United States v. Jarvis Tolbert

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 5, 2015
Decided August 31, 2015
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 14-3586
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:14-cr-00034-RLM-CAN-1
JARVIS TOLBERT,
Defendant-Appellant. Robert L. Miller, Jr.,
Judge.
ORDER
Jarvis Tolbert was arrested after police officers found drugs in his South Bend,
Indiana, hotel room. He pleaded guilty to possessing cocaine with intent to distribute,
see 21 U.S.C. § 841(a)(1), but reserved the right to challenge on appeal the denial of a
motion to suppress the drugs and his post-arrest confession. We affirm the judgment.
Two hotel employees, two police officers, and Tolbert all testified at the hearing
on his motion to suppress. Tolbert said that he had sought to rent a room at the
Residence Inn after quarreling with his girlfriend. Hotel policy precluded Tolbert from
renting a room without a credit card (which he didn’t have), so, Tolbert testified, he
No. 14-3586 Page 2
enlisted his friend Drew Dixon to book a room online with his credit card (Dixon did not
testify). Christine Dvorak, the hotel’s daytime front-desk clerk, testified that Dixon,
unaccompanied by Tolbert, checked into Room 912 (a studio suite) around 7 p.m.
She handed Dixon a document detailing the hotel’s “no party policy,” which limits to
five the number of people in a studio suite and prohibits smoking in guest rooms,
“loud or excessive noise,” and “disorderly conduct.” The policy admonishes that any
violation “will result in immediate eviction” without additional warning. Dixon signed
that document.
After Dixon had checked in, said Tolbert, he gave Tolbert the two room keys.
Tolbert paid Dixon for the room, and the two parted ways. Tolbert then invited over
seven friends to watch a basketball game. Sarah O’Neal, the night-shift clerk, testified
that she called Room 912 around 11 p.m. and announced that she was coming to the
room to check the “CO2 detector.” She testified that she’d received an alert that the
device was tampered with, as well as a call from the room above Tolbert’s complaining
about cigarette smoke. When she arrived at the room, O’Neal said, she saw that Tolbert
had “several” people in the room—eight or nine by her estimate—but she said nothing
to Tolbert about the no-party policy violations. She checked the device that had caused
the alert and admonished everyone in the room that, if they wanted to smoke, they must
step off the patio because state law prohibits smoking within eight feet of an entrance.
At the hearing O’Neal confirmed that smoking and tampering with safety devices are
violations of hotel policy. She added that she had said nothing about the policy at the
time because she “was trying to give them a chance.”
Later though, O’Neal testified, she saw (from hotel security cameras) “a lot” of
people going in and out of the door connecting the parking lot to the building in which
Room 912 was located, and she could hear the bass coming from their cars. Then after
the hotel guests above Tolbert had called again to complain—this time about the
“comings and goings” in the room below them—O’Neal concluded that the situation
“was just getting out of hand” and called the police.
When the police arrived, O’Neal testified, she instructed the officers to evict the
occupants of Room 912 and, if they refused to leave, arrest them for trespassing.
She stayed at the front desk and gave Sergeant Corey Bair and Officer Aaron Brick a
master key that would open the door to Tolbert’s room. When the officers arrived
outside the room, the drapes were closed, but they could tell that the lights and
television were on. Bair knocked and identified himself as a police officer but got no
response. After knocking a second time without anyone opening the door, the officers
No. 14-3586 Page 3
used the key to enter the room. They saw no one inside the main room, so they
conducted a “protective sweep” of the rooms not immediately viewable—the bathroom
and kitchen—to ensure that no one was hiding. Before leaving, the officers testified, they
decided to take the property left in the room—a duffle bag in the bathroom—to the front
desk. Bair went to retrieve it and, as he bent over to pick it up, saw—in the unzipped
bag—cocaine. The officers seized the bag, and Bair left his business card and a note on
the door saying, “We took your dope,” and “Call me.” A thorough search of the
bag—later confirmed to be Tolbert’s—turned up powder cocaine, crack cocaine, and
marijuana packed alongside his clothing and toiletries.
O’Neal testified that Tolbert appeared at the front desk about 10 minutes after the
police had left and asked to get into his room. O’Neal, who had changed the code on the
electronic lock, told him that he had been evicted and couldn’t go back inside without a
police escort. Tolbert left but returned five minutes later and asked O’Neal to call
Sergeant Bair. When Bair returned to the hotel, Tolbert told him, “Everything in that
room was mine.” Bair then gave Miranda warnings and recorded Tolbert’s confession.
In his written submissions to the district court, Tolbert argued that he had a
reasonable expectation of privacy in Room 912 and that the warrantless entry was
unreasonable under the Fourth Amendment. That entry, Tolbert added, was not even
supported by probable cause or reasonable suspicion. Moreover, Tolbert argued, his
confession must be suppressed as the “fruit of the poisonous tree.” The government
countered that Tolbert’s expectation of privacy in the hotel room was extinguished when
he was “evicted” (and thus the officers were free to search the entire room without a
warrant or probable cause). Tolbert responded that he hadn’t been lawfully evicted
when the officers entered the hotel room.
The district court denied the motion to suppress. Although Tolbert had a
subjective expectation of privacy in the hotel room, the court reasoned, society would no
longer view that expectation as reasonable after he had been evicted. And because hotel
employee O’Neal had “asked the officers to carry out the eviction,” the court continued,
the eviction became effective immediately with that conversation. After this adverse
ruling, Tolbert entered his conditional guilty plea and was sentenced to 60 months’
imprisonment, the statutory minimum. See 21 U.S.C. § 841(b)(1)(B).
On appeal, Tolbert argues that his status as a renter had not been terminated
when the police entered Room 912, and thus he still had an objectively reasonable
expectation of privacy in the room. It follows, he continues, that the police unlawfully
No. 14-3586 Page 4
made a warrantless entry, and that the seizure of the drugs cannot be sustained under
the plain-view doctrine.
The Fourth Amendment safeguards a person’s subjective expectation of privacy
in a particular location if society is willing to recognize that interest as reasonable. United
States v. Huart, 735 F.3d 972, 974–75 (7th Cir. 2013); United States v. Figueroa-Espana, 511
F.3d 696, 703 n.1 (7th Cir. 2007); United States v. Wells, 739 F.3d 511, 518–19 (10th Cir.
2014). The government concedes that Tolbert was a hotel guest with a subjective
expectation of privacy in Room 912, see Stoner v. California, 376 U.S. 483, 490 (1964); Finsel
v. Cruppenink, 326 F.3d 903, 907 (7th Cir. 2003); United States v. Akin, 562 F.2d 459, 464 (7th
Cir. 1977), so we address only whether Tolbert’s expectation of privacy was objectively
reasonable when the police entered.
This appeal hinges on whether the district court committed clear error in finding
that Tolbert had been evicted from Room 912 as soon as O’Neal instructed the police to
kick out the room’s occupants. Once a hotel tenancy has been terminated, the hotel guest
loses any privacy right in the room. See United States v. Procknow, 784 F.3d 421, 426 (7th
Cir. 2015); United States v. Molsbarger, 551 F.3d 809, 811 (8th Cir. 2009); United States v.
Allen, 106 F.3d 695, 699 (6th Cir. 1997). Evidence at the hearing established that the hotel
had rented Room 912 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 O’Neal exercised the hotel’s right when she asked the police to
kick out the occupants of Room 912. As soon as she authorized the officers to do so,
Tolbert’s hotel tenancy—and accompanying expectation of privacy—was extinguished.
The government, therefore, met its burden of establishing an exception to the general
rule that a warrantless search is unreasonable, see United States v. Basinski, 226 F.3d 829,
833 (7th Cir. 2000); United States v. Napue, 834 F.2d 1311, 1326 (7th Cir. 1987), so there is
no reason to disturb the district court’s decision.
AFFIRMED.