                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


NARANJIBHAI PATEL; RAMILABEN              No. 08-56567
PATEL,
             Plaintiffs-Appellants,         D.C. No.
                                         2:05-cv-01571-
                 v.                        DSF-AJW

CITY OF LOS ANGELES, a municipal
corporation,                               OPINION
              Defendant-Appellee.


      Appeal from the United States District Court
         for the Central District of California
       Dale S. Fischer, District Judge, Presiding

            Argued and Submitted En Banc
          June 24, 2013—Seattle, Washington

               Filed December 24, 2013

 Before: Alex Kozinski, Chief Judge, and Diarmuid F.
  O’Scannlain, Raymond C. Fisher, Marsha S. Berzon,
 Richard C. Tallman, Richard R. Clifton, Consuelo M.
Callahan, Milan D. Smith, Jr., Mary H. Murguia, Morgan
      Christen and Paul J. Watford, Circuit Judges.

              Opinion by Judge Watford;
              Dissent by Judge Tallman;
               Dissent by Judge Clifton
2               PATEL V. CITY OF LOS ANGELES

                           SUMMARY*


                            Civil Rights

    The en banc court reversed the district court’s judgment
in favor of the City of Los Angeles, and held that Los
Angeles Municipal Code § 41.49’s requirement that hotel
guest records “shall be made available to any officer of the
Los Angeles Police Department for inspection” was facially
invalid under the Fourth Amendment insofar as it authorized
inspections of the records without affording an opportunity to
obtain prior judicial review.

    Plaintiffs, who are motel owners in Los Angeles,
challenged the provision of § 41.49 authorizing warrantless,
on-site inspections of hotel guest records by any police
officer. The en banc court held that a police officer’s non-
consensual inspection of hotel guest records under § 41.49
constituted a Fourth Amendment “search.” The en banc court
also held that even under the more lenient Fourth Amendment
principles governing administrative record inspections,
§ 41.49 was facially invalid. The en banc court concluded
that in order for the city to comply with the Fourth
Amendment, it must afford hotel operators an opportunity to
challenge the reasonableness of the police officer’s inspection
demand in court before penalties for non-compliance were
imposed.

   Judge Tallman, joined by Judges O’Scannlain, Clifton,
and Callahan, dissented. Judge Tallman dissented from the

  *
    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 LOS ANGELES                   3

majority’s decision to declare invalid all potential searches
under the city’s ordinance, and he would limit the court’s
review to searches and seizures that actually took place.
Because plaintiffs did not raise an as-applied challenge to the
ordinance, Judge Tallman would vacate the district court’s
judgment and remand for dismissal of the facial challenge.

    Judge Clifton, joined by Judges O’Scannlain, Tallman,
and Callahan, dissented. Judge Clifton wrote that the
majority opinion was wrong because it ignored the facial
nature of plaintiffs’ challenge to the ordinance and the high
bar that must be overcome for a facial challenge to succeed,
and failed to establish that a search of records under the
ordinance would be unreasonable.


                         COUNSEL

Frank A. Weiser (argued), Law Offices of Frank A. Weiser,
Los Angeles, California, for Plaintiffs-Appellants.

Todd T. Leung (argued), Deputy City Attorney; Rockard J.
Delgadillo, City Attorney; Laurie Rittenberg, Assistant City
Attorney, Office of the City Attorney, Los Angeles,
California, for Defendant-Appellee.


                         OPINION

WATFORD, Circuit Judge:

   Los Angeles Municipal Code § 41.49 requires hotel and
motel operators to keep records with specified information
about their guests. Plaintiffs, motel owners in Los Angeles,
4             PATEL V. CITY OF LOS ANGELES

challenge a provision of § 41.49 authorizing warrantless, on-
site inspections of those records upon the demand of any
police officer. We are asked to decide whether this provision
is facially invalid under the Fourth Amendment.

                               I

    Section 41.49 requires hotel and motel operators to collect
and record detailed information about their guests in either
paper or electronic form. The records must contain: the
guest’s name and address; the number of people in the guest’s
party; the make, model, and license plate number of the
guest’s vehicle if the vehicle will be parked on hotel property;
the guest’s date and time of arrival and scheduled date of
departure; the room number assigned to the guest; the rate
charged and the amount collected for the room; and the
method of payment. L.A. Mun. Code § 41.49(2)(a). For
cash-paying and walk-in guests, as well as any guest who
rents a room for less than twelve hours, the records must also
contain the number and expiration date of the identification
document the guest presented when checking in. § 41.49(4).
For guests who check in using an electronic kiosk, hotel
operators must record the guest’s name, reservation and credit
card information, and the room number assigned to the guest.
§ 41.49(2)(b). These records must be “kept on the hotel
premises in the guest reception or guest check-in area or in an
office adjacent to that area” for a period of 90 days.
§ 41.49(3)(a).

    Plaintiffs do not challenge these requirements. But they
do challenge § 41.49’s warrantless inspection requirement,
which states 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
                  PATEL V. CITY OF LOS ANGELES                       5

inspection shall be conducted at a time and in a manner that
minimizes any interference with the operation of the
business.” Id.1 The city stipulated that this provision
authorizes police officers to inspect hotel guest records at any
time without consent or a search warrant. Failure to comply
with an officer’s inspection demand is a misdemeanor,
punishable by up to six months in jail and a $1000 fine. L.A.
Mun. Code § 11.00(m).

    Plaintiffs have been and will continue to be subjected to
warrantless record inspections under § 41.49. They filed this
action under 42 U.S.C. § 1983 seeking declaratory and
injunctive relief barring continued enforcement of § 41.49’s
warrantless inspection provision, on the ground that it is
facially invalid under the Fourth Amendment. Following a
bench trial, the district court rejected plaintiffs’ facial
challenge and entered judgment for the City of Los Angeles.

                                     II

   The first question raised by plaintiffs’ facial challenge is
whether a police officer’s non-consensual inspection of hotel


 1
     Section 41.49(3)(a) provides in full:

          The record shall be kept on the hotel premises in the
          guest reception or guest check-in area or in an office
          adjacent to that area. The record shall be maintained at
          that location on the hotel premises for a period of 90
          days from and after the date of the last entry in the
          record and shall be made available to any officer of the
          Los Angeles Police Department for inspection.
          Whenever possible, the inspection shall be conducted
          at a time and in a manner that minimizes any
          interference with the operation of the business.
6             PATEL V. CITY OF LOS ANGELES

guest records under § 41.49 constitutes a Fourth Amendment
“search.” We have little difficulty concluding that it does.

    The Fourth Amendment protects the right of the people to
be secure in their “persons, houses, papers, and effects”
against unreasonable searches and seizures. U.S. Const.
amend. IV. A search occurs for Fourth Amendment purposes
when the government physically intrudes upon one of these
enumerated areas, or invades a protected privacy interest, for
the purpose of obtaining information. United States v. Jones,
132 S. Ct. 945, 949–51 (2012); Katz v. United States, 389
U.S. 347, 360–61 (1967) (Harlan, J., concurring). The
“papers” protected by the Fourth Amendment include
business records like those at issue here. See Hale v. Henkel,
201 U.S. 43, 76–77 (1906).

     Record inspections under § 41.49 involve both a physical
intrusion upon a hotel’s papers and an invasion of the hotel’s
protected privacy interest in those papers, for essentially the
same reasons. “One of the main rights attaching to property
is the right to exclude others, and one who owns or lawfully
possesses or controls property will in all likelihood have a
legitimate expectation of privacy by virtue of this right to
exclude.” Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978)
(citation omitted). The business records covered by § 41.49
are the hotel’s private property, and the hotel therefore has
both a possessory and an ownership interest in the records.
By virtue of those property-based interests, the hotel has the
right to exclude others from prying into the contents of its
records, which is also the source of its expectation of privacy
in the records. Cf. Florida v. Jardines, 133 S. Ct. 1409,
1418–19 (2013) (Kagan, J., concurring). That expectation of
privacy is one society deems reasonable because businesses
do not ordinarily disclose, and are not expected to disclose,
              PATEL V. CITY OF LOS ANGELES                    7

the kind of commercially sensitive information contained in
the records—e.g., customer lists, pricing practices, and
occupancy rates. The hotel retains that expectation of privacy
notwithstanding the fact that the records are required to be
kept by law. See McLaughlin v. Kings Island, Div. of Taft
Broad. Co., 849 F.2d 990, 995–96 (6th Cir. 1988); Brock v.
Emerson Elec. Co., 834 F.2d 994, 996 (11th Cir. 1987).

    The hotel’s property and privacy interests are more than
sufficient to trigger Fourth Amendment protection. As to the
property-based rationale for our holding, which is grounded
in a century-old line of Supreme Court precedent beginning
with Hale, 201 U.S. at 76–77, the dissent is in complete
agreement. See Clifton Dissent at 25. As to the privacy-
based rationale, the dissent asserts that plaintiffs were
required to prove, as a factual matter, that their business
records are subject to a reasonable expectation of privacy.
Clifton Dissent at 29, 30–31. We do not believe business
owners are required to prove that proposition, any more than
homeowners are required to prove that papers stored in a desk
drawer are subject to a reasonable expectation of privacy. So
long as a business’s records are “private,” as the Court held
in Hale, 201 U.S. at 76, they fall within the scope of the
“papers” protected by the Fourth Amendment.

    No one contests here that plaintiffs’ hotel records are in
fact private. If the records were “publicly accessible,” as the
dissent posits, Clifton Dissent at 31, it is true they would not
be protected by the Fourth Amendment, since “[w]hat a
person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection.” Katz, 389 U.S. at 351. But, by the same
measure, if the records were publicly accessible, the police of
8             PATEL V. CITY OF LOS ANGELES

course would not need to rely on § 41.49 to gain access to
them.

    That the hotel records at issue contain information mainly
about the hotel’s guests does not strip them of constitutional
protection. To be sure, the guests lack any privacy interest of
their own in the hotel’s records. United States v. Cormier,
220 F.3d 1103, 1108 (9th Cir. 2000); see United States v.
Miller, 425 U.S. 435, 440 (1976). But that is because the
records belong to the hotel, not the guest, and the records
contain information that the guests have voluntarily disclosed
to the hotel. Cormier, 220 F.3d at 1108. It may be the case,
as the dissent speculates, that the hotel in Cormier voluntarily
consented to an inspection of its guest records. See Clifton
Dissent at 29. But that does not support the dissent’s
contention that hotels generally lack an expectation of privacy
in such records. Otherwise, the fact that a defendant in one
of our published decisions voluntarily consented to the search
of his home would establish that the rest of us lack an
expectation of privacy in our own homes.

    A police officer’s non-consensual inspection of hotel
guest records plainly constitutes a “search” under either the
property-based approach of Jones or the privacy-based
approach of Katz. Such inspections involve both a physical
intrusion upon the hotel’s private papers and an invasion of
the hotel’s protected privacy interest in those papers for the
purpose of obtaining information. See Jones, 132 S. Ct. at
951 n.5. Whether the officers rifle through the records in
paper form, or view the records on a computer screen, they
are doing so to obtain the information contained in the
records. That the inspection may disclose “nothing of any
great personal value” to the hotel—on the theory, for
example, that the records contain “just” the hotel’s customer
               PATEL V. CITY OF LOS ANGELES                    9

list—is of no consequence. Arizona v. Hicks, 480 U.S. 321,
325 (1987). “A search is a search, even if it happens to
disclose nothing but the bottom of a turntable.” Id.

                               III

    The question we must next decide is whether the searches
authorized by § 41.49 are reasonable. Ordinarily, to answer
that question, we would balance “the need to search against
the invasion which the search entails.” Camara v. Mun.
Court, 387 U.S. 523, 537 (1967); see Maryland v. King,
133 S. Ct. 1958, 1970 (2013). Here, however, that balance
has already been struck. The Supreme Court has made clear
that, to be reasonable, an administrative record-inspection
scheme need not require issuance of a search warrant, but it
must at a minimum afford an opportunity for pre-compliance
judicial review, an element that § 41.49 lacks.

    We will assume, without deciding, that § 41.49 is in fact
intended to authorize administrative record inspections, rather
than “searches for evidence of crime,” which would
ordinarily require a warrant. Michigan v. Tyler, 436 U.S.
499, 511–12 (1978). The city defends § 41.49 as a nuisance
abatement measure designed to deter drug dealing and
prostitution, on the theory that those who would be inclined
to use hotels to facilitate their illicit activities will be less
inclined to do so if they know that hotel operators must
collect—and make available to the police—information
identifying each of their guests. Plaintiffs do not contest this
characterization of § 41.49, and we need not question it to
resolve this case.

   We will also assume that § 41.49 is intended to authorize
access only to the hotel guest records, rather than to non-
10            PATEL V. CITY OF LOS ANGELES

public areas of the hotel’s premises. When the government
seeks access to non-public areas of a business to enforce
health and safety regulations, an administrative search
warrant is generally required before that greater level of
intrusion is permitted. See Donovan v. Lone Steer, Inc.,
464 U.S. 408, 414 (1984); See v. City of Seattle, 387 U.S.
541, 545 (1967). Section 41.49 could be read as authorizing
inspections of hotel guest records, at least in some
circumstances, in “an office adjacent to” the guest check-in
area. L.A. Mun. Code § 41.49(3)(a). If that office were not
open to the public, officers could not insist on conducting the
inspection there without an administrative search warrant.
See Lone Steer, 464 U.S. at 414; See, 387 U.S. at 545. As a
general rule, however, § 41.49 appears to contemplate record
inspections occurring in the “guest reception or guest check-
in area” of the hotel, areas which presumably are open to the
public. L.A. Mun. Code § 41.49(3)(a). Given our
disposition, we need not decide whether record inspections in
an area of a business open to the public, such as a hotel lobby,
would require an administrative search warrant.

    With these assumptions in mind, which give the city the
benefit of the doubt at each turn, we will apply the Fourth
Amendment principles governing administrative record
inspections, rather than those that apply when the government
searches for evidence of a crime or conducts administrative
searches of non-public areas of a business. See Tyler,
436 U.S. at 511–12; Marshall v. Barlow’s, Inc., 436 U.S. 307,
320–21 (1978). Even under the more lenient Fourth
Amendment principles governing administrative record
inspections, § 41.49 is facially invalid.

    The government may require businesses to maintain
records and make them available for routine inspection when
               PATEL V. CITY OF LOS ANGELES                   11

necessary to further a legitimate regulatory interest. See
California Bankers Ass’n v. Shultz, 416 U.S. 21, 45–46
(1974); Kings Island, 849 F.2d at 992–93. But the Fourth
Amendment places limits on the government’s authority in
this regard. See Oklahoma Press Pub. Co. v. Walling,
327 U.S. 186, 208–09 (1945). The government may
ordinarily compel the inspection of business records only
through an inspection demand “sufficiently limited in scope,
relevant in purpose, and specific in directive so that
compliance will not be unreasonably burdensome.” See,
387 U.S. at 544. Section 41.49 appears to satisfy this Fourth
Amendment prerequisite by adequately specifying (and
limiting the scope of) the records subject to inspection. In
addition, however, the demand to inspect “may not be made
and enforced by the inspector in the field.” Id. at 544–45.
The party subject to the demand must be afforded an
opportunity to “obtain judicial review of the reasonableness
of the demand prior to suffering penalties for refusing to
comply.” Id. at 545; see also Lone Steer, 464 U.S. at 415.

    Section 41.49 lacks this essential procedural safeguard
against arbitrary or abusive inspection demands. As presently
drafted, § 41.49 provides no opportunity for pre-compliance
judicial review of an officer’s demand to inspect a hotel’s
guest records. If the hotel operator refuses the officer’s
demand, she may be found guilty without more of a
misdemeanor, punishable by up to six months in jail and a
$1000 fine. See L.A. Mun. Code § 11.00(m). Hotel operators
are thus subject to the “unbridled discretion” of officers in the
field, who are free to choose whom to inspect, when to
inspect, and the frequency with which those inspections
occur. See Barlow’s, 436 U.S. at 323. Only by refusing the
officer’s inspection demand and risking a criminal conviction
may a hotel operator challenge the reasonableness of the
12               PATEL V. CITY OF LOS ANGELES

officer’s decision to inspect. See Camara, 387 U.S. at 532.
To comply with the Fourth Amendment, the city must afford
hotel operators an opportunity to challenge the
reasonableness of the inspection demand in court before
penalties for non-compliance are imposed. See Lone Steer,
464 U.S. at 415; See, 387 U.S. at 545; Kings Island, 849 F.2d
at 996; Emerson Elec., 834 F.2d at 997.2

    The dissent is certainly correct that “[t]he lack of pre-
compliance judicial review does not necessarily make a
search unreasonable under the Fourth Amendment.” Clifton
Dissent at 27. But it does render unreasonable the particular
searches at issue here—administrative inspections of business
records in industries that are not closely regulated. The
dissent never refutes that point. It merely notes that pre-
compliance judicial review is not required for other types of
searches that § 41.49 does not purport to authorize, such as
automobile searches or “stop and frisks.” Id. That
observation has no relevance to the Fourth Amendment issue
raised by this case.

                                   IV

    We hold that § 41.49’s requirement that hotel guest
records “shall be made available to any officer of the Los
Angeles Police Department for inspection” is facially invalid
under the Fourth Amendment insofar as it authorizes

  2
   Unannounced inspections without an opportunity for pre-compliance
judicial review may be reasonable in certain closely regulated industries,
such as mining and firearms. See, e.g., New York v. Burger, 482 U.S. 691,
702 (1987). As the district court correctly concluded, however, no serious
argument can be made that the hotel industry has been subjected to the
kind of pervasive regulation that would qualify it for treatment under the
Burger line of cases. See Barlow’s, 436 U.S. at 313–14.
               PATEL V. CITY OF LOS ANGELES                   13

inspections of those records without affording an opportunity
to “obtain judicial review of the reasonableness of the
demand prior to suffering penalties for refusing to comply.”
See, 387 U.S. at 545. Because this procedural deficiency
affects the validity of all searches authorized by
§ 41.49(3)(a), there are no circumstances in which the record-
inspection provision may be constitutionally applied. See
United States v. Salerno, 481 U.S. 739, 745 (1987). Facial
invalidation of the provision, as plaintiffs have requested, is
therefore appropriate. See Barlow’s, 436 U.S. at 325; Kings
Island, 849 F.2d at 997.

    That conclusion is not undermined by the dissent’s
observation, see Tallman Dissent at 17, that officers may seek
to inspect hotel guest records based on a source of authority
other than § 41.49. If “exigent circumstances” exist to justify
a non-consensual inspection of hotel guest records, for
example, officers may conduct such a search in compliance
with the Fourth Amendment whether § 41.49 is on the books
or not. Nor is it relevant that plaintiffs have not yet “suffered
a penalty for refusing to comply.” Tallman Dissent at 22.
“The forbearance of a field officer in graciously declining to
propose a penalty”—thus far—does not cure the
constitutional defect in § 41.49’s administrative record-
inspection scheme. Emerson Elec., 834 F.2d at 997.

    REVERSED and REMANDED.
14             PATEL V. CITY OF LOS ANGELES

TALLMAN, Circuit Judge, with whom Circuit Judges
O’SCANNLAIN, CLIFTON, and CALLAHAN join,
dissenting:

    The Fourth Amendment to our Constitution provides that
“[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. . . .” U.S. Const., amend. IV.
The Amendment has always prohibited specific government
conduct—“unreasonable searches and seizures”—not
legislation that could potentially permit such conduct. It is
for this reason that the Supreme Court has held 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.” Sibron
v. New York, 392 U.S. 40, 59 (1968).

    The Patels nonetheless ask us to declare facially invalid
under the Fourth Amendment a city ordinance that does not
address the procedures the police must follow before entering
a hotel to request the guest registers that hotels must keep.
The ordinance says nothing of warrants, much less consent,
exigencies, or any other recognized exception to the warrant
requirement. We only know from the face of the statute that
when the police do request the register, however they make
that request, the hotel owner must provide it.

    The Patels may be right in asserting that as a practical
matter the Los Angeles Police Department has applied the
ordinance to undertake searches that violate the Fourth
Amendment. In that case, the Patels should have little
problem challenging such a search on the facts of a particular
search itself. They made such a claim when they filed their
lawsuit but dropped it before trial. The district court looked
              PATEL V. CITY OF LOS ANGELES                  15

at the city ordinance and saw nothing on its face suggesting
it was unconstitutional in all of its applications. Now on
appeal, the Patels ask us to assume the exercise of analyzing
all potential searches that might be conducted pursuant to the
ordinance in order to declare it deficient. We should decline
the Patels’ invitation because the Supreme Court has told us
to avoid the exercise altogether. My colleagues, though, have
taken the bait and issued what amounts to no more than an
advisory opinion. I respectfully dissent.

                               I

    In Sibron v. New York, the New York state legislature had
enacted a statute allowing a police officer, with “reasonable
suspicion,” to “stop any person,” “demand” explanations, and
“search such person for a dangerous weapon.” 392 U.S. at
43–44. Two defendants sought suppression of evidence
discovered pursuant to such searches, and they asked the
Supreme Court to strike down the state statute as facially
unconstitutional under the Fourth Amendment. Id. at 44. On
the same day the Supreme Court established the constitutional
standard for “stop-and-frisks” in Terry v. Ohio, 392 U.S. 1
(1968), the Court declined to address the facial challenge to
the statute in Sibron.

    The Court explained that federal courts should refuse “to
be drawn into what we view as the abstract and unproductive
exercise of laying the extraordinarily elastic categories of [a
statute] next to the categories of the Fourth Amendment in an
effort to determine whether the two are in some sense
compatible.” Sibron, 392 U.S. at 59. Rather, we should
“confine our review instead to the reasonableness of the
searches and seizures” that have actually taken place. Id. at
62.
16              PATEL V. CITY OF LOS ANGELES

    The Sibron Court reasoned that when a statute’s terms
“are susceptible of a wide variety of interpretations,” id. at
60, we can only determine if the government has violated
Fourth Amendment rights by analyzing the concrete facts in
which the statute was applied. “The constitutional point with
respect to a statute of this peculiar sort . . . is not so much . . .
the language employed as . . . the conduct it authorizes.” Id.
at 61–62 (citation and internal quotation marks omitted).
Here, although counsel represented at argument that
unconstitutional searches have occurred at the Patels’ motel,
the record is bereft of any details to tell us what happened
when the ordinance was invoked.

    I am at a loss to understand the Patels’ decision to drop
the as-applied challenge they raised in their original
complaint. But their facial challenge leaves us with
insufficient facts regarding the unconstitutional conduct they
allege has occurred. It instead asks us to partake in the
gymnastics of the hypothetical, focusing on the “language
employed” instead of the “conduct [the ordinance]
authorizes.” Id.

    The difficulty with this case arises from the disconnect
between the language employed in the statute and the conduct
the majority concludes the ordinance authorizes. The
majority opinion is rife with assumptions about the police
conduct that must occur for the ordinance to be applied. To
begin, the majority’s analysis starts with the assumption that
“§ 41.49 authoriz[es] warrantless . . . inspections.” Maj. Op.
at 4. But it seems plain from the face of the statute that the
ordinance would apply to hoteliers with equal force if Los
Angeles police officers arrived at a hotel with a legitimate
search warrant and the hotelier refused to produce the
register. I have always understood the rule to be that a statute
               PATEL V. CITY OF LOS ANGELES                   17

survives a facial challenge if a court can find any
circumstance in which it could constitutionally be applied.
See Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 (2008) (holding that a facial challenge
“can only succeed” if “no set of circumstances exists under
which the [law] would be valid”). The majority does not
even acknowledge this rule of constitutional adjudication.

     The plaintiffs went to trial solely on a facial challenge to
the statute, which by its nature requires us to consider only
the statute’s language. But even if, as the majority suggests,
all searches authorized by the ordinance were without warrant
and consent—which the statute clearly does not dictate—the
majority has still not accounted for “exigent circumstances”
that would allow the police to request the guest register
without a warrant or consent. See Kentucky v. King, 131 S.
Ct. 1849, 1858 (2011) (“[W]arrantless searches are allowed
when the circumstances make it reasonable, within the
meaning of the Fourth Amendment, to dispense with the
warrant requirement.”). Additionally, the police could
request the register under their community care-taking
exception; perhaps police might be on the premises to locate
a suicidal person whose worried family has asked police to
check on his welfare. These would appear to be at least two
“set[s] of circumstances . . . under which the [law] would be
valid.” Wash. State Grange, 552 U.S. at 449.

    But such important constitutional questions should not
rise and fall on the vagaries of judicial imaginations. As in
Sibron, “[o]ur constitutional inquiry would not be furthered
here by an attempt to pronounce judgment on the words of
the statute.” 392 U.S. at 62. Even after considering the
stipulation that the Patels have been subject to warrantless
searches under the ordinance, we have no concrete facts to
18            PATEL V. CITY OF LOS ANGELES

analyze the circumstances of each individual search. And
even if we did have those facts, the Patels have made the
tactical litigation decision to withdraw any challenge to those
searches. They leave us with no evidence to prove that all
requests made under the ordinance must violate the Fourth
Amendment. The majority’s decision to nonetheless entertain
the facial challenge eschews Supreme Court guidance to the
contrary.

                              II

   The majority ignores Sibron entirely and takes an
improperly narrow view of what the statutory text authorizes.
The ordinance, on its face, provides only that:

       [The register] shall be made available to any
       officer of the Los Angeles Police Department
       for inspection. Whenever possible, the
       inspection shall be conducted at a time and in
       a manner that minimizes any interference with
       the operation of the business.

L.A. Mun. Code § 41.49(3)(a). According to the ordinance’s
language, if the police request the guest register, the hotel
owner must provide it. The ordinance does not claim to alter
the LAPD’s constitutional responsibility to adhere to Fourth
Amendment safeguards when making any demand for
information. We cannot presume that police have violated
the Fourth Amendment without any facts with which to make
that determination.

   It is clear that when the majority reads the ordinance, it
engrafts into it language that is not there:
               PATEL V. CITY OF LOS ANGELES                    19

        [The register] shall be made available to any
        officer of the Los Angeles Police Department
        for inspection, and the police may conduct
        such an inspection without a warrant and
        without consent or any other delineated
        exception to the warrant requirement.
        Whenever possible, the inspection shall be
        conducted at a time and in a manner that
        minimizes any interference with the operation
        of the business.

    I stress again that the majority starts its analysis with the
assumption that the ordinance “authoriz[es] warrantless . . .
inspections.” Maj. Op. at 4. This reading, enhanced by an
imaginary judicial graft on the text, raises a critical difference
from the ordinance’s actual language as currently written. If
the ordinance were phrased in a manner that would eliminate
the warrant requirement entirely, it would implicate Supreme
Court precedent suggesting that a statute may not alter the
procedures for obtaining a warrant. Most notably, in Berger
v. New York, 388 U.S. 41, 56–58 (1967), the Court struck
down a New York statute allowing the state to obtain a
surveillance warrant without probable cause or even
particularity as to what the police expected to obtain with the
warrant. The Court held that New York’s attempt to alter the
procedures for the issuance of a warrant was “offensive” to
the Warrant Clause of the Fourth Amendment. Id. at 58–59.

    The majority instead takes a course similar to the
Supreme Court in Marshall v. Barlow’s, Inc., 436 U.S. 307
(1978), but it does not account for the critical difference
between Barlow’s and this case. In Barlow’s, the Court
analyzed—in the course of an as-applied challenge based on
an actual attempted search—Section 8(a) of the Occupational
20              PATEL V. CITY OF LOS ANGELES

Safety and Health Act (OSHA), which permitted the
Department of Labor:

        (1) to enter without delay and at reasonable
        times any factory, plant, establishment,
        construction site, or other area, workplace or
        environment where work is performed by an
        employee of an employer; and (2) to inspect
        and investigate during regular working hours
        and at other reasonable times, and within
        reasonable limits and in a reasonable manner,
        any such place of employment and all
        pertinent conditions, structures, machines,
        apparatus, devices, equipment, and materials
        therein, and to question privately any such
        employer, owner, operator, agent, or
        employee.

Id. at 309 n.1 (emphasis added).1

    Unlike the Patels, the Barlow’s plaintiff sought to enjoin
the statute as it was applied to him—seeking declaratory
relief that he did not have to comply with a court order
requiring the plaintiff to allow an inspection by an
Occupational Safety and Health officer. Barlow’s, Inc. v.
Usery, 424 F. Supp. 437, 438–39 (D. Idaho 1976). Through
the factual development of his as-applied challenge, it
became “undisputed that [the officer] did not have any cause,
probable or otherwise, to believe a violation existed nor was
he in possession of any complaints by any employee of


 1
   The language of Section 8(a) actually authorizes specific government
conduct, unlike the ordinance, which only imposes a responsibility on a
hotelier. The majority ignores this critical difference.
               PATEL V. CITY OF LOS ANGELES                    21

Barlow’s, Inc.” Id. It was also undisputed that the officer did
not seek or possess a warrant for the inspection. Id. at 438.

     Before the Supreme Court, the government did not
attempt to argue that it could justify the search of the plaintiff
under any exception to the warrant requirement. Instead, it
argued that all warrantless searches conducted pursuant to
Section 8(a) of OSHA should be deemed reasonable—under
a new exception the government asked the Supreme Court to
announce in Barlow’s itself. Barlow’s, 436 U.S. at 315–16
(“[The Secretary] suggests that only a decision exempting
OSHA inspections from the Warrant Clause would give ‘full
recognition to the competing public and private interests here
at stake.’”). Not surprisingly, the Supreme Court declined the
government’s novel request.

    Importantly, the Court did not strike down Section 8(a) of
OSHA altogether. Rather, based on the concrete factual
situation that arose from the as-applied challenge—
specifically, because the government had conceded that no
warrant exception existed for the search of the plaintiff’s
business—the Court held that the statute was unconstitutional
“insofar as it purports to authorize inspections without
warrant or its equivalent. . . .” Id. at 325 (emphasis added).
As the Court noted, the injunction “should not be understood
to forbid the Secretary from exercising the inspection
authority conferred by § 8 pursuant to regulations and judicial
process that satisfy the Fourth Amendment.” Id. at 325 n.23.
Therefore, a search under Section 8(a) would still survive if
the government obtained a warrant or could meet an
exception to the warrant requirement that would serve as a
warrant’s “equivalent.”
22               PATEL V. CITY OF LOS ANGELES

    The majority appears to believe it is following the lead of
Barlow’s when it strikes down the ordinance “insofar as it
authorizes inspections of those records without affording an
opportunity to ‘obtain judicial review of the reasonableness
of the demand prior to suffering penalties for refusing to
comply.’” Maj. Op. at 12–13. But the record, unlike in
Barlow’s, is totally bereft of facts to support the majority’s
assumption that the statute is actually being applied in that
manner. The Patels put forth no evidence at trial
demonstrating that they (or any other hotelier, for that matter)
have not had an opportunity to obtain judicial review of any
request for guest registers, nor have they shown that any
hotelier has suffered a penalty for refusing to comply. The
majority simply lacks the necessary factual predicate to
support its conclusion.

    Instead we are left with an advisory opinion that engages
in the folly Sibron warned us to avoid.2 The majority must
begin with an assumption—that the ordinance authorizes only
warrantless searches—unsupported by the face of the statute.
Then, by cabining its analysis to only whether a search meets
one exception for certain administrative inspections, the
majority refuses to acknowledge that the ordinance may be
“susceptible of a wide variety of interpretations.” Sibron,


 2
  “[A]s-applied challenges are the basic building blocks of constitutional
adjudication.” Gonzales v. Carhart, 550 U.S. 124, 168 (2007). It is no
surprise, then, that the majority’s opinion relies entirely on Supreme Court
cases involving them. See Donovan v. Lone Steer, Inc., 464 U.S. 408,
412–14 (1984); Barlow’s, 436 U.S. at 320–21; See v. City of Seattle,
387 U.S. 541, 545–46 (1967); Camara v. Mun. Ct., 387 U.S. 523, 540
(1967). In each of those cases, the Court analyzed whether specific
government conduct was unconstitutional, not whether the mere language
employed in a statute or regulation was invalid. In this case, we do not
have any specific government conduct to adjudicate.
               PATEL V. CITY OF LOS ANGELES                     23

392 U.S. at 60. The majority’s ultimate conclusion—that the
ordinance is unconstitutional only insofar as it authorizes
conduct that the plaintiffs have never proven actually
occurred—reveals why “[o]ur constitutional inquiry would
not be furthered here by an attempt to pronounce judgment on
the words of the statute. We must confine our review instead
to the reasonableness of the searches and seizures” that
actually took place. Id. at 62.

    Because the Patels intentionally declined to challenge
such actual searches, we should vacate the judgment and
remand so the district court may dismiss the facial challenge
under Sibron. If the Patels are truly subject to searches
without a warrant, and the police have no valid reason to
circumvent the warrant requirement—which may very well
be the case—then the Patels can raise an as-applied challenge
to any City attempt to punish them. See Camara, 387 U.S. at
540. Because the majority has improperly engaged in this
“abstract and unproductive exercise,” Sibron, 392 U.S. at 59,
I respectfully dissent.



CLIFTON, Circuit Judge, with whom Circuit Judges
O’SCANNLAIN, TALLMAN, and CALLAHAN join,
dissenting:

    The majority opinion is wrong in two different ways.
First, it ignores the facial nature of Plaintiffs’ challenge to the
ordinance and the very high bar that must be overcome for a
facial challenge to succeed. Second, it fails to establish that
a search of records under the ordinance would be
unreasonable, the ultimate standard imposed under the Fourth
Amendment. Instead, to the extent that it deals with the issue
24            PATEL V. CITY OF LOS ANGELES

at all, it simply accepts Plaintiffs’ assertion to that effect,
supported by no evidence whatsoever.

I. The Nature of a Facial Challenge

    Judge Tallman is correct that the validity of a warrantless
search should generally be decided in the concrete factual
context of an as-applied challenge. See Sibron v. New York,
392 U.S. 40, 59 (1968). I join his opinion.

    Plaintiffs’ facial challenge also fails on the merits. A
facial challenge is “the most difficult challenge to mount
successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987); see Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 (2008) (explaining that a facial challenge fails unless “the
law is unconstitutional in all of its applications”). That the
ordinance might operate unconstitutionally under some
circumstances is not enough to render it invalid against a
facial challenge.

II. The Reasonableness of the Search

     The majority opinion starts by concluding that a police
officer’s inspection of hotel guest records under the ordinance
is a “search” for purposes of the Fourth Amendment. I agree.

    Prior to the Supreme Court’s decision in Jones v. United
States, __ U.S. ___, 132 S. Ct. 945 (2012), the issues of
whether a given intrusion constituted a “search” and whether
that intrusion was “unreasonable” were often merged into a
single discussion, considering whether there was a reasonable
expectation of privacy that deserved protection. Jones made
              PATEL V. CITY OF LOS ANGELES                  25

clear that the application of the Fourth Amendment was not
limited to circumstances involving a reasonable expectation
of privacy. Id. at 949–51. The Fourth Amendment applies to
the intrusion here, based on what the majority opinion has
termed the property-based rationale. That is true whether or
not hotels have a reasonable expectation of privacy in guest
registers.

    The conclusion that the Fourth Amendment applies “is the
beginning point, not the end of the analysis,” however, as the
Supreme Court recently reiterated in Maryland v. King, __
U.S. ___, 133 S. Ct. 1958, 1969 (2013), a decision handed
down after its decision in Jones. “[T]he ultimate measure of
the constitutionality of a governmental search is
‘reasonableness.’” King, 133 S. Ct. at 1969 (quoting Vernonia
School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995)); see also
Soldal v. Cook Cnty., 506 U.S. 56, 71 (1992) (stating that
“reasonableness is still the ultimate standard under the Fourth
Amendment”) (internal quotation marks omitted). Thus in
King the Court concluded that the practice of gathering DNA
samples from arrestees by buccal swabs was not
unreasonable. It noted that although the Fourth Amendment
may often demand that the government have individualized
suspicion, a warrant, or both before an intrusion, the Court
has imposed “no irreducible requirement[s]” for a reasonable
search or seizure. See King, 133 S. Ct. at 1969.

    The majority opinion appears to agree that it must decide
whether the search authorized by the ordinance is reasonable.
It even acknowledges, at 9, that “[o]rdinarily” a decision
would require a balancing of factors to support the conclusion
that the inspection here is unreasonable. But it does not
undertake such a balancing in its section III.
26            PATEL V. CITY OF LOS ANGELES

    Instead, the majority opinion contends, at 9, that the
“balance has already been struck.” It identifies the absence of
pre-compliance judicial review as a fatal flaw in the
ordinance because, it asserts, at 9, that pre-compliance
judicial review is an absolute requirement for any and all
business record inspection systems. Because this ordinance
does not provide for pre-compliance judicial review before a
hotel will be called upon to make the guest information
available, the majority opinion concludes that it must violate
the Fourth Amendment.

    The majority opinion’s reasoning misses an important
step. The absence of judicial review establishes only that the
ordinance might not qualify for the recognized exception for
administrative subpoenas or inspections. See Oklahoma Press
Pub. Co. v. Walling, 327 U.S. 186, 208–09 (1946) (discussing
administrative subpoenas); See v. City of Seattle, 387 U.S.
541, 544–45 (1967) (discussing administrative inspections);
see also United States v. Golden Valley Elec. Ass’n, 689 F.3d
1108, 1113, 1115–16 (9th Cir. 2012). That is not the only
exception to the warrant requirement recognized under the
Fourth Amendment, let alone the only basis for upholding a
warrantless search on the ground that it was not unreasonable.

    There is, for instance, no provision for a pre-compliance
judicial review before a “Terry stop” or a “stop and frisk”
under Terry v. Ohio, 392 U.S. 1, 22–24 (1968). When a police
officer proposes to stop and frisk a suspect, the suspect is not
allowed to defer the frisk until after it can be challenged in
court. Nor is there such a provision for a warrantless search
of an automobile, United States v. Brooks, 610 F.3d 1186,
1193–94 (9th Cir. 2010), or any other search under the
exigent circumstances exception to the Fourth Amendment’s
              PATEL V. CITY OF LOS ANGELES                  27

warrant requirement, Sims v. Stanton, 706 F.3d 954, 960–61
(9th Cir. 2013).

    The lack of pre-compliance judicial review does not
necessarily make a search unreasonable under the Fourth
Amendment. The majority concedes that fact, at 12, but the
lack of pre-compliance judicial review is all the majority
opinion discusses to conclude that the a search under the
ordinance is always unreasonable.

    The majority opinion’s reasoning is similar to the
following logic: (1) some cars are white, (2) what Mary is
driving is not white, (3) therefore, Mary is not driving a car.
Put that way, the logical fallacy is obvious – Mary might be
driving a red car. And the inspection provided under this
ordinance might be reasonable under the Fourth Amendment
for reasons other than the recognized exception for
administrative inspections.

    The most that the majority opinion has established is that
an inspection of guest registry information under the
ordinance might not qualify under the established
administrative subpoena exception. But that is not the ground
upon which the district court concluded that Plaintiffs’ facial
challenge failed. Instead, it took on the harder question and
concluded that the Plaintiffs failed to demonstrate that they
and hotel owners in general had a legitimate privacy interest
in guest registry information such that the ordinance was
facially unreasonable. By concluding that a search under the
ordinance is necessarily unreasonable because it does not fit
the administrative subpoena exception, the majority opinion
has knocked over a straw man.
28            PATEL V. CITY OF LOS ANGELES

    The harder question of whether a search under the
ordinance would be unreasonable in all circumstances
requires consideration of the nature of the intrusion, among
other things. The majority opinion does not entirely ignore
that question, but it discusses it only in answering the easy
question – whether an inspection of a guest registry under the
ordinance constitutes a search – and not the hard one –
whether that search is unreasonable in all circumstances.

    The majority opinion asserts, at 7, that Plaintiffs are not
required to prove that their business records are necessarily
subject to an expectation of privacy, because they are papers
protected by the Fourth Amendment. But that, too, answers
only the easy question, not the hard one. It does not establish
that a search of those papers under the ordinance would be
unreasonable in all circumstances.

    Plaintiffs may have a subjective expectation of privacy in
their guest registry and may keep that information
confidential, as the majority opinion asserts, though there is
no proof of that in the record. Plaintiffs have brought a facial
challenge, however, so the relevant question is not simply
how these individual Plaintiffs treat their guest registry but
how that information is treated by hotels generally. The
majority opinion cites nothing to support the factual
proposition that hotels generally treat such information as
private. There is none in the record.

    Moreover, even if the Plaintiffs had presented evidence
that hotels generally treated their guest registers as
confidential, that does not mean that the expectation of
privacy is constitutionally protected. Establishing a subjective
expectation of privacy does not end the question under the
Fourth Amendment. United States v. Sandoval, 200 F.3d 659,
              PATEL V. CITY OF LOS ANGELES                   29

660 (9th Cir. 2000). Society must also recognize the
expectation of privacy as reasonable. Id.; United States v.
Gonzalez, 328 F.3d 543, 546–47 (9th Cir. 2003). The
majority opinion does not discuss that question at all.

    We have already held, as the majority opinion
acknowledges, at 8, that hotel guests do not have a reasonable
expectation of privacy in guest registry information once they
have provided it to a hotel operator. United States v. Cormier,
220 F.3d 1103, 1108 (9th Cir. 2000). In Cormier, we noted
that the information at issue there, the guest’s name and room
number, was not “highly personal information.” Id. A guest’s
information is even less personal to the hotel than it is to the
guest.

    Nonetheless, the majority opinion asserts, at 7, that guest
registry information is “commercially sensitive.” Nothing is
cited to support that assertion. The majority opinion expects
us to accept it because it says so.

    But that is obviously not always true. There are hotels that
voluntarily share information about guests with law
enforcement without being served with a warrant and without
the duress of this ordinance. Unlike the majority opinion, I do
not require you to take my word for it. Take a look at our
description of what happened in the Cormier case. A police
detective went to a motel “located in a traditionally high-
crime area” to “obtain the motel’s guest registration records,”
and he got them. 220 F.3d at 1106. There is no mention of a
warrant, and if there had been one, Cormier could not have
objected to the seizure of the registration records in the first
place, so it is safe to infer that there was none. The motel
simply gave the registration records to the police detective.
30            PATEL V. CITY OF LOS ANGELES

    That does not seem surprising to me, and I suspect that it
is not such a rare occurrence. More to the point, though, it
contradicts the majority opinion’s premise that hotels closely
guard their registries to protect “commercially sensitive”
information and that an inspection under the ordinance would
always be unreasonably intrusive. The record contains no
evidence to support either proposition.

    The majority opinion answers, at 8, by noting that the
hotel in the Cormier case is just one hotel, and that its
willingness to turn records over to the police does not
establish that hotels generally lack an expectation of privacy.
But that answer misses the mark in two different ways. One
is that Plaintiffs and the majority opinion cite nothing to
support their view – my one beats their none. More
importantly, the majority opinion forgets that Plaintiffs have
presented a facial challenge. Plaintiffs cannot prevail based
on their own personal expectations of privacy. They have to
demonstrate that there are no circumstances in which the
ordinance would be valid, and if there are hotels that do not
view guest registry information as private to themselves, the
inspection permitted by the ordinance may not be
unreasonable.

    There can, in fact, be no support in the record for the
majority opinion’s assertion because Plaintiffs presented no
evidence about the treatment of guest registry information.
We cannot simply assume that hotels in general expect
information contained in their guest registers to be private.
See Salerno, 481 U.S. at 745 (explaining that a facial
challenge fails unless “no set of circumstances exist under
which the Act would be valid”); see also United States v.
Mendoza, 438 F.3d 792, 795 (7th Cir. 2006) (explaining that
“without an affidavit or testimony from the defendant, it is
               PATEL V. CITY OF LOS ANGELES                    31

almost impossible to find a privacy interest” to support
standing) (internal quotation marks omitted). The majority
opinion’s construction is missing a foundation.

     Under the ordinance, a guest registry may be a publicly
accessible book in a publicly accessible hotel lobby. Society
likely does not recognize a legitimate expectation of privacy
in information kept in a manner so easily accessible to anyone
entering a hotel. See Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 657 (1995) (explaining that “[l]egitimate
privacy expectations” are diminished in “[p]ublic school
locker rooms” because they “are not notable for the privacy
they afford”). In some circumstances, a search under the
ordinance – which could entail nothing more than a brief look
at a publicly accessible record in a publicly accessible lobby
for information in which hotel guests have no privacy interest
– may be a minimal intrusion. See King, 133 S. Ct. at 1969
(explaining that “[t]he fact that an intrusion is negligible is of
central relevance to determining reasonableness, although it
is still a search as the law defines that term”). The ordinance
narrowly cabins officer discretion by permitting only
inspections of the specified guest registry information.
Compare Al Haramain Islamic Found., Inc. v. U.S. Dept. of
Treasury, 686 F.3d 965, 992 (9th Cir. 2012) (discussing
authority that a warrant may not be required when “intrusions
‘are defined narrowly and specifically in the regulations that
authorize them’”), with See v. City of Seattle, 387 U.S. 541,
543–44 (1967) (discussing the Fourth Amendment’s
application to administrative investigations, including
“perusal of financial books and records”).

    Without an evidentiary showing, we cannot conclude that
any search pursuant to the ordinance would unreasonably
intrude on privacy interests that society recognizes as
32             PATEL V. CITY OF LOS ANGELES

legitimate. See King, 133 S. Ct. at 1978 (explaining that
“[t]he reasonableness of any search must be considered in the
context of the person’s legitimate expectations of privacy”).
On review of a proper evidentiary foundation, perhaps we
would conclude that the balance weighs in favor of the
conclusion that hotels have an expectation of privacy in guest
registry information that society recognizes as reasonable.
The majority opinion does not do that review, though, and the
existing record does not permit it to do so. It is not nearly
enough to assert, as the majority opinion does, at 9, that a
“search is a search.” That is, as the Court noted in Maryland
v. King, just “the beginning point, not the end of the
analysis.” 133 S. Ct. at 1969. Unfortunately, the majority
opinion fails to travel the rest of the road.

    For Plaintiffs to prevail, they must demonstrate that the
search provided under the ordinance is unreasonable in all
circumstances. They have not, and the majority opinion has
not, either.

     I respectfully dissent.
