Opinion
NO. PD-0676-19
06-23-2021
Michael Joseph TILGHMAN, Appellant v. The STATE of Texas
Michael McCarthy, for State. Paul M. Evans, for Appellant.
Michael McCarthy, for State.
Paul M. Evans, for Appellant.
OPINION
Slaughter, J., delivered the opinion of the Court in which Keller, P.J., Hervey, Richardson, Yeary, Keel, and Walker, JJ., joined. After hotel management smelled marijuana smoke coming from a guest room, a hotel employee knocked on the door in an attempt to evict the guests. After this attempt was unsuccessful, a manager later requested police assistance with evicting the guests. In assisting with the eviction, police entered the hotel room and witnessed drugs in plain view. Police then arrested the occupants of the room, conducted a search of the room incident to arrest, and seized the drugs. Was there a Fourth Amendment violation such that the drug evidence was subject to suppression? The short answer is no, because once the hotel took affirmative steps to evict the occupants of the room, those occupants no longer had a reasonable expectation of privacy in the room. We reverse the judgment of the court of appeals which held that the trial court erred in failing to grant Appellant's motion to suppress.
I. Background
Appellant Michael Joseph Tilghman and two other men rented Room 123 at the San Marcos Fairfield Marriott Hotel. When the hotel's day manager walked by Appellant's room, he smelled marijuana smoke. The hotel had a no-smoking policy as well as a policy prohibiting illegal activity on hotel grounds. Therefore, the day manager instructed an employee to evict the occupants. The employee knocked on the door of Room 123, but there was no response. A "gentleman" told the employee that "they were gone."
When night manager Joshua Chapman arrived for his shift at around 10:30 p.m., he was apprised of the situation. Chapman also received a call from the day manager instructing him to evict the occupants of Room 123. Before attempting any eviction, Chapman first walked by the room and smelled the marijuana smoke himself. This satisfied him that an eviction was appropriate. But, given the fact that there were multiple men in the room and knowing that drugs were involved, Chapman called the police for assistance with the eviction.
San Marcos Police Officers Daniel Duckworth and Austin Smith responded to Chapman's request for assistance with the eviction. Upon their arrival, Chapman informed them of the situation involving marijuana smoke, the fact that the hotel had tried to evict the men earlier but that no one responded to the employee's knocking, and that he needed their help in evicting the men from Room 123. As soon as another officer arrived as backup, Chapman led the officers to the room. Officer Smith knocked on the door multiple times. Receiving no answer, on the third attempt, Officer Smith announced himself as a police officer. While there was still no response, officers could hear whispering from inside the room. Officer Duckworth told Chapman that the police officers "did not have the right to enter the room, but [Chapman] did." Chapman then used his key to unlock the door and Officer Duckworth opened it.
Upon opening the door but while standing outside the room, Officer Duckworth saw two men standing in the hallway of Room 123 and heard the toilet flushing in the bathroom. He asked if there was anyone else in the room. One of the men visible to Officer Duckworth indicated that there was another man in the bathroom, at which point the man in the bathroom popped his head out and was holding a razor as though he had been shaving. But, Officer Duckworth noted that there was no water or shaving cream on his face. Based on Officer Duckworth's training and experience as a police officer, the delay in answering the door, the sound of a toilet flushing, and the man's explanation that he had been shaving despite having a dry face all led him to believe there was a possibility that drug evidence was being destroyed. As he testified at the suppression hearing, "Narcotics are easily flushed down the toilet so that's one of the typical things we get. It's very common for people to try to flush narcotics."
Despite his concern over evidence being destroyed, Officer Duckworth remained outside the room and informed the men that "they were no longer welcome at the hotel and that the management was requesting that they gather their belongings and leave." He also informed the men that police had been knocking on the door and no one responded. The men stated that they were playing guitar and did not hear any knocking. Officer Duckworth testified that there were no guitar sounds coming from the room—only whispering.
After Officer Duckworth notified the men that the hotel was evicting them, he stepped into the room. As he crossed the threshold of the room, one of the room's occupants invited the officers in. Officer Duckworth testified that the officers needed to enter the room out of concern for officer safety "because typically with narcotics comes firearms and weapons." He also was concerned about destruction of evidence, but his primary purpose was to ensure officer safety during the eviction.
After instructing the men to collect their belongings, the officers initially stood in different parts of the room watching the men gather their things. But after observing narcotics in plain view, including marijuana and methamphetamine, the officers arrested Appellant and his co-defendants. Appellant was subsequently charged with possession of methamphetamine with intent to deliver in an amount more than 4 but less than 200 grams. Appellant and one of the co-defendants filed motions to suppress the evidence obtained inside the hotel room.
A fourth officer joined in after the initial three officers entered the room.
See Tex. Health & Safety Code § 481.115(d).
A. Motion to Suppress Hearing
After hearing the testimony of Officer Duckworth and night manager Chapman, the trial court denied Appellant's motion to suppress. The court made findings of fact and conclusions of law stating that: (1) the defendant had a diminished expectation of privacy in the room based on his eviction by hotel staff for hotel policy violations; (2) Chapman had a right to enter the room to facilitate the eviction, and Officer Duckworth also had a right to enter to assist Chapman in the eviction; (3) the contraband was found in plain view and allowed officers to lawfully arrest Appellant and his co-defendants; (4) narcotics discovered in the hotel room's trash can were found pursuant to a lawful search incident to arrest; (5) even if Appellant had a reasonable expectation of privacy in the hotel room, the officers had probable cause to believe a crime was being committed in the room based on the information relayed by hotel staff and that exigent circumstances existed to justify the warrantless entry; and (6) even if exigent circumstances did not exist to justify the entry, Appellant's co-defendant consented to Officer Duckworth's entry. After the motion to suppress was denied, Appellant pled guilty and was sentenced to ten years’ imprisonment.
These were the only two witnesses who testified at the motion to suppress hearing.
Officer Duckworth's bodycam footage shows one of the guests saying "come on, come on in, man" to the officers. But at the motion to suppress hearing, Officer Duckworth admitted that he had already broken the threshold of the room before being invited in.
B. Court of Appeals’ Opinion
In reversing the trial court's denial of Appellant's motion to suppress, the court of appeals held that, without advanced notice of eviction, Appellant maintained a reasonable expectation of privacy in the hotel room and there were no exigent circumstances which justified the police officers’ entry. Tilghman v. State , 576 S.W.3d 449, 462, 465 (Tex. App.—Austin 2019). It further held that the co-defendant's consent to entry was not voluntary. Id. at 467. In reaching its conclusion that Appellant maintained an expectation of privacy in the room at the time of the officers’ entry, the court of appeals placed great emphasis on the following facts elicited at the motion to suppress hearing: (1) each hotel room contains a binder which includes Marriott's no-smoking policy; (2) the no-smoking policy provides that violators will be assessed a "fee" but says nothing about possible eviction; (3) Chapman testified that Marriott has a policy that prohibits illegal activity and requires violators to leave the premises, but Chapman was unaware of any rental agreement that describes that policy for guests; and (4) Chapman did not believe that any notice of eviction had been slid under the door of Room 123. The court also relied on the Supreme Court's decision in Stoner v. California , in which the Court held that a hotel guest has a reasonable expectation of privacy in his hotel room and that a hotel clerk may not consent to a search of the occupant's room at law enforcement's request. Id. at 459, 462 (citing 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) ). The court of appeals ultimately determined that because Appellant had no notice that he could be evicted under the no-smoking or illegal activity policies and had no advanced notice of the eviction before police arrived, he was not lawfully evicted and retained his expectation of privacy in the hotel room at the time police entered. Id. at 461-62. Therefore, the court held that the warrantless entry by law enforcement violated Appellant's Fourth Amendment rights. Id. at 462.
Justice Kelly dissented. She concluded that police did not enter Appellant's room to search it as was the case in Stoner , but instead entered to assist the hotel with an eviction. Tilghman , 576 S.W.3d at 469 (Kelly, J., dissenting). She further noted that "Texas law does not require that a hotel guest be notified in advance that he could be evicted for committing illegal activity on hotel property," and that both parties agreed that at the time officers entered the hotel room, the hotel had the right to evict Appellant. Id. at 469, 471. In Justice Kelly's view, because the hotel had the right to evict Appellant for using drugs on the premises in violation of hotel policy, it was lawful for hotel staff to call the police to effectuate the eviction, including allowing police to enter Appellant's room. Id. at 470–71 (citing Voelkel v. State , 717 S.W.2d 314 (Tex. Crim. App. 1986) ). She also pointed to federal cases upholding warrantless entries into hotel rooms by police in situations involving hotel-initiated evictions of guests. Id. (citing United States v. Peoples , 854 F.3d 993, 995 (8th Cir. 2017)) (upholding police officer's warrantless entry into motel room after staff member handed him a key and asked him to evict guest; entry was lawful because it "was not a search but an eviction"); United States v. Tolbert , 613 F. App'x 548, 549 (7th Cir. 2015) (upholding officer's unaccompanied entry into a hotel room to evict an occupant for violating a hotel non-smoking and no-party policy; as soon as hotel staff authorized officers to evict the guests, the guests' "hotel tenancy—and accompanying expectation of privacy—was extinguished"). Justice Kelly concluded that, absent any Texas law requiring that a guest "must be put on notice that they could be evicted for illegal activity," no such notice was required here. Id. at 471-72. Thus, Appellant was properly evicted by the police at the hotel staff's request and the resulting discovery of contraband was lawful. Id. at 472.
Justice Kelly acknowledged that Peoples and Tolbert are distinguishable. In Peoples , the hotel eviction was expressly authorized by state statute. Peoples , 854 F.3d at 995. And in Tolbert , the hotel's policies allowing for eviction upon violation were provided to guests at check-in. 613 F. App'x at 549. But, she noted that these cases are more analogous to this case than Stoner , because Stoner did not involve an eviction; it involved police requesting the hotel's permission to search a suspect's hotel room. Tilghman, 576 S.W.3d at 471 (Kelly, J., dissenting).
We granted the State's petition for discretionary review on a single ground to evaluate the court of appeals’ analysis of this Fourth Amendment issue.
The State's ground for review states, "The Court of Appeals erred in holding that police could not lawfully enter a hotel room to help a hotel manager evict a guest engaging in criminal activity."
II. Analysis
Agreeing in large part with Justice Kelly's dissent, we hold that, contrary to the court of appeals’ conclusion, Appellant's expectation of privacy in the hotel room was extinguished once the hotel staff took affirmative steps to evict him on suspicion that he was using illegal drugs in his room in violation of hotel policy. Thus, the police officers’ entry into his room at the request of hotel staff to facilitate the eviction was lawful. Because we conclude that the court of appeals erred in holding otherwise, we reverse.
A. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Lerma v. State , 543 S.W.3d 184, 189–190 (Tex. Crim. App. 2018). We afford almost total deference to a trial court's determination of historical facts. Id. at 190. When a trial judge makes express findings of fact, an appellate court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. State v. Rodriguez , 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). We then apply a de novo standard of review to determine the legal significance of those facts. Id.
B. Fourth Amendment Principles
The U.S. Constitution's Fourth Amendment guarantees people the right "to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures[.]" U.S. CONST. AMEND. IV. This means that, subject to certain exceptions, law enforcement must obtain a search warrant before searching or seizing any place or thing in which a person has a reasonable expectation of privacy. Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ("Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this Court has inferred that a warrant must generally be secured."). A person always maintains a reasonable expectation of privacy in his or her home. Kyllo v. United States , 533 U.S. 27, 31, 34, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). This right has been extended to hotel guests in their rooms. Stoner , 376 U.S. at 490, 84 S.Ct. 889 ("No less than a tenant of a house ... a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures."); Moberg v. State , 810 S.W.2d 190, 194 (Tex. Crim. App. 1991). As such, hotel staff may not consent to a law enforcement search of an occupied room in which a guest retains an expectation of privacy. Stoner , 376 U.S. at 488, 84 S.Ct. 889. Hotel guests, however, lose that expectation of privacy in their room at the time their occupancy is scheduled to end or upon their eviction from the room by the hotel. See, e.g. , Comm. v. Molina , 459 Mass. 819, 948 N.E.2d 402, 408 (2011) ("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."); State v. Williams , 881 N.W.2d 618, 624 (N.D. 2016) ("Once Williams was evicted, the hotel room reverted to the control of the hotel management, Williams no longer had a privacy interest in the hotel room, and the hotel manager could consent to the officers entering the room to remove Williams’ belongings."); United States v. Bautista , 362 F.3d 584, 586 (9th Cir. 2004) (concluding that, because defendant "was not evicted from his motel room by the manager, he retained a legitimate expectation of privacy at the time of the warrantless entry by the police"); United States v. Bass , 41 F. App'x. 735, 737 (6th Cir. 2002) ("The hotel management had no authority to subvert Bass's exclusive right to consent to the search of his hotel room in the absence of any evidence that the hotel management had decided to evict him at the time of the search."). If hotel management needs assistance with carrying out an eviction of a hotel guest (for example, based on expiration of the occupancy period or for a violation of hotel policies), police are allowed to assist with facilitating the eviction, and that is not considered a violation of the person's Fourth Amendment rights. See Voelkel v. State, 717 S.W.2d 314, 315-16 (Tex. Crim. App. 1986) (concluding that motel guest who had stayed past checkout time and had been asked to leave by manager had "a substantially diminished expectation of privacy" in her room, such that officers who arrived and entered her room to "facilitate her eviction" did not "infringe upon appellant's Fourth Amendment expectation of privacy").
While the aforementioned principles are well-established, this case presents a novel question: At what point, under Texas law, does a person lose his reasonable expectation of privacy in a hotel room if the hotel decides to evict him for violating hotel policy? Our answer is that such loss of privacy interest occurs as soon as the hotel staff takes affirmative steps to repossess the room. Thereafter, control of the hotel room reverts to the hotel, such that any entries by hotel staff or police to facilitate the eviction are lawful and do not amount to a violation of the person's Fourth Amendment rights.
C. A hotel guest who violates hotel policy loses his expectation of privacy in his room when hotel staff takes affirmative steps to carry out an eviction; thus, actual advanced notice of eviction is not required.
Because we agree with much of the substance of Justice Kelly's dissenting opinion, we draw significantly from it in our analysis of this issue.
Under Texas law, there is no landlord-tenant relationship between a hotel and its guest. Olley v. HVM, L.L.C. , 449 S.W.3d 572, 575–76 (Tex. App.—Houston [14th Dist.] 2014) (citing Bertuca v. Martinez , No. 04-04-00926-CV, 2006 WL 397904, at *2 (Tex. App.—San Antonio Feb. 22, 2006, no pet.) (mem. op.) ). Thus, an innkeeper has no duty to keep a guest indefinitely and has the right to evict a guest for any number of reasons. McBride v. Hosey , 197 S.W.2d 372, 374 (Tex. Civ. App.—El Paso 1946, writ ref'd n.r.e.) ("[W]hen a guest is obnoxious for some reason he may be forcibly removed and without resort to legal process, provided no more force is used than is necessary."). Moreover, as Justice Kelly noted, Texas has no statutory law requiring a specific procedure for evicting guests from hotels. See Tilghman , 576 S.W.3d at 471 (Kelly, J., dissenting). Given the lack of any statutory law on this issue, resolution of the instant question must be resolved by looking to the available case law.
We acknowledge here that the Property Code contains numerous provisions governing eviction in the context of a landlord-tenant relationship. See, e.g., Tex. Prop. Code §§ 24.001 et seq. (setting forth provisions regarding forcible detainer action to evict). However, because no landlord-tenant relationship exists between a hotel and its guest, such provisions are inapplicable in this context. See Olley, 449 S.W.3d at 575 ("A guest in a hotel is a mere licensee, not a tenant.... Accordingly, no landlord-tenant relationship exists between a hotel and its guest."); Dass, Inc. v. Smith , 206 S.W.3d 197, 200 (Tex. App.—Dallas 2006, no pet.) ("A forcible detainer action is dependent on proof of a landlord-tenant relationship."); McBride , 197 S.W.2d at 374 (stating that forcible detainer action was "not applicable" in context of evicting hotel guest since "the relation of landlord and tenant does not exist because of the absence of a contract with respect to realty"). Thus, our use of the term "eviction" in this opinion refers to the common law understanding of that term—"[t]he act or process of legally dispossessing a person of land or rental property." Black's Law Dictionary (10th ed. 2014).
As noted above, this Court has already held in Voelkel that a motel guest who stays past the agreed-upon occupancy period can be physically evicted with assistance from police officers at the request of motel staff. Voelkel , 717 S.W.2d at 315–16. In Voelkel , a motel guest stayed two hours past the scheduled checkout time after having previously been warned about unacceptable conduct during her stay (specifically, she parked a motorcycle inside her room). Id. at 315. When she failed to timely check out, the manager called police to assist in evicting her. Id. During the eviction, an officer stepped inside the room and observed drug evidence in plain view. Id. In holding that no Fourth Amendment violation had occurred, we reasoned that the defendant "had a substantially diminished expectation of privacy ... by the time Officers Helm and Reed arrived to facilitate her eviction" because she had stayed two hours past checkout time after having been expressly reminded of the checkout time. Id. Because the manager "clearly had a right to enter the room," the officers who were "present at the invitation of [the manager] also had a right to enter the room." Id. at 315-16.
Although Voelkel is distinguishable because it involved a motel guest who had overstayed the rental period, it nevertheless guides our analysis here. If Appellant had a "substantially diminished" (or extinguished) expectation of privacy by the time of the officers’ entry, then the hotel manager and officers had a right to enter the room and Appellant's Fourth Amendment rights were not violated. Because Voelkel does not address the circumstances under which a hotel guest may be evicted and thus loses his reasonable expectation of privacy during the rental period, and no other cases from this Court appear to address that issue, we look to other jurisdictions for guidance.
In her dissenting opinion, Justice Kelly focused on two federal court opinions: Peoples , 854 F.3d 993, and Tolbert , 613 F. App'x 548. In Peoples , a police officer alerted hotel staff that one of its guests was suspected of involvement in a car theft. 854 F.3d at 995. The hotel clerk then handed the officer a key to the room to evict the guest. Id. After knocking and receiving no response, the officer entered and saw contraband in plain view. Id. In upholding the police officer's conduct, the Eighth Circuit explained that the officer's entry was not a search but was an "eviction." Id. at 997. It explained, "[O]nce a guest has been justifiably expelled, the guest is without standing to contest an officer's entry into his hotel room on Fourth Amendment grounds.... [T]his is true because, upon eviction, the rental period terminates ... [and] control over the hotel room revert[s] to management." Id. at 996 (citations omitted). Importantly, in Peoples , the defendant did not receive any actual notice that he was being evicted prior to the officer's entry into his room. Under those circumstances, the court effectively treated Peoples as having lost his reasonable expectation of privacy in the room immediately once the hotel staff took the action of handing the officer the room key to effectuate the eviction. Thus, the officer's entry at the request of the hotel was not a Fourth Amendment violation. The court's analysis supports the notion that actual notice is not required before a hotel utilizes police assistance for an eviction. It also supports the notion that immediately upon the hotel's taking of some action to evict, a hotel guest's reasonable expectation of privacy in his room is diminished. But Peoples is also distinguishable from this case in at least one respect—the court noted in its opinion that a Missouri state statute expressly permitted eviction for those using a hotel for an unlawful purpose. Id. Because Texas does not have any such statutory law governing the circumstances under which a hotel can evict, Peoples , while persuasive, does not directly resolve the question before us.
In Tolbert , hotel staff called the police to assist with an eviction after receiving complaints about loud partying and smoking in a room. 613 F. App'x at 549–50. Before calling the police, hotel staff did not expressly warn the occupants that they were no longer welcome on the premises, but the written guest rental agreement did include a policy against parties and smoking in rooms and warned guests that violations would result in immediate eviction. Id. at 549. When police arrived, hotel staff handed a key to the officers, who went to the room, knocked, and upon receiving no reply, entered the room. Id. In upholding the officers’ entry under a "clear error" standard, the circuit court agreed with the district court's determination that the defendant "had been evicted ... as soon as [hotel staff] instructed the police to kick out the room's occupants." Id. at 550–51. The court reasoned that a violation of the hotel's policies would subject guests to "immediate eviction." Id. at 551. Thus, as soon as hotel staff authorized the police to enter the room to effectuate the eviction, the defendant's "hotel tenancy—and accompanying expectation of privacy—was extinguished." Id. Again, in Tolbert , the defendant did not receive any express notice that he was being evicted prior to entry by the police. But he did receive a written rental agreement apprising him of the hotel's policy. Given this distinction, Tolbert , like Peoples , is persuasive but not on all fours with the instant case.
Does the lack of a Texas statute expressly authorizing eviction or a written rental agreement stating that violations of hotel policy will result in eviction justify a different outcome in this case such that suppression of the evidence is required? We conclude that the answer is no. While such factors were cited by the courts in Peoples and Tolbert in support of their Fourth Amendment analyses, that does not signal a requirement that these factors be present before a hotel is authorized to immediately evict a hotel guest without notice upon suspicion that the guest has violated a hotel policy. In fact, even in situations where there is no applicable statutory law governing evictions and where the hotel itself does not have a specific written eviction policy that is conveyed to its guests, several courts have held that control of a hotel room reverts to the hotel, and a guest loses his reasonable expectation of privacy therein, immediately upon the hotel's taking of "affirmative steps to repossess the room." United States v. Cunag , 386 F.3d 888, 895 (9th Cir. 2004) (upholding police officer's entry into a hotel room after the manager took "justifiable affirmative steps to repossess [the room] and to assert dominion and control over it" by locking the occupants out and calling the police to report a crime and assist with an eviction); see also Bautista , 362 F.3d at 590 (holding eviction occurs once management has "justifiably terminated [guest's] control of the room through private acts of dominion"). These cases do not require actual notice to the occupants that they are being evicted before allowing law enforcement's entry into the room to effectuate such eviction. Rather, they indicate that a guest loses his right to occupy the premises immediately upon the hotel staff taking some type of action to repossess the room in response to a policy violation, thereby resulting in the immediate loss of the guest's expectation of privacy.
The approach taken by the Eighth Circuit Court of Appeals in United States v. Molsbarger , 551 F.3d 809 (8th Cir. 2009), is particularly persuasive. There, hotel managers responded to several noise complaints and suspected drug use in a room by calling police and requesting assistance in evicting the guests. No notice was provided to the guests that they had violated hotel policy and were being evicted. When the police arrived, they knocked on the guests’ door, announced who they were and that hotel management wanted them to leave, but were refused entry by those in the room. Id. at 810. One of the officers reiterated that the hotel was evicting them and then entered the room. Id. Upon entry, the officer recognized one of the occupants as someone with an outstanding warrant. He handcuffed the occupant, conducted a search of his person incident to his arrest, and found on or near his person narcotics, drug paraphernalia, and $940 in cash. Id. at 810–811. In upholding the police officer's conduct, the Eighth Circuit reasoned that "justifiable eviction terminates a hotel occupant's reasonable expectation of privacy in the room." Id. at 811. It continued, "Disruptive, unauthorized conduct in a hotel room invites intervention from management and termination of the rental agreement. Thus, an individual cannot assert an expectation of being free from police intrusion upon his solitude and privacy in a place from which he has been justifiably expelled." Id. (citations omitted). Applying these principles, the court stated,
Molsbarger and the other occupants of the room were creating a public disturbance that prompted several complaints from other hotel occupants about the noise level in the room. Notwithstanding the manager's warning that they quiet down, the occupants of Room 101 continued their raucous behavior. When the police arrived, the manager confirmed that he wanted the occupants evicted. The police justifiably entered the room to assist the manager in expelling the individuals in an orderly fashion. Any right Molsbarger had to be free of government intrusion into the room ended when the hotel manager, properly exercising his authority, decided to evict the unruly guests and asked the police to help him do so.
Id. at 811–12 (emphasis added).
We find this reasoning persuasive. A hotel has a right to evict a guest immediately, without actual notice, if the guest engages in behavior that violates the hotel's policies. And the hotel has the right to call the police for assistance with the eviction. To hold otherwise would potentially place hotel staff at risk of unreasonable harm by requiring them to attempt a physical eviction without police assistance. Although we recognize that hotel guests generally have an expectation of privacy in their hotel rooms, a guest who is engaging in behavior that he reasonably should know is in violation of hotel policy, even if that policy is not provided to him in writing, should also reasonably know that he may be evicted for engaging in such prohibited conduct once the hotel staff becomes aware of it. Such an individual can no longer contend that he maintains an objectively reasonable expectation of privacy in the room. (And this is particularly true where the prohibited conduct is of such a nature that hotel staff is very likely to discover it, such as the rowdy behavior at issue in Molsbarger , or the use of marijuana resulting in smoke seeping into the common hallway area of the hotel, as in this case). Therefore, subsequent entries into the room by hotel staff or police at the request of hotel staff to evict such a person do not violate his Fourth Amendment rights.
Accordingly, we hold that upon hotel staff taking affirmative steps to evict a guest, control of the hotel room reverts to the hotel, and the guest loses his reasonable expectation of privacy therein. See id. ; see also Cunag , 386 F.3d at 895. At that point, because the guest has lost his reasonable expectation of privacy, the hotel staff has the authority to enter the room and may also invite the police to enter to assist in the eviction. Voelkel , 717 S.W.2d at 315–16. If, as a matter of policy, notice should be required before evicting hotel guests, that is a job for the Legislature. Our only role in this context is to evaluate what is reasonable under the Fourth Amendment. See Valtierra v. State , 310 S.W.3d 442, 448 (Tex. Crim. App. 2010) ("The touchstone of the Fourth Amendment is reasonableness.").
Appellant and the court of appeals have both expressed concern that not requiring notice before eviction will put hotel guests at risk of arbitrary evictions and effectively rid them of an expectation of privacy in their hotel rooms. We note here, however, that the hotel's decision to evict was anything but arbitrary—multiple hotel staff smelled marijuana smoke, and we have no reason to believe that the hotel staff were motivated by anything other than a desire to enforce hotel policy. Moreover, hotel staff knocked on the door to attempt eviction, but the occupants did not respond. Thus, we need not address in the instant case whether a truly arbitrary or entirely unforeseeable eviction would require a different result. Moreover, in the age of social media and widespread posting of reviews, it seems unlikely to us that hotels would frequently engage in arbitrary evictions. A business that frequently evicts paying customers without cause will not stay open long.
Here, the hotel staff took affirmative steps to evict the occupants of Room 123 by initially knocking on the door and, when no one replied, manager Chapman called the police to assist in an eviction. Because control of the hotel room reverted to the hotel immediately upon the hotel taking affirmative actions to evict the occupants, Appellant no longer had an expectation of privacy in the hotel room by the time of the police officers’ entry. Thus, the officers’ entry did not infringe upon his Fourth Amendment rights.
III. Conclusion
Appellant's expectation of privacy in his hotel room was extinguished by the hotel staff's taking of affirmative steps to evict him based on his violation of the hotel's policy against illegal activity. Therefore, the police officers’ entry to effectuate the eviction did not violate Appellant's Fourth Amendment rights. The judgment of the court of appeals is reversed and the trial court's judgment of conviction is affirmed.
McClure, J., filed a concurring opinion.
Newell, J., did not participate.
OPINION
McClure, J., filed a concurring 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 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.
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 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 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. 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 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.
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."
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, 88 S.Ct. 507, 19 L.Ed.2d 576 (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, 84 S.Ct. 889, 11 L.Ed.2d 856 (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, 84 S.Ct. 889. 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, 84 S.Ct. 889.
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, 84 S.Ct. 889.
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 engaging in misconduct in his room, maintain his expectation of privacy in that room unless 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.
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.
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 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.