Commonwealth v. Molina

• Decision Date: 01 June 2011
• Docket Number: SJC–10759.
• Citation: 948 N.E.2d 402,459 Mass. 819
• Parties: COMMONWEALTHv.Mark MOLINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 819

948 N.E.2d 402

COMMONWEALTH

v.Mark MOLINA.

SJC–10759.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 2011.Decided June 1, 2011.

John J. McGlone, III, Quincy (Jacqueline M. Burchill, Milton, with him) for the defendant.Zachary Hillman, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, COWIN, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.¹IRELAND, C.J.

After a jury-waived trial, the defendant, Mark Molina, was found guilty of trafficking in a class B controlled substance (cocaine), G.L. c. 94C, § 32E ( b ) (1); possession of a class C controlled substance (mescaline) with intent to distribute, G.L. c. 94C, § 32; two charges of possession of a class D controlled substance (marijuana) with intent to distribute, G.L. c. 94C, § 32; possession of a firearm without a license, G.L. c. 269, § 10 ( a ); and possession of ammunition without a firearm identification card, G.L. c. 269, § 10 ( h ).^{2 ,3} The defendant appeals from his convictions, contending that his pretrial motion to suppress evidence and statements was improperly denied.⁴ In his motion, the defendant argued that, under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, ⁵ the warrantless search of his hotel room was unlawful, which thereby invalidated statements he later made to police as well as subsequent searches made by police pursuant to warrants. We transferred the case here on our motion. We conclude that because the hotel manager lawfully evicted the defendant from his room, the defendant did not have a reasonable expectation of privacy in the room at the time of the police search and the search therefore was not unlawful. We thus affirm.

1. Background. In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing. See Commonwealth v. Garcia, 443 Mass. 824, 828, 824 N.E.2d 864 (2005).

Through an Internet travel service (Expedia.com), the defendant, then twenty-one years of age, reserved a room at a privately owned hotel in Boston. His reservation was for three nights, commencing on Friday, June 17, and ending on Monday, June 20, 2005. Using his credit card, the defendant prepaid for the entire stay.

On June 17, the defendant arrived at the hotel and was assigned room 718. He signed a registration card.⁶ Above his signature on the registration card is the following notice to the guest:

“This hotel is privately owned and the management reserves the right to lawfully refuse service to anyone. Guests must comply with all [F]ederal, [S]tate, and local laws as well as the hotel's rules and regulations. If a guest does not comply with the above, the guest may be asked to leave the hotel and/or be evicted. The hotel is not responsible for valuables left on the premises.

“I agree to be personally liable if the indicated person, firm or corporation fails to pay any of the above charges. I agree to have you bill my presented card in the event I fail to sign it.”

That evening, at about 8 p.m., a group of visitors entered the hotel carrying beer and announced that they were there to see the defendant. The hotel's night manager, Gerald Good, explained to them that pursuant to the hotel's rules they could not bring alcoholic beverages into the hotel. The visitors left the beer at the hotel desk; one-half hour later, they retrieved the beer and left the hotel.

Later, at about 2:30 a.m., now June 18, two women and four men entered the hotel lobby in a very loud, abusive manner. They appeared to be intoxicated and some of them carried alcoholic beverages. Because hotel rules required the staff, after 11 p.m., to check the identification of anyone who seeks to enter the hotel beyond the lobby without a room key, a hotel security officer as well as Good questioned the group. The security officer asked them for their room keys, which they could not produce. They stated that they were there to visit the defendant. Good stepped in and explained the hotel rules to the visitors, namely that he could allow three of them to visit in the defendant's room if the defendant came down and registered them with the hotel. The visitors became verbally abusive to Good, a security officer, and the night audit staff. Another security officer, Herve Pierre Jacques, was called to assist.

In response to Good's request, the defendant came down to the lobby and spoke to Good and his visitors. Good told the defendant that if his friends continued to behave as they had, he (Good) would eject the defendant and his guests from the hotel with the assistance of the Boston police. Good and the defendant asked the visitors to leave; they complied, but continued their verbal abuse as they departed. Good warned the defendant that if the hotel received one more complaint from guests or staff concerning his occupancy, he would be “gone.”

During the day on June 18, the hotel managers received complaints from guests about an odor of marijuana in the hallway outside room 718, which is located on a nonsmoking floor. At approximately 7 p.m., Good and Jacques went to room 718 to investigate the complaints. As he stepped from the elevator into the hall near room 718, Good immediately noticed an odor of marijuana concentrated in the vicinity of room 718.

Good knocked on the door to room 718 several times and, after receiving no response, used a master key card to enter the room together with Jacques. No one was inside. In plain view, the men observed a scale, what appeared to be marijuana residue,⁷ rolling papers, and a hat on a table in the room. One of them moved that hat and observed additional marijuana on the table. They saw more marijuana in a wide open bag that was on the bed.

The men left the room. Good decided on behalf of the hotel that the defendant would not be permitted to continue to use the room and had a security officer “double-lock” the door so that the defendant would not be able to enter the room. Good returned to the hotel lobby and contacted the Boston police department.

At about 7:30 p.m., Detectives William E. Tracy and James Simpson arrived at the hotel and spoke with Good who relayed what had taken place. A uniformed police officer also was dispatched to the hotel and accompanied the detectives. Good, Jacques, and the officers went to room 718. Using his master key card, Good let the officers inside the room. In plain view, the officers saw what Good and Jacques had observed earlier.

While inside the bedroom, the detectives smelled a strong smell of marijuana from the bathroom. They determined that the smell was coming from a backpack on the bathroom floor; the backpack was unzipped and open. In plain view, the detectives saw clear plastic bags of marijuana near the top of the open backpack. Detective Tracy moved the bags and just underneath them found a loaded nine millimeter handgun. After removing the weapon, he saw a clear bag of cocaine as well as several bundles of cash. The cash amounted to $10,860.

The police officers confiscated the backpack, gun, cash, and drugs from the backpack, and left the room. Again, Good had the door to room 718 double-locked to prevent the defendant's entry into the room. The officers waited inside a vacant room across the hall from room 718 to see if the defendant would return. Because he did not return after some time, the officers left.

At approximately 11 p.m., the defendant returned to the hotel and attempted unsuccessfully to enter room 718 with his pass key. Good notified police that the defendant had returned; the detectives came back and arrested the defendant.

While he was in custody, the defendant made statements to the detectives (after having received Miranda warnings) which were used by police to apply for, and obtain, search warrants for room 718 and the defendant's apartment. On June 20, the detectives executed the search warrants. In room 718 the police found a plastic bag with white powder residue and a small pile of marijuana. In the defendant's apartment they discovered cash, cocaine, and mescaline.

As relevant here, in his decision denying the motion to suppress, the motion judge concluded that the entry by Good and Jacques into the defendant's hotel room did not implicate the Fourth Amendment or art. 14 because the men had not contacted police at that point and, as such, they were not acting as agents of the police. The judge determined that, based on “an accumulating series of misconduct incidents and warnings to the defendant,” and Good's own observations and sensory impressions that indicated that the defendant was using the room to commit a criminal offense,⁸ the hotel had a lawful and objectively reasonable basis to exclude the defendant from the room by double-locking the door. This action effectively and lawfully ended the defendant's right to use the room, thereby terminating any reasonable expectation of privacy that he had possessed in the room. Because the defendant's privacy expectations had been terminated prior to the arrival of the police, the judge concluded that their entry into the room with Good's consent was lawful. The judge went on to state that the defendant's arrest and the search warrant applications were lawfully based on the evidence seen by the officers when Good permitted them to enter into the room. For these reasons, the judge denied the motion to suppress.

2. Discussion. In deciding whether the search of the defendant's hotel room violated the Fourth Amendment and art. 14, “we must first determine whether a search in the constitutional sense took place.”...