Commonwealth v. Molina

Botsford, J.

(dissenting, with whom Duffly, J., joins). The court acknowledges, as a first premise, that hotel guests have a legitimate expectation of privacy in their hotel rooms, and that the full protection of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights applies to that expectation — including protection against unreasonable searches and seizures. This premise is unquestionably correct. See, e.g., Stoner v. California, 376 U.S. 483, 490 (1964); Commonwealth v. Lopez, 458 Mass. 383, 389 (2010); Commonwealth v. Porter P., 456 Mass. 254, 261 (2010). See also 4 W.R. LaFave, Search and Seizure § 8.5(a), at 208-209 (4th ed. 2004). But the court then concludes that the warrantless and therefore presumptively unreasonable search by the police of the defendant’s prepaid hotel room on June 18, 2005, was permissible because the defendant’s expectation of privacy previously had been extinguished by his lawful eviction. Ante at 828. Accordingly, the court reasons, no “search” in the constitutional sense occurred. I do not agree and therefore dissent.

As the court states, the right to and expectation of privacy belonging to a hotel guest are limited by the transient nature of his relationship to his hotel room. Thus, it is well established that a hotel guest loses his legitimate expectation of privacy in a hotel room when he stays beyond the period for which he has *830paid the hotel, or when he effectively abandons the room. In such a situation, no search in the constitutional sense can be said to have occurred because these types of acts — staying beyond the rental period or abandonment — signal that the person knew or reasonably should have understood or expected that he no longer had a legitimate right to use the hotel room, or at least to assert exclusive possession over it. See, e.g., Commonwealth v. Netto, 438 Mass. 686, 698 (2003) (where guests did not return to room because of arrest on murder charges, from motel’s perspective, room had been abandoned and guests “no longer had any reasonable expectation of privacy in the room, as it would not have been reasonable for them to expect that motel personnel would not disturb the room or the belongings they had left behind”). See also Commonwealth v. Paszko, 391 Mass. 164, 184-186 (1984) (discussing abandonment and ending of rental period as events that defeat motel guest’s reasonable expectation of privacy in room). See generally 4 W.R. LaFave, Search and Seizure, supra at § 8.5(a), at 214-215.

To abandonment and staying beyond the rental period, the court now adds being lawfully evicted by the hotel as a basis on which a person loses his protected privacy expectation. I agree that a hotel’s lawful eviction of a guest from his room may terminate the guest’s legitimate expectation of privacy. For the termination to occur, however, what is necessary — and what is missing from the court’s formulation — is that the hotel actually carry out the eviction in an objectively recognizable manner, and that the guest being evicted have knowledge of the eviction before or when it occurs, or at least before the police conduct their search of the room.

The reason that the guest’s knowledge of the eviction is critical is tied to the protection offered by the Fourth Amendment (and art. 14). “[T]he Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). An expectation of privacy signifies a person’s anticipation, belief, or understanding that he may preserve a particular place as private. See id. By definition, a person’s belief or understanding cannot be terminated without the person’s knowledge or awareness. Tellingly, in all but one of the cases the court cites to support its conclusion that a hotel’s lawful eviction terminates the *831guest’s expectation of privacy in his room, the facts show that (1) the guest was very much aware of the eviction as it was taking place — and therefore could be held to know that with the loss of the rented room, he was also losing his expectation that the room was his private space; and (2) the challenged police search took place thereafter.1 See United States v. Molsbarger, 551 F.3d 809, 811-812 (8th Cir.), cert, denied, 129 S. Ct. 2168 (2009) (police assisted hotel manager in physically evicting guests on account of loud behavior and suspected drug dealing; defendant, one of guests in room, was recognized by police as subject of outstanding arrest warrants; subsequent search of hotel room was incident to his arrest); United States v. Allen, 106 F.3d 695, 699 (6th Cir.), cert, denied, 520 U.S. 1281 (1997), clarified by United States v. Washington, 573 F.3d 279, 285 (6th Cir. 2009) (defendant’s rental period had expired because of his failure to pay room rate before search occurred; that fact, combined with his use of room for illegal purposes, ended his reasonable expectation of privacy); United States v. Haddad, 558 F.2d 968, 971, 975 (9th Cir. 1977) (defendant checked out of room after being ejected with his knowledge, telling police he did not want any belongings he might have left behind; search of room occurred thereafter); People v. Hardy, 77 A.D.3d 133, 135-136, 139-141 (N.Y. 2010) (based on defendant’s failure to pay room charge, complaints of loud noise and smell of marijuana, hotel staff sought police assistance in evicting defendant; defendant in room when police arrived to assist; after hotel employee told defendant hotel wanted him to pack and leave, *832police saw contraband in plain view, arrested defendant, and conducted search of room).

In contrast to the cases just cited, the only reasonable view of the facts in this case indicates that at the time the police entered and conducted the warrantless search of the defendant’s fully paid-for room, he had no knowledge that the hotel had purported to evict him. Although the hotel staff had “double-locked” his room, the defendant was not present when that was done, and did not learn of it at any time before the police search — for which the defendant also was absent.2 The hotel registration card informs a guest, including the defendant, that if he does not comply with all Federal, State, and local laws, as well as hotel rules and regulations, he “may be asked to leave the hotel and/or be evicted” (emphasis added). Notably, however, the card does not state that the defendant will “be asked to leave the hotel and/or be evicted” for such a violation, and certainly does not indicate that he will be evicted without notice.3 Furthermore, again in contrast to the cited cases, it is far from evident that the hotel can be said actually to have evicted the defendant. The record indicates only that the hotel double-locked the door to the defendant’s room to prevent his reentry. It is questionable whether this was enough to effect the defendant’s eviction. See United States v. Young, 573 F.3d 711, 720 (9th Cir. 2009).4

*833The court sets out the established test for measuring whether a defendant’s expectation of privacy is reasonable and entitled to constitutional protection: “(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.” Ante at 824, quoting Commonwealth v. Porter P., 456 Mass, at 259. Considering the first part of this test, there is no dispute that the defendant had a subjective expectation of privacy in room 718, a room that he paid to stay in from June 17 to June 20, and secured when he left it to go out during the day on June 18.5 On the second part of the test, however, the court appears to conclude that society would not be prepared to consider the defendant’s privacy expectation as reasonable once the hotel management “became aware of [the defendant’s] criminal offense in a room,” because in those circumstances the defendant could not reasonably have continued to believe that the hotel would not be entitled to terminate his right to use the room. Ante at 827. This reasoning is flawed. The question is not whether the defendant reasonably could have thought that the hotel was powerless to remove him from the hotel at any point during his prepaid rental period once the *834hotel’s management learned he was engaging in criminal conduct in his room. Rather, the issue is whether society would accept as reasonable the proposition that any hotel guest, even one who is engaging in misconduct in his room, should be, and is, entitled to maintain his expectation of privacy in that room unless and until the hotel actually notifies him that he has been or is being evicted on account of that conduct. I believe the clear answer is yes. See Stoner v. California, 376 U.S. at 489-490 (in defendant’s absence, hotel clerk admitted police into defendant’s room at their request to investigate defendant’s possible involvement in reported robbery; Supreme Court overturned denial of defendant’s motion to suppress evidence found in room: “No less than a tenant of a house, or the occupant of a room in a boarding house ... a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. . . . That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful”). See also Commonwealth v. Porter P., 456 Mass, at 262, 275 (where juvenile had reasonable expectation of privacy in his room in transitional shelter, warrantless search of room by police was unreasonable because shelter director could not supply valid consent to search and no exigent circumstance justified absence of warrant); Commonwealth v. Neilson, 423 Mass. 75, 80 (1996) (college student had legitimate expectation of privacy in his dormitory room; State college officials could not authorize police to search defendant’s dormitory room without warrant and evidence seized in search was properly suppressed).

Because, in my view, the defendant had not lost his legitimate expectation of privacy in room 718 at the time the police, at the invitation of the hotel, entered and searched the room on June 18, that search was subject to constitutional requirements. And because no warrant had been obtained and no exception to the warrant requirement applied, the search was unreasonable and the evidence seized as well as the fruits of that search should have been suppressed.

I make two final observations. First, the implications of the court’s holding that the defendant’s reasonable expectation of *835privacy ended by “eviction” in accordance with the hotel registration card, regardless of whether the defendant was aware of his purported eviction, are far reaching. This defendant does not present a sympathetic picture: his room smelled of marijuana and was indeed filled with marijuana and other drugs; he appeared to have been selling drugs (given the presence of a scale and a large amount of cash in the room); he had a handgun within the room; and his intended guests were loud and rude to the hotel’s management and staff. But the court’s decision reaches much more broadly. For example, in light of the statement on the hotel registration card that a guest may be evicted for violation of the hotel’s rules, presumably the hotel would be free to evict a guest staying in a room on a nonsmoking floor on the ground that the chambermaid found cigarette butts in the guest’s room. In such a case, if the manager were to double-lock the door of the room while that guest is out — signaling, according to the court, a completed eviction — it would appear perfectly permissible under the court’s reasoning for the manager immediately to contact the police to enter and search the room and all the guest’s belongings because, as the court has decided, by virtue of the manager’s unilateral actions, the guest, unbeknownst to her, no longer had a reasonable expectation of privacy. That is a disturbing result.

Second, to conclude on the facts presented that the police were not entitled to enter and search room 718 when they did, does not mean that the hotel and the police were powerless to act. As the court indicates, no one challenges the authority of the hotel management and staff to enter a guest’s hotel room without his presence or specific consent. If, as was the case here, members of the hotel staff observed marijuana and a scale on entering the defendant’s room, they were free to convey that information to the police, and the police could have posted an officer to secure the room and used the hotel staff’s information to secure a search warrant. See Commonwealth v. Neilson, 423 Mass, at 79 n.5.6

For these reasons, I respectfully dissent.

The one case cited by the court where the defendant was deemed evicted without notice is Johnson v. State, 285 Ga. 571 (2009). There, the hotel followed its eviction protocol, but the defendant was not present to receive the obligatory telephone call or knock on the door that was to precede eviction. Id. at 571-572. The court deemed this type of eviction permissible, however, because Georgia has an innkeeper statute that expressly provides that notice is not necessary for a hotel’s “termination of [a guest’s] occupancy for cause, such as failure to pay sums due, failure to abide by rules of occupancy, failure to have or maintain reservations, or other action by a guest.” Id. at 574 n.ll, quoting Ga. Code Ann. § 43-21-3.1(b) (LexisNexis 2008). There is no similar provision in the Massachusetts innkeeper’s statute, G. L. c. 140, § 12B. This statute speaks not of eviction but only of “removal” of a guest for certain reasons, and implies that the guest be present for the removal, because the statute directs the hotel to tender to the guest any unused portion of a prepayment “at the time of removal.” Id.

The defendant did not return to the hotel until approximately three hours after the police completed their warrantless search of room 718.

The court concludes that under the terms of the registration card, the manager was authorized to evict a guest without notice. Ante at 827.1 find no language in the registration card to support this view; rather, the card is completely silent on the notice question. Given the fact that the word “eviction” is usually associated with landlord-tenant matters, and that in the landlord-tenant context, eviction generally requires notice, see, e.g., G. L. c. 239, § 1A, it is not reasonable to assume that a hotel guest, including the defendant, would understand or interpret the single word “eviction” on the registration card as signaling that he could be evicted without notice.

It is true that the hotel’s night manager told the defendant in the early morning hours of June 18 that if there were one more complaint from another guest or hotel staff, the defendant would be “gone.” This warning may indeed be significant in terms of putting the defendant on notice that his continued stay at the hotel was in jeopardy, but the warning did not inform the defendant that he was subject to eviction without any notice. Nothing in the record indicates that at the time the hotel later double-locked the defendant’s room and the police conducted their search, the defendant knew there had been additional complaints.

The United States Court of Appeals for the Ninth Circuit considered facts *833quite similar to the facts of this case, and affirmed the determination of the trial judge that no eviction of the defendant had occurred. United States v. Young, 573 F.3d 711, 716-717, 719-720 (9th Cir. 2009) (Young). The court observed that the only affirmative act the hotel had taken toward eviction of the defendant was to place his hotel room on “electronic lockout,” which would not necessarily signal to the defendant, when he tried to enter the room thereafter, that he had been evicted as opposed to having a key that did not work. Id. at 716-717. The court also pointed to other factors indicating a lack of eviction, including that the defendant was never told by any member of the hotel’s staff that he had been evicted; his belongings were not removed from the room and placed into storage; and there was no indication his name had been removed from the hotel’s list of registered guests. Id. at 717. These same factors also apply in the present case: the defendant was never told that he had been evicted, his belongings were never removed from the room until the police took them, and there is no evidence that the defendant had been removed from the registered guest list. There are differences between the case before us and Young — among them, that the hotel’s staff in Young appeared to consider the defendant still to be in possession of his room at the time the search occurred, see id. at 717 — but the court’s point is persuasive in Young that merely rendering a guest’s key inoperable does not by itself constitute an eviction.

In addition, when the defendant returned to the hotel around 11 p.m. on June 18, he tried — and was not prevented from doing so by the hotel staff —• to use his room key to enter what he evidently considered still to be his room.

Alternatively, if the hotel staff had seized the marijuana, scale, and other items in the defendant’s room that indicated criminal conduct and handed them over to the police, this would not be barred by the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Leone, 386 Mass. 329, 333 (1982).