IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0676-19
MICHAEL JOSEPH TILGHMAN, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
HAYS COUNTY
MCCLURE, J., filed a concurring opinion.
OPINION
Today the Court holds a hotel has a right to evict a guest, without advance
notice, if the guest engages in behavior that violates the hotel’s policies, and that the
hotel has the right to call the police for assistance with the eviction. The Court has
therefore decided that a hotel manager’s instant eviction of a hotel guest immediately
terminates a guest’s reasonable expectation of privacy. It arrives at this decision by
TILGHMAN CONCURRENCE ― 2
looking at federal case law, and the case law of several of our sister states. Today’s
holding is consistent with other jurisdictions that have considered this issue, as well
as consistent with the right of a property owner, absent a landlord-tenant
relationship, to control under what circumstances a guest may stay on property. And
yet I write separately to express my concern that under this eviction theory, there is
a danger that a hotel manager could simply show up with police, immediately
extinguish any privacy interest that a guest has in their room via eviction, and allow
police to search a room without regard for the Fourth Amendment. Without direction
from the Legislature as to specific eviction and notice requirements involving hotel
guests, however, I reluctantly concur with the majority that in this case, hotel
management lawfully evicted Appellant, which terminated his expectation of
privacy in the room, without prior notice.
The circumstances surrounding the eviction and subsequent arrest of the
occupants of Room 123 of the Marriott Fairfield Inn on October 14, 2016, were
captured on Officer Daniel Duckworth’s body-worn camera. The San Marcos Police
Department received a phone call from one of the hotel’s managers asking assistance
in evicting the occupants of Room 123 “for having drugs in the room.” After the
officers arrived, they accompanied the hotel manager to Room 123. The officers
knocked on the door repeatedly, announced that they were with the San Marcos
Police Department, and proceeded to open the door.
TILGHMAN CONCURRENCE ― 3
As seen on the body-worn camera footage, two occupants, Bo Zimmerhanzel
and Michael Joseph Tilghman (the Appellant), can be seen standing near the door,
with Zimmerhanzel appearing surprised. One of the officers tells the occupants,
“How’s it going? San Marcos Police Department. What’s going on, guys?”
Zimmerhanzel, who is standing partly inside the bathroom, responds, “Nothing.
Goddamn. What’s going on here?” An officer replies, “Hey, let me see your other
hand.” Zimmerhanzel complies by stepping outside the bathroom and showing the
officers both of his hands. He then tells the officers, “Oh, I’m sorry. Damn, what the
hell’s going on?”
One of the officers announces, “Here’s the deal. Y’all, it’s time for y’all to
leave.” Zimmerhanzel asks, “What did we do?” The officer replies, “You are no
longer welcome guests of this hotel.” Zimmerhanzel again asks, “What did we do,
sir? Damn.”
One of the officers asks if there are only two men in the room and
Zimmerhanzel points at the bathroom and indicates that another person is inside.
Travis Ward then emerges from the bathroom, holding a disposable shaving razor,
and tells the officers, “Sorry, I’m shaving.”
Zimmerhanzel again asks, “What, what’s the problem here?” Officer
Duckworth then gestures his hand toward the door, telling the other officers to “go
in, make sure.” Officer Smith then enters the room, with another officer following
TILGHMAN CONCURRENCE ― 4
closely behind him. As Smith is walking past the door, Zimmerhanzel then says,
“Come on, come on in, man.” All of this occurs within 30 seconds of the officers
opening the door.
After the officers had entered the room, the three officers “stood around . . .
in different areas and then we just told them to collect their belongings and
essentially stood there until we started observing narcotics in plain view.” This
evidence included “a glass container containing marihuana on the nightstand in
between the two beds” and, in the drawer to the nightstand, “a small, clear plastic
bag containing a white crystalline substance” that Duckworth recognized as
methamphetamine. After detaining the men, the officers “searched the areas
immediately around them” and found additional narcotics in the trash can,
specifically “another plastic bag containing many smaller, clearer plastic bags
containing methamphetamine.”
The majority opinion holds that Appellant was evicted when the hotel staff
took affirmative steps to evict the occupants of Room 123 when the hotel manager
(1) initially knocked on the door, and (2) called the police to assist in an eviction. It
is at this moment, according to the majority, that Appellant’s expectation of privacy
in the hotel room was extinguished.
While I agree that a hotel’s lawful eviction of a guest from his
room may terminate a guest’s legitimate expectation of privacy, I would prefer that
TILGHMAN CONCURRENCE ― 5
the guest being evicted have knowledge of the eviction before it occurs, or at a
minimum, before the police conduct a search of the room. Such a knowledge
requirement would be somewhat analogous, in my mind, to the notice requirement
in the criminal trespass statute. A prosecution for criminal trespass requires that the
State prove that Appellant had “notice” that he may no longer remain on or in
property of another as defined by Section 30.05(b)(2). “Notice” means: (A) oral or
written communication by the owner or someone with apparent authority to act for
the owner; (B) fencing or other enclosure obviously designed to exclude intruders
or to contain livestock; (C) a sign or signs posted on the property or at the entrance
to the building, reasonably likely to come to the attention of intruders, indicating that
entry is forbidden. TEX. PENAL CODE § 30.05(b)(2).
In this case, the record before us is void of any evidence that Appellant had
“notice” of an eviction. According to the record, hotel staff knocked on Appellant’s
door to alert him that he was being evicted but Appellant did not come to the door
or answer those attempts.1 But unlike the criminal trespass statute, notice is not a
requirement in a hotel eviction. In fact, Texas law allows eviction from a hotel
without legal process. McBride v. Hosey, 197 S.W.2d 372, 375 (El Paso, 1946, writ
1
The night manager testified at the suppression hearing that prior to his arrival at the hotel that
night, another manager or hotel employee had knocked on the door of the room “[t]o get [the
occupants] to leave” but that “nobody answered” and that “another gentleman said that they were
gone.”
TILGHMAN CONCURRENCE ― 6
ref’d n.r.e). Ideally, hotels would have eviction policies, give them to guests, and
provide notice before an eviction. But none of these requirements exist in Texas law,
and I am not suggesting that this Court judicially create hotel eviction notice
requirements. This type of law-making is left to the Legislature.
Do people have an expectation of privacy in a hotel? Yes, but it’s limited.
The Fourth Amendment protects people, not places. Katz v. United States, 389 U.S.
347, 351 (1967). A guest in a hotel room is protected against unreasonable searches
and seizures, and the general requirement for a search warrant is not suspended
merely because of the guest status of the occupant of the room. Stoner v. California,
376 U.S 483, 490 (1964). The United States Supreme Court has held that hotel guests
are “people” entitled to this protection “[n]o 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” and that this
“protection would disappear if it were left to depend upon the unfettered discretion
of an employee of the hotel.” Stoner, 376 U.S. at 490. The Court added, “It is
important to bear in mind that it was the petitioner’s constitutional right which was
at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which
only the petitioner could waive by word or deed, either directly or through an
agent.” Id. at 489.
TILGHMAN CONCURRENCE ― 7
Given this framework, it seems that the intermediate court is correct that a
Fourth Amendment violation occurred at the moment officers opened the door and
were able to enter and see what was inside. This is because, as the Supreme Court
held in Stoner, it is the rights of the occupant of the room are what is at stake, not
the apparent authority of the hotel employee. On the other hand, I find no error in
this Court’s opinion in that hotel management was within their rights to evict
Appellant; indeed, the police may assist with eviction when asked by hotel staff; and
a hotel manager is not prohibited from entering the room. See Voelkel v. State, 717
S.W.2d 314, 315 (Tex. Crim. App. 1986).
While I realize that this was a highly fluid situation with no obvious solution,
I do not like the officers’ warrantless entry into the room. It would have been better
(and this case would not be before us) if the officers had waited in the hallway or
obtained consent to enter the room prior to doing so. Yet here we are. Under the
Court’s holding, there is a danger that a hotel manager can simply show up with
police and immediately extinguish any privacy interest that a guest has in their room.
Then police could search the room without regard for the Fourth Amendment. The
action of the hotel clerk would make the search of a hotel room lawful, which is the
result the Supreme Court cautioned against in Stoner. See Stoner, 376 U.S. at 487-
88.
TILGHMAN CONCURRENCE ― 8
I also take issue with this Court’s holding that Appellant’s expectation of
privacy in the hotel room extinguished when hotel staff took “affirmative steps” to
evict the occupants of Room 123. A hotel guest’s knowledge of an eviction, which
would terminate any privacy rights, is critical to the protections offered by the Fourth
Amendment. A person’s belief or understanding cannot be terminated without one’s
knowledge. Therefore, it logically follows that a hotel guest has an expectation of
privacy in the room he is occupying that cannot be terminated without the guest’s
knowledge.
This is not what happened in this case. The facts show that the occupants of
Room 123 were not aware of the eviction until the moment they were asked by the
officers to leave. It was at this moment, and no sooner, that the occupant’s reasonable
expectation of privacy began to erode. But, as evidenced by the body-cam recording,
police officers entered the room without Appellant’s consent. At the time the police
entered, Appellant was simultaneously being evicted and losing his expectation of
privacy in the room.
I would prefer that any hotel guest, even one who was previously engaging2
in misconduct in his room, maintain his expectation of privacy in that room unless
2
I am by no means implying that during every police-assisted eviction, the police should stand
outside a room, particularly if a valid warrant exception exists. However, that was not the situation
here. The day manager had smelled marijuana earlier in the day, but there was no evidence that
the night manager or the officers smelled marijuana outside Room 123.
TILGHMAN CONCURRENCE ― 9
and until the hotel notifies him that he has been or is being evicted, and has been
given a reasonable amount of time to vacate the premises, and law enforcement
would be able to provide a reasonable amount of assistance to hotel management to
effectuate the eviction. Applying this standard to the facts of this case, once
Appellant was told by the manager that he was evicted, Appellant should have been
given a reasonable amount of time to gather his belongings and leave before the
police entered the room without the guest’s permission, without a warrant, or without
an exception to the warrant requirement. This would allow an evicted hotel guest to
retain a reasonable, but steadily dwindling, expectation of privacy, and prevent the
police from entering the room unless the guest resists eviction. Because Appellant
had not lost his legitimate expectation of privacy in Room 123 at the time the police,
at the invitation of the hotel, entered and searched the room, that search would be
unreasonable, and the evidence seized would be suppressed.
The court of appeals raised the concern that allowing for “instant” evictions
may be abused by police agencies to get around the requirement to get a search
warrant. The majority seeks to allay that concern by pointing out that hotels acting
in such a way would risk bad reviews online and customer complaints. I note that
the hotel in this case is a Marriott property – a hotel typically used by business and
leisure guests staying for a relatively short amount of time (less that a week; often
no more than a couple of nights). While getting a bad review on Yelp may be a
TILGHMAN CONCURRENCE ― 10
concern for a Marriott hotel owner, some hotels might be resistant to these concerns,
such as “extended stay” hotels that operate much more like apartments without
leases creating landlord-tenant relationships. Many of these properties are used by
people as transitional housing over the course of weeks and months, and many such
properties are used for illegal activity ranging from prostitution to narcotics sales. It
is at this type of property that abuses of instant evictions are more likely to occur.
There is now a risk that someone residing at such a hotel for several months could
be instantly evicted and subjected to an invasive search without a warrant based on
mere suspicion, or even nefarious motives by hotel management. Hence my belief
that ideally, a hotel guest should have reasonable time to gather belongings and leave
upon eviction. Until and unless the Legislature intervenes, this risk will persist.
In conclusion, I do not like the contemporaneous eviction and termination of
expectation of privacy that occurred in this case. Yet I agree that hotel management
was within their rights to evict Appellant. Without direction from the Legislature as
to the type of notice required for the eviction of hotel guests, I reluctantly concur
with the majority’s holding that hotel management can evict guests and terminate
their expectation of privacy in the room at any time, with no prior notice required.
Filed: June 23, 2021
PUBLISH
Tilghman, Michael Joseph
Combined Opinion