Opposition Brief — Wali Ross, Petitioner v. United States

No. 20-5589

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

WALI ROSS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

DAVID P. BURNS

Acting Assistant Attorney General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether the rule from Payton v. New York, 445 U.S. 573

(1980), that officers may enter a suspect’s dwelling to execute an

arrest warrant when they have “reason to believe the suspect is

within,” id. at 630, requires probable cause to believe that the

suspect is inside.

2.

Whether petitioner retained a Fourth Amendment interest

in a motel room, even after checkout time, by virtue of Fla. Stat.

§ 509.141 (2017), which governs the removal of certain guests from

public lodging establishments.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (N.D. Fla.):

United States v. Ross, No. 17-cr-86 (Apr. 10, 2018)

United States Court of Appeals (11th Cir.):

United States v. Ross, No. 18-11679 (July 7, 2020)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-5589

WALI ROSS, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-19) is

reported at 964 F.3d 1034.

A prior opinion of the en banc court

of appeals is reported at 963 F.3d 1056.

A prior opinion of a

panel of the court of appeals is reported at 941 F.3d 1058.

The

order of the district court is not published in the Federal

Supplement but is available at 2017 WL 5162819.

JURISDICTION

The judgment of the court of appeals was entered on July 7,

2020.

The petition for a writ of certiorari was filed on August 28,

2

2020.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a conditional guilty plea in the United States

District Court for the Northern District of Florida, petitioner

was convicted of possessing a firearm and ammunition as a felon,

in violation of 18 U.S.C. 922(g)(1), and possessing heroin with

intent

to

distribute,

(b)(1)(C).

in

violation

C.A. App. 69, 77.

of

21

U.S.C.

841(a)

and

The district court sentenced

petitioner to 151 months of imprisonment, to be followed by six

years of supervised release.

affirmed.

1.

Id. at 78-79.

The court of appeals

Pet. App. 1-19.

In

July

2017,

law

enforcement

officers

received

information that petitioner, who had three outstanding arrest

warrants, was staying at the Baymont Inn and Suites in Pensacola,

Florida.

Pet. App. 9; 2017 WL 5162819, at *1.

Because petitioner

was not registered as a guest, the officers did not know which

room he was staying in, so they set up surveillance and waited for

him to appear.

Ibid.

Sometime after 9 a.m., the officers saw

petitioner leave Room 113, walk toward a truck, return to the room

briefly, and then approach the truck again.

Pet. App. 9.

At that

point, petitioner noticed the officers and fled, scaling a chainlink fence and running toward the interstate highway.

Ibid.

When

the officers arrived on the other side of the highway, they could

3

not find petitioner and feared that he might have circled back to

the now-unmonitored motel.

Ibid.

About ten minutes after the chase began, two of the officers

returned to the motel to find petitioner’s truck still in the

parking lot and the door to Room 113 closed.

Pet. App. 9.

The

officers learned from the front desk that Room 113 had been rented

for one night to a woman named Donicia Wilson.

obtained a room key from the front desk.

Ibid.

Ibid.

The officers

Concerned that

any occupants could pose a threat, they entered Room 113 without

knocking.

Ibid.

Inside, they conducted a protective sweep and

saw a firearm in plain view, but petitioner was not there.

9-10.

The officers seized the firearm and left.

Id. at

Id. at 10.

The officers kept watch outside Room 113 until the motel’s

standard checkout time of 11 a.m.

Pet. App. 10.

At that point,

when no guest in the room had requested a late checkout time, the

motel’s manager gave the officers consent to enter and search the

room again.

Ibid.; 2017 WL 5162819, at *2.

During that search,

the officers found heroin and a digital scale.

Pet. App. 10.

Officers located and arrested petitioner ten days later.

D. Ct.

Doc. 40, at 2 (Nov. 28, 2017).

2.

A federal grand jury in the Northern District of Florida

returned a two-count indictment charging petitioner with one count

of possessing a firearm and ammunition as a felon, in violation of

18 U.S.C. 922(g)(1), and one count of possessing heroin with intent

4

to distribute, in violation of 18 U.S.C. 841(a) and (b)(1)(C).

C.A. App. 15-17.

Petitioner moved to suppress all evidence found in the motel

room.

C.A. App. 21-24.

Petitioner contended that the officers’

initial entry into Room 113 violated the Fourth Amendment because,

in petitioner’s view, “there were no grounds for [the officers] to

believe that a dangerous individual (or anyone) was inside the

room.”

Id. at 22.

Petitioner contended that the protective sweep

of the room likewise violated the Fourth Amendment, on the view

that the officers lacked “reasonable suspicion that the area to be

searched ‘harbor[ed] an individual posing a danger to those on the

arrest scene.’”

Ibid. (citation omitted).

And petitioner argued

that the “items seized during the second search” of the room should

be suppressed as “the fruit of the illegal first search,” on the

theory that the second search “would not have occurred absent the

illegal first search.”

Id. at 23.

After conducting an evidentiary hearing, the district court

denied the motion to suppress.

2017 WL 5162819, at *1-*6.

The

court determined that the officers’ initial entry into the motel

room was justified by the arrest warrant; the fact that “the

officers were still in hot pursuit of a fleeing felon”; the

“reasonable belief that [petitioner] had returned” to the motel

room, “possibly to retrieve belongings and his truck”; and “exigent

circumstances.”

Id. at *3-*4.

The court further determined that

the officers were justified in seizing the firearm seen in plain

5

view during the protective sweep.

Id. at *4.

In addition, the

court found that once the 11 a.m. checkout time had passed,

petitioner no longer had a reasonable expectation of privacy in

Room 113, and the motel’s manager validly consented to the second

search of the room.

Id. at *5.

The court also determined that,

even assuming that the initial entry and sweep of the room were

not justified, the “manager’s voluntary consent to search was not

tainted.”

Ibid.

Finally, the court agreed with the government

that, in any event, the firearm seized during the protective sweep

“would have been inevitably discovered, either during a lawful

search or through the ordinary hotel procedures.”

Id. at *6.

Petitioner entered a conditional guilty plea to both counts

of the indictment, reserving the right to appeal the denial of his

suppression

motion.

C.A.

App.

69,

75.

The

district

court

sentenced petitioner to 151 months of imprisonment, to be followed

by six years of supervised release.

3.

Id. at 78-79.

A three-judge panel of the court of appeals affirmed.

941 F.3d 1058.

Although in the district court, the government had argued

only

that

petitioner

lacked

Fourth

Amendment

“standing”

to

challenge the second search, based on the checkout time having

expired, the government argued for the first time on appeal that

petitioner lacked standing to challenge either of the two searches

of the motel room, because he abandoned the room when he ran and

thus relinquished any reasonable expectation of privacy in it.

6

941 F.3d at 1064.

The court of appeals determined that the

government had not “waived” that new argument, despite not having

raised it in the district court, because under the court of

appeals’ prior decision in United States v. Sparks, 806 F.3d 1323

(11th Cir. 2015), a “challenge to Fourth Amendment standing” based

on “a defendant’s alleged act of abandonment” “implicates Article

III jurisdiction, rendering it non-waivable.”

941 F.3d at 1065.

But the court of appeals then rejected the abandonment argument,

finding that the government had “not discharged its burden of

demonstrating that [petitioner] had abandoned his room at the time

of the officers’ initial entry and protective sweep.” Id. at 1066.

The court of appeals determined, however, that petitioner’s

“challenge to the initial entry and sweep fails on the merits”

because “the officers had reason to believe that [petitioner] was

in Room 113” and lawfully “conduct[ed] a protective sweep to ensure

their safety.”

941 F.3d at 1071-1072.

And with respect to “the

second search, which officers carried out with the consent of hotel

management shortly after 11:00 a.m.,” the court determined that

petitioner “lost any reasonable expectation of privacy in his room

at checkout time -- and with it, his Fourth Amendment standing to

contest the search.”

4.

Id. at 1061.

The court of appeals subsequently vacated the panel’s

opinion, granted rehearing en banc, and ordered the parties to

file supplemental briefs on whether its prior decision in Sparks

should be “overruled to the extent that it holds that a suspect’s

7

abandonment of an item or premises implicates both Fourth Amendment

and Article III standing.”

C.A. En Banc Briefing Notice 1 (Mar.

31, 2020); see C.A. Order 1-2 (Mar. 23, 2020).

In its supplemental

brief, the government agreed that Sparks should be overruled to

that extent.

Gov’t C.A. En Banc Br. 2-10.

The en banc court of appeals overruled “Sparks’s holding that

a suspect’s alleged abandonment of a place or thing implicates his

Article III standing to challenge a search of it.”

1062.

963 F.3d 1056,

The en banc court determined that “a suspect’s alleged

abandonment implicates only the merits of his Fourth Amendment

challenge

* * *

and, accordingly, that if the government fails

to argue abandonment, it waives the issue.”

Id. at 1057.

The en

banc court remanded the case to the panel for further proceedings.

Id. at 1066.

5.

On remand, the panel of the court of appeals again

affirmed the denial of petitioner’s suppression motion.

1-19.

The

court

determined

that

“the

government

Pet. App.

waived

its

abandonment argument by failing to raise it in the district court.”

Id. at 8.

The court then “reaffirm[ed] the balance of [its]

earlier decision.”

a.

Ibid.

The court of appeals determined that the “officers’

initial entry and accompanying protective sweep of [petitioner’s]

room complied with the Fourth Amendment.”

explained

that,

“[f]or

Fourth

Pet. App. 13.

Amendment

purposes,

The court

an

arrest

warrant founded on probable cause implicitly carries with it the

8

limited authority to enter a dwelling in which the suspect lives

when there is a reason to believe the suspect is within.”

(citation omitted).

Ibid.

The court “assume[d] for present purposes

that a person’s hotel room counts as a ‘dwelling.’”

Ibid.

And it

determined that the officers “clearly knew that [petitioner] was

staying in Room 113” and that they “had the requisite ‘reasonable

belief’

--

based

on

‘common

sense

factors’

and

permissible

‘inferences and presumptions’ -- that [petitioner] had returned to

the room following his flight toward I-10.”

Id. at 14.

In particular, the court of appeals emphasized that the

officers “knew

* * *

that [petitioner] had left his truck in the

motel’s parking lot”; “that after chasing [petitioner], they had

lost sight of him and that no one had thought to stay behind to

surveil the motel”; and “that when they returned, [petitioner’s]

truck

was

still

in

the

motel’s

parking

lot,

eliminating

the

possibility that he had driven away and (on balance) increasing

the probability that he was back inside the room.”

Pet. App. 14.

Noting that “the officers’ ill-fated pursuit of [petitioner] had

lasted no more than 10 minutes,” the court found it “eminently

reasonable for [the officers] to conclude that [petitioner] had

doubled back to the motel and taken refuge in his room.”

Ibid.

And having found that “the officers reasonably believed that

[petitioner] was in Room 113,” the court explained that they

therefore “had authority (1) to enter the room to execute the

arrest warrants, (2) to conduct a limited protective sweep of the

9

room to ensure that no one inside posed a danger to them, and

(3) to seize the gun, which they found in plain view.”

b.

Ibid.

The court of appeals further determined (based on an

argument that the government had both presented and prevailed on

in the district court) that petitioner lacked Fourth Amendment

standing to challenge the second search of the motel room.

App. 8.

Pet.

The court of appeals explained that “a short-term hotel

guest” generally “has no reasonable expectation of privacy in his

room after checkout time,” because at that point, “the housekeeping

crew will need to -- and has the authority to -- access the room

to clean and prepare it for the next registered guest,” “‘the motel

manager has the right to enter and examine the room as if it had

been relinquished,’” and a “guest’s doorhanger no longer bars

entry.”

Id. at 15-16 (brackets and citation omitted).

The court

therefore determined that petitioner “had no cognizable privacy

interest in Room 113 after 11:00 a.m.,” and thus “no Fourth

Amendment standing to challenge the second, post-checkout-time

search of the room.”

Id. at 16.

In a footnote, the court of appeals rejected petitioner’s

assertion that “he had a continuing possessory interest in Room

113 due to the motel’s failure to honor Fla. Stat. § 509.141(1),”

Pet.

App.

18

establishment

n.7,

* * *

which

provides

that

a

“public

lodging

may remove or cause to be removed” any

“guest” who “fails to check out by the time agreed upon,” if the

establishment gives the guest certain notice specified in the

10

statute, Fla. Stat. § 509.141(1)-(2) (2017).

that

“nothing

in

§

509.141

justifies

The court determined

the

conclusion

that

[petitioner] continued to enjoy an exclusive right to occupy an

unpaid-for room absent formal notice.”

Pet. App. 18-19 n.7.

“Rather,” the court explained, “the hotel’s noncompliance with the

statute simply means that [petitioner] couldn’t be charged with

misdemeanor trespassing for his holdover.”

Id. at 19 n.7.

The

court declined to read the statute “so broadly” as to allow someone

to “maintain an indefinite possessory interest -- and a reasonable

expectation of privacy for Fourth Amendment purposes -- in a hotel

room as long as the hotel doesn’t explicitly tell him to vacate.”

Ibid.

ARGUMENT

Petitioner contends (Pet. 11-18) that officers who enter a

dwelling to execute an arrest warrant must have probable cause to

believe that the suspect is inside.

That contention lacks merit,

and the court of appeals’ decision does not conflict with any

decision of this Court.

To the extent that the circuits are

divided on the question, that division is narrow and has not

resulted in divergent outcomes in practice.

In any event, this

case would be an unsuitable vehicle for further review. This Court

has repeatedly denied petitions for writs of certiorari raising

similar contentions, see Weeks v. United States, 566 U.S. 924

(2012) (No. 11-8064); Tiewloh v. United States, 559 U.S. 941 (2010)

(No. 09-6255); Barrera v. United States, 550 U.S. 937 (2007)

11

(No. 06-8750); Pruitt v. United States, 549 U.S. 1283 (2007)

(No. 06-7731); Thomas v. United States, 549 U.S. 1055 (2006)

(No. 06-5386), and the same result is warranted here.

Petitioner

also contends (Pet. 18-24) that, even after checkout time, he

retained a possessory and privacy interest in the motel room under

Fla. Stat. § 509.141 (2017).

The court of appeals correctly

rejected that contention, and its decision does not conflict with

any decision of this Court or another court of appeals.

Moreover,

the outcome of this case would be the same, regardless of the

resolution of either question presented.

The petition for a writ

of certiorari should be denied.

1.

held

that

In Payton v. New York, 445 U.S. 573 (1980), this Court

an

arrest

warrant

authorizes

officers

“to

enter

a

dwelling in which the suspect lives when there is reason to believe

the suspect is within.”

Id. at 603.

Petitioner contends (Pet.

11-18) that this Court should grant review to decide whether the

“reason to believe” standard in Payton requires officers to have

probable cause to believe that the suspect is inside the residence,

as opposed to a reasonable belief that the suspect is inside.

The

court of appeals’ decision is correct and consistent with Payton,

and no further review of the issue is warranted.

a.

In Payton, this Court held that an arrest warrant is

required for law enforcement officers to enter a suspect’s home to

make a felony arrest.

445 U.S. at 574-576.

An arrest warrant,

the Court explained, authorizes officers “to enter a dwelling in

12

which the suspect lives when there is reason to believe the suspect

is within.”

Id. at 603.

In so holding, the Court expressly

rejected the suggestion that the Constitution requires “a search

warrant based on probable cause to believe the suspect is at home

at a given time.”

Id. at 602.

The Court explained that, “[i]f

there is sufficient evidence of a citizen’s participation in a

felony to persuade a judicial officer that his arrest is justified,

it is constitutionally reasonable to require him to open his doors

to the officers of the law.”

Id. at 602-603.

The court of appeals correctly applied that holding.

The

court recognized that, “[f]or Fourth Amendment purposes, an arrest

warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives

when there is reason to believe the suspect is within.”

13 (citation omitted).

Pet. App.

And it found that standard to be satisfied

here because the officers “clearly knew that [petitioner] was

staying in Room 113” and “had the requisite ‘reasonable belief’ -based on ‘common sense factors’ and permissible ‘inferences and

presumptions’

--

that

[petitioner]

following his flight toward I-10.”

b.

had

returned

to

the

room

Id. at 14.

Consistent with Payton, most courts of appeals that have

addressed the question have determined that Payton’s “reason to

believe”

standard

means

what

it

says

and

thus

requires

that

officers have a reasonable belief that a suspect is within a

dwelling before executing a warrant. See United States v. Barrera,

13

464 F.3d 496, 501 (5th Cir. 2006), cert. denied, 550 U.S. 937

(2007); United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir.

2005), cert. denied, 549 U.S. 1055 (2006); Valdez v. McPheters,

172 F.3d 1220, 1224-1226 (10th Cir. 1999); United States v. Risse,

83 F.3d 212, 216 (8th Cir. 1996); United States v. Lauter, 57 F.3d

212, 215 (2d Cir. 1995); United States v. Magluta, 44 F.3d 1530,

1534-1535 (11th Cir.), cert. denied, 516 U.S. 869 (1995); see also

United States v. Hill, 649 F.3d 258, 262-263 (4th Cir. 2011)

(declining to decide whether probable cause is required); United

States v. Jackson, 576 F.3d 465, 469 (7th Cir.) (same), cert.

denied, 558 U.S. 1062 (2009); United States v. Hardin, 539 F.3d

404, 416 (6th Cir. 2008) (same).

Only the Third and Ninth Circuits

have taken a different view, stating that the “reason to believe”

standard “embodies the same standard of reasonableness inherent in

probable cause.”

United States v. Gorman, 314 F.3d 1105, 1112

(9th Cir. 2002); see United States v. Vasquez-Algarin, 821 F.3d

467, 477 (3d Cir. 2016) (stating that “Payton’s ‘reason to believe’

language amounts to a probable cause standard”). 1

Despite those different articulations, the courts of appeals’

standards have not proved to be materially different in practice.

Contrary to petitioner’s contention (Pet. 12), the Fifth

Circuit in Barrera did not adopt a probable cause standard. The

Fifth Circuit in Barrera observed that its prior decision in United

States v. Route, 104 F.3d 59, 62 (5th Cir.), cert. denied, 521

U.S. 1109 (1997), had “distinguished [Payton’s standard] from the

standard for probable cause.” Barrera, 464 F.3d at 501. Route,

in turn, “adopt[ed] * * * the ‘reasonable belief’ standard of

the” majority of the circuits. 104 F.3d at 62.

1

14

Indeed, the Ninth Circuit in United States v. Gorman, supra,

underscored the “similarity between probable cause and the ‘reason

to

believe’

standard,”

314

F.3d

“‘reasonable grounds to believe’

probable cause,” id. at 1114.

at

1113,

* * *

and

stressed

that

is often synonymous with

The decisions of other courts have

likewise evidenced little, if any, practical difference between

the

two

standards.

As

the

Fifth

Circuit

explained,

“[t]he

disagreement among the circuits has been more about semantics than

substance; the courts that distinguish the terms have done so

because ‘probable cause’ is a term of art.

* * *

Even though

they may distinguish the reasonable belief standard from probable

cause,

they

also

define

the

‘reason

to

believe

standard’

as

requiring that the officers reasonably believe that ‘the suspect

is probably within’ the premises.”

Barrera, 464 F.3d at 501 n.5

(quoting United States v. Route, 104 F.3d 59, 62 (5th Cir.), cert.

denied, 521 U.S. 1109 (1997)). 2

And practical experience confirms

that any difference in the circuits’ standards is more one of

articulation than one of application, as the approaches have not

produced materially divergent outcomes.

See, e.g., United States

See, e.g., Route, 104 F.3d at 62 (the “reason to believe”

standard simply “allow[s] the officer, who has already been to the

magistrate to secure an arrest warrant, to determine that the

suspect is probably within certain premises without an additional

trip to the magistrate and without exigent circumstances”)

(citation and internal quotation marks omitted); Magluta, 44 F.3d

at 1534-1536 (the reasonable belief standard is a “common sense

approach” that considers the totality of the facts and

circumstances known to the officers).

2

15

v.

Litteral,

910

F.2d

547,

553-554

(9th

Cir.

1990)

(finding

standard satisfied where an informant told officers that, if the

defendant’s car was on the premises, he would be inside).

c.

In any event, this case would not be a suitable vehicle

for this Court’s review.

In his briefs before the district court

and the three-judge panel, petitioner described the applicable

standard as one of “reasonable suspicion.”

C.A. App. 22; Pet.

C.A. Br. 16, 18, 27; Pet. C.A. Reply Br. 11; see Pet. C.A. Br. 2223.

Petitioner did not argue for a probable cause standard until

his petition for rehearing en banc.

9-11.

C.A. Pet. for Reh’g En Banc

The court of appeals therefore did not address whether

Payton’s

“reason

to

believe”

standard,

445

U.S.

at

603,

is

different from probable cause.

And petitioner himself places the

Eleventh

“noncommittal

Circuit

among

those

circuits”

that

he

contends “have sidestepped the issue or expressed their opinions

only in dicta.”

Pet. 13-14 (citing Magluta, 44 F.3d at 1534); see

C.A. Pet. for Reh’g En Banc 9 (stating that “the law of [the

Eleventh Circuit] is not entirely clear”).

Because petitioner did

not raise the issue in his briefs before the panel, and because

the court of appeals did not address the issue, further review is

unwarranted. See Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)

(explaining that this Court is “a court of review, not of first

view”).

Moreover, petitioner would not prevail even if a probable

cause standard applied.

The probable cause standard would require

16

a “fair probability,” “given all the circumstances,” that the

subject of an arrest warrant would be found in the dwelling.

Illinois v. Gates, 462 U.S. 213, 238 (1983).

satisfied here.

That standard was

As the court of appeals explained, the officers

“knew that [petitioner] was staying in Room 113”; that petitioner

“had left his truck in the motel’s parking lot”; that “after

chasing [petitioner], they had lost sight of him and that no one

had thought to stay behind to surveil the motel”; and that “when

they returned, [petitioner’s] truck was still in the motel’s

parking lot, eliminating the possibility that he had driven away

and (on balance) increasing the probability that he was back inside

the room.”

Pet. App. 14.

“Particularly given that the officers’

ill-fated pursuit of [petitioner] had lasted no more than 10

minutes,” the circumstances gave rise to a fair probability that

petitioner had “doubled back to the motel and taken refuge in his

room.”

Ibid.

And even if a probable cause standard would not be satisfied

here, petitioner would still have to prevail on the second question

presented in order to be entitled to suppression of the firearm

seized during the initial entry and protective sweep.

As the

district court explained, “[e]ven assuming that the protective

sweep was not justified

* * *

, the hotel management gave law

enforcement lawful third-party consent to search after the 11:00

a.m. checkout time lapsed,” 2017 WL 5162819, at *4, and “the hotel

manager’s voluntary consent to search was not tainted by the prior

17

entry and discovery of a firearm,” id. at *5.

The firearm

therefore would have been independently and inevitably discovered

during that subsequent search, even if the earlier protective sweep

were not justified.

2056,

2061

(2016)

Id. at *6; see Utah v. Strieff, 136 S. Ct.

(explaining

that

“the

inevitable

discovery

doctrine allows for the admission of evidence that would have been

discovered even without the unconstitutional source”).

Thus, the

first question presented alone is not outcome-determinative.

2.

Petitioner additionally contends (Pet. 18-24) that, even

after checkout time, he retained a possessory and privacy interest

in the motel room because the motel did not give him notice to

vacate the premises as set forth in Fla. Stat. § 509.141 (2017).

That contention likewise does not warrant this Court’s review.

a.

The court of appeals correctly rejected petitioner’s

reliance on Section 509.141.

governs

the

“ejection

of

Pet. App. 18 n.7.

undesirable

“penalties for refusal to leave.”

(title).

guests”

Section 509.141

and

establishes

Fla. Stat. § 509.141 (2017)

It provides that a “public lodging establishment” “may

remove or cause to be removed from such establishment

guest of the establishment

* * *

who

* * *

* * *

any

fails to check out

by the time agreed upon,” id. § 509.141(1), if the establishment

“notif[ies] such guest that the establishment no longer desires to

entertain the guest,” “request[s] that such guest immediately

depart from the establishment,” and “tender[s] to such guest the

unused portion of [any] advance payment,” id. § 509.141(2).

The

18

statute further provides that “[a]ny guest who remains or attempts

to remain in any such establishment after being requested to leave

is guilty of a misdemeanor,” id. § 509.141(3), and that the

establishment “may call upon any [state] law enforcement officer”

to “arrest” “any guest who violates subsection (3) in the presence

of the officer,” id. § 509.141(4).

Petitioner’s reliance on Section 509.141 is misplaced.

To

begin, it is unclear whether petitioner qualified as a “guest”

under Section 509.141, given that the motel room was registered in

another person’s name.

petitioner

qualified

application here.

See Pet. App. 9.

as

a

“guest,”

But even assuming that

the

statute

still

has

no

That is because the statute speaks only to when

a “guest” may be “removed” from the premises or “arrest[ed]” for

refusing to leave.

Fla. Stat. § 509.141(1)-(4) (2017); see Brown

v. State, 891 So. 2d 1120, 1120 (Fla. Dist. Ct. App. 2004)

(determining that because a “motel manager did not comply with the

statute,” a motel guest could not be “arrest[ed]” for “remain[ing]

in the motel room”).

The statute does not address the rights of

someone not physically on the premises at all, who would not even

be present to receive the specified notice.

And it does not

address the lawfulness of any entry into a guest’s motel room,

whether by motel employees, law enforcement officers, or anyone

else -- let alone grant a motel guest an “indefinite possessory

interest” in a room.

Pet. App. 19 n.7.

Thus, even if petitioner

qualified as a “guest” under Section 509.141, the court of appeals

19

correctly recognized that it would not support petitioner.

Ibid.;

see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004)

(explaining that this Court’s “custom on questions of state law

ordinarily is to defer to the interpretation of the Court of

Appeals for the Circuit in which the State is located”).

b.

Petitioner does not identify any conflict of authority

on the relevance of Fla. Stat. § 509.141 (2017) to Fourth Amendment

analysis.

Nor does he identify any conflict on whether, and under

what circumstances, a short-term motel guest retains a reasonable

expectation of privacy in his room after checkout time.

Indeed,

petitioner acknowledges (Pet. 18) that the courts of appeals

“generally agree that a hotel guest loses his or her reasonable

expectation of privacy at checkout time.”

See United States v.

Creighton, 639 F.3d 1281, 1286 (10th Cir. 2011); United States v.

Lanier, 636 F.3d 228, 232 (6th Cir. 2011); United States v. Dorais,

241 F.3d 1124, 1129 (9th Cir. 2001); United States v. Kitchens,

114 F.3d 29, 32 (4th Cir. 1997); United States v. Rahme, 813 F.2d

31, 34 (2d Cir. 1987); United States v. Ramirez, 810 F.2d 1338,

1341 (5th Cir.), cert. denied, 484 U.S. 844, 482 U.S. 908, and 481

U.S. 1072 (1987); United States v. Larson, 760 F.2d 852, 855

(8th Cir.), cert. denied, 474 U.S. 849 (1985); United States v.

Akin, 562 F.2d 459, 464 (7th Cir. 1977), cert. denied, 435 U.S.

933 (1978); United States v. Parizo, 514 F.2d 52, 54 (2d Cir.

1975).

20

Rather, petitioner contends (Pet. 18) that the decision below

conflicts with various decisions “holding that a holdover tenant

retains

a

reasonable

expectation

of

privacy

--

even

after

termination of the lease -- to the extent required by state

landlord-tenant law or evictions statutes.”

See United States v.

Washington, 573 F.3d 279, 285 (6th Cir. 2009); State v. Jacques,

210 A.3d 533, 541-542 (Conn. 2019); State v. Hinton, 78 A.3d 553,

565 (N.J. 2013); State v. Dennis, 914 N.E.2d 1071, 1076-1078 (Ohio

Ct. App. 2009); Morse v. State, 604 So. 2d 496, 500-501 (Fla. Dist.

Ct. App. 1992); Blanco v. State, 438 So. 2d 404, 405 (Fla. Dist.

Ct. App. 1983).

None of those decisions, however, involved a

“short-term hotel guest like [petitioner].”

Pet. App. 15.

And as

the Sixth Circuit has explained, a short-term hotel guest presents

a different circumstance, because “[t]here is a presumption * * *

that hotel guests will check out at the designated time and their

right in the premises does not automatically continue for some

indefinite period.”

Washington, 573 F.3d at 285.

Petitioner thus

errs in asserting the existence of a conflict of authority.

3.

In all events, this case would be a poor vehicle for

further review of either question presented because, even if

petitioner were to prevail on both questions, his suppression

motion should still be denied.

Even assuming that neither search

of the motel room was justified, all of the evidence found in the

room would still be admissible under the inevitable-discovery

doctrine because the hotel staff in the ordinary course would have

21

entered the room to clean, discovered the firearm and the heroin,

and contacted the police.

See 2017 WL 5162819, at *6; see also

Strieff, 136 S. Ct. at 2061.

Thus, regardless of the resolution

of the questions presented, the outcome of this case would be the

same.

No further review is warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

DAVID P. BURNS

Acting Assistant Attorney General

WILLIAM A. GLASER

Attorney

JANUARY 2021