State v. Marshall , 2022 Ohio 1533 ( 2022 )

[Cite as State v. Marshall, 2022-Ohio-1533.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-21-043
Appellee Trial Court No. 2020CR0210
v.
Charles Marshall, J. DECISION AND JUDGMENT
Appellant Decided: May 6, 2022
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellant.
Michael H. Stahl, for appellee.
*****
DUHART, J.
{¶ 1} Appellant, the State of Ohio (“the state”), appeals from a judgment entered
by the Wood County Common Pleas court granting a motion to suppress evidence that
was filed by appellee, Charles Marshall. For the reasons that follow, we affirm the trial
court’s judgment.
Statement of the Case
{¶ 2} Appellee was indicted on June 11, 2020, in a two count indictment. Count
one charged him with trafficking in cocaine, and count two charged him with possession
of cocaine. Both counts were charged as felonies of the third degree, based upon the
amount of the drug that was involved.
{¶ 3} On March 8, 2021, appellant filed a motion to suppress evidence and, soon
after, he filed an amended motion to suppress. A suppression hearing was held on
April 22, 2021. The state called Sgt. Mark Marek and Det. Craig Revill, both of whom
were with the Rossford Police Department, to testify. Following the hearing, the trial
court ordered further briefing. The state filed its memorandum in opposition to the
motion to suppress on May 7, 2021. Appellee filed his response on May 17, 2021, and
the state filed a reply on May 21, 2021.
{¶ 4} In a judgment entry dated June 24, 2021, the trial court granted appellee’s
motion to suppress, ordering that “all evidence obtained as a result of the search of
Defendant’s hotel room on December 18, 2019 and any evidence derived from that illegal
seizure is suppressed and not admissible at the trial of this matter * * * .” It is from this
judgment that the state now appeals.
Statement of the Facts
{¶ 5} The trial court’s findings of fact, clearly stated and amply supported by
competent, credible evidence, are set forth in the June 24, 2021 judgment entry as
follows:
2.
Mr. Marshall’s foray into the criminal justice system began with a
911 call from the Knights Inn located at 1120 Buck Road in Rossford,
Ohio. The information the court used in putting this recitation of facts
together came from testimony of Sgt. Mark Marek and Det. Craig Revill,
listening to the recording of the 911 call provided as an exhibit, and
reviewing video offered as evidence taken from Sgt. Marek’s bodycam.
The 911 call came to the Rossford Police and Fire dispatch at
approximately 1:42 p.m. on December 18, 2019. The first voice on the
recorded call is from an unknown person stating that he has an emergency.
He then hands the phone to a member of the housekeeping staff. At first
this confuses the dispatcher because there has been no statement as to
where the call is coming from or who has initiated the call.
Once on the phone the housekeeper began her recitation of the facts
as if the dispatcher should know where she is calling and that she is a
housekeeper. In this recitation she informed the dispatcher that she went
into a room and was cleaning up. She stated that she began picking up
personal belongings of the occupant because he was supposed to be
checking out and she believed he had left without taking his clothes or
other personal items. She said that she had announced herself and no one
had answered. But after being in the room a few minutes she went into the
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bathroom where she discovered the occupant of the room, the Defendant in
this case, was unresponsive and moaning in the bathtub.
After all this information was conveyed the housekeeper informed
the dispatcher that she is calling about room 305 at the Knights Inn, after a
question was asked by the dispatcher. The answer to this question
confirmed that the caller is with the cleaning crew at Knights Inn, that there
is a man in the bathtub of room 305, and that he is unresponsive. The
dispatcher closed out the call, which lasted just over 2 minutes, with
collecting the housekeeper’s name * * * and informing her that they will be
sending help to the occupant of that room.
Within minutes of this call Sgt. Mark Marek of the Rossford Police
Department drove his police cruiser into the Knights Inn parking lot and
parked in a space across from room 305. The hotel is a single-story
complex with rooms that have outdoor entrances. At the same moment a
rescue squad from Rossford Fire Department arrived and paramedics from
that truck walked toward the room. Sgt. Marek informed the paramedics
that “they’re asking for Narcan.” This information had come to the
sergeant via radio communication from an officer who was inside the hotel
room. The Rossford police chief and a trainee officer had arrived at the
hotel moments ahead of Sgt. Marek and the rescue squad and were already
inside the room.
4.
Three paramedics from the rescue squad entered into room 305
followed by Sgt. Marek. The paramedics went directly to the bathroom.
The room is approximately 10-13 feet wide and 20-25 feet long with a
bathroom vanity at the far end of the room. To the left of this vanity is a
door which leads to the bathroom where the toilet and bathtub are located.
From the video it can be seen that this room has a single bed which appears
to be queen or king sized. On each side of the bed are nightstands. To the
left of the entry door is a table with two chairs in front of a window that is
next to the entry door. To the right and facing the bed is a table with a flat
screen television.
In the video one can see the police chief standing against a wall at
the far end of the room near the bed. Another emergency worker is seen at
the foot of the bed and appears to be looking through a medical bag that has
been laid on the bed. The trainee officer is off to the right of the room not
far from the vanity.
When Sgt. Marek entered the room the chief of police can be heard
saying, “there is paraphernalia and shit” and is seen pointing to the front of
the room. From the video camera one can see that Sgt. Marek began
looking off to his left in the front of the hotel room, where the police chief
had pointed. The room appears messy with food containers on some of the
tables. As he moves to the left of the room it appears that Sgt. Marek looks
5.
at the table and bed area. It is here that Sgt. Marek testified he observed a
bag of white powder, a cellphone and a scale on the floor. As Sgt. Marek is
looking around in this area the police chief moved forward toward the door
and is seen pointing to the bedstand and says to Sgt. Marek, “there is a bag
and some white shit over there.”
From the video one can see Sgt. Marek pick up a cell phone from a
chair sitting next to the bed. As Sgt. Marek continued to look through the
room, the trainee officer, who is positioned at the foot of the bed, used a
flashlight to bring attention to a plastic baggie containing a white substance
on the nightstand. Sgt. Marek took notice of this baggie and as he walked
to the other side of the bed the police chief picked up the plastic baggie and
said, “this was on the floor, it actually looks like salt” and then followed it
up with “I think that’s salt.” The baggie is then handed to Sgt. Marek and
the police chief moves on to a book bag on the bed and states “there’s a
phone in this bag.” As Sgt. Marek looked at the plastic baggie he stated
“that’s not salt.” As the police chief seemed to look through the book bag
the trainee can be heard pointing the sergeant to other items on the other
side of the bed including another baggie with a white substance. One can
see Sgt. Marek move to the other side of the bed and continue searching the
room based upon the trainee’s observation. At some point Sgt. Marek finds
a paper that he indicated in his testimony was the bill from the hotel.
6.
At this point there is a short conversation between Sgt. Marek and
the trainee. In this colloquy the trainee made a comment about how the
suspected drugs were ingested and that is responded to by Sgt. Marek,
agreeing that no paraphernalia for ingesting was present, but that the items
are “ours now.” Following this exchange Sgt. Marek made contact via his
radio to dispatch to run information containing information about the
Defendant which was ostensibly found on a piece of paper obtained from
the floor.
In his testimony Sgt. Marek stated that once he observed the baggies
with a white substance, the scale, and the two cell phones he had begun a
criminal investigation. During the whole time Sgt. Marek looked through
the room the paramedics worked with the Defendant in the bathroom trying
to address his medical situation. At no time did Sgt. Marek enter the
bathroom. When the paramedics are trying to address the removal of the
Defendant from the bathroom to a gurney, Sgt. Marek can be seen
continuing to search the room and looking through drawers and bags
ostensibly belonging to the Defendant.
***
Det. Craig Revill of the Rossford Police Department testified
concerning the policy of the Knights Inn relative to checking out. He had
received this information from the head manager of Knights Inn. According
7.
to the standard policy check-out at the hotel is 11:00 a.m. A person may stay
in the room until 11:30 a.m. without any request to management from the
guest. Typically, at 11:30 a.m. housekeeping staff is sent out to begin
cleaning if someone is to be checking out. A guest may pay an extra $25 to
stay until 2:00 p.m. According to Det. Revill if a person is not checked out
by 2:00 p.m., has not departed the room, and housekeeping cannot effect a
removal of the guest then the manager may be called over to evict the
occupant. If this does not accomplish the intended result then the police may
be called to the scene to assist with eviction.
Assignments of Error
{¶ 6} Appellant asserts the following assignment of error on appeal:
1. The trial court committed reversible error when it granted
Marshall’s motion to suppress.
Analysis
{¶ 7} Appellate review of a ruling on a motion to suppress presents a mixed
question of fact and law. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. An appellate court must accept the trial court’s findings of fact where
those findings are supported by competent and credible evidence. State v. Fanning, 1
Ohio St.3d 19, 20, 437 N.E.2d 583 (1982). After accepting the trial court’s factual
findings as true, the reviewing court must independently determine, as a matter of law,
whether the applicable legal standard has been met. Burnside at ¶ 8.
8.
{¶ 8} The state initially argues that the trial court created reversible error when it
found that appellee had a reasonable expectation of privacy in Room 305 of the Rossford
Knights Inn, where law enforcement arrived at the room after checkout time, and where
appellee had not taken any actions to extend his stay.
{¶ 9} “‘[T]he Fourth Amendment protection against unreasonable searches and
seizures is not limited to one’s home, but also extends to such places as hotel or motel
rooms.’” State v. Oliver, 2018-Ohio-3667, 112 N.E.3d 573, ¶ 31 (8th Dist.), quoting
United States v. Bautista, 362 F.3d 584, 589 (9th Cir.2004). (Additional quotations
omitted.) Thus, “[a] registered hotel guest has a reasonable expectation of privacy in his
room under the Fourth Amendment.” Oliver at ¶ 31. That reasonable expectation of
privacy is lost, however, “once the hotel guest voluntarily abandons the room, his status
is lawfully terminated, or the rental period has expired.” Id. at ¶ 32, citing Bautista at
589. (Additional quotations omitted.)
{¶ 10} Hotel staff may terminate a person’s status as a guest by taking affirmative
steps to repossess the room. See id. Alternatively, a guest may lose his status by
surrendering or no longer renting the room. See State v. Wright, 8th Dist. Cuyahoga No.
99531, 2013-Ohio-4473, ¶ 9. It has been held that “[a] hotel guest automatically
relinquishes his room at check-out time, when he has not paid for another night and the
key has been returned to the hotel management.” State v. Miller, 77 Ohio App.3d 305,
312-12, 602 N.E.2d 296, 301 (8th Dist.1991), citing United States v. Savage (5th
Cir.1977), 564 F.2d 728, 733.
9.
{¶ 11} Once the guest’s status has been lawfully terminated, “a hotel employee
can consent to law enforcement’s entry into a hotel room because the guest no longer has
a reasonable expectation of privacy.” Id. However, officers cannot reasonably rely on a
hotel employee’s consent in entering the room without actual or implied knowledge that
the occupant’s status as a guest has been terminated. See, e.g., Oliver at ¶ 32 (law
enforcement must have actual or implied knowledge that the guest has been evicted from
the hotel room before entering without a warrant).
{¶ 12} In the instant case, the state argues that appellee lost any reasonable
expectation of privacy that he had in his room at 11:00 a.m., which was the hotel’s
standard check-out time, or, at the latest, at 11:30, after the customary grace period had
expired. The time of the emergency call was 1:42 p.m., 18 minutes before the last
moment a person may stay over in a room without indicating an intention to remain for
an additional night. The management had taken no affirmative action to evict appellee
from the room. Instead, the only action was an attempt by the maid to clean the room,
when she found appellee passed out in the bathtub. Likewise, there is no evidence to
suggest that appellee had abandoned or otherwise surrendered the room. Although the
state accurately points to an absence of evidence suggesting that appellant intended to
extend his stay until 2:00 p.m., we find this detail insignificant in this case, where there is
no evidence to suggest when appellee became unconscious, at which time, of course, he
would have become unable to express any intention whatsoever. We additionally note
that neither appellee nor any hotel employee gave consent for the search, and, further,
10.
law enforcement had no idea whether appellee’s status as a guest had terminated. Under
the circumstances of this case, we find that appellee had a reasonable expectation of
privacy in his hotel room.
{¶ 13} A search conducted without a warrant is per se unreasonable subject only
to a few well-delineated exceptions. State v. Stanberry, 11th Dist. Lake No. 2002-L-028,
2003-Ohio-5700, ¶ 14, quoting Katz v. Unites States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). The doctrine of exigency is one such exception, and it applies
where the police are faced with a “need to protect or preserve life or avoid serious
injury.” Stanberry at ¶ 14-15. Thus, “the Fourth Amendment does not bar police officers
from making warrantless entries and searches when they reasonably believe a person
within is in need of immediate aid.” Id., quoting Mincey v. Arizona, 437 U.S. 385, 392,
98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). “The emergency justifies the warrantless entry,
and, while lawfully present, the police may seize evidence in plain view.” State v.
Levengood, 2016-Ohio-1340, 61 N.E.3d 766, ¶ 20 (5th Dist.), citing Thompson v.
Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). (Additional citation
omitted.).
{¶ 14} A warrantless search, however, “must be ‘strictly circumscribed by the
exigencies which justify its initiation.’” State v. Applegate, 68 Ohio St.3d 348, 350, 626
N.E.2d 942 (1994), quoting Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). Once an officer is inside a home, the question becomes “whether the
11.
‘movements of the officers were conservative, prudent and reasonable.’” State v.
Levengood, 2016-Ohio-1340, 61 N.E.3d 766, ¶ 22 (5th Dist.).
{¶ 15} The evidence is undisputed that Sgt. Marek was called to room 305 of the
Knights Inn on December 18, 2019, for the sole purpose of rendering emergency medical
aid to appellee. Within seconds of arriving at the property, Sgt. Marek informed the
paramedics that they would need Narcan, indicating his understanding that the medical
emergency was an overdose. Because Sgt. Marek arrived at the same time as Rossford
paramedics -- who were the individuals primarily responsible for rendering medical aid --
the need for Sgt. Marek to render medical aid was immediately obviated. Under the
circumstances, the conservative, prudent, and reasonable action would have been for Sgt.
Marek to remain outside the room, while the paramedics went inside and performed their
work. See Levengood at ¶ 22.
{¶ 16} As noted by the trial court, however, it appears from the video that Sgt.
Marek was conducting a criminal investigation from the moment he entered the room.
Seconds after his arrival in the room, the police chief can be heard saying “there is some
paraphernalia and shit,” while pointing to the nightstand closest to the entry door of the
room. Sgt. Marek can be seen putting on gloves and his first move is to the nightstand
where the police chief has pointed. Sgt. Marek claimed to be looking for identification
when he first entered the room, but after picking up a brown paper bag on the floor, the
next item he picks up -- from a chair -- is a blister package commonly used for drugs.
12.
{¶ 17} The state argues that the items that were retrieved in this case, including
two cell phones, a scale, and bags of white powder, were in plain view and, thus, were
properly seized. To qualify under the plain view exception, “it must be shown that (1)
the initial intrusion which afforded the authorities plain view was lawful; (2) the
discovery of the evidence was inadvertent; and (3) the incriminating nature of the
evidence was immediately apparent. State v. Williams, 55 Ohio St.2d 82, 85, 377 N.E.2d
1013 (1978).
{¶ 18} Here, we find that Sgt. Marek cannot meet the first prong of the test, that he
was lawfully present in the room, where paramedics were already on site rendering aid
and where the police chief and trainee had already secured the safety of the room.
{¶ 19} Even if the state were to argue that the police chief and trainee could have
obtained the seized items under the plain view doctrine, this argument would fail for
several reasons. First, by the time the paramedics and Sgt. Marek arrived on the scene,
the police chief and the trainee had already done all that was necessary to ensure the
safety of the occupant, render any medical assistance, and ensure the safety of those
rendering aid. Once the paramedics arrived, the justification for their presence in the
room no longer existed. Second, the record contains no evidence as to how the police
chief or the trainee discovered the items that were claimed to be in plain view. At one
point in the video, the police chief states that one of the cell phones came from a bag on
the bed. If this is correct, then at least one of the cell phones was not in plain view. In
addition, the video demonstrates that neither the police chief nor the trainee knew that the
13.
bag containing the white substance was clearly illegal. On the video, the police chief,
referring to the contents of the bag says, “I think that’s salt.” As there was no testimony
(or bodycam evidence) from either the police chief or the trainee regarding where they
found the items in question, whether they knew what the items were, whether they had
any training or experience to identify illegal drugs or items associated with illegal drugs
and trafficking, or whether any illegality associated with the items was immediately
apparent, we cannot find that the items were properly seized under the plain view
doctrine.
{¶ 20} The state argues that even if the search of appellee’s hotel room was
unconstitutional, any evidence that was obtained would inevitably have been discovered
by the police through the housekeeper. The inevitable discovery rule provides that
“‘illegally obtained evidence is properly admitted in a trial court proceeding once it is
established that the evidence would have been ultimately or inevitably discovered during
the course of a lawful investigation.’” State v. Clark, 2018-Ohio-2029, 101 N.E.3d 758,
¶ 80 (6th Dist.), quoting State v. Lewis, 6th Dist. Lucas No. L-09-1224, 2010-Ohio-4202,
¶ 48. “‘[T]he state must show that there is a high degree of probability that police would
have discovered the derivative evidence apart from the unlawful conduct.’” Lewis at ¶
48, citing State v. Perkins, 18 Ohio St.3d 193, 196, 480 N.E.2d 763 (1985).
{¶ 21} In the instant case, the state has not established that there was a high degree
of probability that the housekeeper would have turned in all of the evidence. Although
money that was subsequently discovered in appellee’s room was, in fact, turned over to
14.
the police, neither the housekeeper nor the manager testified or otherwise provided any
explanation as to what led them to do so. In addition, there was no testimony to suggest
that if the housekeeper had found the baggies of white powder she would have done more
than throw those items away or hold them for appellee, thinking, like the police chief,
that they were baggies of salt. Thus, the state provided no evidence that the items
illegally seized would have been obtained through other, lawful, means.
{¶ 22} Finally, the state argues that even if the search of appellee’s room was
constitutionally insufficient, the suppression of the evidence should not have occurred,
because “faulting the contemporaneous, plain view observations of police officers during
an ongoing emergency does nothing to further the interests of justice.” We disagree. The
purpose of the exclusionary rule is to deter police misconduct. State v. Hoffman, 141
Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 3, citing United States v. Leon, 468
U.S. 897, 916, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Evidence is properly suppressed
where a law enforcement officer can be said to have had knowledge, or may properly be
charged with knowledge, that the search was unconstitutional under the Fourth
Amendment. State v. Dibble, 159 Ohio St.3d 322, 2020-Ohio-546, 150 N.E.3d 912; see
also Leon at 919. In the instant case, the actions of the officers demonstrate a complete
rejection of the intent and purposes of the Fourth Amendment. Instead of the actions that
were taken, the officers who were legally in the room could simply have obtained a
search warrant based upon their observations. There was no danger of destruction of the
15.
evidence and the room could easily have been secured. Given the actions of the officers
in the current case, appellee’s motion to suppress was properly granted.
{¶ 23} For all of the foregoing reasons, the judgment of the Wood County
Common Pleas Court is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
CONCUR ____________________________
JUDGE
Christine E. Mayle, J.,
DISSENTS.
MAYLE, J., dissenting:
{¶ 24} I respectfully dissent from the majority decision because I would find that
at 1:42 p.m., when Knights Inn staff called 9-1-1, Marshall’s term of occupancy had
expired, and he no longer had a reasonable expectation of privacy in the hotel room.
{¶ 25} The majority recognizes that a hotel guest loses his or her reasonable
expectation of privacy in a hotel room “once the hotel guest voluntarily abandons the
room, his status is lawfully terminated, or the rental period has expired,” at which point a
16.
hotel employee may consent to law enforcement’s search of the hotel room.
Nevertheless, it concludes that Marshall maintained a privacy interest in the room after
checkout time and the search was unlawful because (1) no affirmative action had been
taken to evict Marshall from the room; (2) Marshall’s lack of consciousness prevented
him from expressing whether or not he intended to extend his stay until 2:00 p.m., (3)
neither Marshall nor any hotel employee gave consent for the search; and (4) law
enforcement “had no idea whether [Marshall’s] status as a guest had terminated.” I
address these conclusions out of order.
{¶ 26} First, I disagree that law enforcement had no idea whether Marshall’s status
as a guest had terminated. To the contrary, the trial court found that the housekeeper told
the 9-1-1 dispatcher that she had entered Room 305 to clean it because the occupant was
supposed to have checked out. The call occurred at 1:42 p.m., well beyond the 30-minute
grace period that the hotel allows before sending its housekeeping staff to prepare the
rooms for new guests. There was no evidence presented to indicate that the housekeeper
incorrectly believed that Marshall was supposed to have checked out.
{¶ 27} Second, it is immaterial that Marshall’s lack of consciousness prevented
him from expressing whether or not he intended to extend his room rental to 2:00 p.m.—
it matters only that no such intention was expressed. In the absence of an expressed
intention to extend the stay (which required payment of $25), the rental period expired at
11:00, or 11:30 a.m., at the latest, when the “grace period” expired. Other Ohio cases
support this position.
17.
{¶ 28} In State v. Bollheimer, 12th Dist. Warren No. CA2019-02-014, 2020-Ohio-
60, for instance, the motel checkout time was 11:00. Around that time, a housekeeper
knocked on the door of Room 259, and when no one answered, used her key to enter.
The defendant and another person were still in the room. The housekeeper told them that
it was time to check out, and they indicated that they were unsure if they were staying
another night. The housekeeper went to the front office, but was instructed to return to
the room, implying to her that the defendant had not paid for an additional night. At
11:15 a.m., police came to the hotel with arrest warrants and photos of the men. The
housekeeper confirmed that they were the occupants of Room 259. She led police to the
room, knocked as she did before, and when they did not answer, she again used her key
to unlock the door. Police entered the room, arrested the men, and searched the room.
{¶ 29} On appeal, the defendant acknowledged that once a guest abandons a motel
room, the motel staff can consent to a search of the room. He argued, however, that the
search of his room was impermissible because the housekeeper was unsure whether he
had paid for an additional night and he had not yet returned his room key.
{¶ 30} The Twelfth District found that there was competent, credible evidence that
the room had been relinquished at the time of the search. “Specifically,” the court
explained, “the housekeeper testified that if guests plan to stay for an additional night,
they are required to pay for that night before their rental period expires,” otherwise “they
are expected to leave at checkout time.” Id. at ¶ 15. Because the defendant did not pay
for an additional night before he was required to check out of the room and did not state
18.
whether he intended to stay another night or leave the motel, the court found that the
defendant “automatically relinquished all rights of privacy to the room when his rental
period expired.” Id.
{¶ 31} Moreover—recognizing that the common practice is to vacate a hotel room
and simply leave the key card in the room—the Twelfth District rejected defendant’s
claim that a guest must return his key before he can be found to have automatically
relinquished his right to the room. It found that “the return of the key is of less
significance than the fact that the checkout time ha[s] passed.” Id. at ¶ 16. See also State
v. Montgomery, 2d Dist. Clark No. 98 CA 92, 2000 WL 331798, * 4 (Mar. 31, 2000)
(concluding that turning in motel room key is not a prerequisite to giving up the right to
privacy in the room).
{¶ 32} Accordingly, because checkout time was almost four hours before hotel
staff allowed law enforcement into Marshall’s room, and Marshall expressed no intention
to extend the length of stay—regardless of the reason—I would find that he relinquished
any right to privacy in the room.
{¶ 33} Third, I disagree that the hotel staff was required to take affirmative action
to evict Marshall from the room. The case upon which the majority relies for this
proposition, State v. Oliver, 2018-Ohio-367, 112 N.E.3d 573, ¶ 33 (8th Dist.), actually
states that “a hotel guest who has not voluntarily abandoned his room or exceeded his
rental period maintains a reasonable expectation of privacy unless the hotel staff takes
affirmative steps to lawfully terminate his status as a guest or evicts him from his room.”
19.
(Emphasis added.) In other words, affirmative action to evict is required only if the guest
has not voluntarily abandoned the room or if the length of stay has not expired.1
{¶ 34} Here, because checkout time had passed without Marshall requesting to
extend his stay, his expectation of privacy automatically expired when the rental period
expired. See United States v. Huffhines, 967 F.2d 314 (9th Cir.1992) (“A guest in a motel
has no reasonable expectation of privacy in a room after the rental period has expired.);
Bollheimer, 12th Dist. Warren No. CA2019-02-014, 2020-Ohio-60, ¶ 17 (finding that
defendant automatically relinquished his room at checkout time); Montgomery at * 5
(“[O]fficers’ search of the motel room after check out time was proper.”). No affirmative
action was required to evict him.
{¶ 35} Finally, while it is true that Marshall did not consent to a search of the hotel
room, I do not agree that the hotel staff did not consent to the search. The hotel staff
1
Neither Oliver nor the cases it cites involved a search that occurred after checkout time.
In Oliver, the defendant argued that trial counsel was ineffective for failing to file a
motion to suppress evidence obtained when police searched his hotel room. The
defendant’s rental period had not yet expired, see ¶ 3 (explaining that police had been
called to the hotel in the early morning hours and were called again two and one-half
hours later), and the hotel had taken no steps to evict him. The court found that the
record was too undeveloped to determine whether a motion to suppress would have been
successful. In State v. Wright, 8th Dist. Cuyahoga No. 99531, 2013-Ohio-4473, ¶ 4, cited
by Oliver, the search took place before checkout, defendant did not voluntarily abandon
the room, and the hotel took no affirmative steps to evict him. And in State v. Nickelson,
7th Dist. Belmont No. 16 BE 0039, 2017-Ohio-7503, ¶ 22, also cited by Oliver, the court
found that hotel staff took affirmative steps to evict the defendant where they called
police “demanding assistance in evicting a guest; explaining and showing the evidence of
drug trafficking to police * * *; and providing police with the room key with instructions
to remove the guest from the premises.”
20.
called 9-1-1 and allowed officers into the room. In any event, Marshall lacks standing to
challenge the search on the basis that the hotel staff did not consent to it. “[I]in order to
have standing to challenge the legality of a search, a person must have an expectation of
privacy that society is prepared to recognize as ‘reasonable.’” State v. Fleming, 2d Dist.
Clark No. 2003CA71, 2001 WL 34664610, * 3 (Sept. 30, 2001), citing Minnesota v.
Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1995). Because I would find
that Marshall had no reasonable expectation of privacy in the hotel room after the
checkout time, I would also find that he lacks standing to challenge the search on the
basis that hotel staff did not consent to it.
{¶ 36} For these reasons, I would reverse the judgment of the Wood County Court
of Common Pleas granting Marshall’s motion to suppress evidence and I would remand
this matter to the trial court for further proceedings.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
21.