Michael Joseph Tilghman v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00803-CR
Michael Joseph Tilghman, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. CR-16-1126, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
DISSENTING OPINION
While there is an expectation of privacy in a hotel room, it is well settled that the
right to privacy is extinguished when a person’s right to occupy the room is terminated. Voelkel
v. State, 717 S.W.2d 314, 315-16 (Tex. Crim. App. 1986) (holding no expectation of privacy
during eviction). This can occur when the term of a guest’s occupancy of a room expires, i.e.
staying beyond the night paid for, as well as by eviction for other reasons. See infra. While both
parties acknowledge that the hotel had the right to evict Tilghman at the time the police entered
the room, the majority ignores this fact. Instead, the lynchpin of their analysis is that Tilghman
was not put on notice that he could be evicted for illegal activity, namely smoking marihuana,
and because of this he was not lawfully evicted from the property when the police entered his
room. I disagree. Because Texas law does not require that a hotel guest be notified in advance
that he could be evicted for committing illegal activity on hotel property, I dissent. I would
affirm the trial court’s judgment denying the motion to suppress.
Stoner is Distinguishable From This Case
The majority’s analysis relies on Stoner v. California, holding that a hotel guest’s
protection against unreasonable searches and seizures does not depend on the “unfettered
discretion” of a hotel employee to grant consent to search. Stoner v. California, 376 U.S. 483,
490 (1964). The officers in Stoner, however, were not summoned by hotel staff, nor were they
asked to evict anyone. Instead, officers approached a hotel clerk investigating a robbery, stating
that they “were there to make an arrest of a man who possibly committed an armed robbery.” Id.
at 485. After learning that the suspect was not in the hotel room, officers requested permission
to search the suspect’s room and searched the room with the permission of the hotel clerk. Id. at
485-86.
The officers in this case did not show up unannounced at the Marriott Fairfield
Inn to arrest Tilghman for an offense. They were called solely to assist in evicting occupants for
smoking marihuana, and the hotel staff did not seek their arrest.1 The hotel manager testified
that he was concerned for his safety and therefore wanted officers present when the eviction
occurred. Officers never requested to search the room in connection with a drug investigation,
and they saw contraband only when effectuating the eviction. Unlike the officers in Stoner, who
were attempting to arrest a robbery suspect, the officers in this case were merely performing a
routine eviction. The facts of Stoner do not support the suppression of evidence in this case.
1
During the suppression hearing the hotel manager testified:
Q. And the purpose of calling law enforcement was . . . it to get anybody in
trouble or to effect the arrest of anybody?
A. No, it was just to get them evicted from the room.
Q. So all you wanted was them out?
A. Yes.
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When the Expectation of Privacy is Extinguished in a Hotel
The Texas Court of Criminal Appeals has acknowledged that the expectation of
privacy in a hotel is extinguished upon eviction. Voelkel, 717 S.W.2d at 315-16. Further, it is
permissible for a police officer to help effectuate that eviction when requested by hotel staff. Id.
In Voelkel, a hotel manager called the police for assistance with an eviction of a guest who
stayed two hours beyond her scheduled check-out time and parked a Harley-Davison motorcycle
inside of her room.2 During the eviction, an officer stepped inside the room and saw a large
scale, syringes inside an open drawer, and a large pharmaceutical bottle. Id. A search of the
room yielded illegal contraband. Id. In holding the search valid, the Court stated:
It is initially apparent that appellant had a substantially diminished expectation of
privacy . . . by the time Officers Helm and Reed arrived to facilitate her eviction.
Beginning on the evening of the 19th, [the manager] had thrice told appellant
she had to be gone by 1:00 p.m. on the 20th. Yet at 3:00 p.m. she was still there,
evidencing no particular haste to depart.
Under the circumstances, [the manager] clearly had a right to enter the room.
Since the officers were present at the invitation of [manager] they also had a right
to enter the room. Accordingly, Officer Helm’s mere presence in the room did not
infringe upon appellant’s Fourth Amendment expectation of privacy.
Id. (internal citations omitted). Similarly, in Brimage, the Court upheld a warrantless search of
a suitcase after a guest had not returned several hours after checkout. Brimage v. State, 918
S.W.2d 466, 507 (Tex. Crim. App. 1996) (on reh’g). “When the terms of a guest’s occupancy of
a room expires, the guest loses his exclusive right to privacy in the room.” Id.
While Texas does not have a case directly addressing the seizure of contraband
from occupants being evicted for reasons other than overstaying their term, there are several
2
To her credit, Voelkel moved the motorcycle when requested. Voelkel v. State, 717
S.W.2d 314, 315 (Tex. Crim. App. 1986).
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post-Stoner federal cases discussing this issue. In Peoples, an officer notified hotel staff that a
hotel occupant was a suspect in an automobile theft. United States v. Peoples, 854 F.3d 993, 995
(8th Cir. 2017). In response, the clerk handed the officer a key to the room to evict the occupants
pursuant to Missouri’s law permitting eviction for those using a hotel for an unlawful purpose.
Id. After knocking and receiving no response, the officer used the key to open the room and saw
contraband in plain view on the floor and nightstand. Id. In upholding the lawfulness of the
search, the Eighth Circuit held that “the initial entry into the motel room was not a search but an
eviction.” Id. at 997. While the court acknowledged that Fourth Amendment protections can
extend to a hotel room, it explained:
However, “once a guest has been justifiably expelled, the guest is without standing
to contest an officer’s entry into his hotel room on Fourth Amendment grounds.”[]
As we explained in United States v. Rambo, this is true because, upon eviction,
“the rental period . . . terminate[s] . . . [and] control over the hotel room revert[s]
to management.”
Id. at 996 (citing Young v. Harrison, 284 F.3d 863, 867 (8th Cir. 2002) (per curiam) and United
States v. Rambo 789 F.2d 1289, 1295-96 (8th Cir. 1986)).
Similarly, the Seventh Circuit in Tolbert held that an officer’s unaccompanied
entry into a hotel room to evict an occupant for violating a hotel non-smoking and no-party
policy was lawful. United States v. Tolbert, 613 F. App’x 548, 549 (7th Cir. 2015).
Once a hotel tenancy has been terminated, the hotel guest loses any privacy right
in the room. Evidence at the hearing established that the hotel had rented [the
room] subject to the condition that guests who violate its no-party policy are
subject to immediate eviction. We cannot conclude that the district court
committed clear error in finding that [the manager] exercised the hotel’s right
when she asked the police to kick out the occupants of [the room]. As soon as she
authorized the officers to do so, Tolbert’s hotel tenancy—and accompanying
expectation of privacy—was extinguished.
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Id. (internal citations omitted).
The officers in this case, like the officers in Peoples and Tolbert, were evicting
occupants at the request of hotel staff. As both parties discussed in oral argument, there is no
Texas law requiring hotels to follow any procedure for eviction. Further, our sister court has
held no landlord-tenant relationship exists between a hotel and its guest. Bertuca v. Martinez,
No. 04-04-00926-CV, 2006 Tex. App. LEXIS 1386, at *6 (Tex. App.— San Antonio February
22, 2006, no pet.) (mem. op.).
[A]n innkeeper has no duty to keep a guest indefinitely and has the right to evict a
guest. ‘When a guest is obnoxious for some reason, he may be forcibly removed
without resort to legal process, provided no more force is used than necessary.’. . .
There is no Texas law which, regardless of his conduct or behavior, allows a
person to stay in a hotel room merely because the rate for the room has been paid.
Id. (internal citations removed). Both parties agree that the hotel had a right to evict Tilghman at
the time that the officers entered the room. Appellant’s complaint, rather, is that officers had no
authority to enter the room to effectuate the eviction. However, as the caselaw cited illustrates,
this is not the law in Texas. See Voelkel, 717 S.W.2d at 315-16 (recognizing that police officers
requested by hotel staff can effectuate eviction). Further, it is not unreasonable for hotel staff to
request officers be present, for safety concerns, when guests suspected of illegal activity are
asked to leave the property.
While the eviction in this case was not expressly authorized by a statute as in
Peoples, or a hotel policy provided upon check-in as in Tolbert, the cases are more analogous
than Stoner, which did not involve an eviction. If Texas had a statute that governed evictions for
hotel guests, as Missouri does, and did not follow it, then the eviction would have been unlawful,
and the evidence resulting from the ensuing search suppressed. However, absent any law
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requiring that a guest must be put on notice that they could be evicted for illegal activity, I would
not require notice here. Tilghman was properly evicted and during that eviction, the officers
found contraband in plain view and incident to a lawful arrest. As such, I would affirm the trial
court’s ruling.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Rose, Justices Triana and Kelly
Filed: June 7, 2019
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