Amicus Curiae Brief — Dean Hotop, et al., Petitioners v. City of San Jose, California

No. 20-1755

In the Supreme Court of the United States

DEAN HOTOP, KEN SCHNEEBELI, JEFF ZELL, SHERMAN

ZELL, LOIS ZELL, LOUISE PETER, SEIGI TADOKORO, PAT

CREMA, SEAN RHINEHART, SHUCHUN HUANG, JAMES

CAMPAGNA, SAL RUIZ, ISAAC AGAM, STEVE MAHL, LLOYD

KIP, ROBERTA MOORE, DENG LIU, SHASHA CHEN,

XIAODONG LI, ZHONGHUA PEI, XIAOCONG YE, SMALL

PROPERTY OWNERS ASSOCIATION - SAN JOSE, IN ITS

REPRESENTATIVE CAPACITY ON BEHALF OF ITS ASSOCIATION

MEMBERS,

Petitioners,

v.

CITY OF SAN JOSE, A MUNICIPAL CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE APARTMENT

ASSOCIATION OF LOS ANGELES COUNTY, INC. DBA

APARTMENT ASSOCIATION OF GREATER LOS

ANGELES IN SUPPORT OF PETITIONERS

Richard Montevideo (SBN 116051)

Counsel of Record

July 14, 2021

rmontevideo@rutan.com

Douglas J. Dennington (SBN 173447)

ddennington@rutan.com

Kelsey Quist (SBN 309876)

kquist@rutan.com

RUTAN & TUCKER, LLP

18575 Jamboree Road, 9th Floor

Irvine, CA 92612

Telephone: 714-641-5100

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST OF AMICUS

CURIAE ....................................................................... 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 6

A. THE

NINTH

CIRCUIT’S

MAJORITY

OPINION

FAILED

TO

ANALYZE

PETITIONERS’ PROPERTY RIGHTS AS A

SEPARATE CAUSE OF ACTION UNDER

THE

FOURTH

AMENDMENT,

MISAPPLYING

A

REASONABLE

EXPECTATION OF PRIVACY STANDARD ....... 6

B. THE CITY’S “RENT REGISTRY” AND

DISCLOSURE

REQUIREMENTS

GO

ABOVE AND BEYOND THE TYPE OF

ADMINISTRATIVE

SEARCHES

PERMITTED

BY

THE

FOURTH

AMENDMENT BY FAILING TO PROVIDE,

AT A MINIMUM, A PRE-COMPLIANCE

REVIEW PROCEDURE ..................................... 10

ii

C. JUDGE

BENNETT’S

CONCURRING

OPINION DANGEROUSLY UNDERMINES

ESSENTIAL

FOURTH

AMENDMENT

PROTECTIONS

AND

MISTAKENLY

CONCLUDES WHERE THERE IS NO

PHYSICAL INTRUSION, THERE IS NO

SEARCH AND NO FOURTH AMENDMENT

PROTECTION..................................................... 15

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Cases

Andresen v. Maryland,

427 U.S. 463 (1976) ............................................. 18

Arizona v. Grant,

556 U.S. 332 (2009) ............................................. 10

Boyd v. United States,

116 U.S. 616 (1886) ............................................. 16

Byrd v. United States,

548 U.S. -, 138 S. Ct. 1518 (2018) ......................... 5

Camara v. Municipal Court of City and

County of San Francisco,

387 U.S. 523 (1967) ............................. 4, 12, 13, 14

Carpenter v. United States,

585 U.S. -, 138 S. Ct. 2206 (2018) ......................... 5

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ..................................... passim

Collins v. Virginia,

548 U.S. -, 138 S. Ct. 1663 (2018) ......................... 5

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ............................................... 9

Donovan v. Lone Steer, Inc.,

464 U.S. 408 (1984) ............................................. 13

iv

Florida v. Jardines,

569 U.S. 1 (2013) ............................................. 5, 11

Grady v. North Carolina,

575 U.S. 306 (2015) (per curiam)........................ 17

Horton v. California,

496 U.S. 128 (1990) ............................................... 9

Hotop v. City of San Jose,

982 F.3d 710 (9th Cir. 2020) ......................... 15, 17

Hotop v. City of San Jose,

2018 WL 4850405 (N.D. Cal. 2018) .............. 10, 11

Indianapolis v. Edmond,

531 U.S. 32 (2000) ............................................... 12

Johnson v. United States,

333 U.S. 10 (1948) ................................................. 4

Katz v. United States,

389 U.S. 347 (1967) ..................................... passim

Marshall v. Barlow's, Inc.,

436 U.S. 307 (1978) ............................................. 10

MS Rentals, LLC v. City of Detroit,

362 F. Supp. 3d 404 (E.D. Mich. 2019)............... 11

New Jersey v. T.L.O.,

469 U.S. 325 (1985) ............................................. 11

v

New York v. Burger,

482 U.S. 691 (1987) ............................................. 11

Patel v. City of Los Angeles,

738 F.3d 1058 (9th Cir. 2013) ....................... 10, 18

See v. City of Seattle,

387 U.S. 541 (1967) ................................... 4, 13, 18

Skinner v. Railway Labor Executives' Ass'n,

489 U.S. 602 (1989) ............................................. 12

Soldal v. Cook County,

506 U.S. 56 (1992) ......................................... 5, 6, 8

U.S. v. Jacobsen,

466 U.S. 109 (1984) ........................................... 6, 7

United States v. Jones,

565 U.S. 400 (2012) ..................................... passim

United States v. Katzin,

769 F.3d 163 (3d Cir. 2014) .................................. 8

United States v. Place,

462 U.S. 696 (1983) ............................................... 7

United States v. Sweeney,

821 F.3d 893 (7th Cir. 2016) ................................. 8

Constitution

U.S. Const. amend. IV ............................................... 10

1

IDENTITY AND INTEREST OF AMICUS CURIAE 1

Amicus Curiae Apartment Association of Los

Angeles County, Inc. dba Apartment Association of

Greater Los Angeles (“AAGLA”) is a California nonprofit association consisting of many thousands of

rental

housing

providers

and

real

estate

professionals in the Greater Los Angeles area and is

Southern California’s leading advocate for affordable

quality housing.

Of note, AAGLA is a named

plaintiff in two active federal cases currently pending

before the U.S. District Court for the Central District

of

California,

likewise

challenging

the

constitutionality of rental registries, including:

(1) Apartment Association of Greater Los Angeles, et

al. v. City of Beverly Hills (Case No. 2:18-mc-00103);

and (2) Apartment Association of Greater Los

Angeles, et al. v. City of Los Angeles (Case No. 2:17mc-00152). This case raises issues of significant

interest to AAGLA in resolving their own cases.

Moreover, several other cities governing AAGLA’s

members are implementing rental registrations like

the City of San Jose’s, including but not limited to:

Santa Monica, Culver City, Inglewood, and the

In accordance with U.S. Supreme Court Rule 37.2(a) and

37.3(a), Amicus Curiae affirm that the parties, through their

respective counsel, have been provided with notice of this

amicus brief and have consented to its filing. Pursuant to U.S.

Supreme Court Rule 37.6, no party, or counsel for any party,

authored this brief in whole in or in part, and no counsel or

party made a monetary contribution intended to fund the

preparation or submission of this brief, and no person other

than the Amicus Curiae, and its members, or its counsel have

made a monetary contribution to this brief’s preparation or

submission.

1

2

County of Los Angeles (applicable to unincorporated

areas).

AAGLA advocates to protect the rights of its

members and promotes fair housing policies and the

use of best practices in the property housing and

rental management industry which benefits the

public, municipal, and state governments. AAGLA’s

mission is to provide the tools and resources needed

to improve real estate management and operations in

order to ultimately help its members provide safe

housing and to ensure fair returns on their

investments. For more than 100 years, AAGLA has

been advocating for the protection of property rights

on behalf of its members and the rental housing

industry at the local, county, state, and federal levels

of government.

Founded in 1917, AAGLA is comprised of over

10,000 members who own and/or manage over

150,000 rental housing units throughout the counties

of Los Angeles, Ventura, and San Bernardino.

AAGLA’s membership and demographic makeup is

as diverse as the surrounding Los Angeles area, and

approximately 70% of AAGLA’s members may

appropriately be characterized as “mom and pops,”

owning five (5) or fewer units. A large portion of

AAGLA’s members rely on their rental properties as

their sole source of income. Thus, AAGLA and its

members have a unique and vital interest in this

case, given the wide-reaching consequences and

dangerously expansive implications facing all

property owners and housing providers nationwide,

whose Fourth Amendment rights appear to be under

attack by local legislators throughout the State of

3

California. The Ninth Circuit opinion will only

embolden the punitive sentiment held by such

legislators for residential housing providers.

AAGLA and its members – like Petitioners and

their tenants – have a fundamental liberty and

property interest in their rental property records,

and a constitutional right to be secure in their

persons, houses, papers, and effects against

unreasonable searches and seizures, as protected by

the Fourth Amendment to the United States

Constitution. To allow the City’s “Rent Registry” and

disclosure requirements to operate unchecked and

without any pre-compliance review procedure – as is

mandated by the Fourth Amendment – is to subject

property owners and housing providers to

unreasonable searches and seizures in deprivation of

their fundamental constitutional rights.

While emergency housing legislation and

eviction moratoria enacted in the wake of COVID-19

has had devastating effects on AAGLA and its

members – many of whom are on the verge of losing

their rental properties due to an inability to collect

rent – property owners, landlords, and housing

providers nationwide have been at the mercy of

unreasonable regulations for decades, with no end in

sight. Local, state, and federal governments have all

but declared war on what few constitutional

protections remain for housing providers. To further

deprive housing providers of their core fundamental

rights guaranteed by the Fourth Amendment will

ensure the further depletion of what few sticks

remain in the “bundle of sticks” once held by housing

4

providers and protected by the United States

Constitution.

SUMMARY OF ARGUMENT

As this Court has long held, “[w]hen the right

of privacy must reasonably yield to the right of

search is, as a rule, to be decided by a judicial officer,

not a policeman or government enforcement agent.”

Camara v. Municipal Court of City and County of

San Francisco, 387 U.S. 523, 529 (1967) (citing

Johnson v. United States, 333 U.S. 10, 14 (1948)).

Government searches in the absence of a warrant are

per se unreasonable, and the government bears the

burden of rehabilitating such a search by proving

that it fits entirely within the contours of one of the

few and specifically delineated exceptions to the

Warrant Clause. City of Los Angeles v. Patel, 576

U.S. 409, 419 (2015). Therefore, a basic component

of a reasonable search under the Fourth Amendment

is that it not be enforced without a suitable warrant

procedure. See v. City of Seattle, 387 U.S. 541, 546

(1967). Here, in the context of administrative or

“regulatory” searches – such as the disclosure

requirements mandated by the City’s “Rent Registry”

– there must be an opportunity for property owners

and housing providers alike to obtain pre-compliance

review before a neutral decision-maker prior to the

imposition of criminal sanctions.

Such is the

foundation of Fourth Amendment protection where

fundamental property rights are concerned. The

City’s failure to provide such oversight constitutes an

unconstitutional administrative search scheme in

violation of the Fourth Amendment.

To hold

otherwise, as the Ninth Circuit has done here, is to

5

obliterate the fundamental protections of the Fourth

(and Fourteenth) Amendments, which mandate – at

a minimum – a pre-compliance review procedure

before a neutral decision maker to ensure due

process. The Ninth Circuit has provided no relevant

authority to explain why this minimal requirement is

inapplicable here.

Moreover, as discussed in the Petitioners’

brief, the Ninth Circuit’s holding has confusingly and

misleadingly imposed a privacy requirement in a

Fourth Amendment property context, whose

protections – as this Court has explicitly noted – “go

further and often have nothing to do with privacy at

all.” Soldal v. Cook County, 506 U.S. 56, 64 (1992)

(citing Katz v. U.S., 389 U.S. 347, 350 (1967)). A

search occurs when the government trespasses on a

protected property interest to collect information,

without the necessity for further evaluation of any

alleged privacy interest. United States v. Jones, 565

U.S. 400, 404 (2012).

This resurgent trespass

approach has again been discussed in Florida v.

Jardines, 569 U.S. 1, 11 (2013). At least three other

Supreme Court opinions have since relied upon or

discussed this property-based Fourth Amendment

approach. See Collins v. Virginia, 548 U.S. –, –, 138

S. Ct. 1663, 1670 (2018); Byrd v. United States, 548

U.S. –, –, 138 S. Ct. 1518, 1526 (2018); and Carpenter

v. United States, 585 U.S. –, –, 138 S. Ct. 2206, 2235

(2018) (Thomas, J., dissenting); id. at 2267-68

(Gorsuch, J., dissenting).

The Ninth Circuit did not conduct an analysis

of the Fourth Amendment’s protections in a property

context, which does not require a reasonable

6

expectation of privacy, but rather deals with the

City’s unauthorized interference with a property

owner’s possessory interests in their rental records.

United States v. Jones, 565 U.S. 400, 409 (2012) (“the

Katz reasonable-expectation-of-privacy test has been

added to, not substituted for, the common-law

trespassory test.”) The natural consequence of the

City’s vicious campaign against small residential

income property owners through its intrusive and

unreasonable “Rent Registry” is just another aspect

in the long line of overreaching and burdensome

housing laws with which small apartment owners

must comply – where enforcement mechanisms are

wholly

unchecked

and

Fourth

Amendment

protections are thrown by the wayside. This Court’s

review is thus crucial to clarifying the muddied

waters created by the Ninth Circuit’s majority and

concurring opinions.

ARGUMENT

A.

THE NINTH CIRCUIT’S MAJORITY OPINION

FAILED

TO

ANALYZE

PETITIONERS’

PROPERTY RIGHTS AS A SEPARATE CAUSE

OF

ACTION

UNDER

THE

FOURTH

AMENDMENT,

MISAPPLYING

A

REASONABLE EXPECTATION OF PRIVACY

STANDARD

As this Court has previously explained, the

Fourth Amendment “unmistakably . . . protects

property as well as privacy.” Soldal, 506 U.S. at 63

(1992). This Court explained in U.S. v. Jacobsen, 466

U.S. 109, 113 (1984), “[t]he first clause of the Fourth

Amendment protects two types of expectations, one

involving ‘searches,’ the other ‘seizures.’ Id.

A

7

‘search’ occurs when an expectation of privacy that

society is prepared to consider reasonable is

infringed, whereas a ‘seizure’ of property occurs

where there is some meaningful interference with an

individual’s possessory interests in that property.” Id.

There are two separate species of warrantless

searches falling within the Fourth Amendment: a

search by invasion of reasonable expectations of

privacy (Katz v. United States, 389 U.S. 347, 361

(1967)), and a search by un-authorized trespass

(Jones, 565 U.S. at 411). The interplay between

these two Fourth Amendment analyses is

particularly important here, where the Ninth Circuit

failed to consider Petitioners’ property interest in its

business records compelled by the City’s “Rent

Registry.”

For example, this Court in Jacobsen, adhering

to the teachings of United States v. Place, 462 U.S.

696 (1983), concluded that while chemical testing of

powder found in a package did not compromise its

owner’s privacy, this did not put an end to the Fourth

Amendment inquiry. Jacobsen, 466 U.S. at 124-125.

Rather, this Court in Jacobsen went on to determine

whether the invasion of the owners’ “possessory

interests” occasioned by the destruction of the

powder was reasonable under the Fourth

Amendment. Id. Similarly, this Court in Place, after

concluding luggage subject to a “dog sniff” did not

constitute a search because it did not compromise

any privacy interest, was nonetheless deemed an

unlawful seizure for it unreasonably infringed “the

suspect’s possessory interest in his luggage.” Place,

462 U.S. at 708. This Court ultimately concluded,

8

“[a]lthough lacking a privacy component, the

property rights in both instances nonetheless were

not disregarded, but rather were afforded Fourth

Amendment protection. Soldal, 506 U.S. at 64.

While cases relied upon by the Ninth Circuit –

such as Katz v. United States, 389 U.S. 347 (1967) –

demonstrate a shift in emphasis from property to

privacy in the context of the Fourth Amendment,

“there was no suggestion that this shift in emphasis

had snuffed out the previously recognized protection

for property under the Fourth Amendment.” Soldal,

506 U.S. at 64. In fact, the Katz Court acknowledged

that while the Fourth Amendment “protects

individual privacy against certain kinds of

governmental intrusion . . . its protections go further,

and often have nothing to do with privacy at all.”

Katz, 389 U.S. at 350. Several circuit courts have

aptly pointed out that the Supreme Court has since

revived (after a forty-five year hibernation) a

‘property-based approach’ to identify unconstitutional

searches. United States v. Sweeney, 821 F.3d 893,

899 (7th Cir. 2016); United States v. Katzin, 769 F.3d

163, 181 (3d Cir. 2014).

Importantly, this Court has held, “[w]e are

thus unconvinced that any of the Court’s prior cases

supports the view that the Fourth Amendment

protects against unreasonable seizures of property

only where privacy or liberty is also implicated.”

Soldal, 506 U.S. at 65. This Court in Soldal further

explained, “if the boundaries of the Fourth

Amendment were defined exclusively by rights of

privacy, “plain view” seizures would not implicate

that constitutional provision at all.” Id. at 66. In fact,

9

far from being automatically upheld, “plain view”

seizures have been scrupulously subjected to Fourth

Amendment inquiry, and “in the absence of consent

or a warrant . . . such seizures can only be justified if

they meet the probable cause standard, and if they

are unaccompanied by unlawful trespass.” Id. at 66

(citing Horton v. California, 496 U.S. 128, 136-137

(1990)). The “plain view” doctrine merely reflects an

application of the Fourth Amendment’s central

requirement of reasonableness to the law governing

seizures of property.” Id. (citing Coolidge v. New

Hampshire, 403 U.S. 443, 468 (1971)).

Where a physical trespass against a person,

house, paper or effect is a separate cause of action

from a Katz claim, no consideration to the presence

or strength of “reasonable expectations of privacy” is

necessary to determine whether a Fourth

Amendment violation has occurred.

Under the

theory of trespass, “papers” should be understood to

include the contents of business records like the

rental register at issue in this case. The City’s “Rent

Registry” does not merely give a private right of

inspection to just anyone – it places inspection

powers in the hands of government officials – the

persons against whom papers are to be shielded from

search under the Fourth Amendment. The Ninth

Circuit thus erred in failing to address this claim,

which this Court’s prior jurisprudence has explicitly

acknowledged falls within the purview of the Fourth

Amendment’s protections.

10

B.

THE CITY’S “RENT REGISTRY” AND

DISCLOSURE REQUIREMENTS GO ABOVE

AND

BEYOND

THE

TYPE

OF

ADMINISTRATIVE SEARCHES PERMITTED

BY THE FOURTH AMENDMENT BY FAILING

TO PROVIDE, AT A MINIMUM, A PRECOMPLIANCE REVIEW PROCEDURE

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.” U.S. Const. amend. IV. Based on this

constitutional text, this 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. Grant, 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).

The Ninth Circuit has previously held en banc

in Patel v. City of Los Angeles, 738 F.3d 1058 (9th

Cir. 2013), that inspections in that case “worked ‘both

a physical intrusion upon a hotel’s papers and an

invasion of the hotel’s protected privacy interest in

those papers.’” Hotop, 2018 WL 4850405, at *6

(quoting Patel, 738 F.3d at 1061). Yet, the Ninth

Circuit here did not evaluate whether the physical

trespass authorized by the City’s Ordinance was

reasonable – and this was clear error. Hotop, 2018

WL 4850405, at *5.

11

Since the Katz doctrine expanded Fourth

Amendment protections to new areas of conduct not

originally contemplated by the Founders, courts have

developed carve-out exceptions that mirror the

privacy-based concept that the doctrine defends.

Under the balancing test or administrative searches,

the government’s “special needs” are weighed against

an individual’s expectation of privacy. New Jersey v.

T.L.O., 469 U.S. 325 (1985) (warrantless search of

high school student’s purse found reasonable because

of reduced expectation of privacy).

Where an

individual has a reduced expectation of privacy that

was otherwise outweighed by the government’s

“special need” in conducting a warrantless search,

those searches are considered reasonable. New York

v. Burger, 482 U.S. 691, 710 (1987). This exception

has since become known as the “heavily regulated

industry” exception – but importantly, is exclusively

privacy-based.

This exception is intentionally

narrow, and the mere presence of regulation is

insufficient for a presumption of privacy waiver.

Patel, 576 U.S. at 419 (“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.”); MS

Rentals, LLC v. City of Detroit, 362 F. Supp. 3d 404,

417 (E.D. Mich. 2019).

Importantly, such privacy dependent tests and

exceptions are inapposite to the Jones/Jardines cause

of action for physical trespasses against protected

papers alleged by property owners. Hotop, 2018 WL

4850405,

at

*1-2.

Unlike

determining

reasonableness under the privacy test, defining a

reasonable warrantless trespass is relatively easy –

12

“[a] trespass is unreasonable in the absence of a

warrant, except in narrow inapplicable instances,

such as hot pursuit.” Jones, 565 U.S. at 411.

The unsupervised collection and inspection of

rental records contemplated by the City’s “Rent

Registry” falls within no recognized exception to the

Warrant Clause for either privacy-based searches or

trespass-based searches. The information sought by

the City’s “Rent Registry” is being obtained by the

City without the consent of tenants or apartment

owners, nor by way of a court order. The City’s “Rent

Registry” therefore forces property owners to disclose

confidential data without any sort of due process,

discarding any and all probable cause standards in

its efforts to gather such information. Where none of

the exceptions to the warrant requirement apply

here, the Fourth Amendment mandates precompliance review.

Search regimes where no warrant is ever

required may be reasonable where “special needs . . .

make the warrant and probable-cause requirement

impracticable,” Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 619 (1989), 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).

Where searches authorized serve a “special need”

other than conducting criminal investigations – e.g.,

ensuring compliance with the recordkeeping

requirement (which in turn deters criminals from

operating), this Court has referred to this kind of

search as an “administrative search.” Camara v.

13

Municipal Court of City and County of San Francisco,

387 U.S. 523, 534 (1967).

In order for an administrative search to be

constitutional, this Court has long held that absent

consent, exigent circumstances, or the like, the

subject of the search must be afforded an opportunity

to obtain pre-compliance review before a neutral

decision-maker. See v. City of Seattle, 387 U.S. 541,

545 (1967); Donovan v. Lone Steer, Inc., 464 U.S.

408, 415 (1984) (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”).

This pre-compliance review

requirement is “minimal” considering the core

fundamental property rights at stake, and the City’s

failure to provide such a procedure here confirms the

Ordinance is facially invalid. Patel, 576 U.S. at 421.

The very real concerns highlighted by this

Court in Camara are similarly present here, where

the City’s registration, re-registration, and buyout

requirements

automatically

impose

criminal

sanctions for non-compliance, rather than an

administrative subpoena process subject to judicial

review:

Under the present system, when the

inspector demands entry, the occupant has

no way of knowing whether enforcement of

the municipal code involved requires

inspection of his premises, no way of

knowing the lawful limits of the

14

inspector’s power to search, and no way of

knowing whether the inspector himself is

acting under the proper authorization.

These are questions which may be

reviewed by a neutral magistrate without

any reassessment of the basic agency

decision to canvass an area. Yet, only by

refusing entry and risking a criminal

conviction can the occupant at present

challenge the inspector’s decision to

search. And even if the occupant possesses

sufficient fortitude to take this risk . . . he

may never learn any more about the

reason for the inspection than that the law

generally allows housing inspections to

gain entry. The practical effect of this

system is to leave the occupant subject to

the discretion of the official in the field.

This is precisely the discretion to invade

private

property

which

we

have

consistently

circumscribed

by

a

requirement that a disinterested party

warrant the need to search. We simply

cannot say that the protections provided

by the warrant procedure are not needed

in this context; broad statutory safeguards

are no substitute for individualized review,

particularly when those safeguards may

only be invoked at the risk of a criminal

penalty.

Camara, 387 U.S. at 532-533.

Just as in Camara and Patel, absent an

opportunity for pre-compliance review, the City’s

15

Ordinance creates “an intolerable risk that searches

authorized by it will exceed statutory limits, or be

used as a pretext to harass” – here – landlords,

property owners, and/or their tenants. Id. at 421422. Thus, the Ninth Circuit’s erroneous holding

that no such pre-compliance review procedure is

required here will inevitably lead to an

administrative state nightmare, where compelled

“regulatory” searches are wholly unchecked,

enforcement discretion is unregulated, and the

fundamental protections of the Fourth Amendment

cease to exist. This was certainly not the intention

underlying this Court’s historical Fourth Amendment

jurisprudence.

C.

JUDGE

BENNETT’S

CONCURRING

OPINION

DANGEROUSLY

UNDERMINES ESSENTIAL FOURTH

AMENDMENT

PROTECTIONS

AND

MISTAKENLY CONCLUDES WHERE

THERE IS NO PHYSICAL INTRUSION,

THERE IS NO SEARCH AND NO

FOURTH AMENDMENT PROTECTION

Perhaps most alarming and in need of

immediate review and correction is Judge Bennett’s

concurring opinion – e.g., that he would deny

plaintiffs’ Fourth Amendment claim because the City

had conducted no Fourth Amendment search. Hotop

v. City of San Jose, 982 F.3d 710, 719 (9th Cir. 2020).

Judge Bennett’s concurring opinion erroneously

reasoned the government’s collection of information

only effects a search when it involves some physical

intrusion or its functional equivalent. Id. Of note,

16

Judge Bennett stated: “Though the Court has made

clear in recent years that Fourth Amendment

jurisprudence is no longer tied to a trespass-based

analysis, United States v. Jones, 565 U.S. 400, 405

(2012), nothing in the Court’s jurisprudence suggests

reading the necessity of an actual search or seizure

out of the Fourth Amendment.” Id. Not only is this

conclusion significantly outdated in a world of

progressive digitalization and technology, 2 it is an

irrational interpretation of the Fourth Amendment,

which should be (and has historically been) construed

liberally. Boyd v. United States, 116 U.S. 616, 635

(1886). For instance, this Court has long held,

It is our opinion, therefore, that a

compulsory production of a man’s

private papers to establish a criminal

charge against him, or to forfeit his

property, is within the scope of the

Fourth Amendment to the Constitution,

in all cases in which a search and

seizure would be, because it is a

material ingredient, and effects the sole

object and purpose of search and

seizure.

Id. at 622.

For Judge Bennett to conclude the Fourth

Amendment is not implicated here because

Petitioners must “fill out forms” with private

A “search” in today’s world no longer denotes only a physical

intrusion or trespass, but rather more often includes

involuntary disclosure or acquisition of information without the

owner’s consent.

2

17

business information mandated by the City’s “Rent

Registry,” in contrast to a “compulsory production of

private papers” – which does implicate the Fourth

Amendment – is a difference without a distinction.

As Judge Bennett notes, “[I]t is the government

process effecting access to the protected papers and

records that implicates the Fourth Amendment.”

Such is the case here, where the City’s forms

mandate the disclosure of certain private information

that is not otherwise publicly available, and where

non-compliance triggers criminal sanctions. As this

Court in Patel stated, “[T]he business records . . . are

the hotel’s private property and the hotel therefore

has the right to exclude others from prying into their

contents.” Patel, 576 U.S. at 412. Petitioners’ “right

to exclude” others from their private business records

does not simply disappear because the City’s

compelled method of retrieval is by way of a

disclosure form, rather than a physical inspection

demand. Judge Bennett would disagree, going so far

as to state, “[w]ithout the statutorily authorized

onsite inspections demands, there would have been

no search in Patel.” Hotop, 982 F.3d at 722.

Moreover, as the district court correctly noted,

“[i]t is true that a government’s civil “monitoring

program” may implicate the Fourth Amendment.

Grady v. North Carolina, 575 U.S. 306, 309-10 (2015)

(per curiam) (“[T]he government’s purpose in

collecting information does not control whether the

method of collection constitutes a search.”) Thus,

Judge Bennett’s errant conclusion that a search must

be physical (or its functional equivalent), is belied by

settled case law which has long held a search

triggering Fourth Amendment protection can occur

18

when certain information is compelled through an

administrative process. Patel, 576 U.S. at 419-20;

Andresen v. Maryland, 427 U.S. 463, 478-84 (1976);

Patel v. City of Los Angeles, 738 F.3d 1058, 1061 (9th

Cir. 2013). There is no meaningful distinction that

would exempt the compulsory transmission of

information by way of a “regulatory” process from the

indispensable

protections

inherent

in

our

Constitution.

Similarly, this Court in See v. City of Seattle

contemplated a much broader range of search

techniques beyond that of a physical intrusion,

including the “perusal of financial books and records”

and “the administrative subpoena of corporate books

and records.” See v. City of Seattle, 387 U.S. 541, 544

(1967). This Court in See concluded, “[i]t is now

settled that, when an administrative agency

subpoenas corporate books or records, the Fourth

Amendment requires that the subpoena be

sufficiently limited in scope, relevant in purpose, and

specific in directive so that compliance will not be

unreasonably burdensome.” Id. at 544 (emphasis

added). This Court in See additionally held, “while

the demand to inspect may be issued by the agency,

in the form of an administrative subpoena, it may not

be made and enforced by the inspector in the field,

and the subpoenaed party may obtain judicial review

of the reasonableness of the demand prior to

suffering penalties for refusing to comply.” Id. at 544545. Thus, “it is these rather minimal limitations on

administrative action which we think are

constitutionally required in the case of investigative

entry upon commercial establishments” and “the

decision to enter and inspect will not be the product

19

of the unreviewed discretion of the enforcement

officer in the field.” Id. at 545 (emphasis added).

The dangerous consequence of Judge Bennett’s

concurring opinion is that any compulsory collection

of information by the government as a “part of a

regulatory process” will never trigger the Fourth

Amendment as it cannot be deemed a search, no

matter the degree of privacy or confidentiality

implicit in the information compelled or the

involuntary process of disclosure (including the

imposition of mandatory criminal penalties). Nor is

there any need for judicial review of such a process,

according to Judge Bennett. Since the “government

requires its citizens to provide information all the

time,” and “sometimes it is part of a regulated

activity scheme” or “just a part of everyday life,”

these processes are per se reasonable – and exempt

from Fourth Amendment limitations. Nothing could

be further from the truth. This type of flawed

reasoning affects a very slippery slope which, if left

unchecked, threatens to abolish fundamental

protections and freedoms guaranteed by our

Constitution.

20

CONCLUSION

For the reasons stated herein, AAGLA

requests this Court grant the petition for a writ of

certiorari.

Respectfully submitted,

Richard Montevideo (SBN 116051)

Counsel of Record

rmontevideo@rutan.com

Douglas J. Dennington (SBN 173447)

ddennington@rutan.com

Kelsey Quist (SBN 309876)

kquist@rutan.com

RUTAN & TUCKER, LLP

18575 Jamboree Road, 9th Floor

Irvine, CA 92612

Telephone: 714-641-5100

Counsel for Amicus Curiae Apartment

Association of Los Angeles County, Inc.

dba Apartment Association of Greater

Los Angeles