Commonwealth v. Molina

Ireland, C.J.

After a jury-waived trial, the defendant, Mark Molina, was found guilty of trafficking in a class B controlled substance (cocaine), G. L. c. 94C, § 32E (b) (1); possession of a class C controlled substance (mescaline) with intent to distribute, G. L. c. 94C, § 32; two charges of possession of a class D controlled substance (marijuana) with intent to distribute, G. L. c. 94C, § 32; possession of a firearm without a license, G. L. c. 269, § 10 (a); and possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h).2,3The defendant appeals from his convictions, contending that his pretrial motion to suppress evidence and statements was improperly denied. 4 In his motion, the defendant argued that, under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights,5 the warrantless search of his hotel room was unlawful, which thereby invalidated statements he later made to police as well as subsequent searches made by police pursuant to warrants. We transferred the case here on our motion. We conclude that because the hotel manager lawfully evicted the defendant from his room, the defendant did not have a reasonable expectation of privacy in the room at the time of the police search and the search therefore was not unlawful. We thus affirm.

1. Background. In reviewing a decision on a motion to suppress, “we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). We summarize the judge’s findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Garcia, 443 Mass. 824, 828 (2005).

Through an Internet travel service (Expedia.com), the defendant, then twenty-one years of age, reserved a room at a privately owned hotel in Boston. His reservation was for three nights, commencing on Friday, June 17, and ending on Monday, June 20, 2005. Using his credit card, the defendant prepaid for the entire stay.

On June 17, the defendant arrived at the hotel and was assigned room 718. He signed a registration card.6 Above his signature on the registration card is the following notice to the guest:

“This hotel is privately owned and the management reserves the right to lawfully refuse service to anyone. Guests must comply with all [F]ederal, [SJtate, and local laws as well as the hotel’s rules and regulations. If a guest does not comply with the above, the guest may be asked to leave the hotel and/or be evicted. The hotel is not responsible for valuables left on the premises.

“I agree to be personally liable if the indicated person, firm or corporation fails to pay any of the above charges. I agree to have you bill my presented card in the event I fail to sign it.”

That evening, at about 8 p.m., a group of visitors entered the hotel carrying beer and announced that they were there to see the defendant. The hotel’s night manager, Gerald Good, explained to them that pursuant to the hotel’s rules they could not bring alcoholic beverages into the hotel. The visitors left the beer at the hotel desk; one-half hour later, they retrieved the beer and left the hotel.

Later, at about 2:30 a.m., now June 18, two women and four men entered the hotel lobby in a very loud, abusive manner. They appeared to be intoxicated and some of them carried alcoholic beverages. Because hotel rules required the staff, after 11 p.m., to check the identification of anyone who seeks to enter the hotel beyond the lobby without a room key, a hotel security officer as well as Good questioned the group. The security officer asked them for their room keys, which they could not produce. They stated that they were there to visit the defendant. Good stepped in and explained the hotel rales to the visitors, namely that he could allow three of them to visit in the defendant’s room if the defendant came down and registered them with the hotel. The visitors became verbally abusive to Good, a security officer, and the night audit staff. Another security officer, Herve Pierre Jacques, was called to assist.

In response to Good’s request, the defendant came down to the lobby and spoke to Good and his visitors. Good told the defendant that if his friends continued to behave as they had, he (Good) would eject the defendant and his guests from the hotel with the assistance of the Boston police. Good and the defendant asked the visitors to leave; they complied, but continued their verbal abuse as they departed. Good warned the defendant that if the hotel received one more complaint from guests or staff concerning his occupancy, he would be “gone.”

During the day on June 18, the hotel managers received complaints from guests about an odor of marijuana in the hallway outside room 718, which is located on a nonsmoking floor. At approximately 7 p.m., Good and Jacques went to room 718 to investigate the complaints. As he stepped from the elevator into the hall near room 718, Good immediately noticed an odor of marijuana concentrated in the vicinity of room 718.

Good knocked on the door to room 718 several times and, after receiving no response, used a master key card to enter the room together with Jacques. No one was inside. In plain view, the men observed a scale, what appeared to be marijuana residue,7 rolling papers, and a hat on a table in the room. One of them moved that hat and observed additional marijuana on the table. They saw more marijuana in a wide open bag that was on the bed.

The men left the room. Good decided on behalf of the hotel that the defendant would not be permitted to continue to use the room and had a security officer “double-lock” the door so that the defendant would not be able to enter the room. Good returned to the hotel lobby and contacted the Boston police department. At about 7:30 p.m., Detectives William E. Tracy and James Simpson arrived at the hotel and spoke with Good, who relayed what had taken place. A uniformed police officer also was dispatched to the hotel and accompanied the detectives. Good, Jacques, and the officers went to room 718. Using his master key card, Good let the officers inside the room. In plain view, the officers saw what Good and Jacques had observed earlier.

While inside the bedroom, the detectives smelled a strong smell of marijuana from the bathroom. They determined that the smell was coming from a backpack on the bathroom floor; the backpack was unzipped and open. In plain view, the detectives saw clear plastic bags of marijuana near the top of the open backpack. Detective Tracy moved the bags and just underneath them found a loaded nine millimeter handgun. After removing the weapon, he saw a clear bag of cocaine as well as several bundles of cash. The cash amounted to $10,860.

The police officers confiscated the backpack, gun, cash, and drugs from the backpack and left the room. Again, Good had the door to room 718 double-locked to prevent the defendant’s entry into the room. The officers waited inside a vacant room across the hall from room 718 to see if the defendant would return. Because he did not return after some time, the officers left.

At approximately 11 p.m., the defendant returned to the hotel and attempted unsuccessfully to enter room 718 with his pass key. Good notified police that the defendant had returned; the detectives came back and arrested the defendant.

While he was in custody, the defendant made statements to the detectives (after having received Miranda warnings) which were used by police to apply for, and obtain, search warrants for room 718 and the defendant’s apartment. On June 20, the detectives executed the search warrants. In room 718 the police found a plastic bag with white powder residue and a small pile of marijuana. In the defendant’s apartment they discovered cash, cocaine, and mescaline.

As relevant here, in his decision denying the motion to suppress, the motion judge concluded that the entry by Good and Jacques into the defendant’s hotel room did not implicate the Fourth Amendment or art. 14 because the men had not contacted police at that point and, as such, they were not acting as agents of the police. The judge determined that, based on “an accumulating series of misconduct incidents and warnings to the defendant,” and Good’s own observations and sensory impressions that indicated that the defendant was using the room to commit a criminal offense,8 the hotel had a lawful and objectively reasonable basis to exclude the defendant from the room by double-locking the door. This action effectively and lawfully ended the defendant’s right to use the room, thereby terminating any reasonable expectation of privacy that he had possessed in the room. Because the defendant’s privacy expectations had been terminated prior to the arrival of the police, the judge concluded that their entry into the room with Good’s consent was lawful. The judge went on to state that the defendant’s arrest and the search warrant applications were lawfully based on the evidence seen by the officers when Good permitted them to enter into the room. For these reasons, the judge denied the motion to suppress.

2. 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 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 718,9 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)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.11 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 note 3. In the circumstances, we reject the defendant’s contentions that his eviction was improper based on a lack of notice.12

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.13 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.

2 The defendant was acquitted on a charge of possession of a class B controlled substance (cocaine) with intent to distribute, G. L. c. 94C, § 32A (c).

3 Execution of the defendant’s sentence was stayed by the trial judge pending appeal.

4 The trial judge was not the motion judge.

5 In his motion to suppress, the defendant did not argue that art. 14 of the Massachusetts Declaration of Rights affords him any greater protection than the Fourth Amendment to the United States Constitution.

6 On his registration card, the defendant provided a different address from the one he provided to Expedia.com. Both addresses were in close proximity to the hotel.

7 The defendant does not dispute that subsequent chemical analysis of what appeared to be various drugs found in his hotel room (and later found in his apartment) revealed that those substances were in fact the controlled substances indicated herein.

8 With regard to Good’s having smelled marijuana in the vicinity of the defendant’s room, we note that, apart from the fact that the floor was designated a nonsmoking floor, his entry into the defendant’s room took place before the adoption of G. L. c. 94C, §§ 32L-32N, inserted by St. 2008, c. 387, §§ 2-4, which decriminalized possession of one ounce or less of marijuana. See Commonwealth v. Cruz, ante 459, 464 (2011).

9 The defendant does not challenge the judge’s finding that Good’s and Jacques’s initial entry into room 718 did not implicate the Fourth Amendment or art. 14 because they were not acting at the initiative of, or as agents of, the police. See Commonwealth v. Jung, 420 Mass. 675, 686 (1995), and cases cited.

10 The United States Court of Appeals for the Sixth Circuit later clarified in United States v. Washington, 573 F.3d 279, 285 (6th Cir. 2009), that United States v. Allen, 106 F.3d 695, 699 (6th Cir.), cert. denied, 520 U.S. 1281 (1997), held that “a hotel guest’s use of a room for illegal purposes and beyond the pre-paid rental period vitiates the guest’s reasonable expectation of privacy” (emphasis in original).

11 The Legislature could have imposed a notice requirement on innkeepers, but notably did not. The dissent’s inclination to impose a notice requirement in a private, transient relationship would transform this unique relationship into a residential landlord-tenant relationship. Post at 830-834. A change in this law is one for the Legislature, not this court, to make. There also can be no doubt that such a change would have an adverse affect on hotel or motel owners attempting to curtail the practice of using hotel rooms in connection with unlawful drug activity.

12 The dissent acknowledges that the hotel staff could, without notice to the defendant and without his presence or specific consent, enter his room but not evict him from it. Post at note 6.

13 Contrary to the defendant’s argument, we do not find our decision in Commonwealth v. Porter P., 456 Mass. 254 (2010), analogous. The shelter director of the transitional family shelter did not search the juvenile’s room prior to the police search, nor had she evicted the juvenile from his room. Id. at 257-258.