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Home > Journals > Michigan Law Review > MLR FI > Vol. 114

 

Abstract

Recently, the Supreme Court issued a 5-4 decision in City of Los Angeles v. Patel striking down a city ordinance that required hotel and motel owners to make their guest registries available to police officers whenever requested to do so. Although the Court’s opinion in Patel simply affirmed the Ninth Circuit’s finding that the ordinance was unconstitutional, the Court could have used Patel to readdress the third-party doctrine, which establishes that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Patel provided a vehicle for the Court to do so, particularly because recent Supreme Court decisions suggest that the Court is concerned about the third-party doctrine’s applicability to broad and warrantless searches of private information. For example, in United States v. Jones, the Court held law enforcement’s use of a GPS tracking device to monitor a suspect’s public movements constituted a search pursuant to the Fourth Amendment. Additionally, in Riley v. California, the Court held that, absent exigent circumstances, law enforcement may not search a suspect’s cell phone without a warrant and probable cause. 3 In both cases, the Court could have applied the third-party doctrine and held that citizens forfeit any expectations of privacy when they travel in public spaces or transmit information that a third party can access. As evident in Jones and Riley, the Justices value their privacy as much as most people and could have used Patel to further safeguard it when dealing with potential breaches that have real-world possibilities for them.

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