United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Walter Powell is charged with conspiring to possess with
intent to distribute fentanyl and cocaine base and possessing
with intent to distribute fentanyl and cocaine base. [Record
No. 29] Powell filed a motion to suppress evidence seized
from a room at the Microtel Inn in Lexington, Kentucky, which
led to these charges. [Record No. 24] The motion was referred
to United States Magistrate Judge Matthew A. Stinnett for
issuance of a Report and Recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). Magistrate Judge Stinnett conducted an
evidentiary hearing and issued a Report and Recommendation on
June 21, 2019, concluding that the Court should deny the
defendant's motion. [Record No. 42] Thereafter, Powell
filed objections to the Report and Recommendation. [Record
careful review of the matter, the Court concludes that the
motion to suppress should be denied.
January 25, 2019, a Microtel laundry worker complained to
assistant manager Eugene Zita regarding the odor of marijuana
coming from room #122. [Record No. 41, p. 47] Zita checked
the hallway and observed an “extremely strong”
odor of marijuana outside of room #122. Microtel has a strict
non-smoking policy, so Zita elected to evict the occupant.
Id. at p. 49. She knocked on the door, but no one
answered. Id. at p. 47. Noting that the smell of
marijuana was “very strong” and fearing there
might be dangerous individuals inside, Zita decided to call
the Lexington Police Department for assistance with the
Police Officers Johnson and Hogan arrived at the Microtel and
contacted Zita, who was busy with customers at the front
desk. Id. at p. 7. Zita pointed the officers toward
room #122. The officers arrived at the room and knocked, but
there was no response. Id. at p. 8. When officers
returned to the front desk, Zita advised that she wanted to
evict the occupant of room #122. Id. at p. 9. Zita
produced a master key and she and the officers returned to
knocking and announcing herself as hotel staff, Zita opened
the door using the master key. Id. at pp. 10, 53.
Officers Johnson and Hogan performed a brief protective sweep
of the room and, after confirming that no one was present,
stepped back into the hallway. The officers remained in the
hall or doorway while Zita began clearing out the
occupant's belongings. Zita explained that she needed
evidence of smoking in the room so that Microtel could assess
a $250.00 penalty. Id. at pp. 48, 51-52.
opened the refrigerator during her inspection of the room and
found a container inside. Id. p. 58. She apparently
saw or suspected that it contained contraband because she
asked the officers: “Can you look or can I take it
out?” Id. at p. 57. The officers, still
standing in the doorway of the room, advised Zita that she
could take it out. Id. at pp. 13, 70. Zita removed
the container from the refrigerator and gave it to the
officers. Id. at p. 71. It contained a powdery
substance which, according to Officer Johnson, tested
positive for fentanyl and cocaine base. Id. at p.
15. Defendant Powell was arrested when he returned to the
Microtel later that day.
magistrate judge determined that Powell does not have
standing to challenge the alleged search because he had been
evicted. As he noted, a hotel guest does not have a
legitimate expectation of privacy in his room once his rental
period has been lawfully terminated. [Record No. 42, p. 4
(United States v. Spicer, 549 Fed.Appx. 373, 377
(6th Cir. 2013))]. But Powell maintains that he has standing
to challenge the “search” because he was never
hotel may lawfully terminate a guest's occupancy for
unauthorized activity, including possession of illegal
drugs.” Spicer, 549 Fed.Appx. at 376. See
also Raider v. Dixie Inn, 248 S.W. 229, 229-230 (Ky.
1923) (innkeeper may exclude individuals whose conduct annoys
or endangers others). Powell suggests that he had not been
evicted because he had not been advised of the hotel's
decision. However, “[a] hotel terminates a guest's
occupancy by taking justifiable affirmative steps to
repossess [a] room . . . and to assert dominion and control
over it.” Spicer, 549 Fed.Appx. at 376.
relies on the non-binding decisions in United States v.
Young, 573 F.3d 711 (9th Cir. 2009), and United
States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004),
in opposing the magistrate judge's conclusion. But these
cases do not help Powell, as they are factually dissimilar to
the instant case and affirm that hotel guests do not have a
reasonable expectation of privacy once their occupancy has
been lawfully terminated. In Young, hotel security
staff entered the defendant's room while he was not
present to investigate a theft complaint. Once inside, they
found a firearm and checkbooks belonging to others. Security
staff then placed Young's room on “electronic
lockout” so that he could not re-enter the room. Staff
members informed a police officer of their suspicions, and
the officer detained Young on the hotel premises. The officer
accompanied staff to Young's room and waited in the
hallway while they searched. However, the officer observed a
firearm in plain sight, and he entered the room and seized
the firearm and other items.
Ninth Circuit determined that Young had a legitimate privacy
interest in his room because he was still the lawful occupant
when the police officer entered it. The court concluded that
the hotel had not taken affirmative steps to evict Young.
Additionally, the Court noted that Young was never informed
of the hotel's policies regarding guns in rooms and
guests suspected of committing crimes. 573 F.3d at 715.
also involved police officers searching a motel room. During
Bautista's stay, his travel booking company advised the
hotel manager that the credit card used to book the room was
stolen. The hotel manager called the police “to find
out what was going on with [the defendant] and the credit
card.” 362 F.3d at 587. If Bautista could not
“explain the credit card ...