Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Carter v. State (7/3/2003) ap-1887
Carter v. State (7/3/2003) ap-1887
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SAMUEL K. CARTER, )
) Court of Appeals No.
A-8217
Appellant, )
Trial Court No. 4FA-01-117 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1887 July 3, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: Michael A. Stepovich,
Fairbanks, for Appellant. Kenneth J. Diemer,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Samuel K. Carter was one of four occupants of a hotel
room in Fairbanks. The police were interested in investigating
the room because they suspected that drug activity was occurring
there. The police obtained the hotel managements permission to
search the room after Carter and the other occupants checked out
(i.e., after they vacated the room, and before the hotels
cleaning staff began to work on the room).
However, the police decided to speed up this process.
The police knew that the hotels check-out time was one oclock
p.m., so at one oclock they ordered Carter to gather his
belongings and leave the room. In the process of gathering his
belongings, Carter opened a night stand drawer. When he did so,
the police observed crack pipes and syringes in the drawer.
Based on this discovery (and other evidence obtained in the
ensuing investigation), Carter was convicted of fourth-degree
controlled substance misconduct.1
We conclude that the police did not have the authority
to remain in Carters hotel room, nor did they have the authority
to order Carter to gather his belongings and leave the hotel
room. We therefore conclude that the evidence against Carter
should have been suppressed, and that his conviction must be
reversed.
The evidence relating to Carters tenancy in the hotel
room and the authority granted to the police by the
hotel management
On January 9, 2001, Carter and three other
people occupied a room at the Fairbanks Comfort Inn;
the other occupants of the room were Pamela Fain, her
adult daughter Amy Fain, and Amys minor child.
The hotel room had initially been rented on
January 5th for one night. However, the rental had
been extended on a day-to-day basis, up to and
including the night of January 8th. The established
check-out time at the Comfort Inn was one oclock in the
afternoon. Thus, the check-out time for Carter and the
other occupants of the room was one oclock on the
afternoon of January 9th.
Carter was under police surveillance on the
morning of January 9th. The police were investigating
a report that Carter had threatened Amy Fain with a
gun, and they were also aware that Carter had a history
of using narcotics.
Investigator James OMalley, a Fairbanks
police officer assigned to the Statewide Drug
Enforcement Unit, decided to contact the management of
the Comfort Inn to seek permission to search Carters
room. OMalley spoke to the front desk clerk, Judith
Tonkovich, asking that he be allowed to search Carters
room after the occupants checked out, but before the
housekeeping staff cleaned the room. Tonkovich told
OMalley that he could search the room after the
occupants checked out. Tonkovich also informed OMalley
that the established check-out time was one oclock.
OMalleys conversation with Tonkovich took
place around noon. To kill time until Carter and the
other occupants checked out, OMalley ate lunch and then
he went to the Comfort Inn to renew his surveillance of
the hotel and of Carters vehicle (which was parked in
back of the hotel). OMalleys purpose was to see who
came out of the hotel at check-out time, who drove away
in Carters vehicle, and what they might be carrying.
But at approximately 12:45 p.m., a new
development occurred: several Alaska State Troopers
arrived to take Amy Fain into custody on a citizens
arrest complaint. OMalley and his surveillance partner
decided to assist the troopers with this arrest.
The troopers and the officers entered the
hotel room at about one oclock. Following a struggle,
Amy Fain was arrested and the troopers removed her from
the hotel room. But Officer OMalley and his partner
decided not to leave with the troopers; instead, they
remained in the hotel room.
Following Amys arrest, Pamela Fain took Amys
child and left the room. Thus, of the original four
occupants, only Carter remained.
According to the superior courts later
findings of fact, it was now slightly past one oclock.
OMalley ordered Carter to gather his belongings and
leave the room. OMalley later testified that he
believed he had the authority to order Carter to leave
because (a) the room was not rented in Carters name,
(b) no one had paid for another night, and (c) it was
now past the hotels check-out time of one oclock.
While Carter was gathering his belongings, he
opened a night stand. Inside the night stand drawer,
OMalley and his partner observed crack pipes and
syringes in the night stand. This discovery led to the
charge in the present case.
The superior courts ruling that the police lawfully
discovered this evidence under the plain view doctrine,
and (alternatively) because Carter had no expectation
of privacy in the room after one oclock
Following his indictment, Carter asked the
superior court to suppress the evidence against him.
He argued that the police had had no right to order him
to gather his belongings and leave the room, and thus
their observation of the crack pipes and syringes in
the night stand drawer was the fruit of a Fourth
Amendment violation.
Superior Court Judge Mary E. Greene denied
Carters suppression motion because she concluded that
the discovery of the crack pipes and syringes had
resulted from a plain view observation. But the judges
decision actually contains two alternative rationales
for the seizure of the crack pipes and syringes.
First, Judge Greene found that the police
officers lawfully observed this contraband when, after
they ordered Carter to leave the room (so that they
could begin searching it), Carter opened the night
stand drawer. Thus, the contraband was in plain view.
To justify a seizure of evidence under the plain view
doctrine, the police must make their observation from a
place where they are entitled to be. Judge Greene
found that the officers were authorized to remain in
Carters room, and to order Carter to vacate the room,
because the management of the hotel had consented to
have the officers enter and search the room.
Judge Greene acknowledged that the police
[had] not [been] requested by the Comfort Inn to evict
Mr. Carter. But she then offered an alternative
rationale for the seizure of the crack pipes and
syringes. She ruled that Carter had no right to occupy
the room after one oclock i.e., that Carters
expectation of privacy in the room expired at one
oclock because (1) one oclock was the Comfort Inns
established check-out time and (2) Carter had done
nothing at that point to extend his occupancy of the
hotel room (by, for example, informing the hotel
management that he intended to stay for another night).
She concluded that, because Carter had no expectation
of privacy in the room after one oclock, he could not
complain that the officers forced him to gather his
belongings and leave the room.
A hotel guests expectation of privacy in a hotel room
The superior courts decision rests on two
foundations, one factual and the other legal. The
legal foundation of the superior courts decision is the
courts ruling that, if check-out time passes without
action on the part of a hotel guest to renew their
tenancy, the hotel guest loses all expectation of
privacy in their hotel room. This is not correct. The
correct rule, as explained by our supreme court in
Sumdum v. State, 612 P.2d 1018 (Alaska 1980), is that,
depending on the factual circumstances and the hotels
own policies, the guest may suffer a diminution of
their expectation of privacy in the room as against the
hotel management.
In Sumdum, the defendant was staying in a
hotel room that was registered in someone elses name.
The police were interested in Sumdum because he had
been identified as the suspect in a theft. The police
contacted the hotel management at twelve-thirty in the
afternoon. The hotels check-out time was eleven in the
morning, and the desk clerk confirmed that neither the
registered guest nor anyone else had paid for another
nights lodging or had otherwise indicated an intent to
extend their stay.2
The desk clerk later testified that whenever
hotel guests failed to contact the management within an
hour or so after the eleven oclock check-out time, it
was the clerks responsibility to ascertain (1) whether
the guests had absconded without paying for the room
or, if not, (2) whether the guests intended to extend
their stay or (instead) vacate the room.3 To conduct
this inquiry, the clerk would first telephone the room.
If the guests did not answer the phone, the clerk would
go to the room and attempt to make contact by knocking
on the door. If the clerk was still unsuccessful in
making contact with the guests, the clerk would then
enter the room to investigate the situation.4
In Sumdums case, the desk clerk followed the
hotels standard procedure. Because it was twelve-
thirty (i.e., an hour and a half after the normal check-
out time), she telephoned the room. After receiving no
answer, she walked to the room and knocked on the
door.5 Still receiving no response, the desk clerk
went back to her office, retrieved the hotel
managements key to the room, and then opened the room.
The police were at her side in the corridor. When the
desk clerk opened the door, the police saw
incriminating evidence (fruits of the theft) in plain
view.6
The supreme court recognized that the
legality of the officers discovery of this
incriminating evidence turned on whether the officers
validly obtained their view of the interior of the
room.7 The court acknowledged that [a] guest in a
motel has a constitutionally protected right [of]
privacy in [their] room; thus, in normal circumstances,
motel personnel cannot consent to a search of the
guests room.8 However, the guests expectation of
privacy changes when the rental period has ended. The
court explained that
after the rental period has terminated, a
guests reasonable expectations of privacy are
greatly diminished with respect to the right
of [the] motel management to enter [the
room].
Sumdum, 612 P.2d at 1021 (emphasis added).
The supreme court concluded that, because the desk
clerk entered Sumdums room under circumstances when she
normally would have done so, and in accordance with the
motels customary procedures, her entry was lawful. The
supreme court further concluded that the lawfulness of the
desk clerks entry into the room was not altered by the
presence of the police.9
However, in an accompanying footnote, the supreme court
clarified that the right to enter the room upon the termination
of the guests tenancy belongs to the hotel management, not the
police, and that any such entry must normally conform to the
practices of the hotel management. The court cautioned that, in
future cases, [i]f the police presence results in actions that
would not normally have occurred within the time frame in
question, [we] will look carefully at the circumstances to
determine whether [the alleged] independent private purposes [for
the entry] are merely a sham for warrantless police searches.10
This insistence on honoring the standard practices of
the hotel is simply another facet of the rule that the supreme
court stated earlier in its opinion: a guest who fails to meet
the check-out deadline set by the hotel does not lose all
expectation of privacy in the room; rather, the guest suffers a
diminution of their expectation of privacy with respect to the
right of the hotel management to enter the room.
This same rule is consistently followed by the federal
courts that have addressed this issue. Although these courts
sometimes phrase the rule in terms of the guest losing all
expectation of privacy after check-out time expires without
renewal of the tenancy, these federal cases uniformly involve
entries by hotel management or entries by police officers at the
express authorization of hotel management. That is, non-renewal
of the tenancy does not subject hotel guests to warrantless
entries and searches by the police; rather, depending on the
circumstances, non-renewal may subject guests to entries and
searches by hotel management.11
As the Sumdum decision suggests, the extent to which a
hotel guests expectation of privacy is diminished will vary
according to the particular circumstances of the case and the
customary practices of the hotel. The Fourth Circuit expressly
acknowledged this same rule in United States v. Kitchens, 114
F.3d 29, 32 (4th Cir. 1997): [a motel] guest may still have a
legitimate expectation of privacy even after his rental period
has terminated, if there is a pattern or practice which would
make that expectation reasonable.
Professor Wayne R. LaFave discusses this feature of
Fourth Amendment law in his treatise on the law of search and
seizure. Professor LaFave agrees that when a guest misses the
hotels check-out deadline, the guests rights i.e., the extent of
the guests continued expectation of privacy in the room will
depend, in large measure, on the hotel managements customary
practices and the circumstances of the tenants relationship with
the hotel management. Thus, no abandonment [of the premises]
will be deemed to have occurred[,] even after the initially
indicated term of [occupancy has expired, if, for example,] the
tenant had arranged for credit card payment of all charges and
both the motel [management] and the tenant treated the tenants
non-departure as extending the term [of occupancy]. Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment
(3rd ed. 1996), 2.3(a), Vol. 1, p. 471.
Professor LaFaves statement of the law is borne out by
the cases. For example, in United States v. Owens, 782 F.2d 146,
150 (10th Cir. 1986), and in United States v. Watson, 783 F.Supp.
258, 263 (E.D. Va. 1992), the courts held that hotel guests
retained a legitimate expectation of privacy in their rooms even
though the established check-out time had elapsed because the
hotel management had acquiesced in the guests pattern of paying
their bills after the check-out time.
Thus, under our supreme courts decision in Sumdum and
the corroborating authorities discussed above, Carters
expectation of privacy in the hotel room did not come to an
abrupt end at one oclock in the afternoon. In particular, Carter
continued to have a right of privacy vis-a-vis the police. If
the police had any authority to remain in Carters room and order
him to vacate the room, that authority had to be derived from the
express consent of the hotel management.
Because the one oclock check-out time had passed,
Carters expectation of privacy vis-a-vis the hotel management was
conceivably diminished. But, as the supreme court held in
Sumdum, the extent of that diminution hinged on the customary
practices of the Comfort Inn and Carters interaction with the
hotel management.
We now examine the evidence on these issues.
Carters expectation of privacy as against the
management of the Comfort Inn, and the scope of the
permission given to the police by the management of the
Comfort Inn
At the suppression hearing, Comfort Inn desk
clerk Judith Tonkovich described the Comfort Inns
customary practices regarding its one oclock check-out
time, and she also testified to her conversations with
Carter about his continued tenancy as a hotel guest.
Tonkovich told the superior court that, even
though the Comfort Inns established check-out time is
one oclock, the hotels guests often remain away from
their rooms past that time, not realizing that the
scheduled check-out is one oclock. For this reason,
especially if the hotel is scheduled to be full that
night, the hotel management will call guests to remind
them of the check-out time, and to ask if they intend
to check out on time or if they are planning to extend
their stay.
Tonkovich also told the superior court that
it was not uncommon for hotel guests to contact the
desk clerk after one oclock and indicate that they
wished to stay at the hotel for another night. The
hotel apparently acquiesced in this practice.
In particular, Tonkovich expressly declared that she
had not authorized Officer OMalley and his partner to
force Carter to vacate the room at one oclock.
Tonkovich conceded that OMalley contacted her
and asked her when the occupants of Carters room were
due to leave. In answer to OMalleys question,
Tonkovich told him that the occupants of the room were
due out at one oclock but she also told him that she
did not know their plans. Tonkovich told OMalley that
she [would] call and see if they [were] staying over,
or whatever.
Tonkovich did in fact call the room. She
spoke to a man who identified himself as Sam i.e.,
apparently Carter. When Tonkovich asked Sam whether
the occupants of the room would be checking out that
day, he told her that they would let [her] know.
Tonkovich relayed this information to her supervisor,
the hotel manager. She told the manager that she had
not heard a definite answer from the occupants of the
room, and that they might be staying over.
Based on this testimony (which was
undisputed), it was not the Comfort Inns customary
practice to immediately assert its right of possession
against guests who missed the one oclock check-out
time. To the contrary: Tonkovichs testimony suggests
that the Comfort Inn routinely granted guests a certain
amount of leeway when the check-out time was missed.
Moreover, leaving aside the Comfort Inns
general approach to the one oclock check-out time,
Tonkovichs conversation with Carter showed that she
specifically granted leeway to the occupants of Carters
room. When Carter told Tonkovich that he and his
friends would let her know later whether they intended
to extend their stay at the hotel, Tonkovich did not
object to his answer, nor did she set a deadline for
Carters decision.
In sum, based both on the customary practices
of the Comfort Inn and on Carters own conversation with
Tonkovich (a representative of the hotel management),
Carter continued to have a reasonable expectation of
privacy in the hotel room after one oclock.
Because Carter retained a reasonable
expectation of privacy in the room, the police had no
authority to remain in Carters hotel room after the
arrest of Amy Fain that brought them there, and they
had no authority to force Carter to gather his
belongings and vacate the room. This would have been
true even if Tonkovich had purported to authorize the
officers actions. But, as the evidence shows, she did
not authorize the officers actions.
As already noted, Tonkovich expressly
testified that she did not authorize the officers to
evict Carter from the hotel room at one oclock. And
Tonkovichs testimony on this point is consistent with
Officer OMalleys testimony. OMalley did not assert
that Tonkovich authorized him to force Carter from the
room at one oclock. Rather, OMalley testified that
when he contacted Tonkovich, he asked her for
permission to search Carters hotel room after the
occupants checked out that is, after the hotel
management had regained its right of possession, and
before the cleaning staff went to work on the room.
When Judge Greene denied Carters suppression
motion, she found that the management of the Comfort
Inn consented to have the police officers search
[Carters room] after the guests were no longer entitled
to be there by which the judge meant that the hotel
management authorized the police to search the room at
one oclock if no one had explicitly arranged for
another days tenancy. This finding is clearly
erroneous.12
The evidence shows that Tonkovich authorized
the police to search the hotel room after Carter and
the other guests checked out i.e., after they
voluntarily vacated the room. Tonkovich did not
authorize the police to evict Carter from the room at
one oclock, nor did she authorize the police to search
the room at the stroke of one if the occupants of the
room failed to expressly arrange for an extension of
their tenancy.
Judge Greene further found that Carter did
not have to open anything; he did not have to pack up
anything apparently suggesting that when the police
officers saw the crack pipes and the syringes in the
night stand drawer, this was because Carter voluntarily
displayed or gathered up these items in a manner that
allowed them to be seen by the officers. Again, this
finding is clearly erroneous.
After the state troopers completed their
arrest of Amy Fain, OMalley and his partner remained
unlawfully in Carters hotel room, and they unlawfully
ordered Carter to gather his possessions and vacate the
room. Because of the officers illegal order, Carter
was faced with the choice of either (1) leaving his
possessions behind while the officers prepared to
unlawfully search his room or, alternatively, (2)
gathering up his possessions under the scrutiny of the
officers a scrutiny that was not legally authorized,
since the officers were entitled neither to remain in
Carters room nor to order him to leave.
Under these circumstances, Carter did not
voluntarily expose his possessions to the officers
scrutiny. The officers observation of the crack pipes
and syringes was the fruit of their unlawful presence
in the room and their unlawful demand that Carter
vacate the room. The superior court should have
granted Carters motion to suppress this evidence and
its fruits.
Conclusion
To sum up: As a factual matter, the hotel
management did not give the police the authority to
enter Carters room and remove him from the premises at
one oclock. Moreover, even if the hotel management had
purported to consent to these police actions, the hotel
management would have exceeded its own authority
because, based on the hotels customary practices
regarding check-out, and based on Carters earlier
conversation with the desk clerk, Carter retained a
reasonable expectation of privacy in the room even
after one oclock.
It is true that the officers had independent
authority to enter the room to assist the state
troopers in arresting Amy Fain. But once this task was
completed, the police had no authority to remain in the
room, and they had no authority to order Carter to
gather his belongings and vacate the room.
Thus, the police officers observation of the
crack pipes and syringes can not be justified under the
doctrine of plain view. Rather, the officers
observation of this contraband was the fruit of their
illegal actions.
The judgement of the superior court is
REVERSED.
_______________________________
1 AS 11.71.040(a).
2 Sumdum, 612 P.2d at 1020.
3 Id. at 1021, 1022 n. 6.
4 Id. at 1020.
5 Id.
6 Id.
7 Id. at 1021.
8 Id.
9 Id.
10 Id. at 1022 n. 7 (emphasis added).
11 See United States v. Kitchens, 114 F.3d 29, 30, 31-32
(4th Cir. 1997) (upholding the right of the manager to authorize
the police to enter a motel room when more than an hour had
passed since the established check-out time and the guests had
not extended their tenancy); United States v. Allen, 106 F.3d
695, 697, 699 (6th Cir. 1997) (upholding the right of the manager
to enter a motel room under similar circumstances); United States
v. Huffhines, 967 F.2d 314, 316, 318 (9th Cir. 1992) (holding
that a guest has no reasonable expectation of privacy in their
room against motel management after the rental period has
expired); United States v. Rahme, 813 F.2d 31, 33, 35 (2nd Cir.
1987) (same); United States v. Larson, 760 F.2d 852, 854, 855
(8th Cir. 1985) (same); United States v. Parizo, 514 F.2d 52, 54
(2nd Cir. 1975) (upholding the right of the manager to enter a
motel room when the defendant rented the room for a single night,
paid only for one night, and never informed the management that
he wished to stay longer).
12 A finding is clearly erroneous if it leaves the
[reviewing court] with a definite and firm conviction on the
entire record that a mistake has been made, although there
may be evidence to support the finding. Geczy v.
LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981).
