concurring.
I concur in the result reached by the majority. I write separately to express my concern, however, with the conclusion reached by the majority that Norwood had no reasonable expectation of privacy.
As the majority notes, the “validity of a warrantless search is dependent upon the facts of each case.” Opinion at 35. Here, the facts of this case reveal that on prior occasions Norwood had stayed over beyond checkout time. On each of such occasions, a knob lock was placed on his door until he paid for the extended time. This procedure was the standard operating procedure for the hotel. Prior to the checkout time on the day of the search, Norwood fell and needed emergency medical attention. Hotel personnel summoned an ambulance, and Norwood was taken to the hospital. There is no evidence that Norwood removed his personal belongings from the hotel room or took any other action indicating an intent to abandon the hotel premises. Moreover, the hotel employee who found what was later determined to be cocaine did so prior to the checkout time, a time during which it is undisputed that Norwood had a right to privacy in the hotel room. On the basis of these facts, I believe a factual issue was presented as to whether Norwood had a reasonable expectation of privacy in the hotel room at the time the search was conducted.
“A warrantless search is presumed to be unreasonable and the State bears the burden to show that the search falls under an exception to the warrant requirement.” Opinion at 35 (quoting Smith v. State, 565 N.E.2d 1059, 1060 (Ind.1991)). Here, the only evidence to support Norwood’s conviction was *38that seized in the warrantless search. Moreover, the admission of such evidence established Norwood’s guilt. By failing to challenge the warrantless search, Norwood’s counsel freed the State of its burden and failed to preserve any error on appeal. This question should have been presented to the trial court for its resolution, and counsel’s failure to do so constituted deficient performance.
Norwood must show more than deficient performance; he must also show prejudice resulting from such deficiency. Because Norwood has not demonstrated that an objection to the introduction of the evidence would have been sustained, he has failed to show such prejudice. Accordingly, I concur in the result reached by the majority.