a. anderson: while you were out, you were evicted

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773

While You Were Out: You WereEvicted

The Demise of Hotel Privacy inCommonwealth v. Molina

ALAINA ANDERSON*

ABSTRACT

The right to privacy under the Fourth Amendment protects againstunreasonable government intrusion into a citizens pursuit of a meaningfullife. Formulated with the intent of limiting pre-Revolutionary generalwarrants under the writs of assistance, Fourth Amendment protectionsextend to the individual and to that individuals surrounding sphere ofprivacy. By analogy, such protections have been extended to hotel guestsand their right to exclude others from their hotel room.

Whether a hotel guest maintains a reasonable expectation of privacyhinges on the two-prong test from United States v. Katz. While it iscommonly understood that this right is extinguished when a guestabandons the room or stays beyond the rental period, some jurisdictionshold that a lawful eviction terminates a guests legitimate expectation ofprivacy.

Lawful eviction was a matter of first impression before theMassachusetts Supreme Judicial Court (SJC) in Commonwealth v. Molina.However, the SJC disregarded established hotel jurisprudence when it heldthat lawful eviction through ambiguous steps and without notice issufficient to terminate a reasonable expectation of privacy. Double-lockingthe door alone is insufficient, especially where the hotel guest is absentwhen the hotel staff locks the door and the guest does not return before thepolice search. By legitimizing the police search, absent a finding of exigentcircumstances, the court validated illegal third-party consent and allowed

* Candidate for Juris Doctor, New England Law | Boston (2013). B.A., History, Boston

University (2010). I would like to thank my loving family for their dedication and support.


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private security to present incriminating evidence against a hotel guest topolice on a silver platter. This holding violates a hotel guests FourthAmendment rights and reverts hotel privacy back to the arbitrary pre-

Revolutionary writs of assistance era.

INTRODUCTION

ark Molina booked a hotel room at the Colonnade Hotel inBostons Back Bay using Expedia.com and prepaid for his three-night stay.1 Despite misunderstandings about the guest policy,

Molina remained a registered guest and had no reason to believe thatanyone would disturb his occupancy when he left the hotel sometimeduring the second day of his stay.2 However, he returned around 11 p.m.that night and found that not only had he been evicted from the hotel, butalso that Boston police had conducted a warrantless search of his room andconfiscated many of his belongings.3 Shortly after Molinas return, policewere called back to the hotel and Molina was arrested.4

The Massachusetts Supreme Judicial Court (SJC), in a case of firstimpression, held that because the hotel manager lawfully evicted Molinafrom his room, Molina did not have a reasonable expectation of privacy inthe room at the time of the search.5 Additionally, the court relied on themanagers reasonable belief that Molina had violated hotel policy andstate law and held that double-locking the hotel room door was sufficientto terminate both Molinas occupancy and his privacy interest in the roomand its contents.6 To determine the existence of a privacy right in the placesubject to a search, courts rely on the two-prong test from Justice Harlansconcurrence in United States v. Katz.7 If the individual has exhibited anactual (subjective) expectation of privacy, and society is prepared to

recognize this expectation as (objectively) reasonable then there is a right toprivacy under the circumstances.8

This Comment argues that established Fourth Amendment

1 Brief for Defendant-Appellant at 6, Commonwealth v. Molina, 948 N.E.2d 402 (Mass.

2011) (No. SJC-10759).2 See Commonwealth v. Molina, 948 N.E.2d 402, 405 (Mass. 2011); Brief for Defendant-

Appellant, supra note 1, at 2.3 Molina, 948 N.E.2d at 406.4 Id.

5 Id. at 404, 409-10.6 Id. at 409-10.7 See 389 U.S. 347, 361 (1967) (Harlan, J., concurring).8 Id.

M


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2013 The Demise o f Hote l Pr ivacy 775

jurisprudence under Katz precludes the SJCs holding in Molina.9 Molinahad a reasonable expectation of privacy in the room because hotelmanagement failed to provide Molina with actual notice of eviction or to

take clear and unambiguous affirmative steps effectuating the eviction.10

Further, the courts decision to curtail Fourth Amendment protections andvalidate the police search threatens the fundamental ideals of privacyrights, harkening back to pre-Revolutionary arbitrary policing.11

Part I of this Comment provides background information about theFourth Amendment, the Katz reasonable expectation of privacy test, theimplications of the Katz test on hotel law, and relevant case law. Part IIdiscusses the relevant facts and the SJCs opinion in Commonwealth v.Molina. Part III argues that the SJC erred because it failed to recognize areasonable expectation of privacy under the Fourth Amendment anddeclined to invalidate the police search and seizure. Part IV argues thatexigent circumstances did not permit police to enter or search the hotel

room without a warrant. Finally, Part V argues that the discretion grantedto hotels in this case undercuts the Fourth Amendment protectionsafforded to hotel guests.

I. Fourth Amendment Jurisprudence and Hotel Law

A. Development of the Fourth Amendment and Katz

The Fourth Amendment of the Constitution ensures the right ofpeople to be secure . . . against unreasonable search and seizure.12 TheFramers intended to protect the pursuit of a meaningful life free fromgovernment intrusion.13 The American Revolutionary spirit t centeredlargely on privacy issues and freedom from government intrusion andsought to restrict general warrants within proper bounds.14 Specifically,

9 See infra Parts III-IV.10 See discussion infra Part III.A-C.11 See THOMAS K.CLANCY,THE FOURTH AMENDMENT:ITS HISTORY AND INTERPRETATION

2.2.3.1 at 32, 2.2.3.3 at 39-40 (2008); see also discussion infra Part V.12 U.S.CONST. amend. IV. The text of the Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

Id.13 ANDREW E.TASLITZ,RECONSTRUCTING THE FOURTH AMENDMENT:AHISTORY OF SEARCH

AND SEIZURE,1788-1868, at 44 (2006).14 DANIELJ.SOLOVE,NOTHING TO HIDE 4 (2011).


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writs of assistance15 granted unlimited authority to officials to search apersons property without giving any reasonakin to general warrants inBritish America, which made them very controversial.16 It is no surprise,

therefore, that privacy became a bedrock principle of the Bill of Rights.17

Initially, Fourth Amendment jurisprudence centered largely on

property law concepts18 and courts limited their inquiry to the fourobjectspersons, houses, papers, and effectslisted in the amendment.19After the Fourth Amendments ratification until nearly the turn of thenineteenth century, the Fourth Amendment received little doctrinaldevelopment in either state or federal courts.20 The growth of state andlocal government police agencies and the Federal Bureau of Investigation,along with the adoption of the exclusionary rule, led to an increase inFourth Amendment challenges.21 After years of jurisprudentialdevelopment, the Fourth Amendment is now understood to protect people;not only in the home, but also in the sphere of privacy [that] moves with

the person.22

Katz v. United States stands for the demise of the property-based rightto privacy theory and the rise of the privacy right of individuals to besecure against unreasonable government intrusion.23 In Katz, governmentofficials eavesdropped on the defendants telephone conversation in apublic telephone booth and subsequently arrested him based oninformation derived from the telephone conversation.24 The Supreme Courtheld that the governments activities violated the defendants FourthAmendment rights.25 The Court explained that the Fourth Amendmentprotects people and not places, and what one seeks to preserve as private,even in an area accessible to the public, may be constitutionallyprotected.26

15 CLANCY,supra note 11, at 32-33. General writs of assistance allowed officers to search a

colonists home without reason or suspicion in an effort to curtail smuggling. The writs also

played an important role in increasing tensions, which led up to the American Revolution. Id.16 Seeid. at32-35.17 Id. at 40.18 Id. at 40-41.19 See, e.g., Olmstead v. United States, 277 U.S. 438, 465-67 (1928), overruled by Katz v.

United States, 389 U.S. 347 (1967).20 CLANCY, supra note 11, at 42-43.21 See id. at 42; SOLOVE,supra note 13, at 8-9, 95.22 See Boyd v. United States, 116 U.S. 616, 621 (1886); Gerald G. Ashdown, The Fourth

Amendment Legitimate Expectation of Privacy, 34 VAND.L.REV.1289, 1319 (1981).

23 See Katz v. United States, 389 U.S. 347, 351 (1967).24 Id. at 348.25 Id. at 359.26 Id. at 351.


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Justice Harlans concurrence, which gained the traditional significanceof a majority opinion, coined the phrase reasonable expectation ofprivacy to determine the circumstances in which an individual can expect

to enjoy protection against unreasonable search and seizure.27

Harlans testset out a two-prong analysis: first that a person have exhibited an actual(subjective) expectation of privacy and, second, that the expectation be onethat society is prepared to recognize as reasonable.28 Under the Katz test,a court must find a reasonable expectation of privacy in order forgovernment action to implicate Fourth Amendment protections.29

In the wake of Katz, commentators have empirically surveyed peopleabout what they believe is an invasion of privacy under hypotheticalcircumstances.30 Ultimately, however, courts defer to the reasonableperson standard: what the average non-criminal citizen would feel withrespect to restraints on freedom of action.31 The inquiry is not based uponwhether someone looks suspicious or has a criminal recordthe Fourth

Amendment extends to all citizens regardless of the governmentssuspicions.32 Indeed, the Fourth Amendment encompasses a basic right toexclude; it is a right that travels with the individual to certainconstitutionally protected places.33

B. Reasonable Expectation of Privacy and Hotel Law

While the protection of the home lay at the core of the property-basedtheory of Fourth Amendment rights, the Supreme Court and lower courtshave extended the expectation of privacy in ones home by analogizing apersons hotel room to a temporary home.34 Thus, Fourth Amendmentjurisprudence provides a reasonable expectation of privacy to hotel guests,similar to that of a house tenant or a boarding-house occupant.35 Unless a

27 Id. at 360-61.28 Id. at 361.29 See Katz, 389 U.S. at 361.30 See Christopher Slobogin & Joseph E. Shumacher, Reasonable Expectations of Privacy and

Autonomy in Fourth Amendment Cases: An Empirical Look at Understandings Recognized and

Permitted by Society, 42 DUKE L.J. 727, 732 (1993).31 Florida v. Bostick, 501 U.S. 429 (1991) (The reasonable person test presupposes an

innocent person.).32 See Warren v. Hayden, 387 U.S. 294, 301 (1967) (describing the Fourth Amendment as

providing the right of people to be secure in their persons, houses, papers, and effects . . . ,

without regard to the use of which any of these are applied.); SOLOVE,supra note 13, at26-27

(Government information-gathering programs are problematic even if no information people

want to hide is uncovered.).33 See Ashdown, supra note 22, at 1318-19.34 See Stoner v. California, 376 U.S. 483, 488-90 (1964).35 Id. at 490.


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guests reasonable expectation of privacy in the room has been lawfullyterminated, a police search violates the guests Fourth Amendment rights 36and any evidence from that search is inadmissible.37

Given the unique and transient nature of hotel occupancy, the lawlimits some privacy protections in the hotel context.38 Hotel staff, forexample, may enter hotel rooms to provide various guest services,39 andhotel guests must share common areas, such as hallways, with otherguests.40 Hotels may also prescribe policies for the removal of guests41 andrequest police assistance to do so.42 However, hotels must follow certainprocedural safeguards to avoid violating that persons rights.43

Under Massachusetts law, hotel guests may lose the exclusive use andenjoyment of their rooms if they conduct themselves in a way that isoffensive to other guests or that violates reasonable hotel regulations.44 Insuch instances, innkeepers may remove or cause to be removed suchguests and shall tender to the guest any unused portion of the advanced

payment at the time of removal.45

Although a third-party hotel managermay request police assistance in removing a guest based on suspicionsregarding the violation of hotel policy, the manager may not consent to apolice search of the guests room.46 Furthermore, just because a guest haslost exclusive use and enjoyment of the room, does not necessarily meanthat the guest has lost an expectation of privacy in the room.47

36 E.g., United States v. Bautista, 362 F.3d 584, 589-90 (9th Cir. 2004).37 See Commonwealth v. Leone, 435 N.E.2d 1036, 1039 (Mass. 1982).38 See 43A C.J.S.Inns, Hotels, and Eating Places 8 (2011). The law regards hotel guests as

licensees and hotels have some discretion to revoke the license. Id.39

See Georgia v. Randolph, 547 U.S. 103, 112 (2006).40 See Ponce v. Craven, 409 F.2d 621, 624 (9th Cir. 1969); 3A CHARLES ALLEN WRIGHT &

SARAN N. WELLING, FEDERAL PRACTICE AND PROCEDURE: FEDERAL RULES OF CRIMINAL

PROCEDURE 663 (4th ed. 2010).41 E.g., MASS.GEN.LAWS ch. 140, 12B (2010).42 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004).43 79 C.J.S. Searches 29 (2012) (Where a motel employee has terminated a tenancy of a

guest prior to check-out time, the police may not search the guest's room without a warrant,

absent exigent circumstances, until such time as tenant has been given a reasonable time in

which to remove his or her belongings.).44 33 E. GEORGE DAHER & HARVEY CHOPP, MASSACHUSETTS PRACTICE SERIES: LANDLORD

AND TENANT LAW 1:13, at 46 (3d ed. 2000).45 MASS.GEN.LAWS ch. 140, 12B (2000).46 See, e.g., Stoner v. California, 376 U.S. 483, 488-90 (1964); United States v. Jeffers, 342 U.S.

48, 51-52 (1951).47 See Johnson v. State, 679 S.E.2d 340, 342-43 (Ga. 2009) (noting that while the defendant

may have lost his property rights in the room, that does not mean he lost his reasonable

expectation of privacy in his belongings in the room).


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1. Limits on Hotel Privacy

a. Abandonment and Staying Beyond the Rental Period

The reasonable expectation of privacy extends to a hotel guest duringthe rental period and prior to abandonment of the room. 48 If a hotel guestabandons the room or stays beyond the rental period, the guestaffirmatively forfeits an expectation of privacy in the room.49 If a hotelguest fails to renew for extra nights beyond the initial rental period, thenthe guest extinguishes the license to use the property.50 Furthermore, if ahotel guest abandons the room and his or her belongings, and makes noarrangements to retrieve those belongings, it would be unreasonable forthat guest to expect that hotel personnel would not disturb the room or itscontents.51 Thus, Massachusetts case law has firmly established bothabandonment and staying beyond the rental period as exceptions to a hotelguests reasonable expectation of privacy.52

b. Eviction

In addition to abandonment and staying beyond the rental period,some jurisdictions have found that a lawful eviction terminates a hotelguests legitimate expectation of privacy.53 However, eviction isinvoluntary and ultimately depends on the hotels discretion rather thanthe guests actions.54 Therefore, courts have required hotels to manifest

48 See United States v. Parizo, 514 F.2d 52, 58 (2d Cir. 1975) (arguing that when the term of

a guests occupancy of a room expires, the individual right to privacy in the room no longer

exists); Commonwealth v. Paszko, 461 N.E.2d 222, 235 (Mass. 1984) (holding that a defendant

may have a reasonable expectation of privacy in a motel room during the rental period andprior to abandonment); DAHER &CHOPP,supra note 44 (noting that a guest has exclusive use

and enjoyment of the room during the period to which it was rented).49 See United States v. Thomas, 451 F.3d 543, 545 (8th Cir. 2006) (Abandoned property is

outside the scope of fourth amendment [sic] protection because its owner has forfeited any

expectation of privacy in it.); Commonwealth v. Brass, 674 N.E.2d 1326, 1329 (Mass. App. Ct.

1997) (arguing that failure to reregister or pay for continued occupancy shows that the

defendant did not prove his reasonable expectation of privacy in the room beyond checkout);

Jayme W. Holcomb,Abandoning Places, FBIL.ENFORCEMENT BULL.,Oct.2008,at 23, 24.50 See Commonwealth v. Netto, 783 N.E.2d 439, 448-49 (Mass. 2003); Paszko, 461 N.E.2d at

235.51 SeeNetto, 783 N.E.2d at 448.52 Seeid.; Paszko, 461 N.E.2d at 235.53 See, e.g., United States v. Molsbarger, 551 F.3d 809, 811-12 (8th Cir. 2006); United States v.

Allen, 106 F.3d 695, 699-700 (6th Cir. 1997); United States v. Haddad, 558 F.2d 968, 975-76 (9th

Cir. 1977); People v. Hardy, 907 N.Y.S.2d 244, 248-49 (N.Y. App. Div. 2010).54 See United States v. Young, 573 F.3d 711, 717 (9th Cir. 2009) ([A] managers suspicions,

not disclosed to the defendant, cannot destroy an otherwise reasonable expectation of


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private acts of dominion over the room in order to terminate a guestsreasonable expectation of privacy.55 Directly notifying the guest of theeviction or effectuating the eviction through clear and unambiguous

affirmative and objective steps achieve this goal.56

Although courts have not established a bright-line rule, a fact-specific

inquiry into the circumstances and the hotel staffs affirmative steps helpsthe court determine whether a reasonable expectation of privacy has beenterminated.57 Courts have found several affirmative steps sufficient toterminate a hotel guests expectation of privacy, such as: physicallyremoving the guest from the hotel and requiring that the guest check out, 58asking police to formally evict and peacefully remove the guest, 59 leaving anote on the door informing the guest of the eviction,60 removing the guestsname from the list of registered guests,61 or some combination of thesesteps.62 Therefore, if officers observe drug paraphernalia in plain sightwhile evicting the guest, they may properly confiscate the paraphernalia.63

Courts have also found that fraudulent acts, such as procuring a hotelroom with a stolen credit card, can weaken an expectation of privacyespecially where the hotel takes other steps to evictsuch as filing a policereport.64 In all of these cases, however, the police entry and search of theguest room occurred either after the hotel took these affirmative steps orafter the defendant had been notified.65

privacy.).55 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004).56 See Young, 573 F.3d at 716-17; United States v. Bass, 41 F. Appx 735, 737-38 (6th Cir.

2002).57 SeeBautista, 362 F.3d at 590 (arguing that a guests expectation of privacy depends on

whether hotel staff terminated . . . control of the room through private acts of dominion);United States v. Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999) (citing that a defendant must show,

under the totality of the circumstances, that he maintained a legitimate expectation of

privacy).58 See United States v. Haddad, 558 F.2d 968, 975 (9th Cir. 1977).59 United States v. Molsbarger, 551 F.3d 809, 811-12 (8th Cir. 2009); Bautista, 362 F.3d at 59060 Young, 573 F.3d at 719.61 See id. at 717.62 See id. at 719. Other affirmative and unambiguous steps include observing the guests

arrest, informing the guest of the guests failure to pay for the room, confirming a guests

checkout, and removing the guests belongings and placing them in storage. See id. at 713;

United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997); Haddad, 558 F.2d at 971; United States

v. King, 693 F. Supp. 2d. 1200, 1211 (D. Haw. 2010).63 See People v. Hardy, 907 N.Y.S.2d 244, 250 (N.Y. App. Div. 2010).64 See United States v. Cunag, 386 F.3d 888, 895 (9th Cir. 2004).65 SeeMolsbarger, 551 F.3d at 811-12 (police physically evicted guest, then search incident to

arrest); Allen, 106 F.3d at 699 (rental period expired and failure to pay, search thereafter);

Haddad, 558 F.2d at 971 (guest ejected and checked out, search of room thereafter);


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Some courts have recognized that double-locking a hotel room door isinsufficient alone to terminate a reasonable expectation of privacy.66 InUnited States v. Young, the defendant was suspected of burglarizing another

guests room when hotel staff observed stolen checkbooks, a gun, and keysto the victims room in Youngs room.67 Hotel security then effectuated alock-out and determined that Young could not use the room.68 The Courtof Appeals for the Ninth Circuit held that Young maintained a reasonableexpectation of privacy in the room because the hotel failed to take anyaffirmative unambiguous steps to evict.69 The court reasoned that thelock-out was only a temporary measure; if the hotel staff had genuinelyintended to evict the defendant, it would have had to [be] readilyapparent.70

C. The Necessity of the Warrant Requirement

The Fourth Amendment protects legitimate, court-recognized privacy

interests against unreasonable search and seizure absent a warrant.71

Thewarrant requirement is central not only to safeguard Fourth Amendmentrights, but also to check the power and discretion of police.72 Courts haverecognized exceptions to the warrant requirement, such as a searchincident to a lawful arrest;73 items in the plain view of an officer legallypresent on the premises;74 a search with the defendants knowing andvoluntary consent;75 or the presence of exigent circumstances.76 Exigent

Commonwealth v. Molina, 948 N.E.2d 402, 410 (Mass. 2011) (Botsford, J., dissenting)

(explaining that this is the rule in Massachusetts); Hardy, 907 N.Y.S.2d at 246-47 (failure to

pay, police physically evict guest, contraband in plain sight, and police search thereafter).66 Compare Young, 573 F.3d at 719 (citing the lock-out as the only step that hotel staff took

and holding that it was insufficient to terminate the defendants privacy rights), withAllen,

106 F.3d at 699-700 (arguing that a hotel staffs lock-out, combined with the defendants

refusal to pay the balance for his room and expiration of the rental period, terminated his

reasonable expectation of privacy), and Cunag, 386 F.3d at 895 (finding that where a defendant

fraudulently procures a hotel room, the hotel staff effectuates a lock-out, and a police report is

filed, the eviction was properly effectuated).67 Young, 573 F.3d at 713-14.68 Id. at 714. A lock out is when hotel management locks the guest room door, often

using a master key, thereby restricting further guest access to the room.69 Id. at 718-19.70 Id. at 719.71 See Ashdown, supra note 22, at 1303.72 SOLOVE,supra note 13, at126.

73 See, e.g., Commonwealth v. Netto, 783 N.E.2d 439, 445-47 (Mass. 2003).74 See, e.g., Harris v. United States, 390 U.S. 234, 236 (1968); Commonwealth v. Moynihan,

381 N.E.2d 575, 578 (Mass. 1978).75 See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).


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circumstances justifying warrantless entry include threat to a persons lifeor safety, pursuit of a fleeing felon, or a reasonable belief that evidence willbe destroyed, lost, or removed.77 The government must also prove that

the circumstances were so urgent that obtaining a warrant would havebeen impracticable.78

II. Commonwealth v. Molina

A. Facts and Procedural History

In Commonwealth v. Molina the SJC was faced with the issue of whetherthe lawful eviction of a hotel guest terminates the guests reasonableexpectation of privacy under the Fourth Amendment.79 Molina prepaid forhis three-night stay at a Boston hotel on Expedia.com.80 Upon check-in, hesigned a registration card agreeing to the hotels policy, which stated that ifa guest does not comply with all federal, state, and local laws, or the hotelsrules and regulations, the guest may be asked to leave the hotel and/or beevicted.81 That evening, two groups of people came to visit Molina, andboth groups had verbal altercations with the front desk manager thatrequired the assistance of a security guard.82 Although Molina remainedpeaceful and cooperative with hotel staff, the manager told Molina that ifthere were any more complaints he would be gone.83

The next day, the hotel received complaints about the smell ofmarijuana coming from Molinas room.84 After investigating the complaintsand noticing the strong odor, the hotel manager knocked on the doorseveral times and entered the room with the master key. 85 Molina was notpresent, however the manager observed a scale, marijuana residue, rollingpapers, and a bag of marijuana.86 The manager determined that Molina hadbroken hotel rules and would not be permitted to use the room.87 He

double-locked the door so that Molina would not be able to enter and

76 See Commonwealth v. Snell , 705 N.E.2d 236, 241-43 (Mass. 1999).77 14A HOWARDJ. ALPERIN, MASSACHUSETTS PRACTICE SERIES SUMMARY OF BASIC LAW

7.63 (4th ed. 2011).78 Commonwealth v. Forde, 329 N.E.2d 717, 719 (Mass. 1975).79 Commonwealth v. Molina, 948 N.E.2d 402, 407-08 (Mass. 2011).80 Id. at 404-05.81 Id. at 405.82 Id.83 Id. at 405; Brief for Petitioner, supra note 1, at 7.

84 Molina, 948 N.E.2d at 405.85 Id.86 Id. at 405-06.87 See id. at 406.


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called the police to report his findings.88

About an hour and a half later, police arrived at the hotel and,accompanied by hotel staff, conducted a full search of the room.89 The

police seized bags of marijuana, a loaded handgun, cocaine, and $10,000 incash.90 At the time of the search, Molina remained a registered guest at thehotel and was not present to consent to the search.91 When Molina returnedto the hotel four hours later, he realized that his key did not work and wentto speak with hotel staff.92 The police were called back to the hotel, andthey arrested Molina.93 Police later obtained a search warrant for both thehotel room and Molinas primary residence, and they seized moreevidence.94

After a jury-waived trial, Molina was found guilty of a number of drugand gun charges.95 In denying the motion to suppress the evidenceobtained from warrantless search of the hotel room, the motion judgeconcluded that the hotel had a lawful and reasonable basis to evict the

defendant, which terminated Molinas reasonable expectation of privacy.96

Therefore the police conduct did not violate Molinas reasonableexpectation of privacy under the Fourth Amendment.97

B. The SJCs Opinion

After an appeal the case was transferred to the SJC, and the court heldthat the hotel lawfully evicted Molina.98 The court reasoned that due to theunique and transient nature of hotel rooms, expiration of the rentalperiod, abandonment, and now lawful eviction, may terminate certainprivacy rights despite the fact that an individual may not have notice ofthat eviction.99 The court reasoned that the managers warnings to Molinathat he would be gone and the affirmative step of double-locking the

door constituted eviction.100

Finally the court stated that Molinas conductgave the manager reasonable grounds for eviction and that lack of notice is

88 Id.89 See id.90 See Molina, 948 N.E.2d at 406.91 Brief for Petitioner-Appellant, supra note 1, at 2.92 Molina, 948 N.E.2d at 406.93 Id.94 Brief for Petitioner-Appellant, supra note 1, at 3.95 Molina, 948 N.E.2d at 404.96 Id. at 406-07.

97 Id.at 407-0898 Id. at 409.99 Id. at 408-09.100 Id. at 409-10.


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not an issue where lawful eviction takes place.101

ANALYSIS

III. The SJC Erred in Failing to Recognize Molinas ReasonableExpectation of Privacy in the Hotel Room.

The Supreme Court relies on societal understandings to determinewhether an individual has a reasonable expectation of privacy.102 Thus,the operative inquiry is whether or not society is prepared to recognizecertain types of searches under the Fourth Amendment as reasonable.103 Anexpectation of privacy implies an individuals understanding, anticipation,or belief that he or she may preserve a particular place as private. 104 Bydefinition, a persons belief or understanding cannot be terminated withoutthe persons knowledge or awareness.105 As such, failure to properly andobjectively effectuate eviction violates both prongs of the Katz analysis.106

While a hotel guest who stays beyond the rental period or abandonsthe hotel property has no expectation of privacy, Molina did neither.107Further, while some jurisdictions have recognized eviction a sufficient stepto terminate the hotel guests reasonable expectation of privacy, thesejurisdictions have required actual physical or constructive removal throughthe use of affirmative steps, notice, or some combination thereof, indicatinga termination of a right to privacy in the room.108

A. The Hotel Took Ambiguous Steps.

The majority in Molina declined to follow developed FourthAmendment jurisprudence.109 Case law requires that a hotel take clear and

101 Molina, 948 N.E.2d at 409.102 See Rakas v. Illinois, 439 U.S. 128, 143-44 n.12 (1978) (arguing that an expectation of

privacy is reasonable if it has 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).103 See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see also

California v. Greenwood, 486 U.S. 35, 39 (1988) (searches of garbage); United States v.

Jacobsen, 466 U.S. 109, 122 (1984) (search of package).104 Katz, 389 U.S. at 351-52.105 Commonwealth v. Molina, 948 N.E.2d 402, 411 (Mass. 2011) (Botsford, J., dissenting).106 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004).107 See Commonwealth v. Netto, 783 N.E.2d 439, 448-49 (Mass. 2003); Commonwealth v.

Paszko, 461 N.E.2d 222, 235 (Mass. 1984) (citing United States v. Jackson, 585 F.2d 653, 658 (4th

Cir. 1978).108 See discussion supra Part I.C.1.b.109 See discussion supra Part I.C.1.b.


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unambiguous affirmative steps in effectuating an eviction or removalattempt of a hotel guest.110 However, double-locking a door is insufficientunder the Fourth Amendment to terminate the defendants reasonable

expectation of privacy.111

Use of magnetic-key-operated hotel doors has become a common

practice in most large hotels.112 The lock allows hotels to control access tothe rooms by issuing magnetically encoded cards to guests; the locks canthen be changed to restrict future access or used to dead bolt the doorusing the grand master key.113 Many issues arise with these magneticstrips; similar to magnetic strips on credit cards, they can becomedemagnetized, scratched, and unusable.114 Therefore, a defendantsrealization that the keycard no longer works may reasonably indicatecircumstances other than eviction.115

Unambiguous steps, such as police removal or notifying the guests ofeviction, clearly indicate to guests that the hotel is evicting them.116

However, given the frequency of keycard malfunctions, the hotels actionsin locking Molina out of his room do not constitute clear and unambiguoussteps.117 Although the security guard determined that Molina would notbe permitted to use the room upon discovery of marijuana in the room, hemade no additional attempts to objectively effectuate this eviction beforeallowing police to enter and search the room.118 When Molina departedfrom the hotel he maintained his subjective belief in his right to privacy in

110 See United States v. Young, 573 F.3d 711, 716-17 (9th Cir. 2009); Bautista, 362 F.3d at 590.111 See supra note 66 and accompanying text.112

Shirley Kawa-Jump, Electronic Cards are the New Key to Hotel Safety, DAYTON BUS.J. (Oct.5, 1998), available at http://www.bizjournals.com/dayton/stories/1998/10/05/focus2.html.

113 U.S. PATENT NO. 4,717,816 (filed July 22, 1986) (issued Jan. 5, 1998), available at

http://www.google.com/patents (type 4,717,816 in search bar; then select first result) (standard

patent for electronic lock and key system for hotel).114 See Kawa-Jump, supra note 111; David Somerset, How to Protect Magnetic Strips from

Demagnetizing, EHOW.COM, http://www.ehow.com/how_7461408_protect-magnetic-strips-

demagnetizing.html (last visited Apr. 1, 2013).115 See Young, 573 F.3d at 717 (Young might reasonably have believed his key to be

defective or demagnetized, rather than suspecting that he had been evicted from the room.).116 See supra note 49 and accompanying text.117 Young, 573 F.3d at 716-17.118 See Commonwealth v. Molina, 948 N.E.2d 402, 405-06 (Mass. 2004). Molina was not

present at the hotel and there were no attempts to contact him or wait for his return to the

hotel. Id.See Lustig v. United States, 338 U.S. 74, 78-79 (1948) (reasoning that absent exigent

circumstances, without defendants presence, the search was unlawful); United States v.

Jeffers, 342 U.S. 48, 51-52 (1951) (holding that that the search was unlawful where the

defendants were not present and no exceptional circumstances allowed police entry).


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his hotel room as a registered guest.119 This belief was reasonable becauseMolina may have reasonably believed that his key was malfunctioning orthat it had become demagnetized when he realized that it did not work. 120

B. The Hotel Did Not Provide Adequate Notice.

Where a hotel fails to take affirmative steps to clearly andunambiguously effectuate an eviction, it must directly inform the hotelguest of the eviction.121 If a hotel guest abandons the room or stays beyondthe rental period, it is not necessary for the hotel to explicitly notify theguest of eviction.122 A hotel guest commonly understands and agrees thatthe license to use the property and expectation of privacy are limited to therental period.123 However, because eviction is involuntary, to terminate alegitimate expectation of privacy the hotel must explicitly notify the hotelguest of eviction.124

Since the hotel registration card did not explicitly state whether a guest

would be notified in the event of eviction, the hotel was required to issueactual notice of the eviction.125 Indeed, well-established hotel and tenancylaw mandates that hotels follow specific procedures, including propernotice, when effectuating an eviction.126 When terminating the guest-innkeeper relationship, a key principle is to provide the guest with notice

119 See Katz v. United States, 389 U.S. 347, 351-52 (1967) (holding that an expectation of

privacy implies an anticipation that one may preserve a particular place as private); Stoner v.

California, 376 U.S. 483, 488-89 (1964) (reasoning that, as a general rule, an individual has a

reasonable expectation of privacy in a hotel room as a temporary home).120 SeeYoung, 573 F.3d at 717.121 See id. at 716-18 (Young still believed he was a guest at the hotel, a reasonable belief

given the fact that the hotel had not actually evicted him or told him that he was evicted.);United States v. Bass, 41 F. Appx 735, 737-38 (6th Cir. 2002) (Without knowledge, actual or

implied, that Bass had been evicted from the hotel, the police officers could not reasonably

rely on hotel managers consent . . . .).122 See supra notes 50-51 and accompanying text.123 See United States v. Parizo, 514 F.2d 52, 53-54 (2d Cir. 1975); see also DAHER &CHOPP,

supra note 44.124 See Skyways Motor Lodge v. Gen. Foods Corp., 403 A.2d 722, 723 (Del. 1979) (holding

that written terms on a registration card limiting hotel liability was insufficient notice to the

hotel guest); Fuller v. Coats, 18 Ohio St. 343, 351-52 (1868) (stating that the discharge of an

innkeepers duty to a guest must be reasonably necessary to secure safety of guests and

brought to the knowledge of the guest).125 See United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (All motel guests cannot

be expected to be familiar with the detailed internal policies and . . . procedures of the inns

where they lodge.); Commonwealth v. Molina, 459 Mass. 819, 829-30 (2011) (Botsford, J.,

dissenting).126 See, e.g., MASS.GEN.LAWS ch. 239, 1A (2011); 79 C.J.S.Searches 29 (2011); DAHER &

CHOPP, supra note 44.


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and a reasonable time to vacate the hotel.127 Furthermore, for a hotel toclaim that the guest was properly notified of its policies, the law requiresthat hotels strictly obey the standards of clearly posting all hotel policies

and notices limiting liability.128

Given these strict notice requirements, it isunreasonable to conclude that a hotels unstated terms provide a guestwith sufficient notice of such terms.129 Therefore, Molina could not havereasonably construed the absence of language concerning actual notice onthe registration card to mean that the hotel would not provide him withnotice in the event of eviction.130

While the hotel had warned Molina that if it received one morecomplaint he would be gone, this was insufficient notice. 131 Althoughsome courts have held that a hotels mode of operation may alter the rightof privacy granted to the guest, generally it relates to expanding the rightsgranted to the guest.132 If anything, the repeated communications betweenhotel staff and Molina during his stay showed the existence of a

relationship that implied that he would be told of something as significantas an eviction.133 Molina was neither notified nor aware that someone hadvoiced an additional complaint against him; therefore this triggering event,based on another guests suspicions and the managers ambiguousresponse, did not terminate his legitimate expectation of privacy.134

127 See Stoner v. California, 376 U.S. 483, 490 (9th Cir. 1964); NORMAN G.COURNOYER ET

AL.,HOTEL,RESTAURANT AND TRAVEL LAW:APREVENTATIVE APPROACH 244 (5th ed. 1999).128 See 40A TRACY BATEMAN FARRELL &JACK K.LEVIN,AMERICANJURISPRUDENCE:HOTELS,

MOTELS,ETC. 153 (2d ed. 2011).129 See United States v. Young, 573 F.3d 711, 717 (9th Cir. 2009).130Molina, 948 N.E.2d at 412 (Botsford, J., dissenting); see infra notes 173-175 and

accompanying text.131 See United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004) (holding that a managers

threat of eviction due to failure to pay and the guests fraudulent room procurement was

insufficient to terminate the guests reasonable expectation of privacy in the room).132 See id. at 589 (recognizing that pursuant to lax policies of the hotel an expectation of

privacy beyond checkout time was reasonable).133 See United States v. Kitchens, 114 F.3d 29, 32 (4th Cir. 1997) (noting that a hotel pattern

or practice may cause a guest to subjectively believe that based on that pattern or practice the

guest may engage in certain activities without consequence).134 Cf. United States v. Molsbarger, 551 F.3d 809, 811-12 (8th Cir. 2009) (holding that police

physically evicting guests terminated reasonable expectation of privacy); United States v.

Allen, 106 F.3d 695, 699 (6th Cir. 1997) (holding that failure to pay for room combined with

use of room for illegal activities ended reasonable expectation of privacy); People v. Hardy,

907 N.Y.S.2d 244, 248-49 (N.Y. App. Div. 2010) (holding that police assistance in physically

evicting a guest ended that guests reasonable expectation of privacy).


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C. The Hotel Policy Alone Was Insufficient Notice.

Where hotel policies prescribe the exact measures that a hotel will takein the event of a hotel policy violation, automatic eviction under such termsprovides the hotel guest with sufficient notice of the termination of theguests legitimate expectation of privacy.135 However, where hotel policiesmerely prescribe what eviction measures may be taken, as was the case inMolina, it does not necessarily require automatic removal or eviction, butrather leaves it to the discretion of hotel staff.136 This unfettered discretiondestroys the core principles of the constitutional protection againstunreasonable search and seizure.137 The Fourth Amendment ensures ahotel guests basic right to exclude138 and an expectation that the guestsroom is private.139 A hotel guest has no reason to expect that anyone willenter his room aside from hotel employees.140 By reserving the right to evictarbitrarily, the hotel eliminates any guests right to have a subjective beliefthat the guests privacy will be protected against government intrusion.141

A hotel manager may choose to shield some guests from criminal liabilityand violate the Fourth Amendment rights of others all in the same hotel. 142

135 See United States v. King, 693 F. Supp. 2d 1200, 1214 (D. Haw. 2010) (reasoning that

hotel policy explicitly required immediate eviction upon arrest, leaving no room for security

personnel to exercise discretion).136 See United States v. Young, 573 F.3d 711, 717 (9th Cir. 2009) (A policy that something

ought to be done does not establish that it was done, and a hotel's confidential policy or

manager's suspicions, not disclosed to the defendant, cannot destroy an otherwise reasonable

expectation of privacy.).137 See Stoner v. California, 376 U.S. 483, 488-90 (1964) (declaring that privacy rights are not

eroded by strained applications of the law of agency and that a hotel guests protection

under the Fourth Amendment would disappear if left up to discretionary power of privatesecurity).

138 See United States v. Chadwick, 433 U.S. 1, 7 (1977).139 See Katz v. United States, 389 U.S. 347, 351-52 (1967) (stating that, regardless of an

individuals location, what he or she seeks to preserve as private may be constitutionally

protected).140 Cf. Georgia v. Randolph, 547 U.S. 103, 112 (2006) (noting that a hotel manager, much

like a landlord, calls upon no customary understanding of authority that would lead a

current occupant to think that a guest could be admitted without that occupants consent);

Commonwealth v. Neilson, 666 N.E.2d 984, 987 (Mass. 1996) (The [defendant's] consent

[was] given, not to police officials, but to the University and the latter cannot fragmentize,

share or delegate it.) (internal citations omitted).141 See Katz, 389 U.S. at 351-52 (stating that an expectation of privacy signifies a persons

anticipation or belief that he may preserve a particular place as private).142 Cf. United States v. King, 693 F. Supp. 2d 1200, 1210 (D. Haw. 2010) (noting that a hotel

policy prescribing the exact circumstances that automatically results in eviction would

eliminat all hotel discretion, especially where failure to evict a guest under such

circumstances, is a terminable offense for the hotel employee).


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While hotels must have the right to protect the hotel business andensure a safe and comfortable environment by revoking the license of ahotel guest, this discretion is not absolute.143 Furthermore, there is a key

distinction between removing a guest from the room and terminating areasonable expectation of privacy.144 Fourth Amendment protectiondepends not on ones abstract property right, but rather whether theindividual who claims the right in fact has a legitimate expectation ofprivacy in the place that police search.145 This individual rightt he pursuitof a meaningful life free from government intrusionis precisely what theFramers intended to protect under the Fourth Amendment in response tothe oppressive writs of assistance.146 Therefore, an individualsrecognized common law property interest in the hotel room search isirrelevant to the existence of a legitimate expectation of privacy. 147

Although hotel staff chose to divest Molina of his property right in theroom, this did not terminate Molinas reasonable expectation of privacy in

the room and his belongings.148

Absent exigent circumstances, the hotelstaff could not consent to a police search of the room.149 Molina had noreason to believe that the hotel manager would exercise this discretion ofhotel policy and evict him when he departed from the hotel on the secondday.150 The basic rights granted under the Fourth Amendment protect this

143 See, e.g., DAHER &CHOPP, supra note 43, 1:13 (noting an innkeepers common law right

to order a hotel guest to leave and to remove him if necessary); COURNOYER ET AL.,supra note

127, at 61 (listing age as a classification for which individuals may be treated differently in

places of public accommodation).144 See Johnson v. State, 679 S.E.2d 340, 341-42 (Ga. 2009) (noting that the defendants stay

was terminated and further stating that [the defendants] loss of the expectation of privacy inthe room does not mean that he had lost his expectation of privacy with regard to personal

items in the room).145 See Rakas v. Illinois, 439 U.S. 128, 143-45 (1978) (holding that legitimately on the

premises is no longer the litmus for determining individuals privacy rights, instead

individuals must have a legitimate expectation of privacy in the invaded place).146 See TASLITZ, supra note 132,at 36, 44.147 See Jones v. United States, 362 U.S. 257, 261-63 (1960); COURNOYER, ET AL., supra note

127, at 241 (Guests are allowed a reasonable time after vacating the room to remove their

luggage and check out of the hotel, during which they continue to qualify as guests.).148 See, e.g., Johnson v. State, 679 S.E.2d 340, 342-43 (Ga. 2009) (explaining that the

defendants loss of the expectation of privacy in his room did not mean that he had lost his

expectation of privacy with regard to his personal items in the room).149 CLANCY,supra note 11, at 431.150 See Stoner v. California, 376 U.S. 483, 487-89 (1964); see also Michael Abramowicz,

Constitutional Circularity, 49 UCLAL.REV. 1, 60-61 (2001) (describing that Fourth Amendment

law is circular and that one can have a reasonable expectation of privacy only if the Court has

held that a search in such a place would be unreasonable).


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reasonable belief.151

D. Exigent Circumstances Did Not Exist.

A court must find exigent circumstances to justify warrantless entry;however none existed in Molina.152 The police were informed only of thehotel managers observations of drug paraphernalia in Molinas room;presence of drugs in a hotel room does not constitute an emergencythreatening life or limb.153 Furthermore, the destruction of contraband wasnot imminent because Molina was not present at the hotel and was notaware of police involvement.154 Finally, Molina was not attempting toescape police custody or hide out in his room.155 Therefore, the police entryprior to Molinas return to his pre-paid room without Molinas consent or avalid search warrant constituted an illegal search under the FourthAmendment.156

IV. Hotel Securitys Erosion of Fourth Amendment Protection

Transient lodging is a common practice in society today, with over65,000 lodging accommodations in the United States.157 UnderMolina, hotelstaff discretion undercuts the Fourth Amendment protections for people intransient living quarters, and the lack of privacy harkens back to the typeof searches that colonists faced under the writs of assistance.158Furthermore, the Molina holding contributes greatly to a dangerous trend

151 See supra note 34 and accompanying text.152 COLTOFF ET AL., supra note 42, 29. Cf. Commonwealth v. Snell, 705 N.E.2d 236, 243

(Mass. 1999).

153 See Mincey v. Arizona, 437 U.S. 385, 392-93 (1978) (explaining that there was noemergency threatening life or limb because all the people in the defendants apartment had

been located before police arrived to begin their search of the apartment).154 See United States v. Radka, 904 F.2d 357, 362-63 (6th Cir. 1990) (reasoning that because

of the defendants location he was not aware that police were hot on his trail).155 See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298 (1967) (holding a warrantless

search valid because of exigency when police chased a fleeing armed felon into a nearby home

to search for the suspect and the weapons used in the crime ).156 Cf. United States v. Jeffers, 342 U.S. 48, 50-51 (1951) (holding that a police search of a

hotel room without respondents permission where they had paid for the room was a

violation of the Fourth Amendment); Johnson v. State, 679 S.E.2d 340, 341 (Ga. 2009)

(explaining that the defendant lost his expectation of privacy in his hotel room when he was

properly evicted due to inappropriate conduct).157 U.S. BUREAU OF LABOR STATISTICS,INDUSTRIES AT A GLANCE:ACCOMMODATION NAICS

721(Nov. 16, 2012), available at http://data.bls.gov/cgi-bin/print.pl/iag/tgs/iag721.htm.158 See Lauren Young Epstein, Limits of the Inevitable Discovery Doctrine in United States v.

Young: The Intersection of Private Security Guards, Hotel Guests, and the Fourth Amendment, 40

GOLDEN GATE U.L.REV.331,356-57&n.167 (2010).


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amongst the intersection of private security and public policing.159

It is undisputed that Molina had been using the room for some illegalpurpose or at least in violation of hotel policy.160 However, this alone does

not terminate an expectation of privacy in a hotel room, nor can it serve asan after the fact justification for an illegal [police] search.161 After thehotel staff observed the items in Molinas room, the staff could have toldpolice, who could have obtained a search warrant.162 In the alternative,hotel staff could have asked the police to secure the room or contacted thepolice to aid in Molinas removal once he returned to the hotel. 163 GivenMolinas use of his room, it is not unreasonable to expect that there was achance that hotel staff may have thrown him out at some point. 164However, his expectation of privacy and the expectation of privacyafforded under the Fourth Amendment in his hotel room and hisbelongings had not terminated, as the hotel staff failed to takeunambiguous steps to evict him.165 Instead, the sole purpose for allowing

police into Molinas room was not for personal safety reasons, but rather toallow police to illegally search the room.166

The rise in private security has led to a decline in the warrantrequirement and expands the already problematic issue of granting privateenforcement officers too much discretion.167 By allowing the hotel managerto investigate the room and contact the police about exact observations of

159 Seeid. at 356-57.160 Hotel staff observed a scale, marijuana, and rolling papers in the room. Commonwealth

v. Molina, 498 N.E.2d 402, 405-06 (Mass. 2011).161 See Jason C. Miller, Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel

Rooms, 7 SETON HALL CIRCUIT REV. 269, 284 (2011).

162 The circumstances were not so urgent that obtaining a warrant would have beenimpracticable, as Molina had not attempted to remove any of his belongings and was

registered to stay at the hotel until the following day. See Commonwealth v. Forde, 329 N.E.2d

717, 720 (Mass. 1975); see also Phyllis T. Bookspan, Reworking the Warrant Requirement:

Resuscitating the Fourth Amendment, 44 VAND.L.REV. 473, 529-30 (1991).163 See, e.g., United States v. Moslbarger, 551 F.3d 809, 811 (8th Cir. 2009) (describing an

instance in which police helped a hotel manager evict guests).164 Miller, supra note 160, at 284.165 See id. at 282-83 (When the hotel management validly evicts a guest on the owners

behalf, or solicits the involvement of the police for that purpose, the guest loses any

expectation of privacy. But before a guest loses his or her privacy expectations, the hotel itself

must act.).166 See United States v. Jeffers, 342 U.S. 48, 51-52 (1951) (arguing that the officers entry into

the hotel room, while the defendant was absent, with the sole motive of seizing narcotics was

illegal).167 See Aubrey H. Brown III, Note, Georgia v. Randolph, The Red-Headed Stepchild of an Ugly

Family: Why Third-Party Consent Search Doctrine is an Unfortunate Fourth Amendment

Development that Should Be Restrained, 18 WM.&MARY BILL RTS.J. 471, 502 (2009).


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items found in the room, private security silver platters incriminatingevidence for prosecution.168 Although hotel staff often elicits policeassistance in removing a guest from the hotel, in this instance the police are

merely acting as agents of hotel staff by handling an issue between thehotel and a hotel guest.169 When hotel staff permit police to conduct asearch of the room without the hotel guests knowledge or consent, itconstitutes illegal third-party consent.170 Given the frequency and vastpurposes for which people rent hotel rooms, it is not uncommon for gueststo come and go from their hotel room throughout their stay. 171 Illegal thirdparty consent and silver plattering diminishes Fourth Amendmentjurisprudence because it destroys guests expectation of privacy in theroom when they are not physically present in the room. 172

Furthermore,Molina permits hotels to effectively contract out of FourthAmendment protections.173 Allowing hotels to omit statements concerningnotice of eviction from their registration card and holding that such

omission is notice itself violates Katzs core foundation.174

Under thisholding, hotels are permitted to selectively omit material terms from theregistration card and imply that the guest, having read and signed theregistration card, voluntarily agrees to the terms not stated. 175 Thus, theprivacy rights of hotel guests are obliterated, and private security is giventhe upmost authority to enact polices allowing staff to search every guestsroom, report their findings to the police, and consent to a police search ofthe room.176

168 See Lustig v. United States, 338 U.S. 74, 78-79 (1949); Lynn M. Gagel, Stealthy

Encroachments upon the Fourth Amendment: Constitutional Constraints and Their Applicability to

the Long Arm of Ohios Private Security Forces, 63 U.CIN.L.REV. 1807, 1841-43 (1995).169

Miller, supra note 160, at 283.170 See CLANCY, supra note 11, at 431; see also Stoner v. California, 376 U.S. 483, 487-90

(1964);Jeffers, 342 U.S. at 51-52.171 See United States v. Young, 573 F.3d 711, 716 (9th Cir. 2009) (Part of what a person

purchases when he leases a hotel room is privacy for ones person and ones things.).172 See Gagel, supra note 167, at 1841-43.173 SeeYoung, 573 F.3d at 717 (stating that a hotels confidential policy, not revealed to the

guest, cannot destroy a reasonable expectation of privacy).174 Seeid.; Commonwealth v. Molina, 948 N.E.2d. 402, 411 (Mass. 2011) (An expectation of

privacy signifies a persons anticipation, belief, or understanding that he may preserve a

particular place as private.).175 See Molina, 948 N.E.2d at 409. Under the general reasoning of Katz, a hotel guest

maintains a reasonable expectation of privacy absent evidence to the contrary. See Katz v.

United States, 389 U.S. 347, 359 (1967). Furthermore, basic contract law provides that

contracting parties give mutual assent to essentially the same terms, which must be

manifested by their written or oral words, or by their conduct. See 35 THOMAS B. MERRITT,

MASSACHUSETTS PRACTICE SERIES:CONSUMER LAW 1:2 (3d ed. 2010).176 See supra Part IV.


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CONCLUSION

A hotels interest in preserving a safe and comfortable environment for

its guests maintains the prevalence of hotel patronage in society. However,of greater importance are the Fourth Amendment rights that travel withhotel guests, allowing guests to expect a private room. Courts mustexamine all of the surrounding circumstances to determine whether thedefendants subjective expectation of privacy in the room is reasonablegiven the hotels actions surrounding the eviction. Although a hotel maylawfully remove a guest, when the hotel fails to take unambiguousaffirmative steps or provide the guest with actual notice of eviction theguest maintains a reasonable expectation of privacy in the room.

The SJCs opinion threatens the foundation of Fourth Amendmentprivacy rights in hotel occupancy. The court should have concluded thatbased on the hotel staffs only step to evict by double-locking the door,

Molina reasonably and subjectively maintained his expectation of privacyin the room. Furthermore, police entry into the room was unlawful withoutany exigent circumstances. Verifying a hotels ambiguous steps andconsent to a police search in the absence of the defendant violates bothprongs of the Katz test and closely resembles the arbitrary policing of pre-Revolutionary America.

a. anderson: while you were out, you were evicted

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