Norwood v. State

• Decision Date: 08 August 1996
• Docket Number: No. 27A02-9509-CR-530,27A02-9509-CR-530
• Citation: 670 N.E.2d 32
• Parties: Alexander NORWOOD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 32

670 N.E.2d 32

Alexander NORWOOD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-9509-CR-530.

Court of Appeals of Indiana.

Aug. 8, 1996.

Jerry T. Drook, Marion, for Appellant-Defendant.

Pamela Carter, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

FRIEDLANDER, Judge.

Alexander Norwood appeals his conviction of Possession of Cocaine With Intent to Deliver, ¹ presenting the following restated issues for review:

1. Did Norwood receive ineffective assistance of trial counsel?

2. Did the trial court err in refusing to read to the jury a final instruction tendered by Norwood concerning a lesser included offense?

We affirm.

The facts favorable to the judgment are that between March 23, 1994 and April 13, 1994, Norwood stayed at the Broadmoor Hotel in Marion, Indiana continuously, except for one or two nights. While at the hotel, Norwood stayed in a room registered either to a female acquaintance or to him under the name of "R.J. Ryder". His, then, most recent check-in date was April 12, when the room was registered to him as "R.J. Ryder". On that day, he paid cash for a one-night stay. On the morning of April 13, sometime prior to checkout time, which Norwood knew to be 11:00 a.m., he fell in the bathtub and injured his shoulder. He called Rozetta Woodcock, the hotel's assistant manager, and asked her to summon an ambulance, which she did.

Nora Alexander was a housekeeper at the hotel. She had been cleaning a room near Norwood's when she saw him being taken away by ambulance. After she finished the nearby room, she entered Norwood's room in order to clean it. Alexander picked up a white sweat shirt that was laying on the floor beside the bed and a "bag of white stuff fell out of it." Record at 205. Alexander called the assistant manager to ask whether Norwood would be checking out of the room that day or holding over for another day and also informed her of the discovery of the white substance, which she believed to be cocaine. Alexander was instructed to leave the room immediately. The police were called.

Police responded to the hotel shortly thereafter, but were not allowed to enter Norwood's room until 11:00 a.m. because, as Woodcock later explained,

The room is [Norwood's], technically, until eleven o'clock. And at eleven o'clock we can put a knob lock on the door so that they have to come in and pay us before they get the stuff out of the room. If they want to do that. It's our room after eleven o'clock.

Record at 229. Upon entering the room, police discovered a baggie containing what was later determined to be 3.18 grams of cocaine.

1.

Norwood claims that he received ineffective assistance of trial counsel because counsel failed to file a motion to suppress the evidence obtained when police searched the hotel and later failed to object to the evidence when it was introduced at trial. Norwood contends that the evidence was inadmissible because it was obtained after a search violative of the Fourth Amendment of the United States Constitution.

We note initially that even had counsel submitted a pretrial motion to suppress and had such motion been denied, the ruling would not have served as the final expression of the evidence's admissibility. Gajdos v. State, 462 N.E.2d 1017 (Ind.1984). In order to preserve any error in the denial of such a motion, the defendant must object to the evidence when it is offered at trial. Poulton v. State, 666 N.E.2d 390 (Ind.1996). Thus, the failure to submit a motion to suppress cannot constitute grounds for reversal in the instant case and we need not address that aspect of Norwood's argument. Id. We note also that Norwood avoids waiver of the issue of the evidence's admissibility by presenting the question in the context of ineffective assistance of counsel for failing to offer an objection when it was offered at trial. See Cardwell v. State, 666 N.E.2d 420 (Ind.Ct.App.1996).

In order to prevail on a claim of ineffective assistance of counsel, Norwood must demonstrate deficient performance that prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Turner v. State, 580 N.E.2d 665 (Ind.1991), reh'g denied. A finding of ineffective assistance of counsel may not be premised upon the failure to present a claim that would have been meritless. Vaughn v. State, 559 N.E.2d 610 (Ind.1990). Therefore, in order to prevail, Norwood must demonstrate that an objection to introduction of the evidence would have been sustained.

The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects persons from unreasonable government intrusions into areas of an individual's life in which he has a reasonable expectation of privacy. State v. Thomas, 642 N.E.2d 240 (Ind.Ct.App.1994), trans. denied. Pursuant to the Fourth Amendment, all searches of private property must be reasonable. State v. Foreman, 662 N.E.2d 929 (Ind.1996). "A warrantless search is presumed to be unreasonable, and the State bears the burden to show that the search falls under an exception to the warrant requirement." Id. at 931 (quoting Smith v. State, 565 N.E.2d 1059, 1060 (Ind.1991)). The validity of a warrantless search is dependent upon the facts of each case. Id.

The first line of inquiry in a Fourth Amendment challenge to the admissibility of evidence is whether the defendant had a personal and legitimate expectation of privacy in the place searched. Perkins v. State, 483 N.E.2d 1379 (Ind.1985); Ceroni v. State, 559 N.E.2d 372 (Ind.Ct.App.1990), trans. denied. Assuming arguendo that Norwood had a subjective expectation of privacy, we must determine whether such is one that society would recognize as reasonable. Foreman, supra. Hotel guests enjoy the same constitutional protection against unreasonable search and seizure as do occupants of private residences. Ceroni, supra; see also United States v. Arch, 7 F.3d 1300 (7th Cir.1993), cert. denied, 510 U.S. 1139, 114 S.Ct. 1123, 127 L.Ed.2d 431 (1994). However, the expectation of privacy ends when the rental period expires and "Fourth Amendment protection of a motel or hotel room ends at the conclusion of the rental period." Myers v. State, 454 N.E.2d 861 (Ind.1983).

In the instant case, it is undisputed that Norwood paid for one day's stay on April 12 and that he knew checkout time was 11:00 a.m. the next day. Therefore, Norwood's rental period ended on April 13 at 11:00 a.m. It is also undisputed that police did not enter and search the room until after 11:00 a.m. on April 13. Norwood contends, however, that he "had a legitimate expectation of privacy in his hotel room even after the rental period officially expired at 11:00 A.M. on the morning his room was searched." Appellant's Brief at 9. This contention is premised upon several facts peculiar to this case.

Occasionally, a patron at the Broadmoor Hotel would fail to vacate his room by check-out time and had not paid for another night's stay, but was not present at 11:00 a.m. In such cases, the hotel would place a knob lock on the door that could not be operated by the patron's key. Therefore, when the patron returned, he would be unable to enter the room. At such time, the patron would be forced to contact the front desk. If at that time the patron paid for an extra day's stay, the knob lock could be removed and occupancy could resume. If the patron chose not to pay, presumably he could reenter the room for the sole purpose of retrieving his belongings. On several occasions in the preceding weeks, a knob lock had been placed on the door to Norwood's room, the result of which he had paid for another day, and the knob lock had been removed. Norwood argues,

[O]n prior occasions when Norwood failed to return by 11:00 A.M. to renew his room rental period, the hotel presumably had no idea where he was or when, or even if, Norwood would return for another night. On those occasions, the hotel put a knob lock on the room until he did return. On those occasions, the hotel did not remove Norwood's property and hold it for him at the office, nor did the hotel clean out the room and rent it to someone else. However, what the hotel did do on those occasions was assume Norwood would return as he had before, and also acted as if the room was still his, even after the rental period expired. Due to this prior conduct of the hotel management, Norwood was led to believe his room would be safely held for him, with a lock on the door, until he returned, even if it was after 11 A.M.

Appellant's Brief at 10.

Norwood offers no authority for the proposition that a hotel patron's expectation of privacy continues after the expiration of the rental period if the hotel previously allowed the renter to extend the rental period after it had lapsed, nor does our research reveal any. Although we cannot say that the proposition could never be true, we conclude that it is without merit on the facts of this case.

It is undisputed that hotel procedure included locking a patron out of a room after the rental period expired. This was true even if the patron had left property in the room. While the patron could extend the rental period and reassume occupancy of the room by paying an additional fee, this does not alter the fact that between the expiration of the rental period and payment of the additional fee, the patron was rightfully denied access to the room by the hotel, indicating that the hotel had rightfully reassumed complete control over the room and that the renter's occupancy had terminated.

With respect to the hotel's conduct on previous similar occasions, we disagree with Norwood's assertion regarding the hotel's motivation. Although Norwood's property had been left in his room on prior occasions and he was given the opportunity to renew his occupancy, this does not necessarily reflect a view on the hotel's part that "the room was still...