PRIVACY

City of Los Angeles v. Naranjibhai Patel

Issues

Does the Fourth Amendment provides grounds for facial challenges of a statute or ordinance, and if so, is an ordinance that requires hotel guests to supply information to a hotel guest registry and authorizes police to inspect such a registry without a warrant or pre-compliance judicial review constitutional? 

Patel, with other Los Angeles motel and hotel owners, challenged Los Angeles Municipal Code 41.49 (“Section 41.49”) alleging that it violated the Fourth Amendment on its face. Asserting that it had a compelling interest in fighting crimes such as human trafficking and prostitution, which frequently involve hotels and motels in their operation, the City of Los Angeles responded that inspections under Section 41.49 are reasonable, and constitutional applications of Section 41.49 exist. The Supreme Court’s decision in this case will determine whether similar laws and ordinances not only in California but also in other states, as well as in other industries, can continue to operate, and whether a compelling government interest in crime deterrence can justify consentless police searches free of judicial review.

Questions as Framed for the Court by the Parties

  1. To resolve a split between the Ninth and Sixth Circuits are facial challenges to ordinances and statutes permitted under the Fourth Amendment?
  2. To resolve a spilt between the Ninth Circuit and the Massachusetts Supreme Court, does a hotel have an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest supplied information is mandated by law and that ordinance authorizes the police to inspect the registry? If so, is the ordinance facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry?

Respondents (“Patel”) are the Los Angeles Lodging Association and “approximately forty hotel owners,” including Naranjibhai Patel, who operate their businesses in Los Angeles.

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City of Ontario v. Quon (08-1332)

Issues

Did the City of Ontario, California violate the Fourth Amendment by conducting a search of their employees’ text messages sent and received on a pager supplied by the City, where there was in informal policy allowing some personal use of the pagers?

 

Officer Jeff Quon, a City of Ontario, California SWAT team member, was given a pager by his Department for communication. Although Quon was told that the pager communications were not private, a supervisor allowed Quon to use the pager for personal use so long as Quon reimbursed the department for overage charges, which Quon did. After determining the current payment system was not efficient, the Department ordered a review of the content of the text messages, ostensibly for the purpose of determining how many of the text messages were for business purposes. The search revealed Quon had sent personal messages to friends, as well as sexually explicit texts to both his wife and mistress. Quon sued the City of Ontario for violating his Fourth Amendment rights against unreasonable searches. The District Court granted summary judgment in favor of the City of Ontario, but the Ninth Circuit reversed and granted summary judgment in favor of Quon. The Ninth Circuit found the search to be unreasonable in light of Quon’s legitimate expectation of privacy. The Supreme Court will address a government worker’s Fourth Amendment rights, while also potentially addressing the Constitutional protection afforded to newer forms of communication, such as text messages.

Questions as Framed for the Court by the Parties

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court's Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used "less intrusive methods" of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member's SWAT pager have a reasonable expectation that their messages will be free from review by the recipient's government employer.

The City of Ontario contracted with Arch Wireless to provide the City with alphanumeric two-way pagers and text messaging services. See Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 895 (9th Cir.

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Collins v. Virginia

Issues

Under the Fourth Amendment, does the automobile exception allow a police officer to search a motorcycle parked near a house on private property without a warrant?

This case, in which a police officer searched a stolen motorcycle on private property without a warrant, encapsulates a battle between two conflicting Fourth Amendment doctrines. Collins, arrested for receiving stolen property, argues that the police are forbidden from conducting a warrantless search of the area surrounding his home—the curtilage, which receives the same special constitutional protections as the home itself. Collins maintains that allowing the police to search his curtilage erodes Fourth Amendment rights and eliminates an important constitutional constraint on searches. Virginia counters that the officer’s search was justified by the automobile exception because, people have lowered expectations of privacy in their automobiles, which are heavily regulated property. Furthermore, as automobiles can be quickly moved out of a warrant’s jurisdiction, Virginia contends that requiring the police to wait for a warrant is impractical and would impede police investigations. How the Court decides on the constitutionality of the search will determine whether the automobile exception applies to vehicles on private property, or if that exception is superseded by the protections of curtilage.

Questions as Framed for the Court by the Parties

Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

In June and July 2013, Albemarle County police officers twice recorded a distinctive black and orange motorcycle eluding police pursuit by traveling significantly over the speed limit. Collins v. Commonwealth, 790 S.E.2d 611, 612–13 (Va. 2016). The police car video camera photographed the motorcycle’s license plates and driver. Id. at 613.

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Dobbs v. Jackson Women’s Health Organization

Issues

Are all pre-viability prohibitions on elective abortions unconstitutional?

This case asks the Supreme Court to determine whether Mississippi’s ban on all elective abortions after fifteen weeks of pregnancy is constitutional. Petitioner Thomas Dobbs argues that the Court should overturn the precedent establishing a constitutional right to pre-viability abortions—Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—or alternatively, reject viability as a measuring tool. In response, Respondent Women’s Health Center contends that the Court should uphold the constitutional right to abortion because there is no compelling reason to overrule the previous abortion precedents finding such a right. The Court’s decision on this case has serious implications for the rights of women, the role of religion in law-making, and stare decisis.

Questions as Framed for the Court by the Parties

Whether all pre-viability prohibitions on elective abortions are unconstitutional or not?

In 2018, Mississippi passed the Gestational Age Act (“HB 1510”), which prohibits abortions after 15 weeks, except for in cases of medical emergency or severe fetal abnormality. Jackson Women's Health Org. v. Dobbs at 269.

Acknowledgments

The authors would like to thank Professor Sheri Lynn Johnson for her insights into this case.

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electronic surveillance

exigent circumstances

Overview

Exigent circumstances, as defined in United States v. McConney are "circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." 

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FAA v. Cooper

Issues

Whether a plaintiff suing under an invasion of privacy theory can recover for emotional and other nonpecuniary damages when the relevant statute’s language is ambiguous about the types of damages it covers.

 

A joint criminal investigation carried out by the Department of Transportation and the Social Security Administration revealed that Respondent Stanmore Cawthon Cooper failed to disclose that he had HIV to one agency, while simultaneously collecting medical benefits from the other. Upon being convicted for making these misrepresentations, Cooper brought suit against the Federal Aviation Administration, the Department of Transportation, and the Social Security Administration under the Privacy Act of 1974, arguing that the Government had unlawfully disclosed his HIV status. The district court dismissed the suit, holding that the Privacy Act’s language, which imposes liability on federal agencies only in cases where an individual suffered “actual damages,” does not cover Cooper’s allegations of emotional harm. The Ninth Circuit Court of Appeals reversed, holding that the term “actual damages” encompasses mental or emotional harm suffered. The FAA now appeals, arguing that the term “actual damages” is ambiguous and must be construed in favor of the federal government to exclude noneconomic damages. The Supreme Court’s decision in this case will address whether emotional and other noneconomic damages are “actual damages,” raising broad implications for future suits under the Privacy Act.

Questions as Framed for the Court by the Parties

Whether a plaintiff who alleges only mental and emotional injuries can establish "actual damages" within the meaning of the civil remedies provision of the Privacy Act, 5 U.S.C. 552a(g)(4)(A).

In 1985, Stanmore Cawthon Cooper, an airline pilot, was diagnosed with human immunodeficiency virus (“HIV”). See Cooper v. FAA, 596 F.3d 538, 541 (9th Cir.

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FCC v. AT&T Inc.

Issues

Whether a corporation, like an individual, has “personal privacy” that could be violated by disclosure of facts obtained during a law enforcement investigation.

 

The Freedom of Information Act (“FOIA”) generally allows access to, and disclosure of, federal information and records to those who requested them, subject to some exceptions, including one for a disclosure that would constitute an invasion of “personal privacy.” Following a recent investigation of Respondent AT&T Inc. (“AT&T”) by Petitioner the Federal Communications Commission (“FCC”), Respondent CompTel, a non-profit trade association, requested under FOIA all of the records and information pertaining to the FCC’s investigation. In allowing disclosure of some of the information, the FCC rejected AT&T’s argument that such disclosure would constitute an invasion of “personal privacy,” holding that this exception was strictly limited to individuals. AT&T appealed to the Third Circuit, which held that a corporation may have “personal privacy” interests and remanded to the FCC. AT&T argues that the term “personal privacy” applies to corporations as well as individuals, and the FCC argues that such a term is limited to individuals. The Supreme Court’s  decision in this case  will determine the amount of protection given to corporations under FOIA and will likely affect the amount of access the public has to certain private corporate information.

Questions as Framed for the Court by the Parties

Exemption 7(C) of the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(C), exempts from mandatory disclosure records or information compiled for law enforcement purposes when such disclosure could reasonably be expected to constitute an unwarranted invasion of "personal privacy." The question presented is: Whether Exemption 7(C)'s protection for "personal privacy" protects the "privacy" of corporate entities.

Under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, federal agencies must disclose records to anyone who requests them, subject to certain exemptions. See AT&T v. FCC, 582 F.3d 490, 492 (3d Cir.

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Acknowledgments

The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

Additional Resources

· Time, Adam Cohen: Why Companies Don’t Deserve Personal Privacy Rights (Dec. 15, 2010)

· Inside Counsel, Melissa Maleske: Supreme Court Will Decide if "Personal Privacy" under FOIA Applies to Corporations (Nov. 30, 2010)

· United States Department Of Justice: FOIA Request Handbook

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Federal Bureau of Investigation v. Fazaga

Issues

Does Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 supplant the state-secrets privilege to allow a district court to investigate alleged national security secrets and determine the merits of a lawsuit challenging covert government surveillance of individuals freely practicing their religion?

This case asks the Supreme Court to balance the state-secrets privilege and the Foreign Intelligence Surveillance Act of 1978 (“FISA”). The state-secrets privilege permits the government to withhold certain information from evidence in a proceeding if that information’s disclosure would be detrimental to national security. FISA establishes procedures for judicial oversight of the government’s electronic surveillance of individuals in the United States. After the Federal Bureau of Investigation electronically surveilled Yassir Fazaga (“Fazaga”) and the Islamic Center as a part of counterterrorism efforts, Fazaga and other members of the Center filed suit based unconstitutional searches and the freedom of religion, seeking to use FISA to access the surveillance. The Federal Bureau of Investigation argues that the state-secrets privilege supersedes FISA and should be honored to avoid disclosure of privileged information that would harm national security. Yassir Fazaga counters that FISA displaces the state-secrets privilege and requires in camera and ex parte review of his religious freedom claims. The outcome of this case has strong implications for national security interests and civil liberties.

Questions as Framed for the Court by the Parties

Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the states-secret privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

The Federal Bureau of Investigation (“FBI”), beginning at least in 2006, set up a counterterrorism operation known as Operation Flex, which used detection and prevention techniques to counter alleged terrorism and sought to “gather information on Muslims.” Fazaga v. Federal Bureau of Investigation at 19. As part of this operation, the FBI hired Craig Monteilh (“Monteilh”) as an informant in Los Angeles.

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