People v. Lerhinan

• Citation: 90 A.D.2d 74,455 N.Y.S.2d 822
• Parties: The PEOPLE, etc., Respondent, v. Michael P. LERHINAN, Appellant.
• Decision Date: 22 November 1982
• Court: New York Supreme Court Appellate Division

Page 822

455 N.Y.S.2d 822

90 A.D.2d 74

The PEOPLE, etc., Respondent, v. Michael P. LERHINAN, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 22, 1982.

Matthew Muraskin, Mineola (Madeline Kochen and Michael J. Obus, Mineola, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (George Freed, Samuel E. Rieff and Anthony J. Girese, Mineola, of counsel), for respondent.

Before LAZER, J.P., and GULOTTA, BRACKEN and BOYERS, JJ.

LAZER, Justice Presiding.

Because the constitutional validity of hotel and boarding room searches has evoked only limited jurisprudence in this State, this case provides the opportunity to illuminate the relationship between the Fourth Amendment and real property law. The search here challenged turned up the fruits of the crime and resulted in defendant's plea of guilty to burglary in the third degree after his motion to suppress was denied. We conclude that a hotel guest, who has a constitutionally protected right to privacy in his room, loses any reasonable expectation of such privacy when the rental period expires. At that time, the hotel owner may reassert control of the room and validly consent to have the police search it and its contents.

On February 14, 1979, a number of cases of liquor and a tool and die set were stolen from the bar and storeroom located in the Colony Arms Hotel in Glen Cove. The stolen items were subsequently found by the hotel manager when he entered the room defendant had been occupying at the hotel and looked in the closet. At the time of this entry, the defendant was two weeks in arrears on rent which was payable in advance weekly. The manager testified that while the purpose of the entry was rent collection, if the defendant was not in, he had intended to move the man's belongings to the basement, change the lock and re-rent the room. Hearing no response to his knock on the door, the manager used a pass-key to open it and, in the closet, found the cases of liquor and a tool and die set covered with a bed sheet. Recognizing the items as related to the earlier burglary, the manager promptly called the police. When Detective Van Nostrand arrived, he was informed that the rent had been unpaid for two weeks and the missing property had been discovered in the course of eviction of the defendant. Van Nostrand was then led to the room and shown the stolen goods. The defendant was arrested the next day and subsequently moved to suppress the recovered items. The motion was denied on the ground that he lacked standing to challenge the search.

Whether standing is the issue here (see People v. Hunter, 55 N.Y.2d 930, 931, 449 N.Y.S.2d 191, 434 N.E.2d 260) or whether the question is "more properly subsumed under substantive Fourth Amendment doctrine" (see Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387) is not significant to our disposition; ¹ the defendant can obtain a suppression only if he can demonstrate that he possessed a reasonable expectation of privacy in the hotel room at the time it was searched (see Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633; Rakas v. Illinois, supra; People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735). The test is whether he exhibited an actual (subjective) expectation of privacy and whether that expectation is one that society is prepared to recognize as reasonable (see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 see, also, Rakas v. Illinois, supra, p. 143, 99 S.Ct. p. 430). ² Although " 'from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment' " (Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639, citing Dorman v. United States, 435 F.2d 385, 389 (D.C.Cir.)), the individual's privacy interests extend to a variety of settings. Since a guest in a hotel room is entitled to the protection of the Fourth Amendment (Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436), a hotel employee may not effectively consent to a search of the room during the rental period (see Stoner v. California, supra; State v. Smith, 178 N.W.2d 329 ).

Although the Supreme Court has repeatedly repudiated the notion that the subtle distinctions developed in property law control Fourth Amendment determinations (see Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, supra; United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 993, 39 L.Ed.2d 242; Chapman v. United States, 365 U.S. 610, 617, 81 S.Ct. 776, 780, 5 L.Ed.2d 828; Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697), "the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment" (Rakas v. Illinois, supra, p. 144, n. 12, 99 S.Ct. p. 430, n. 12; see, also, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619). As noted by Justice REHNQUIST:

"Legitimation of expectations of privacy by law must have 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. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." (Rakas v. Illinois, supra, p. 144, n. 12, 99 S.Ct. p. 430, n. 12.)

Analysis of the current issues first requires examination of the nature of defendant's interest in the premises searched to determine whether a legitimate expectation of privacy existed at the time of the search (see United States v. Haddad, 558 F.2d 968, 975 (9th Cir.); United States v. Jamerson, 549 F.2d 1263 (9th Cir.)). Under New York law, there is an express or implied understanding between guest and hotel owner that the former shall be the sole occupant during the time that is set apart for his use (see People v. Gallmon, 19 N.Y.2d 389, 280 N.Y.S.2d 356, 227 N.E.2d 284; De Wolf v. Ford, 193 N.Y. 397, 86 N.E. 527). The owner retains a right of access only for such reasonable purposes as may be necessary in the conduct of the hotel, not only to take action in the event of a fire or gas leakage (People v. Gallmon, supra; De Wolf v. Ford, supra), but obviously to take routine care of necessary housekeeping as well. But since no conventional landlord-tenant relationship is involved in the ordinary rental of hotel rooms (Ashton v. Margolies, 72 Misc. 70, 129 N.Y.S. 617; Wilson v. Martin, 1 Denio 602; cf. Smith v. Rector of St. Philip's Church, 107 N.Y. 610, 619, 14 N.E. 825), ³ a hotel owner may dispossess an occupant without resort to the use of summary proceedings (Morningstar v. Lafayette Hotel Co., 211 N.Y. 465, 105 N.E. 656; Jacob v. Jacob, 125 Misc. 649, 212 N.Y.S. 62; Rasch, New York Landlord & Tenant Summary Proceedings § 1189; 27 N.Y.Jur., Hotels, Restaurants & Motels, § 40). Under section 181 of the Lien Law, the owner also has the right to seize the defaulting guest's property and sell it at public auction. ⁴ This contrasts with the rental of an apartment, the possession of which may not be disturbed until a warrant of eviction has been executed (RPAPL 749, subd. 3; People v. Stadtmore, 52 A.D.2d 853, 382 N.Y.S.2d 807).

The distinction between the privacy expectation of a hotel guest and a tenant of an apartment building has been recognized in a number of other jurisdictions (see, e.g., United States v. Croft, 429 F.2d 884 (10th Cir.) State v. Carrillo, 26 Ariz.App. 113, 546 P.2d 838; State v. Taggart, 14 Or.App. 408, 512 P.2d 1359). The difference between these types of rental arrangements--particularly the relative ease by which a hotel occupancy can be terminated upon nonpayment of rent--cannot be classified as a "subtle" property law distinction of the unfavored type (see, e.g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, supra); it is instead a highly relevant factor for determining the legitimacy of a defendant's privacy interest (see United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619, supra; Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, supra).

As a consequence of the hotel keeper's lien and the transitory nature of hotel tenancies, mere nonpayment of the rent terminates any reasonable expectation of privacy in the hotel room and the property contained in it (Boone v. State, 39 Md.App. 20, 383 A.2d 412). The cases have uniformly held that the operator of a motel, essentially similar to a hotel, may consent to a warrantless search as soon as the rental period has expired (United States v. Jackson, 585 F.2d 653 (4th Cir.); United States v. Akin, 562 F.2d 459 (7th Cir.), cert. den. 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531; United States v. Parizo, 514 F.2d 52 (2nd Cir.); United States v. Croft, 429 F.2d 884 (10th Cir.), supra; Sumdum v. State, 612 P.2d 1018 State v. Carrillo, 26 Ariz.App. 113, 546 P.2d 838, supra; People v. VanEyk, 56 Cal.2d 471, 15 Cal.Rptr. 150, 364 P.2d 326, cert. den. 369 U.S. 824, 82 S.Ct. 838, 7 L.Ed.2d 788; People v. Crayton, 174 Cal.App.2d 267, 344 P.2d 627; State v. Mascarenas, 86 N.M. 692, 526 P.2d 1285; State v. Taggart, 14 Or.App. 408, 512 P.2d 1359, supra; State v. Cox, 12 Or.App. 215, 505 P.2d 360; State v. Roff, 70 Wash.2d 606, 424 P.2d 643; see, also, Ann., 2 A.L.R 4th 1173, § 5). The lack of a possessory interest in a hotel--or motel--room in turn influences the reasonableness of expectations of privacy, for:

"is commonly known that those who operate such establishments are understandably interested in maximum paying occupancy and thus could be expected to...