Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded as a roadside chat in Austin, Texas, with Nick, a legal intern for Blue to Gold. He retired early from an agency in California, is in law school, and helped teach the Austin class. The question comes from an officer in Oregon.
The officer says: “There are many problems with subsidized housing apartment complexes downtown. After serving a search warrant on one of the apartments, the manager volunteered to provide us with a residence list. Is there anything wrong with running everyone on the list to check for warrants? And the manager has offered to provide us with a key to serve any arrest warrants. Do you foresee any issues with losing further evidence of crimes that might be found in plain view while serving these arrest warrants? This has been a recent topic of debate in our office and we’d like to clear it up.”
Why does Oregon get a different answer than the Fourth Amendment gives?
The first thing I want to start with is that I want to answer this under the Fourth Amendment. Because, if you’ve been following this channel, Oregon is in my opinion the most restrictive state when it comes to search and seizure. They take the Fourth Amendment, which is the floor, and they expand those rights under their state constitution, which is known as independent and adequate state grounds.
So that is the idea that a state can be more restrictive on government’s behavior. Not more restrictive on the Second Amendment like California does and New York and so forth. They’re supposed to be, you know, with the Fourth Amendment. But they can be more restrictive on government’s action.
So I’m just curious, and I’m cautious, that I have not researched this, because this is not what we do with the roadside chats. We’re just trying to talk about stuff that’s applicable to everybody. I’m cautious that there may be a state case law that says that running people on registries is an Oregon search and seizure issue. But I can definitely answer this under the Fourth Amendment.
Is it a search when a hotel manager hands over the guest registry on his own?
No problem with it under the Fourth Amendment. As long as the officer is not compelling and demanding that the hotel owner, or the hotel manager, is printing out a list of all the guests and giving it to the officer. If the hotel manager does it on his own accord and prints out a list of all the guests staying at the hotel and decides to hand that over to law enforcement, there are no Fourth Amendment issues.
But we do have a case called Patel. City of Los Angeles v. Patel. And what happened there was the city had a law that any hotelier, right, your Motel 6’s of the world, any hotelier was required by law to hand over their registry data to the government, i.e. LAPD, and they would do a records check, and that information would then result in arresting people at the hotel.
And the US Supreme Court said that that is an unlawful search and seizure, because you can’t compel a private business to hand over their records with these facts. However, they did not say that you can’t receive them if handed over. That’s correct.
How does the third-party doctrine apply to hotel guest data?
The other issue is what’s called the third-party data doctrine. Look, we have time on our hands, right? So we might as well. Let’s kind of get into the weeds a little bit.
Those are your Smith and Miller cases from the 1970s, where the US Supreme Court held that when you hand over your data voluntarily, they can do whatever they want with it. Unless it’s a private record, or there’s some kind of what they call bailment, where you’re just giving a third party your data for a particular purpose and it’s not for them to use.
But when you sign into the Motel 6 and you say this is my name, this is my license plate, this is my license number, they can do whatever they want with it, including marketing. They can sell it. Unless you agree not to, they can give it to the police.
So we handled the Patel issue: this is not coercion, this is not compelling the records. And we also handled that they can do whatever they want with the records, including giving them to the police.
Does running a list of names through a database implicate the Fourth Amendment?
No, it doesn’t. There’s no implication of the Fourth Amendment. There’s no privacy search, there’s no trespass search. You’re just given a list of names, and you can do with that information as you do in law enforcement, which is you run through databases, you make sure that there’s no warrants, no wants. There’s no privacy interest in a list of names. So law enforcement can do what they want with that list, run the names, so forth.
And basically there’s no privacy interest in a government-run database. So whether you’re running plates, you’re running names off a registry from people that are guests at a hotel, it’s not a Fourth Amendment issue.
Can running everyone still violate NCIC or state database rules?
Now, what it could be though, is it could be an NCIC issue for rules. It could be a state database, because some states, like Georgia for example, and it’s actually NCIC too, they don’t really want you using these databases for suspicionless inquiries.
And because really it’s not a Fourth Amendment issue, and it’s really not even, I don’t even think it’s even a law issue. Like, I don’t think the feds are going to kick down the door because you ran people through NCIC. It’s just that they don’t want the system overloaded with these automatic “let’s run everybody that we have data for.”
However, I know a lot of agencies, including Las Vegas, that run people in hotels as a matter of routine. And they’re doing it. I know a lot of agencies in Georgia do it. That’s not a Fourth Amendment or legal issue, I don’t think. It’s going to be whether or not you’re violating the terms of use.
All right. So look, we’re good to go. I don’t know about the state of Oregon. Maybe they have something on there that registry information is private. There is one state out there that does say that.
The short version
- If the manager hands the list over on his own accord, there is no Fourth Amendment issue. The problem in Patel was compulsion, not receipt.
- The Supreme Court did not say you can’t receive records that are handed over voluntarily.
- Under the third-party doctrine, data you hand over voluntarily can be passed on, including to the police.
- There is no privacy interest in a list of names, and none in a government-run database. Running the names is not a Fourth Amendment issue.
- What it can be is an NCIC or state database terms-of-use issue. Some states do not want suspicionless inquiries.
- Oregon expands search and seizure rights under its own constitution, and I have not researched whether it treats registry data as private. Check that before you rely on this.
Related from Blue to Gold
- Can Police Pull People Out of a Motel Room While Getting a Search Warrant?
- Can You Stop a Car on a Flock LPR Hit for a Wanted Registered Owner?
- Does the Collective Knowledge Doctrine Apply to Police Dispatchers?
This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#1062
