SJC Reduces REP in Hotel Rooms for Guests

Recently the Supreme Judicial Court decided COMMONWEALTH vs. MARK MOLINA 459 Mass. 819 (2011). The case reduced the Reasonable expectation of Privacy for guests of a hotel. The basis to the case was that the hotel evicted the defendant without his knowledge (as was their policy) for violating the rules. As a result, evidence found by police during a subsequent search (which later included a warrant they obtained), and statements made by the defendants were lawfully obtained and not suppressed. Along with previous decisions, Commonwealth v. Netto, and Commonwealth v. Paszko this case is the most significant with regards to hotel search and seizure.

The court in deciding stated “Discussion. In deciding whether the search of the defendant’s hotel room violated the Fourth Amendment and art. 14, “we must first determine whether a search in the constitutional sense took place.” Commonwealth v. Porter P., 456 Mass. 254 , 259 (2010), citing Commonwealth v. Frazier,410 Mass. 235 , 244 n.3 (1991). “This determination turns on whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy.” Commonwealth v. Porter P., supra, quoting Commonwealth v. Montanez, 410 Mass. 290 , 301 (1991). See also Kyllo v. United States, 533 U.S. 27, 33 (2001). “The measure of the defendant’s expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable.” Commonwealth v. Porter P., supra, quoting Commonwealth v. Montanez, supra. “The defendant bears the burden of establishing both elements.” Commonwealth v. Montanez, supra.

“If no one has a reasonable expectation of privacy in the place searched, the police are free to search that place without a warrant and without probable cause, as often as they wish.” Commonwealth v. Porter P., supra. “If a defendant has a reasonable expectation of privacy, the police may search the place, in the absence of exigency, only with a warrant supported by probable cause or with consent.” Id., and cases cited.

As an initial matter, the Fourth Amendment and art. 14 have been construed to extend their protection to the legitimate privacy expectations of hotel occupants. See Stoner v. California, 376 U.S. 483, 490 (1964) (guests in hotel rooms enjoy protections against unreasonable searches and seizures under Fourth Amendment “[n]o less than a tenant of a house, or the occupant of a room in a boarding house”); Commonwealth v. Paszko, 391 Mass. 164 , 184-185 (1984) (defendant may have reasonable expectation of privacy in motel room during rental period and prior to abandonment of room). Here, the issue is whether, at the time of the police entry into room 718, [Note 9] the defendant retained a reasonable expectation of privacy therein. We conclude that, in the circumstances, the defendant did not then possess a reasonable expectation of privacy because he had been lawfully evicted by the hotel from the room.

Although a guest may enjoy a reasonable expectation of privacy in a hotel room, his privacy rights and reasonable expectations are limited by the unique and transient nature of his room occupancy. A hotel guest, for example, reasonably understands (or should) that hotel staff generally are able to enter his room to provide various guest services. See Georgia v. Randolph, 547 U.S. 103, 112 (2006) (“a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room”). Also, it is well settled that a defendant’s reasonable expectation of privacy in a hotel room ends when he abandons the room or once his rental period expires. See Commonwealth v. Netto, 438 Mass. 686 , 698 (2003); Commonwealth v. Paszko, supra. Whether a guest’s lawful eviction from a hotel room may cause his previous reasonable expectation of privacy to end is an issue on which we have not passed.

When a guest’s hotel rental period has been lawfully terminated, the guest no longer has a legitimate expectation of privacy in the hotel room. See United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987), and cases cited. Several courts, including several circuit courts of the United States Court of Appeals, have concluded in this context that a lawful termination includes a lawful eviction from a hotel room based in part or wholly on a guest’s misconduct. See United States v. Molsbarger, 551 F.3d 809, 811 (8th Cir.), cert. denied, 129 S. Ct. 2168 (2009) (hotel occupant’s reasonable expectation of privacy in room terminated when hotel manager with police assistance expelled occupant justifiably based on “raucous behavior”); United States v. Allen, 106 F.3d 695, 699 (6th Cir.), cert. denied, 520 U.S. 1281 (1997) (concluding hotel manager had properly evicted guest “both because he was not allowed to store illegal drugs on the premises [but had] and because his pre-paid rental period had elapsed”; eviction extinguished guest’s privacy rights in room) [Note 10]; United States v. Haddad, 558 F.2d 968, 975 (9th Cir. 1977) (guest “ejected” for good cause, based on conduct including intoxication, disorderly conduct, and carrying gun in hotel; guest had no reasonable expectation of privacy in room); Johnson v. State, 285 Ga. 571, 572-574 (2009) (hotel guest had no reasonable expectation of privacy in room after hotel manager terminated his occupancy for selling drugs in room and creating disturbance in hotel); People v. Hardy, 77 A.D.3d 133, 139-140 (N.Y. 2010) (hotel guest lost reasonable expectation of privacy in room after being ejected based on odors of marijuana and complaints of loud noise from room). The United States Court of Appeals for the Ninth Circuit explained that once a guest is ejected “for good cause, the room revert [s] to the control of the management, and the former occupant [has] no continuing right to privacy in the room.” United
States v. Haddad, supra. The court analogized the situation to one where a rental term expires: “a justified ejection is no different than a termination of the rental period, when ‘the guest has completely lost the right to use the room and any privacy associated with it.’ ” Id., quoting United States v. Croft, 429 F.2d 884, 887 (10th Cir. 1970).
In the present case, the defendant asserts that his privacy rights in room 718 were valid until June 20, the end of his prepaid stay, and were not terminated prior thereto because he was not notified by the hotel that his stay had been terminated. However, pursuant to the hotel’s registration card, the hotel manager had discretionary authority to evict a guest if the guest failed to comply with the hotel’s rules and regulations as well as local, State, and Federal law. Eviction, under the terms of the registration card, significantly does not require notice. By signing the registration card, the defendant was notified of the hotel’s policies (concerning eviction and absence of notice) even though he may have chosen to ignore them.

In addition, in terms of reasonable, objective societal expectations, the touchstone of the constitutional analysis, the defendant could not have believed that his right to use the hotel room could not be permanently curtailed by management if the hotel became aware of a guest’s criminal offense in a room. Nor could he have believed that management could be stymied from taking action if the defendant could evade a run-in with hotel management. We add that, concerning notice to the defendant, the dissent minimizes the significance of the fact that after Good had encountered problems with the defendant’s visitors, Good specifically warned the defendant that if there was one more complaint concerning his occupancy, he would be “gone,” which the defendant could not reasonably have interpreted to mean anything other than his removal from the hotel. See post at n.3. In the circumstances, we reject the defendant’s contentions that his eviction was improper based on a lack of notice.

Based on the disruptive and verbally abusive interactions with the defendant’s visitors, the odor of marijuana emanating from the defendant’s room, and the marijuana observed by Good and Jacques inside the defendant’s room, Good reasonably believed that the defendant had violated not only the hotel’s rules and regulations, including a violation of the floor’s nonsmoking policy, but also State law concerning controlled substances. Good thus had legitimate and lawful grounds to evict the defendant from the hotel.
Before the detectives went to and entered room 718, Good took affirmative steps to effectuate the eviction by physically preventing the defendant’s entry into the room by double-locking the door. Because the hotel’s policy permitted eviction without notice if the guest failed to comply with the hotel’s rules and regulations, as well as local, State, and Federal laws, once the door to room 718 was double-locked, the defendant’s occupancy rights were properly terminated and this action concomitantly terminated his privacy interest in the room and its contents. See United States v. Allen, supra at 697, 699 (after guest’s prepaid rental period had elapsed, motel manager went to guest’s room to see whether he “had skipped without paying” and observed large quantities of marijuana in room; manager engaged “lock-out” deadbolt that only she could open, thereby “divested [guest] of his status as an occupant of the room, and concomitantly terminated his privacy interest”); Johnson v. State, supra at 574 (where manager had authority to terminate occupancy without notice, action of locking out defendant from room with “inhibit key” effectuated eviction). The subsequent police search was undertaken with Good’s consent and was, in the circumstances, constitutional. See United States v. Allen, supra at 699 (after motel manager locked guest out of room, guest’s privacy interests terminated and “manager’s consent to the officers’ search of the room was all that was required to avoid constitutional infirmity”). See also Commonwealth v. Considine, 448 Mass. 295 , 301 (2007) ( “any search for or seizure of contraband by [State trooper] was permissible” once trooper was present in room searched by consent). We therefore reject the defendant’s argument that his subsequent statements to police and the results of the searches of room 718 and his apartment pursuant to warrants were unlawful as the fruit of the initial unlawful police search of room 718.
3. Conclusion. We affirm the judge’s order denying the motion to suppress. The convictions are affirmed.
So ordered.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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