U.S. v. Owens

• Decision Date: 22 January 1986
• Docket Number: No. 84-1085,84-1085
• Citation: 782 F.2d 146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Merle Ellis OWENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 146

782 F.2d 146

54 USLW 2478

UNITED STATES of America, Plaintiff-Appellee, v. Merle Ellis OWENS, Defendant-Appellant.

No. 84-1085.

United States Court of Appeals, Tenth Circuit.

Jan. 22, 1986.

Fred L. Staggs (Frank R. Courbois with him on the brief), Oklahoma City, Okl., for defendant-appellant.

James F. Robinson, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before BARRETT, Circuit Judge, McKAY, Circuit Judge, and CARRIGAN, District Judge ^*.

CARRIGAN, District Judge.

Appellant, Merle Ellis Owens, appeals his conviction of possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). Contending that his conviction was based on erroneous admission of evidence obtained in an unlawful search of his motel room that violated his Fourth Amendment rights, he asserts that his conviction must be reversed.

BACKGROUND

A detailed recitation of the facts is essential to understand Owens' contentions because they turn on whether at the time his motel room was searched he still had a protected status in that room. On September 8, 1983, Owens checked into the Pebbletree Inn in Oklahoma City, Oklahoma, paying $28.45 for a one night single occupancy. He failed to check out by the regular checkout time, noon the next day, and some time after noon, Pebbletree personnel telephoned his room to determine whether he The parties dispute the effect of this deposit. Owens testified that the desk clerk had assured him that a $100 deposit, together with his initial $28.45 payment, would secure for him the $106.00 per week rental rate in lieu of the higher daily rate. Cheryl Jones corroborated this testimony. But Beverly Martin, Pebbletree's night manager, testified that all weekly rate rentals required the approval of the general manager, Jack Henry, and that weekly rate tenants were assigned to rooms in a separate part of the motel. Owens did not move to the weekly rental section of the Inn, and Jack Henry testified that to his knowledge Owens was a day-to-day tenant. The desk clerk with whom Owens allegedly struck the weekly rental deal did not testify at the trial.

wished to extend his stay. Apparently in response to that call, at about 3:00 p.m. Owens' companion Cheryl Jones deposited $100 with the front desk clerk as advance rental payment on Owens' account.

If Owens was a weekly rate guest, he had paid for his room through noon of September 13, 1983. On the other hand, if he was a day-to-day occupant, his $128.45 payment would have covered his room charges only through noon of September 12, 1983. But $4.30 more would have paid for an additional night, through September 13. The motel room search at issue occurred after noon on September 12.

During his stay, Owens had incurred approximately $16.00 in long distance telephone charges. Henry testified that a weekly renter would pay such phone charges at checkout. The night manager, however, testified that telephone charges would have been deducted daily from a cash-paying day-to-day tenant's account.

Even assuming that the $16.00 in telephone charges had been deducted daily, the account, if it was a weekly rate account, would have been fully paid through noon on September 12, with a $7.86 balance remaining.

On September 11, 1983, an unusually high volume of calls to Owens' room aroused the motel staff's suspicion. Charles Epperly, a police officer who worked part-time as a motel security guard, watched the room from 10:30 that night until 7:00 the next morning. He observed several people visit the room for five or ten minutes each. Owens returned to his room at 2:45 a.m. on September 12. Epperly checked the license plate on Owens' car with the police, but was informed that the car was not stolen. At 7:00 a.m. Epperly left the Inn to report to work on his regular full-time job as an Oklahoma City police officer.

Epperly, with his police partner John Matthews, returned to the Pebbletree shortly before 7:30 a.m. He then ran a second check on Owens' license plates and this time turned up a report that they were stolen. On the advice of their supervisor, Sergeant Campbell, Officers Epperly and Matthews decided not to arrest Owens immediately, but rather to wait until he returned to his car. The two officers watched Owens' room from another room diagonally across the Inn's parking lot until shortly after 12:00 noon. During that time they observed a blonde woman, later identified as Cheryl Jones, looking out of Owens' window.

Shortly after noon on September 12, Epperly enlisted James Digby, a plain-clothes policeman, to assist them. Posing as a Pebbletree employee, Digby knocked on Owens' door and asked Owens to move his car so that the parking lot could be cleaned. Owens' car was parked several spaces away from his room's window. When Owens got into the car, Epperly arrested him for receiving stolen property. Owens was taken around a corner of the Inn and handcuffed to an iron staircase. The officers returned to the room from which they had been watching Owens' room and called the front desk to apprise the motel of the arrest and that one occupant still remained in Owens' room.

Jack Henry told the officers that the room had been rented for one person only Owens urged the officers not to enter his room because his girlfriend was sleeping there naked. Despite Owens' protests, Epperly entered the room, and seeing Cheryl Jones sleeping unclad on the bed, he tried unsuccessfully to awaken her. Epperly quickly scanned the rest of the room, including the bathroom, and found no one else present. Marijuana cigarettes, white powder and drug paraphenalia were in plain view.

and that Owens' term of paid occupancy had expired. Henry further told the police that he would file a complaint for trespassing past check-out time and for defrauding an innkeeper. Henry testified, however, that although he had authorized the police to get Cheryl Jones out of the room he had not authorized any search of the room or of Owens' luggage. ¹

Unsure of how to proceed, Officers Epperly and Digby called for Sergeant Campbell and waited for him in Owens' room. Upon arrival there, Campbell covered Jones with a sheet and shook her for twenty or thirty seconds to awaken her. She was then arrested, told to dress, and taken from the room.

Sergeant Campbell then ordered a complete search of the room, and it was searched without a warrant. Inside a closed dresser drawer the officers found a cloth bag secured at the top with a draw string. They opened the closed bag and found over two ounces of cocaine.

At no time during the more than five and one-half hours after the officers first had probable cause to arrest Owens did they make any attempt to obtain a warrant. Even after the marijuana and drug paraphenalia were observed in the room, and after both suspects were in custody with the police in full control of the room, no warrant was sought.

At the hearing on Owens' motion to suppress the cocaine as evidence, Officer Epperly first testified that he had entered Owens' room because Henry had said he wanted the extra occupant out. Epperly later testified that he had entered the room as standard police procedure to secure the area surrounding the site of the arrest.

The trial court, 607 F.Supp. 140, found that exigent circumstances justified entry of Owens' room in order to neutralize the possibility of harm to the police from Cheryl Jones. The court further ruled, however, that none of the exceptions to the warrant requirement permitted the officers to search inside either the closed dresser or the closed bag. Despite his ruling that the search violated the Fourth Amendment, the trial judge refused to apply the exclusionary rule because, in his view, the officers had acted in good faith. Recognizing that the Supreme Court's precedents had not yet extended this far, the trial judge apparently predicted from the trend of recent opinions that the law's development would carry it beyond the point where the instant search would be considered lawful. Thus the issue distills to whether this court agrees with the trial judge's assessment of how far the Supreme Court has gone in its recent course of broadening police search powers vis-a-vis Fourth Amendment protection.

APPLICATION OF THE FOURTH AMENDMENT

Appellee argues that the Fourth Amendment did not protect Owens because he had no reasonable expectation of privacy in his motel room after his paid occupancy expired at noon on September 12. It is settled that a motel guest is entitled to constitutional protection against unreasonable searches of his or her room. Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964); United States v. Anthon, 648 F.2d 669 (10th Cir.1981). The issue here is whether Owens had abandoned that protection by remaining in his Subtle distinctions of state landlord-tenant law cannot control the paramount constitutional question of whether Owens still had a privacy interest in his motel room when it was searched. See Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697 (1960). The Fourth Amendment protects people, not places. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Justice Harlan's oft quoted concurring opinion in Katz thus explained the standard:

room past the noon check-out time on the day of the search, September 12.

"[T]he rule that has emerged from prior decisions is that there is a twofold requirement, 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.' Id. at 361, 88 S.Ct. at 516.

Here Owens testified that he believed his $100 deposit had converted his status to that of a weekly rate tenant. His vigorous attempts to persuade the police not to enter his room further demonstrated that he held a subjective expectation of...