Com. v. Brass

• Decision Date: 28 April 1997
• Docket Number: No. 96-P-481,96-P-481
• Citation: 42 Mass.App.Ct. 88,674 N.E.2d 1326
• Parties: COMMONWEALTH v. Joseph D. BRASS.
• Court: Appeals Court of Massachusetts

Page 1326

674 N.E.2d 1326

42 Mass.App.Ct. 88

COMMONWEALTH v. Joseph D. BRASS.

No. 96-P-481.

Appeals Court of Massachusetts Plymouth.

Argued Nov. 7, 1996.

Decided Jan. 23, 1997.

Further Appellate Review Denied April 28, 1997.

Richard F. Linehan, Hingham, for defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Before BROWN, IRELAND and LENK, JJ.

IRELAND, Justice.

The defendant appeals from convictions in a jury-waived trial in the District Court of unlawfully carrying a firearm and possessing a firearm with an altered serial number. He claims that his constitutional rights were violated when police officers made a warrantless entry into his hotel room, where they found a nine millimeter handgun and loaded ammunition clip.

After the judge denied the defendant's motion to suppress, the case was tried upon stipulated facts as set forth in a police report. According to that report, the hotel manager went to room 208, from which the defendant and a companion were supposed to have checked out earlier but had not. He knocked at the door but got no answer. He used a key and unlocked the door but found the door chain attached from the inside. He then heard "strange noises" inside the room, became concerned for the occupants' health, and called the fire department. A local fire department official or officials (the report does not specify) and the hotel manager looked in on the occupants of the hotel room (including the defendant), who, at this point, had remained well beyond checkout time. They believed that the occupants were or had been using drugs but that they were "in no immediate danger." The fire department official spotted a handgun and loaded magazine on the bedstand in the room and called the police. The responding officers knocked on the hotel room door, but heard no response. After waiting several moments, they unlocked the door with a pass key and entered the room. They observed the defendant and a female who both appeared "a little groggy." When questioned about a gun, the defendant stated that one could be found under the mattress. One of the officers looked there and located a gun and a loaded magazine for which the defendant had no license or identification card. The gun had an altered serial number. The defendant was charged and placed under arrest.

The defendant claims, first, that the warrantless entry into his hotel room by police was not justified by the exigent circumstances exception to the general requirement for a warrant. See Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). The Commonwealth counters that the defendant did not have a reasonable expectation of privacy while he continued to occupy the hotel room well beyond checkout time. Consequently, according to the Commonwealth, no entry or search occurred in the constitutional sense. See Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). The burden was on the defendant to show a legitimate, continuing expectation of privacy on his part while he remained in the room after the rental period had ended. Ibid., citing Commonwealth v. Mamacos, 409 Mass. 635, 638, 568 N.E.2d 1139 (1991).

The Supreme Judicial Court, by way of dictum, has restated the generally accepted rule that a person who stays over in a hotel or motel room "after his rental period has terminated" has lost any reasonable expectation of privacy in the room that he may once have had. Commonwealth v. Paszko, 391 Mass. 164, 185, 461 N.E.2d 222 (1984), quoting from United States v. Jackson, 585 F.2d 653, 658 (4th Cir.1978) (denim jacket left by defendant in hotel room after he had abandoned the room was legitimately seized after the rental period ended, id. at 185-186, 461 N.E.2d 222.) Stated in a similar way, "A guest in a motel has no reasonable expectation of privacy in a room after the rental period has expired." United States v. Huffhines, 967 F.2d 314, 318 (9th Cir.1992) (citations omitted).

The rule has been consistently applied whether, as here, the motel guest was physically present after checkout time in the room at the time entry was made, United States v. Larson, 760 F.2d 852 (8th Cir.1985); Sumdum v. State, 612 P.2d 1018 (Alaska 1980); State v. Ahumada, 125 Ariz. 316, 609 P.2d 586 (1980); or, in the more typical case, where, at the time entry was made, the motel guest either was not physically present, or had actually vacated the room, leaving behind luggage or other belongings. See United States v. Parizo, 514 F.2d 52 (2d Cir.1975); United States v. Ramirez, 810 F.2d 1338, 1341 (5th Cir.1987); United States v. Rahme, 813 F.2d 31, 33, 34 (2d Cir.1987); United States v. Huffhines, 967 F.2d at 316, 318; and State v. Kirksey, 647 S.W.2d 799, 802 (Mo.1983). See also 1 LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 2.3(a), at 469-471 (3d ed.1996).

In Sumdum v. State, 612 P.2d 1018, the defendant was identified by another motel guest as a possible burglary or larceny suspect. The identification occurred well after the posted checkout time. Id. at 1020. The motel manager was alerted to the theft and summoned the police. Ibid. The motel manager then telephoned the defendant's room and received no answer, whereupon, she went to the room in the company of two police officers, knocked at the door, and, again, received no response. The manager then opened the door with a pass key. From the doorway, the police could see the defendant in the room asleep, but observed on his outstretched wrist a watch which the other motel guest immediately identified as his property. The defendant was arrested and charged. The court acknowledged that a motel room door "presents a firm constitutional barrier," id. at 1020, but concluded that the motel manager could justifiably open the door and make entry after the rental period had terminated in order to determine whether the guest had vacated the room, id. at 1021-1022. Moreover, that right was not altered by the presence of two police officers who observed in plain view the objects of criminal activity. Id. at 1022.

In State v. Ahumada, 125 Ariz. 316, 609 P.2d 586, a motel manager notified police that a room guest had stayed over several hours beyond checkout time without paying or reregistering for the room for an extra day. Id. at 317, 609 P.2d at 587. Accompanied by police officers, a motel security guard went to the defendant's room, knocked repeatedly, but received no response. Ibid. Finally, the security guard opened the door. The officers entered and found the defendant asleep. Awakened, the defendant was told by the officers that he would either have to pay or vacate the room. The defendant indicated he would pay, and began looking through his wallet. The officers then spotted drug paraphernalia and heroin lying on a table and arrested the defendant. Ibid. Later, at the station, the defendant told the police that a large amount of marihuana and cash could be found under the mattress in the motel room.

The court concluded that no constitutional violation had occurred. "At the conclusion of the rental period, the guest no longer [had] the right to use the room and [had] lost any privacy...