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While You Were Out: You Were Evicted— The Demise of Hotel Privacy in Commonwealth v. Molina

ALAINA ANDERSON*

ABSTRACT
The right to privacy under the Fourth Amendment protects against unreasonable government intrusion into a citizen’s pursuit of a meaningful life. Formulated with the intent of limiting pre-Revolutionary general warrants under the writs of assistance, Fourth Amendment protections extend to the individual and to that individual’s surrounding sphere of privacy. By analogy, such protections have been extended to hotel guests and their right to exclude others from their hotel room. Whether a hotel guest maintains a reasonable expectation of privacy hinges on the two-prong test from United States v. Katz. While it is commonly understood that this right is extinguished when a guest abandons the room or stays beyond the rental period, some jurisdictions hold that a lawful eviction terminates a guest’s legitimate expectation of privacy. Lawful eviction was a matter of first impression before the Massachusetts Supreme Judicial Court (“SJC”) in Commonwealth v. Molina. However, the SJC disregarded established hotel jurisprudence when it held that lawful eviction through ambiguous steps and without notice is sufficient to terminate a reasonable expectation of privacy. Double-locking the door alone is insufficient, especially where the hotel guest is absent when the hotel staff locks the door and the guest does not return before the police search. By legitimizing the police search, absent a finding of exigent circumstances, the court validated illegal third-party consent and allowed

* Candidate for Juris Doctor, New England Law | Boston (2013). B.A., History, Boston University (2010). I would like to thank my loving family for their dedication and support.

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private security to present incriminating evidence against a hotel guest to police on a “silver platter.” This holding violates a hotel guest’s Fourth Amendment rights and reverts hotel privacy back to the arbitrary preRevolutionary writs of assistance era.

INTRODUCTION
ark Molina booked a hotel room at the Colonnade Hotel in Boston’s Back Bay using Expedia.com and prepaid for his threenight stay.1 Despite misunderstandings about the guest policy, Molina remained a registered guest and had no reason to believe that anyone would disturb his occupancy when he left the hotel sometime during the second day of his stay.2 However, he returned around 11 p.m. that night and found that not only had he been evicted from the hotel, but also that Boston police had conducted a warrantless search of his room and confiscated many of his belongings.3 Shortly after Molina’s return, police were called back to the hotel and Molina was arrested.4 The Massachusetts Supreme Judicial Court (“SJC”), in a case of first impression, held that because the hotel manager lawfully evicted Molina from his room, Molina did not have a reasonable expectation of privacy in the room at the time of the search.5 Additionally, the court relied on the manager’s “reasonable belief” that Molina had violated hotel policy and state law and held that double-locking the hotel room door was sufficient to terminate both Molina’s occupancy and his privacy interest in the room and its contents.6 To determine the existence of a privacy right in the place subject to a search, courts rely on the two-prong test from Justice Harlan’s concurrence in United States v. Katz.7 If the individual has exhibited an actual (subjective) expectation of privacy, and society is prepared to recognize this expectation as (objectively) reasonable then there is a right to privacy under the circumstances.8 This Comment argues that established Fourth Amendment

M

Brief for Defendant-Appellant at 6, Commonwealth v. Molina, 948 N.E.2d 402 (Mass. 2011) (No. SJC-10759). 2 See Commonwealth v. Molina, 948 N.E.2d 402, 405 (Mass. 2011); Brief for DefendantAppellant, supra note 1, at 2.
3 4 5 6 7 8

1

Molina, 948 N.E.2d at 406. Id. Id. at 404, 409-10. Id. at 409-10. See 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Id.

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jurisprudence under Katz precludes the SJC’s holding in Molina.9 Molina had a reasonable expectation of privacy in the room because hotel management failed to provide Molina with actual notice of eviction or to take clear and unambiguous affirmative steps effectuating the eviction.10 Further, the court’s decision to curtail Fourth Amendment protections and validate the police search threatens the fundamental ideals of privacy rights, harkening back to pre-Revolutionary arbitrary policing.11 Part I of this Comment provides background information about the Fourth Amendment, the Katz “reasonable expectation of privacy” test, the implications of the Katz test on hotel law, and relevant case law. Part II discusses the relevant facts and the SJC’s opinion in Commonwealth v. Molina. Part III argues that the SJC erred because it failed to recognize a reasonable expectation of privacy under the Fourth Amendment and declined to invalidate the police search and seizure. Part IV argues that exigent circumstances did not permit police to enter or search the hotel room without a warrant. Finally, Part V argues that the discretion granted to hotels in this case undercuts the Fourth Amendment protections afforded to hotel guests. I. Fourth Amendment Jurisprudence and Hotel Law A. Development of the Fourth Amendment and Katz The Fourth Amendment of the Constitution ensures the “right of people to be secure . . . against unreasonable search and seizure.”12 The Framers intended to protect the pursuit of a meaningful life free from government intrusion.13 The American Revolutionary spirit t centered largely on privacy issues and freedom from government intrusion and sought to restrict general warrants within proper bounds.14 Specifically,

infra Parts III-IV. See discussion infra Part III.A-C. 11 See THOMAS K. CLANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION § 2.2.3.1 at 32, § 2.2.3.3 at 39-40 (2008); see also discussion infra Part V.
10 12

9 See

U.S. CONST. amend. IV. The text of the Fourth Amendment states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Id.
13

AND SEIZURE, 1788-1868,
14

ANDREW E. TASLITZ, RECONSTRUCTING THE FOURTH AMENDMENT: A HISTORY OF SEARCH at 44 (2006).

DANIEL J. SOLOVE, NOTHING TO HIDE 4 (2011).

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writs of assistance15 granted unlimited authority to officials to search a person’s property without giving any reason—akin to general warrants in British America, which made them very controversial.16 It is no surprise, therefore, that privacy became a bedrock principle of the Bill of Rights.17 Initially, Fourth Amendment jurisprudence centered largely on property law concepts18 and courts limited their inquiry to the four objects—persons, houses, papers, and effects—listed in the amendment.19 After the Fourth Amendment’s ratification until nearly the turn of the nineteenth century, the Fourth Amendment received little doctrinal development in either state or federal courts.20 The growth of state and local government police agencies and the Federal Bureau of Investigation, along with the adoption of the exclusionary rule, led to an increase in Fourth Amendment challenges.21 After years of jurisprudential development, the Fourth Amendment is now understood to protect people; not only in the home, but also in the “sphere of privacy [that] moves with the person.”22 Katz v. United States stands for the demise of the property-based right to privacy theory and the rise of the privacy right of individuals to be secure against unreasonable government intrusion.23 In Katz, government officials eavesdropped on the defendant’s telephone conversation in a public telephone booth and subsequently arrested him based on information derived from the telephone conversation.24 The Supreme Court held that the government’s activities violated the defendant’s Fourth Amendment rights.25 The Court explained that the Fourth Amendment protects people and not places, and what one “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”26
15 CLANCY, supra note 11, at 32-33. General writs of assistance allowed officers to search a colonist’s home without reason or suspicion in an effort to curtail smuggling. The writs also played an important role in increasing tensions, which led up to the American Revolution. Id.

See id. at 32-35. Id. at 40. 18 Id. at 40-41. 19 See, e.g., Olmstead v. United States, 277 U.S. 438, 465-67 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967). 20 CLANCY, supra note 11, at 42-43. 21 See id. at 42; SOLOVE, supra note 13, at 8-9, 95. 22 See Boyd v. United States, 116 U.S. 616, 621 (1886); Gerald G. Ashdown, The Fourth Amendment “Legitimate Expectation of Privacy,” 34 VAND. L. REV. 1289, 1319 (1981).
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See Katz v. United States, 389 U.S. 347, 351 (1967). Id. at 348. Id. at 359. Id. at 351.

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Justice Harlan’s concurrence, which gained the traditional significance of a majority opinion, coined the phrase “reasonable expectation of privacy” to determine the circumstances in which an individual can expect to enjoy protection against unreasonable search and seizure.27 Harlan’s test set out a two-prong analysis: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”28 Under the Katz test, a court must find a reasonable expectation of privacy in order for government action to implicate Fourth Amendment protections.29 In the wake of Katz, commentators have empirically surveyed people about what they believe is an invasion of privacy under hypothetical circumstances.30 Ultimately, however, courts defer to the “reasonable person” standard: what the average non-criminal citizen would feel with respect to restraints on freedom of action.31 The inquiry is not based upon whether someone looks suspicious or has a criminal record—the Fourth Amendment extends to all citizens regardless of the government’s suspicions.32 Indeed, the Fourth Amendment encompasses a basic right to exclude; it is a right that travels with the individual to certain constitutionally protected places.33 B. Reasonable Expectation of Privacy and Hotel Law While the protection of the home lay at the core of the property-based theory of Fourth Amendment rights, the Supreme Court and lower courts have extended the expectation of privacy in one’s home by analogizing a person’s hotel room to a “temporary home.”34 Thus, Fourth Amendment jurisprudence provides a reasonable expectation of privacy to hotel guests, similar to that of a house tenant or a boarding-house occupant.35 Unless a
27 28

Id. at 360-61. Id. at 361. 29 See Katz, 389 U.S. at 361. 30 See Christopher Slobogin & Joseph E. Shumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society,” 42 DUKE L.J. 727, 732 (1993).
31 Florida v. Bostick, 501 U.S. 429 (1991) (“The ‘reasonable person’ test presupposes an innocent person.”). 32 See Warren v. Hayden, 387 U.S. 294, 301 (1967) (describing the Fourth Amendment as providing “‘the right of people to be secure in their persons, houses, papers, and effects . . . ,’ without regard to the use of which any of these are applied.”); SOLOVE, supra note 13, at 26-27 (“Government information-gathering programs are problematic even if no information people want to hide is uncovered.”). 33 34 35

See Ashdown, supra note 22, at 1318-19. See Stoner v. California, 376 U.S. 483, 488-90 (1964). Id. at 490.

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guest’s reasonable expectation of privacy in the room has been lawfully terminated, a police search violates the guest’s Fourth Amendment rights36 and any evidence from that search is inadmissible.37 Given the unique and transient nature of hotel occupancy, the law limits some privacy protections in the hotel context.38 Hotel staff, for example, may enter hotel rooms to provide various guest services,39 and hotel guests must share common areas, such as hallways, with other guests.40 Hotels may also prescribe policies for the removal of guests41 and request police assistance to do so.42 However, hotels must follow certain procedural safeguards to avoid violating that person’s rights.43 Under Massachusetts law, hotel guests may lose the exclusive use and enjoyment of their rooms if they conduct themselves in a way that is offensive to other guests or that violates reasonable hotel regulations.44 In such instances, innkeepers “may remove or cause to be removed” such guests and shall “tender to the guest any unused portion of the advanced payment at the time of removal.”45 Although a third-party hotel manager may request police assistance in removing a guest based on suspicions regarding the violation of hotel policy, the manager may not consent to a police search of the guest’s room.46 Furthermore, just because a guest has lost exclusive use and enjoyment of the room, does not necessarily mean that the guest has lost an expectation of privacy in the room.47

E.g., United States v. Bautista, 362 F.3d 584, 589-90 (9th Cir. 2004). See Commonwealth v. Leone, 435 N.E.2d 1036, 1039 (Mass. 1982). 38 See 43A C.J.S. Inns, Hotels, and Eating Places § 8 (2011). The law regards hotel guests as licensees and hotels have some discretion to revoke the license. Id.
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36

See Georgia v. Randolph, 547 U.S. 103, 112 (2006). See Ponce v. Craven, 409 F.2d 621, 624 (9th Cir. 1969); 3A CHARLES ALLEN WRIGHT & SARAN N. WELLING, FEDERAL PRACTICE AND PROCEDURE: FEDERAL RULES OF CRIMINAL PROCEDURE § 663 (4th ed. 2010). 41 E.g., MASS. GEN. LAWS ch. 140, § 12B (2010). 42 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004). 43 79 C.J.S. Searches § 29 (2012) (“Where a motel employee has terminated a tenancy of a guest prior to check-out time, the police may not search the guest's room without a warrant, absent exigent circumstances, until such time as tenant has been given a reasonable time in which to remove his or her belongings.”). 44 33 E. GEORGE DAHER & HARVEY CHOPP, MASSACHUSETTS PRACTICE SERIES: LANDLORD AND TENANT LAW § 1:13, at 46 (3d ed. 2000).
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MASS. GEN. LAWS ch. 140, § 12B (2000). See, e.g., Stoner v. California, 376 U.S. 483, 488-90 (1964); United States v. Jeffers, 342 U.S. 48, 51-52 (1951).
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45

See Johnson v. State, 679 S.E.2d 340, 342-43 (Ga. 2009) (noting that while the defendant may have lost his “property” rights in the room, that does not mean he lost his reasonable expectation of privacy in his belongings in the room).

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Limits on Hotel Privacy a. Abandonment and Staying Beyond the Rental Period

The reasonable expectation of privacy extends to a hotel guest during the rental period and prior to abandonment of the room.48 If a hotel guest abandons the room or stays beyond the rental period, the guest affirmatively forfeits an expectation of privacy in the room.49 If a hotel guest fails to renew for extra nights beyond the initial rental period, then the guest extinguishes the license to use the property.50 Furthermore, if a hotel guest abandons the room and his or her belongings, and makes no arrangements to retrieve those belongings, it would be unreasonable for that guest to expect that hotel personnel would not disturb the room or its contents.51 Thus, Massachusetts case law has firmly established both abandonment and staying beyond the rental period as exceptions to a hotel guest’s reasonable expectation of privacy.52 b. Eviction

In addition to abandonment and staying beyond the rental period, some jurisdictions have found that a lawful eviction terminates a hotel guest’s legitimate expectation of privacy.53 However, eviction is involuntary and ultimately depends on the hotel’s discretion rather than the guest’s actions.54 Therefore, courts have required hotels to manifest

See United States v. Parizo, 514 F.2d 52, 58 (2d Cir. 1975) (arguing that when the term of a guest’s occupancy of a room expires, the individual right to privacy in the room no longer exists); Commonwealth v. Paszko, 461 N.E.2d 222, 235 (Mass. 1984) (holding that a defendant may have a reasonable expectation of privacy in a motel room during the rental period and prior to abandonment); DAHER & CHOPP, supra note 44 (noting that a guest has exclusive use and enjoyment of the room during the period to which it was rented).
49 See United States v. Thomas, 451 F.3d 543, 545 (8th Cir. 2006) (“Abandoned property is outside the scope of fourth amendment [sic] protection because its owner has forfeited any expectation of privacy in it.”); Commonwealth v. Brass, 674 N.E.2d 1326, 1329 (Mass. App. Ct. 1997) (arguing that failure to reregister or pay for continued occupancy shows that the defendant did not prove his reasonable expectation of privacy in the room beyond checkout); Jayme W. Holcomb, Abandoning Places, FBI L. ENFORCEMENT BULL., Oct. 2008, at 23, 24. 50 See Commonwealth v. Netto, 783 N.E.2d 439, 448-49 (Mass. 2003); Paszko, 461 N.E.2d at 235.

48

See Netto, 783 N.E.2d at 448. See id.; Paszko, 461 N.E.2d at 235. 53 See, e.g., United States v. Molsbarger, 551 F.3d 809, 811-12 (8th Cir. 2006); United States v. Allen, 106 F.3d 695, 699-700 (6th Cir. 1997); United States v. Haddad, 558 F.2d 968, 975-76 (9th Cir. 1977); People v. Hardy, 907 N.Y.S.2d 244, 248-49 (N.Y. App. Div. 2010). 54 See United States v. Young, 573 F.3d 711, 717 (9th Cir. 2009) (“[A] manager’s suspicions, not disclosed to the defendant, cannot destroy an otherwise reasonable expectation of
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“private acts of dominion” over the room in order to terminate a guest’s reasonable expectation of privacy.55 Directly notifying the guest of the eviction or effectuating the eviction through “clear and unambiguous” affirmative and objective steps achieve this goal.56 Although courts have not established a bright-line rule, a fact-specific inquiry into the circumstances and the hotel staff’s affirmative steps helps the court determine whether a reasonable expectation of privacy has been terminated.57 Courts have found several “affirmative steps” sufficient to terminate a hotel guest’s expectation of privacy, such as: physically removing the guest from the hotel and requiring that the guest check out,58 asking police to formally evict and peacefully remove the guest,59 leaving a note on the door informing the guest of the eviction,60 removing the guest’s name from the list of registered guests,61 or some combination of these steps.62 Therefore, if officers observe drug paraphernalia in plain sight while evicting the guest, they may properly confiscate the paraphernalia.63 Courts have also found that fraudulent acts, such as procuring a hotel room with a stolen credit card, can weaken an expectation of privacy— especially where the hotel takes other steps to evict—such as filing a police report.64 In all of these cases, however, the police entry and search of the guest room occurred either after the hotel took these affirmative steps or after the defendant had been notified.65
privacy.”). See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004). See Young, 573 F.3d at 716-17; United States v. Bass, 41 F. App’x 735, 737-38 (6th Cir. 2002). 57 See Bautista, 362 F.3d at 590 (arguing that a guest’s expectation of privacy depends on whether hotel staff “terminated . . . control of the room through private acts of dominion”); United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999) (citing that a defendant must show, under the totality of the circumstances, that he maintained a legitimate expectation of privacy).
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See United States v. Haddad, 558 F.2d 968, 975 (9th Cir. 1977). United States v. Molsbarger, 551 F.3d 809, 811-12 (8th Cir. 2009); Bautista, 362 F.3d at 590 60 Young, 573 F.3d at 719. 61 See id. at 717. 62 See id. at 719. Other affirmative and unambiguous steps include observing the guest’s arrest, informing the guest of the guest’s failure to pay for the room, confirming a guest’s checkout, and removing the guest’s belongings and placing them in storage. See id. at 713; United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997); Haddad, 558 F.2d at 971; United States v. King, 693 F. Supp. 2d. 1200, 1211 (D. Haw. 2010).
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58

See People v. Hardy, 907 N.Y.S.2d 244, 250 (N.Y. App. Div. 2010). See United States v. Cunag, 386 F.3d 888, 895 (9th Cir. 2004). 65 See Molsbarger, 551 F.3d at 811-12 (police physically evicted guest, then search incident to arrest); Allen, 106 F.3d at 699 (rental period expired and failure to pay, search thereafter); Haddad, 558 F.2d at 971 (guest ejected and checked out, search of room thereafter);
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Some courts have recognized that double-locking a hotel room door is insufficient alone to terminate a reasonable expectation of privacy.66 In United States v. Young, the defendant was suspected of burglarizing another guest’s room when hotel staff observed stolen checkbooks, a gun, and keys to the victim’s room in Young’s room.67 Hotel security then effectuated a “lock-out“ and determined that Young could not use the room.68 The Court of Appeals for the Ninth Circuit held that Young maintained a reasonable expectation of privacy in the room because the hotel failed to take any affirmative unambiguous steps to evict.69 The court reasoned that the “lock-out” was only a temporary measure; if the hotel staff had genuinely intended to evict the defendant, “it would have had to [be] readily apparent.”70 C. The Necessity of the Warrant Requirement The Fourth Amendment protects legitimate, court-recognized privacy interests against unreasonable search and seizure absent a warrant.71 The warrant requirement is central not only to safeguard Fourth Amendment rights, but also to check the power and discretion of police.72 Courts have recognized exceptions to the warrant requirement, such as a search incident to a lawful arrest;73 items in the plain view of an officer legally present on the premises;74 a search with the defendant’s knowing and voluntary consent;75 or the presence of exigent circumstances.76 Exigent

Commonwealth v. Molina, 948 N.E.2d 402, 410 (Mass. 2011) (Botsford, J., dissenting) (explaining that this is the rule in Massachusetts); Hardy, 907 N.Y.S.2d at 246-47 (failure to pay, police physically evict guest, contraband in plain sight, and police search thereafter).
66 Compare Young, 573 F.3d at 719 (citing the lock-out as the only step that hotel staff took and holding that it was insufficient to terminate the defendant’s privacy rights), with Allen, 106 F.3d at 699-700 (arguing that a hotel staff’s lock-out, combined with the defendant’s refusal to pay the balance for his room and expiration of the rental period, terminated his reasonable expectation of privacy), and Cunag, 386 F.3d at 895 (finding that where a defendant fraudulently procures a hotel room, the hotel staff effectuates a lock-out, and a police report is filed, the eviction was properly effectuated).

Young, 573 F.3d at 713-14. Id. at 714. A “lock out” is when hotel management locks the guest room door, often using a master key, thereby restricting further guest access to the room. 69 Id. at 718-19. 70 Id. at 719. 71 See Ashdown, supra note 22, at 1303. 72 SOLOVE, supra note 13, at 126. 73 See, e.g., Commonwealth v. Netto, 783 N.E.2d 439, 445-47 (Mass. 2003). 74 See, e.g., Harris v. United States, 390 U.S. 234, 236 (1968); Commonwealth v. Moynihan, 381 N.E.2d 575, 578 (Mass. 1978).
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67

See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).

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circumstances justifying warrantless entry include threat to a person’s life or safety, pursuit of a fleeing felon, or a reasonable belief that evidence will be “destroyed, lost, or removed.”77 The government must also prove that the circumstances were so urgent that obtaining a warrant would have been impracticable.78 II. Commonwealth v. Molina A. Facts and Procedural History In Commonwealth v. Molina the SJC was faced with the issue of whether the lawful eviction of a hotel guest terminates the guest’s reasonable expectation of privacy under the Fourth Amendment.79 Molina prepaid for his three-night stay at a Boston hotel on Expedia.com.80 Upon check-in, he signed a registration card agreeing to the hotel’s policy, which stated that if a guest does not comply with all federal, state, and local laws, or the hotel’s rules and regulations, “the guest may be asked to leave the hotel and/or be evicted.”81 That evening, two groups of people came to visit Molina, and both groups had verbal altercations with the front desk manager that required the assistance of a security guard.82 Although Molina remained peaceful and cooperative with hotel staff, the manager told Molina that if there were any more complaints he would be “gone.”83 The next day, the hotel received complaints about the smell of marijuana coming from Molina’s room.84 After investigating the complaints and noticing the strong odor, the hotel manager knocked on the door several times and entered the room with the master key.85 Molina was not present, however the manager observed a scale, marijuana residue, rolling papers, and a bag of marijuana.86 The manager determined that Molina had broken hotel rules and would not be permitted to use the room.87 He double-locked the door so that Molina would not be able to enter and

See Commonwealth v. Snell, 705 N.E.2d 236, 241-43 (Mass. 1999). 14A HOWARD J. ALPERIN, MASSACHUSETTS PRACTICE SERIES SUMMARY OF BASIC LAW § 7.63 (4th ed. 2011).
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Commonwealth v. Forde, 329 N.E.2d 717, 719 (Mass. 1975). Commonwealth v. Molina, 948 N.E.2d 402, 407-08 (Mass. 2011). Id. at 404-05. Id. at 405. Id. Id. at 405; Brief for Petitioner, supra note 1, at 7. Molina, 948 N.E.2d at 405. Id. Id. at 405-06. See id. at 406.

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called the police to report his findings.88 About an hour and a half later, police arrived at the hotel and, accompanied by hotel staff, conducted a full search of the room.89 The police seized bags of marijuana, a loaded handgun, cocaine, and $10,000 in cash.90 At the time of the search, Molina remained a registered guest at the hotel and was not present to consent to the search.91 When Molina returned to the hotel four hours later, he realized that his key did not work and went to speak with hotel staff.92 The police were called back to the hotel, and they arrested Molina.93 Police later obtained a search warrant for both the hotel room and Molina’s primary residence, and they seized more evidence.94 After a jury-waived trial, Molina was found guilty of a number of drug and gun charges.95 In denying the motion to suppress the evidence obtained from warrantless search of the hotel room, the motion judge concluded that the hotel had a lawful and reasonable basis to evict the defendant, which terminated Molina’s reasonable expectation of privacy.96 Therefore the police conduct did not violate Molina’s reasonable expectation of privacy under the Fourth Amendment.97 B. The SJC’s Opinion After an appeal the case was transferred to the SJC, and the court held that the hotel lawfully evicted Molina.98 The court reasoned that due to the “unique and transient” nature of hotel rooms, expiration of the rental period, abandonment, and now lawful eviction, may terminate certain privacy rights despite the fact that an individual may not have notice of that eviction.99 The court reasoned that the manager’s warnings to Molina that he would be “gone” and the affirmative step of double-locking the door constituted eviction.100 Finally the court stated that Molina’s conduct gave the manager reasonable grounds for eviction and that lack of notice is

88 89

Id. See id. 90 See Molina, 948 N.E.2d at 406. 91 Brief for Petitioner-Appellant, supra note 1, at 2. 92 Molina, 948 N.E.2d at 406. 93 Id. 94 Brief for Petitioner-Appellant, supra note 1, at 3. 95 Molina, 948 N.E.2d at 404. 96 Id. at 406-07. 97 Id.at 407-08 98 Id. at 409. 99 Id. at 408-09. 100 Id. at 409-10.

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not an issue where lawful eviction takes place.101

ANALYSIS
III. The SJC Erred in Failing to Recognize Molina’s Reasonable Expectation of Privacy in the Hotel Room. The Supreme Court relies on societal understandings to determine whether an individual has a “reasonable expectation of privacy.”102 Thus, the operative inquiry is whether or not society is prepared to recognize certain types of searches under the Fourth Amendment as reasonable.103 An expectation of privacy implies an individual’s understanding, anticipation, or belief that he or she may preserve a particular place as private.104 “By definition, a person’s belief or understanding cannot be terminated without the person’s knowledge or awareness.”105 As such, failure to properly and objectively effectuate eviction violates both prongs of the Katz analysis.106 While a hotel guest who stays beyond the rental period or abandons the hotel property has no expectation of privacy, Molina did neither.107 Further, while some jurisdictions have recognized eviction a sufficient step to terminate the hotel guest’s reasonable expectation of privacy, these jurisdictions have required actual physical or constructive removal through the use of affirmative steps, notice, or some combination thereof, indicating a termination of a right to privacy in the room.108 A. The Hotel Took Ambiguous Steps. The majority in Molina declined to follow developed Fourth Amendment jurisprudence.109 Case law requires that a hotel take “clear and

Molina, 948 N.E.2d at 409. See Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (1978) (arguing that an expectation of privacy is reasonable if it has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”). 103 See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see also California v. Greenwood, 486 U.S. 35, 39 (1988) (searches of garbage); United States v. Jacobsen, 466 U.S. 109, 122 (1984) (search of package).
102

101

Katz, 389 U.S. at 351-52. Commonwealth v. Molina, 948 N.E.2d 402, 411 (Mass. 2011) (Botsford, J., dissenting). 106 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004). 107 See Commonwealth v. Netto, 783 N.E.2d 439, 448-49 (Mass. 2003); Commonwealth v. Paszko, 461 N.E.2d 222, 235 (Mass. 1984) (citing United States v. Jackson, 585 F.2d 653, 658 (4th Cir. 1978).
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104

See discussion supra Part I.C.1.b. See discussion supra Part I.C.1.b.

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unambiguous” affirmative steps in effectuating an eviction or removal attempt of a hotel guest.110 However, double-locking a door is insufficient under the Fourth Amendment to terminate the defendant’s reasonable expectation of privacy.111 Use of magnetic-key-operated hotel doors has become a common practice in most large hotels.112 The lock allows hotels to control access to the rooms by issuing magnetically encoded cards to guests; the locks can then be changed to restrict future access or used to dead bolt the door using the “grand master” key.113 Many issues arise with these magnetic strips; similar to magnetic strips on credit cards, they can become demagnetized, scratched, and unusable.114 Therefore, a defendant’s realization that the keycard no longer works may reasonably indicate circumstances other than eviction.115 Unambiguous steps, such as police removal or notifying the guests of eviction, clearly indicate to guests that the hotel is evicting them.116 However, given the frequency of keycard malfunctions, the hotel’s actions in locking Molina out of his room do not constitute clear and unambiguous steps.117 Although the security guard determined that Molina would “not be permitted to use the room” upon discovery of marijuana in the room, he made no additional attempts to objectively effectuate this eviction before allowing police to enter and search the room.118 When Molina departed from the hotel he maintained his subjective belief in his right to privacy in

See United States v. Young, 573 F.3d 711, 716-17 (9th Cir. 2009); Bautista, 362 F.3d at 590. See supra note 66 and accompanying text. 112 Shirley Kawa-Jump, Electronic Cards are the New Key to Hotel Safety, DAYTON BUS. J. (Oct. 5, 1998), available at http://www.bizjournals.com/dayton/stories/1998/10/05/focus2.html. 113 U.S. PATENT NO. 4,717,816 (filed July 22, 1986) (issued Jan. 5, 1998), available at http://www.google.com/patents (type 4,717,816 in search bar; then select first result) (standard patent for electronic lock and key system for hotel).
111 114 See Kawa-Jump, supra note 111; David Somerset, How to Protect Magnetic Strips from Demagnetizing, EHOW.COM, http://www.ehow.com/how_7461408_protect-magnetic-stripsdemagnetizing.html (last visited Apr. 1, 2013).

110

See Young, 573 F.3d at 717 (“Young might reasonably have believed his key to be defective or demagnetized, rather than suspecting that he had been evicted from the room.”). See supra note 49 and accompanying text. Young, 573 F.3d at 716-17. 118 See Commonwealth v. Molina, 948 N.E.2d 402, 405-06 (Mass. 2004). Molina was not present at the hotel and there were no attempts to contact him or wait for his return to the hotel. Id. See Lustig v. United States, 338 U.S. 74, 78-79 (1948) (reasoning that absent exigent circumstances, without defendants presence, the search was unlawful); United States v. Jeffers, 342 U.S. 48, 51-52 (1951) (holding that that the search was unlawful where the defendants were not present and no exceptional circumstances allowed police entry).
117 116

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his hotel room as a registered guest.119 This belief was reasonable because Molina may have reasonably believed that his key was malfunctioning or that it had become demagnetized when he realized that it did not work.120 B. The Hotel Did Not Provide Adequate Notice. Where a hotel fails to take affirmative steps to clearly and unambiguously effectuate an eviction, it must directly inform the hotel guest of the eviction.121 If a hotel guest abandons the room or stays beyond the rental period, it is not necessary for the hotel to explicitly notify the guest of eviction.122 A hotel guest commonly understands and agrees that the license to use the property and expectation of privacy are limited to the rental period.123 However, because eviction is involuntary, to terminate a legitimate expectation of privacy the hotel must explicitly notify the hotel guest of eviction.124 Since the hotel registration card did not explicitly state whether a guest would be notified in the event of eviction, the hotel was required to issue actual notice of the eviction.125 Indeed, well-established hotel and tenancy law mandates that hotels follow specific procedures, including proper notice, when effectuating an eviction.126 When terminating the guestinnkeeper relationship, a key principle is to provide the guest with notice
119 See Katz v. United States, 389 U.S. 347, 351-52 (1967) (holding that an expectation of privacy implies an anticipation that one may preserve a particular place as private); Stoner v. California, 376 U.S. 483, 488-89 (1964) (reasoning that, as a general rule, an individual has a reasonable expectation of privacy in a hotel room as a temporary home). 120 See Young, 573 F.3d at 717. 121 See id. at 716-18 (“Young still believed he was a guest at the hotel, a reasonable belief given the fact that the hotel had not actually evicted him or told him that he was evicted.”); United States v. Bass, 41 F. App’x 735, 737-38 (6th Cir. 2002) (“Without knowledge, actual or implied, that Bass had been evicted from the hotel, the police officers could not reasonably rely on hotel manager’s consent . . . .”).

See supra notes 50-51 and accompanying text. See United States v. Parizo, 514 F.2d 52, 53-54 (2d Cir. 1975); see also DAHER & CHOPP, supra note 44.
123 124 See Skyways Motor Lodge v. Gen. Foods Corp., 403 A.2d 722, 723 (Del. 1979) (holding that written terms on a registration card limiting hotel liability was insufficient notice to the hotel guest); Fuller v. Coats, 18 Ohio St. 343, 351-52 (1868) (stating that the discharge of an innkeeper’s duty to a guest must be reasonably necessary to secure safety of guests and brought to the knowledge of the guest). 125 See United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (“All motel guests cannot be expected to be familiar with the detailed internal policies and . . . procedures of the inns where they lodge.”); Commonwealth v. Molina, 459 Mass. 819, 829-30 (2011) (Botsford, J., dissenting). 126 See, e.g., MASS. GEN. LAWS ch. 239, § 1A (2011); 79 C.J.S. Searches § 29 (2011); DAHER & CHOPP, supra note 44.

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and a reasonable time to vacate the hotel.127 Furthermore, for a hotel to claim that the guest was properly notified of its policies, the law requires that hotels “strictly obey” the standards of clearly posting all hotel policies and notices limiting liability.128 Given these strict notice requirements, it is unreasonable to conclude that a hotel’s unstated terms provide a guest with sufficient notice of such terms.129 Therefore, Molina could not have reasonably construed the absence of language concerning actual notice on the registration card to mean that the hotel would not provide him with notice in the event of eviction.130 While the hotel had warned Molina that if it received one more complaint he would be “gone,” this was insufficient notice.131 Although some courts have held that a hotel’s mode of operation may alter the right of privacy granted to the guest, generally it relates to expanding the rights granted to the guest.132 If anything, the repeated communications between hotel staff and Molina during his stay showed the existence of a relationship that implied that he would be told of something as significant as an eviction.133 Molina was neither notified nor aware that someone had voiced an additional complaint against him; therefore this triggering event, based on another guest’s suspicions and the manager’s ambiguous response, did not terminate his legitimate expectation of privacy.134

127

AL., HOTEL, RESTAURANT AND TRAVEL LAW: A PREVENTATIVE APPROACH

See Stoner v. California, 376 U.S. 483, 490 (9th Cir. 1964); NORMAN G. COURNOYER ET 244 (5th ed. 1999).

128 See 40A TRACY BATEMAN FARRELL & JACK K. LEVIN, AMERICAN JURISPRUDENCE: HOTELS, MOTELS, ETC. § 153 (2d ed. 2011).

See United States v. Young, 573 F.3d 711, 717 (9th Cir. 2009). Molina, 948 N.E.2d at 412 (Botsford, J., dissenting); see infra notes 173-175 and accompanying text. 131 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004) (holding that a manager’s threat of eviction due to failure to pay and the guest’s fraudulent room procurement was insufficient to terminate the guest’s reasonable expectation of privacy in the room).
130 132 See id. at 589 (recognizing that pursuant to lax policies of the hotel an expectation of privacy beyond checkout time was reasonable). 133 See United States v. Kitchens, 114 F.3d 29, 32 (4th Cir. 1997) (noting that a hotel pattern or practice may cause a guest to subjectively believe that based on that pattern or practice the guest may engage in certain activities without consequence). 134 Cf. United States v. Molsbarger, 551 F.3d 809, 811-12 (8th Cir. 2009) (holding that police physically evicting guests terminated reasonable expectation of privacy); United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997) (holding that failure to pay for room combined with use of room for illegal activities ended reasonable expectation of privacy); People v. Hardy, 907 N.Y.S.2d 244, 248-49 (N.Y. App. Div. 2010) (holding that police assistance in physically evicting a guest ended that guest’s reasonable expectation of privacy).

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C. The Hotel Policy Alone Was Insufficient Notice. Where hotel policies prescribe the exact measures that a hotel will take in the event of a hotel policy violation, automatic eviction under such terms provides the hotel guest with sufficient notice of the termination of the guest’s legitimate expectation of privacy.135 However, where hotel policies merely prescribe what eviction measures may be taken, as was the case in Molina, it does not necessarily require automatic removal or eviction, but rather leaves it to the discretion of hotel staff.136 This unfettered discretion destroys the core principles of the constitutional protection against unreasonable search and seizure.137 The Fourth Amendment ensures a hotel guest’s basic right to exclude138 and an expectation that the guest’s room is private.139 A hotel guest has no reason to expect that anyone will enter his room aside from hotel employees.140 By reserving the right to evict arbitrarily, the hotel eliminates any guest’s right to have a subjective belief that the guest’s privacy will be protected against government intrusion.141 A hotel manager may choose to shield some guests from criminal liability and violate the Fourth Amendment rights of others all in the same hotel.142

135 See United States v. King, 693 F. Supp. 2d 1200, 1214 (D. Haw. 2010) (reasoning that hotel policy explicitly required immediate eviction upon arrest, leaving no room for security personnel to exercise discretion). 136 See United States v. Young, 573 F.3d 711, 717 (9th Cir. 2009) (“A policy that something ought to be done does not establish that it was done, and a hotel's confidential policy or manager's suspicions, not disclosed to the defendant, cannot destroy an otherwise reasonable expectation of privacy.”).

See Stoner v. California, 376 U.S. 483, 488-90 (1964) (declaring that privacy rights are not “eroded by strained applications of the law of agency” and that a hotel guest’s protection under the Fourth Amendment would disappear if left up to discretionary power of private security). See United States v. Chadwick, 433 U.S. 1, 7 (1977). See Katz v. United States, 389 U.S. 347, 351-52 (1967) (stating that, regardless of an individual’s location, what he or she seeks to preserve as private may be constitutionally protected).
139 140 Cf. Georgia v. Randolph, 547 U.S. 103, 112 (2006) (noting that a hotel manager, much like a landlord, “calls upon no customary understanding of authority” that would lead a current occupant to think that a guest could be admitted without that occupant’s consent); Commonwealth v. Neilson, 666 N.E.2d 984, 987 (Mass. 1996) (“The [defendant's] consent [was] given, not to police officials, but to the University and the latter cannot fragmentize, share or delegate it.”) (internal citations omitted). 141 See Katz, 389 U.S. at 351-52 (stating that an expectation of privacy signifies a person’s anticipation or belief that he may preserve a particular place as private). 142 Cf. United States v. King, 693 F. Supp. 2d 1200, 1210 (D. Haw. 2010) (noting that a hotel policy prescribing the exact circumstances that automatically results in eviction would eliminat all hotel discretion, especially where failure to evict a guest under such circumstances, is a terminable offense for the hotel employee). 138

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While hotels must have the right to protect the hotel business and ensure a safe and comfortable environment by revoking the license of a hotel guest, this discretion is not absolute.143 Furthermore, there is a key distinction between removing a guest from the room and terminating a reasonable expectation of privacy.144 Fourth Amendment protection depends not on one’s abstract property right, but rather whether the individual who claims the right in fact has a legitimate expectation of privacy in the place that police search.145 This individual right—t he pursuit of a meaningful life free from government intrusion—is precisely what the Framers intended to protect under the Fourth Amendment in response to the oppressive “writs of assistance.”146 Therefore, an individual’s recognized common law “property interest” in the hotel room search is irrelevant to the existence of a legitimate expectation of privacy.147 Although hotel staff chose to divest Molina of his property right in the room, this did not terminate Molina’s reasonable expectation of privacy in the room and his belongings.148 Absent exigent circumstances, the hotel staff could not consent to a police search of the room.149 Molina had no reason to believe that the hotel manager would exercise this discretion of hotel policy and evict him when he departed from the hotel on the second day.150 The basic rights granted under the Fourth Amendment protect this

143 See, e.g., DAHER & CHOPP, supra note 43, § 1:13 (noting an innkeeper’s common law right to order a hotel guest to leave and to remove him if necessary); COURNOYER ET AL., supra note 127, at 61 (listing age as a classification for which individuals may be treated differently in places of public accommodation). 144 See Johnson v. State, 679 S.E.2d 340, 341-42 (Ga. 2009) (noting that the defendant’s stay was terminated and further stating that “[the defendant’s] loss of the expectation of privacy in the room does not mean that he had lost his expectation of privacy with regard to personal items in the room”). 145 See Rakas v. Illinois, 439 U.S. 128, 143-45 (1978) (holding that “legitimately on the premises” is no longer the litmus for determining individuals’ privacy rights, instead individuals must have a legitimate expectation of privacy in the invaded place). 146 See TASLITZ, supra note 132, at 36, 44. 147 See Jones v. United States, 362 U.S. 257, 261-63 (1960); COURNOYER, ET AL., supra note 127, at 241 (“Guests are allowed a reasonable time after vacating the room to remove their luggage and check out of the hotel, during which they continue to qualify as guests.”). 148 See, e.g., Johnson v. State, 679 S.E.2d 340, 342-43 (Ga. 2009) (explaining that the defendant’s loss of the expectation of privacy in his room did not mean that he had lost his expectation of privacy with regard to his personal items in the room).

CLANCY, supra note 11, at 431. See Stoner v. California, 376 U.S. 483, 487-89 (1964); see also Michael Abramowicz, Constitutional Circularity, 49 UCLA L. REV. 1, 60-61 (2001) (describing that Fourth Amendment law is circular and that one can have a reasonable expectation of privacy only if the Court has held that a search in such a place would be unreasonable).
150

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D. Exigent Circumstances Did Not Exist. A court must find exigent circumstances to justify warrantless entry; however none existed in Molina.152 The police were informed only of the hotel manager’s observations of drug paraphernalia in Molina’s room; presence of drugs in a hotel room does not constitute an emergency threatening life or limb.153 Furthermore, the destruction of contraband was not imminent because Molina was not present at the hotel and was not aware of police involvement.154 Finally, Molina was not attempting to escape police custody or hide out in his room.155 Therefore, the police entry prior to Molina’s return to his pre-paid room without Molina’s consent or a valid search warrant constituted an illegal search under the Fourth Amendment.156 IV. Hotel Security’s Erosion of Fourth Amendment Protection Transient lodging is a common practice in society today, with over 65,000 lodging accommodations in the United States.157 Under Molina, hotel staff discretion undercuts the Fourth Amendment protections for people in transient living quarters, and the lack of privacy harkens back to the type of searches that colonists faced under the writs of assistance.158 Furthermore, the Molina holding contributes greatly to a dangerous trend

See supra note 34 and accompanying text. COLTOFF ET AL., supra note 42, § 29. Cf. Commonwealth v. Snell, 705 N.E.2d 236, 243 (Mass. 1999).
152 153 See Mincey v. Arizona, 437 U.S. 385, 392-93 (1978) (explaining that there was no emergency threatening life or limb because all the people in the defendant’s apartment had been located before police arrived to begin their search of the apartment). 154 See United States v. Radka, 904 F.2d 357, 362-63 (6th Cir. 1990) (reasoning that because of the defendant’s location he was not aware that police were hot on his trail). 155 See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298 (1967) (holding a warrantless search valid because of exigency when police chased a fleeing armed felon into a nearby home to search for the suspect and the weapons used in the crime ). 156 Cf. United States v. Jeffers, 342 U.S. 48, 50-51 (1951) (holding that a police search of a hotel room without respondents’ permission where they had paid for the room was a violation of the Fourth Amendment); Johnson v. State, 679 S.E.2d 340, 341 (Ga. 2009) (explaining that the defendant lost his expectation of privacy in his hotel room when he was properly evicted due to inappropriate conduct). 157 U.S. BUREAU OF LABOR STATISTICS, INDUSTRIES AT A GLANCE: ACCOMMODATION NAICS 721 (Nov. 16, 2012), available at http://data.bls.gov/cgi-bin/print.pl/iag/tgs/iag721.htm.

151

See Lauren Young Epstein, Limits of the Inevitable Discovery Doctrine in United States v. Young: The Intersection of Private Security Guards, Hotel Guests, and the Fourth Amendment, 40 GOLDEN GATE U. L. REV. 331, 356-57 & n.167 (2010).

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amongst the intersection of private security and public policing.159 It is undisputed that Molina had been using the room for some illegal purpose or at least in violation of hotel policy.160 However, this alone does not terminate an expectation of privacy in a hotel room, nor can it serve as an “after the fact justification for an illegal [police] search.”161 After the hotel staff observed the items in Molina’s room, the staff could have told police, who could have obtained a search warrant.162 In the alternative, hotel staff could have asked the police to secure the room or contacted the police to aid in Molina’s removal once he returned to the hotel.163 Given Molina’s use of his room, it is not unreasonable to expect that there was a chance that hotel staff may have thrown him out at some point.164 However, his expectation of privacy and the expectation of privacy afforded under the Fourth Amendment in his hotel room and his belongings had not terminated, as the hotel staff failed to take unambiguous steps to evict him.165 Instead, the sole purpose for allowing police into Molina’s room was not for personal safety reasons, but rather to allow police to illegally search the room.166 The rise in private security has led to a decline in the warrant requirement and expands the already problematic issue of granting private enforcement officers too much discretion.167 By allowing the hotel manager to investigate the room and contact the police about exact observations of
159 160

See id. at 356-57. Hotel staff observed a scale, marijuana, and rolling papers in the room. Commonwealth v. Molina, 498 N.E.2d 402, 405-06 (Mass. 2011). 161 See Jason C. Miller, Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms, 7 SETON HALL CIRCUIT REV. 269, 284 (2011).
162 The circumstances were not so urgent that obtaining a warrant would have been impracticable, as Molina had not attempted to remove any of his belongings and was registered to stay at the hotel until the following day. See Commonwealth v. Forde, 329 N.E.2d 717, 720 (Mass. 1975); see also Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating the Fourth Amendment, 44 VAND. L. REV. 473, 529-30 (1991). 163 See, e.g., United States v. Moslbarger, 551 F.3d 809, 811 (8th Cir. 2009) (describing an instance in which police helped a hotel manager evict guests). 164 Miller, supra note 160, at 284. 165 See id. at 282-83 (“When the hotel management validly evicts a guest on the owner’s behalf, or solicits the involvement of the police for that purpose, the guest loses any expectation of privacy. But before a guest loses his or her privacy expectations, the hotel itself must act.”). 166 See United States v. Jeffers, 342 U.S. 48, 51-52 (1951) (arguing that the officer’s entry into the hotel room, while the defendant was absent, with the sole motive of seizing narcotics was illegal).

See Aubrey H. Brown III, Note, Georgia v. Randolph, The Red-Headed Stepchild of an Ugly Family: Why Third-Party Consent Search Doctrine is an Unfortunate Fourth Amendment Development that Should Be Restrained, 18 WM. & MARY BILL RTS. J. 471, 502 (2009).

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items found in the room, private security “silver platters” incriminating evidence for prosecution.168 Although hotel staff often elicits police assistance in removing a guest from the hotel, in this instance the police are merely acting as agents of hotel staff by handling an issue between the hotel and a hotel guest.169 When hotel staff permit police to conduct a search of the room without the hotel guest’s knowledge or consent, it constitutes illegal third-party consent.170 Given the frequency and vast purposes for which people rent hotel rooms, it is not uncommon for guests to come and go from their hotel room throughout their stay.171 Illegal third party consent and “silver plattering” diminishes Fourth Amendment jurisprudence because it destroys guests’ expectation of privacy in the room when they are not physically present in the room.172 Furthermore, Molina permits hotels to effectively contract out of Fourth Amendment protections.173 Allowing hotels to omit statements concerning notice of eviction from their registration card and holding that such omission is notice itself violates Katz’s core foundation.174 Under this holding, hotels are permitted to selectively omit material terms from the registration card and imply that the guest, having read and signed the registration card, voluntarily agrees to the terms not stated.175 Thus, the privacy rights of hotel guests are obliterated, and private security is given the upmost authority to enact polices allowing staff to search every guests’ room, report their findings to the police, and consent to a police search of the room.176
168 See Lustig v. United States, 338 U.S. 74, 78-79 (1949); Lynn M. Gagel, Stealthy Encroachments upon the Fourth Amendment: Constitutional Constraints and Their Applicability to the Long Arm of Ohio’s Private Security Forces, 63 U. CIN. L. REV. 1807, 1841-43 (1995). 169 Miller, supra note 160, at 283. 170 See CLANCY, supra note 11, at 431; see also Stoner v. California, 376 U.S. 483, 487-90 (1964); Jeffers, 342 U.S. at 51-52. 171 See United States v. Young, 573 F.3d 711, 716 (9th Cir. 2009) (“Part of what a person purchases when he leases a hotel room is privacy for one’s person and one’s things.”).

See Gagel, supra note 167, at 1841-43. See Young, 573 F.3d at 717 (stating that a hotel’s confidential policy, not revealed to the guest, cannot destroy a reasonable expectation of privacy). 174 See id.; Commonwealth v. Molina, 948 N.E.2d. 402, 411 (Mass. 2011) (“An expectation of privacy signifies a person’s anticipation, belief, or understanding that he may preserve a particular place as private.”).
173 175 See Molina, 948 N.E.2d at 409. Under the general reasoning of Katz, a hotel guest maintains a reasonable expectation of privacy absent evidence to the contrary. See Katz v. United States, 389 U.S. 347, 359 (1967). Furthermore, basic contract law provides that contracting parties give mutual assent to essentially the same terms, which must be manifested by their written or oral words, or by their conduct. See 35 THOMAS B. MERRITT, MASSACHUSETTS PRACTICE SERIES: CONSUMER LAW § 1:2 (3d ed. 2010). 176

172

See supra Part IV.

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CONCLUSION
A hotel’s interest in preserving a safe and comfortable environment for its guests maintains the prevalence of hotel patronage in society. However, of greater importance are the Fourth Amendment rights that travel with hotel guests, allowing guests to expect a private room. Courts must examine all of the surrounding circumstances to determine whether the defendant’s subjective expectation of privacy in the room is reasonable given the hotel’s actions surrounding the eviction. Although a hotel may lawfully remove a guest, when the hotel fails to take unambiguous affirmative steps or provide the guest with actual notice of eviction the guest maintains a reasonable expectation of privacy in the room. The SJC’s opinion threatens the foundation of Fourth Amendment privacy rights in hotel occupancy. The court should have concluded that based on the hotel staff’s only step to evict by double-locking the door, Molina reasonably and subjectively maintained his expectation of privacy in the room. Furthermore, police entry into the room was unlawful without any exigent circumstances. Verifying a hotel’s ambiguous steps and consent to a police search in the absence of the defendant violates both prongs of the Katz test and closely resembles the arbitrary policing of preRevolutionary America.