The Ninth Circuit rejected a Fourth Amendment challenge to the City of San José’s Apartment Rent Ordinance, ruling that the plaintiff landlords had failed adequately to allege a reasonable expectation of privacy in the business records at issue. Hotop v. City of San Jose, No. 18-16995 (9th Cir., Dec. 7, 2020).

Plaintiffs challenged amendments to the City’s Apartment Rent Ordinance that required landlords to disclose certain information about rent stabilized units to the City, including a history of the rent charged for the unit, the amount charged as a security deposit, the names of tenants and any household services provided at the start of the tenancy. Plaintiffs claimed the challenged provisions violated their Fourth Amendment rights to be free from unreasonable searches and seizures. A Fourth Amendment search occurs when the government either physically intrudes upon “persons, houses, papers, [or] effects” or invades a person’s “reasonable expectation of privacy.”

The appellate court held that plaintiffs had not alleged any physical intrusion and had failed adequately to allege they had a reasonable expectation of privacy in the business records involved. Plaintiffs’ sole substantive allegation regarding privacy was that the information “constitute[d] plaintiffs’ private business records . . . not found in the public domain.” But the court pointed out that plaintiffs already provided very similar information to the City under other regulations. The complaint did not contain any factual allegations showing how the information implicated by the challenged disclosure requirements differed meaningfully from allegedly private information landlords already provide to the City in other contexts under regulations whose validity was not being challenged.

Because the complaint failed to contain plausible allegations of conduct constituting a search, plaintiffs’ Fourth Amendment claim failed.

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