Phillip Killgore v. City of South El Monte
3 F.4th 1186
| 9th Cir. | 2021Background
- Killgore owned and operated Lavender Massage, a California massage establishment subject to the state Massage Therapy Act and a City-issued conditional use permit (CUP) that required compliance and at least two inspections per year.
- In 2015 the City adopted an Ordinance regulating massage establishments; the CUP incorporated the Act and local rules (hours, hygiene, employee qualifications, reporting, and inspection authorization).
- Law enforcement conducted an undercover prostitution investigation; a search warrant was executed, and separately City officials entered Lavender Massage on three occasions in February 2018 without a warrant to inspect non-public areas.
- Killgore sued under 42 U.S.C. § 1983 alleging the warrantless administrative searches violated the Fourth Amendment.
- The district court dismissed the complaint for failure to state a claim, concluding California’s regulation renders the massage industry “closely regulated” and the Burger administrative-search exception applied.
- The Ninth Circuit affirmed, holding (1) the California massage industry is closely regulated and (2) the three Burger factors were satisfied, so the warrantless inspections were reasonable under the Fourth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether California massage establishments are a “closely regulated” industry for Fourth Amendment purposes | Killgore: massage establishments are not analogous to other closely regulated businesses; Patel undermines the doctrine | City: the Massage Therapy Act, local Ordinance, and CUP impose pervasive, detailed regulation diminishing owners’ expectation of privacy | Held: Yes — California massage industry is closely regulated given comprehensive state and local scheme |
| Whether the specific warrantless inspections satisfied Burger’s three-factor test | Killgore: Ordinance/CUP do not sufficiently constrain discretion (who, when, how often); searches exceeded minimum inspections and lacked warrant or consent | City: substantial interest in preventing prostitution/trafficking; inspections necessary to detect easily concealed violations; Ordinance/CUP reasonably limit time and purpose; two inspections are a minimum | Held: Yes — substantial government interest, necessity of warrantless inspections, and constitutionally adequate substitute for warrants were established |
| Whether Patel requires precompliance review or bars applying the closely regulated exception here | Killgore: Patel (refusing to treat hotels as closely regulated) shows the doctrine should not apply and requires precompliance review | City: Patel concerned hotels with strong privacy protections; it did not dismantle Burger; precompliance review is not required for closely regulated industries | Held: Patel does not control; precompliance review is not required; Burger remains applicable to massage establishments |
Key Cases Cited
- New York v. Burger, 482 U.S. 691 (1987) (establishes administrative-search exception for closely regulated industries)
- City of Los Angeles v. Patel, 576 U.S. 409 (2015) (refused to treat hotels as closely regulated; addressed precompliance review under general Fourth Amendment analysis)
- United States v. 4,432 Mastercases of Cigarettes, More or Less, 448 F.3d 1168 (9th Cir. 2006) (discusses factors for closely regulated-industry analysis)
- Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (addresses expectation of privacy in regulated businesses)
- Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (liquor-distribution as closely regulated industry)
- United States v. Biswell, 406 U.S. 311 (1972) (administrative search upheld for firearms dealer)
- Kim v. Dolch, 219 Cal. Rptr. 248 (Ct. App. 1985) (California appellate decision upholding warrantless inspections of massage parlors)