Roger Craig Williams v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
ROGER CRAIG WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2878-00-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
Duncan M. Byrd, Jr., Judge
Ross S. Haine, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Jennifer Franklin, Assistant Attorney General
(Randolph A. Beales, Acting Attorney General;
Thomas M. McKenna, Assistant Attorney
General, on brief), for appellee.
The trial court convicted Roger Craig Williams of petit
larceny and possession of cocaine. On appeal, he contends the
trial court erred in denying his motion to suppress evidence
seized during a warrantless search of his hotel room. Finding
no error, we affirm.
"In reviewing the trial court's denial of a motion to
suppress, 'the burden is upon [the defendant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). While we are bound to review de
novo the ultimate questions of reasonable suspicion and probable
cause, "we review findings of historical fact only for clear
error and . . . give due weight to inferences drawn from those
facts by resident judges and law enforcement officers." Ornelas
v. United States, 517 U.S. 690, 699 (1996).
At approximately 7:15 p.m. on Sunday, May 28, 2000,
Rockbridge County Deputy Sheriff J. Honts arrested the defendant
at White's Truck Stop and Wilco Travel Plaza for being drunk in
public and petit larceny, third or subsequent offense. Several
stolen atlases were recovered from the defendant. During the
arrest, Shirley Broughman, a desk clerk at Day's Inn, told Honts
that the defendant was a guest at the hotel and asked him to
keep her abreast of what happened to him.
Honts telephoned Broughman later that evening and informed
her that the magistrate was holding the defendant until Tuesday
morning. He told her that the magistrate had scheduled a bond
hearing for Tuesday because Monday was Memorial Day. Broughman
stated that the defendant had paid for only one night and she
was not sure what to do. Broughman confirmed the hotel's policy
with her manager, and called Honts to tell him that she would,
in fact, be checking the defendant out since he was not coming
back. She asked Honts to take the defendant's belongings to
him.
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When Honts arrived at the hotel, Broughman had already
checked the defendant out. Broughman, Honts, and another hotel
employee went to the defendant's room. Honts stood behind
Broughman in the hallway as she opened the door. Once the door
was open, Honts observed in plain view a stack of atlases
similar to those the defendant was accused of stealing. He then
entered and searched the room.
In denying the defendant's motion to suppress, the trial
court found that the hotel invited Deputy Honts to the hotel and
that he was present as "an observer," stating, "[h]e certainly
had a right to be there and stand in the hallway." The court
also found that after the hotel checked him out, before Honts
arrived, the defendant had a diminished expectation of privacy.
Upon checking him out, the hotel was obligated "to inventory the
contents of the room." The court noted that Honts had apparent
authority to collect the defendant's belongings.
The defendant contends the warrantless search of his room
violated his Fourth Amendment rights because he had a reasonable
expectation of privacy as a hotel guest and no exigent
circumstances justified the search. We conclude the Fourth
Amendment is not implicated because Honts did not conduct a
search.
The Fourth Amendment protects a person from unreasonable
searches and seizures conducted by state or government actors.
Burdeau v. McDowell, 256 U.S. 465, 475 (1921). "[A] private
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search, no matter how unreasonable, does not constitute a
constitutional violation warranting the suppression of evidence
seized." Mills v. Commonwealth, 14 Va. App. 459, 463, 418
S.E.2d 718, 720 (1992) (citations omitted). Consequently, the
exclusionary rule applies to searches by private individuals
only when they are acting as agents of the government. United
States v. Jacobsen, 466 U.S. 109, 113-14 (1984); Harmon v.
Commonwealth, 209 Va. 574, 577, 166 S.E.2d 232, 234 (1969).
Whether an individual is acting as an agent of the government
"'turns on the degree of the Government's participation in the
private party's activities, a question [of fact] that can only
be resolved "in light of all the circumstances."'" Duarte v.
Commonwealth, 12 Va. App. 1023, 1026, 407 S.E.2d 41, 42 (1991)
(citations omitted); Mills, 14 Va. App. at 463, 418 S.E.2d at
720.
The evidence established that the hotel, on its own
initiative and pursuant to its established policy, checked the
defendant out after learning that he would not be coming back.
Its policy was based on its private interest in preparing the
room for a new guest at the earliest possible time. "'[I]t is
commonly known that those who operate [hotels and motels] are
understandably interested in maximum paying occupancy and thus
could be expected promptly to clear the room of a guest who has
overstayed so that another guest may be given the room.'"
McCary v. Commonwealth, 36 Va. App. 27, 37, 548 S.E.2d 239, 244
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(2001) (citation omitted). See also United States v. Jackson,
585 F.2d 653, 658 (4th Cir. 1978) (in dicta court recognized
that when defendant stays beyond rental period hotel may
repossess room, thereby destroying his expectation of privacy).
Upon checking the defendant out, the hotel was obligated to
secure his personal property. In order to do so, the hotel was
permitted to enter the defendant's room and to collect and
secure his property. The hotel invited Honts to be present and
to take the defendant's belongings to him. By the time Honts
arrived, Broughman had checked the defendant out, but had waited
for Honts to arrive before entering the defendant's room. Honts
stood in the hallway, behind Broughman, as she opened the
defendant's room. Broughman's conduct furthered the hotel's
private business objectives. She was not acting as an agent of
the government. See Duarte, 12 Va. App. at 1026-27, 407 S.E.2d
at 42-43 (evidence seized when college searched defendant's room
was admissible, college not acting as agents of the police).
Honts did not request the hotel to check the defendant out
or to permit him to enter the defendant's room. He was an
invitee of the hotel. "[A] law enforcement 'officer's
observations from a public vantage point where he has a right to
be' and from which the activities or objects he observes are
'clearly visible' do not constitute a search within the meaning
of the Fourth Amendment." United States v. Taylor, 90 F.3d 903,
908 (4th Cir. 1996) (officer's observations of dining room from
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street, walkway, and porch not a "search") (citations omitted).
Honts's presence does not make otherwise reasonable official
conduct unreasonable. Jacobsen, 466 U.S. at 117 (government can
use disclosed, no longer private, information); id. at 119
("viewing of what a private party [hotel clerk] had freely made
available for [officer's] inspection did not violate the Fourth
Amendment").
The hotel was not acting as a government agent, or at its
direction. Its actions were lawful and served its private
legitimate business concerns. The police did not ask the hotel
to check the defendant out, did not request permission to search
the defendant's room, did not ask them to open the defendant's
door, and did not enter the room before they had probable cause
to search it. The hotel's decisions to check the defendant out,
to invite the police to take his belongings, and to wait for the
officer to arrive before entering the room, were made
independently of any request by police.
Accordingly, we conclude that the defendant's Fourth
Amendment rights were not implicated and the motion to suppress
was properly denied.
Affirmed.
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