police intrusion into private commercial property.
Camara and See were both decided approximately six months
before the Supreme Court decided Katz. Therefore, they
predate the Supreme Court’s efforts to standardize the Fourth
Amendment inquiry with the reasonable expectation of
privacy test. However, Camara and See are best understood
as earlier iterations of the Katz reasonable expectation of
privacy test; they do not add or detract from the scope of
Fourth Amendment protections as announced in Jones.

    In Camara, the Supreme Court held that the entry of an
inspector into an area of a private business being used as a
residence constituted a search. Camara, 387 U.S. at 528–29,
532–33. The Court extended this principle in See, where the
Court held that the Fourth Amendment protected against the
search of a locked warehouse. See, 387 U.S. at 543. Both
opinions contained strong language protecting commercial
property. In Camara, the Supreme Court noted that “one


  2
    Again, Patel did not argue that he had a reasonable expectation of
privacy in the public areas of the Galleria Motel. See Katz, 389 U.S. at
360 (Harlan, J., concurring).
8              PATEL V. CITY OF MONTCLAIR

governing principle, justified by history and by current
experience, has consistently been followed: except in certain
carefully defined classes of cases, a search of private property
without proper consent is ‘unreasonable’ unless it has been
authorized by a valid search warrant.” Camara, 387 U.S. at
528–29. In See, the Court held that “[t]he 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.” See, 387 U.S. at 543.
However, these cases did not establish the broad principle
that Patel asks us to adopt in this case: that any unauthorized
entry onto private property constitutes a search.

    First, Jones explicitly reaffirmed the vitality of the “open
fields” doctrine, squarely holding that some areas of private
property are not protected by the Fourth Amendment’s
prohibition on unreasonable searches. Jones, 132 S. Ct. at
953. Second, cases decided subsequent to Camara and See
indicate that they should be read to limit the reach of the
Fourth Amendment only to those areas of private property
that are not open to the public. Further, those cases have
explained the rule of Camara and See in terms of the
reasonable expectation of privacy test developed in Katz.

    In Marshall v. Barlow’s, Inc., the Supreme Court held
that the Fourth Amendment protected against government
intrusions into the private areas of a business. 436 U.S. 307,
at 309–10 (1978). The Court’s reasoning fits squarely within
Katz: “If the government intrudes on a person’s property, the
privacy interest suffers whether the government’s motivation
is to investigate violations of criminal laws or breaches of
other statutory or regulatory standards.” Id. at 312–13
(emphasis added). “Without a warrant [the officer] stands in
no better position than a member of the public. What is
                  PATEL V. CITY OF MONTCLAIR                            9

observable by the public is observable, without a warrant, by
the Government inspector as well.” Id. at 315.

    As in Barlow’s, the police officers entering the public
areas of the Galleria Motel are entitled to observe (without a
warrant) anything observable by the public. Camara and See
only allow a commercial property owner to manifest a
reasonable expectation of privacy in his property by closing
off portions of his business to the public.3 To extend Camara
and See any further would conflict with the language in Jones
restricting the Fourth Amendment’s protections against the
government’s trespassory actions to its enumerated items.
Jones and Katz must be read together: Jones establishes a
default rule that a government intrusion with respect to the
enumerated items of the Fourth Amendment, regardless of a
defendant’s reasonable expectation of privacy, will implicate
the constitutional protection against unreasonable searches
and seizures. Katz broadens the reach of the Fourth
Amendment beyond the enumerated areas to those areas
where the defendant manifests a reasonable expectation of
privacy.

    The areas of the Galleria Motel open to the public are not
within the enumerated items in the Fourth Amendment;
therefore, no search occurs when police officers enter those
areas. Because the complaint alleged only that police officers
entered the public areas of the Galleria Motel, Patel has failed
to demonstrate a reasonable expectation of privacy pursuant
to Katz, rendering Camara and See inapplicable to this case.


 3
   We do not understand the Supreme Court’s recent decision in a similar
case involving the constitutionality of a city ordinance allowing for
warrantless inspection of hotel records to hold otherwise. See City of Los
Angeles v. Patel, __ S. Ct. __, 2015 WL 2473445 (2015).
10            PATEL V. CITY OF MONTCLAIR

Accordingly, the district court did not err when it dismissed
Patel’s Fourth Amendment claim.

     AFFIRMED.
