Petition for Writ of Certiorari — Walter Eugene Powell, Petitioner v. United States

Supreme Court briefFeb 17, 2021

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NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0680n.06

No. 19-6461

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Dec 02, 2020

DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,

)

Plaintiff-Appellee,

WALTER EUGENE POWELL,

Defendant-Appellant.

ON APPEAL FROM THE

THE UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF KENTUCKY

OPINION

BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. Walter Powell pled guilty to violating federal drug law

based on evidence gathered from his hotel room. He appeals two holdings by the district court.

The first was a denial of his motion to suppress evidence from that room. And the second was the

district court’s designation of Powell as a career offender. For the reasons below, we AFFIRM.

Our story starts at the Microtel in Lexington, Kentucky, where Powell had rented a room.

While on duty, Eugene Zita—an assistant manager at the hotel—received complaints from an

employee that there was a strong marijuana odor coming from a room. She investigated the smell

and tracked it to Powell’s room, Room 122. After knocking on the door and receiving no response,

Zita decided to evict the room’s occupants because the Microtel had a strict no-smoking policy.

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So Zita called the police “to help [her] out” “[i]n case they are dangerous people.” (R. 41, Tr. of

Suppression Mot. Proceedings, PagelD # 185.) Zita testified that she didn’t want the police to

arrest the evicted guests or even search their things; she only “wanted them to help [her] get this

person out of the hotel.” {Id. at PagelD # 187.)

Lexington Police Department Officers Christopher Johnson and Paul Hogan responded to

Zita’s call. When they arrived, they visited Zita at the hotel’s front desk, but she was busy, so she

directed them toward Powell’s room. Hogan and Johnson went to the room and knocked but, like

Zita, received no response. Officer Johnson then walked around to the outside of the hotel to check

if he could see inside the room through the window, but the blinds were drawn.

The officers returned to the front desk, and Zita told them “she wanted to evict” the

occupants of Room 122. {Id. at PagelD # 147.) She made either a master key or duplicate key1

and walked back to Powell’s room with the officers. Zita knocked on the door, announced herself,

and, after receiving no response, used her key to enter the room. The officers stepped into the

room with Zita to conduct a protective sweep. As soon as it was clear no one was present, the

officers stepped back out to the threshold of the room, holding the door open. The officers

remained in the doorway of the room to ensure that the occupants didn’t return and harm Zita.

Zita, however, stayed inside the room. With no prompting from the officers, Zita began to

go through her “pattern” and “automated process” of inspecting the room. {Id. at 184-85.) This

included looking inside drawers and the room’s refrigerator. Zita conducted this inspection

because, after she smelled marijuana, she was looking for evidence to charge the guest a fee for

The testimony of Officer Johnson and Eugene Zita makes it unclear if Zita used a master or

duplicate key to enter Powell’s room. But the district court, in its opinion and order denying

Powell’s motion to suppress, stated that Zita produced a master key to get inside the room.

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smoking inside. Her intention, according to her testimony, wasn’t to find evidence of smoking to

turn over to the police, but only to support the charge for smoking.

During her inspection, Zita opened the room’s refrigerator. Inside, she saw a “brown, kind

of squarish” package inside a black bag. (Id. at PagelD # 182, 195.) She then asked the officers,

“Can I take it out?”, and both told her she could. (Id. at PagelD # 208.) The officers didn’t tell

Zita to search anything or open the refrigerator, and Zita testified that it was her decision to open

the refrigerator. But she also testified that if the officers told her to leave the package inside the

refrigerator, she would’ve, and that she “gave [the officers] the decision” of whether to take the

package out. (Id. at PagelD # 209, 216.) Officer Johnson, on the other hand, testified that he “was

trying to leave it to [Zita’s] discretion” whether to take the package out of the refrigerator. (Id. at

PagelD# 151.)

Either way, Zita pulled the bag out of the refrigerator and began to walk toward the officers,

and Officer Hogan walked toward her to inspect it. Hogan took the package, then, recognizing the

contents as containing fentanyl, placed it on a table. Zita continued her search, discovering various

other pieces of contraband and evidence of drug trafficking. Eventually, she called Powell and

told him that he needed to return to his room because a pipe had burst. When Powell arrived,

police arrested him.

Based on the evidence discovered in Powell’s hotel room, the government charged Powell

with various drug offenses, including possession with intent to distribute fentanyl. Powell moved

to suppress the evidence from the Microtel, arguing that the search violated the Fourth

Amendment. He argued that Zita acted as the government’s agent when she searched his room,

so she needed a warrant before doing so. And he also argued that he retained an expectation of

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privacy in the room until well after Zita discovered the drugs in the refrigerator. The district court

denied the motion to suppress, finding that Zita was not the government’s agent and that Powell

lacked standing to challenge the search because the Microtel evicted Powell before Zita discovered

the drugs. The eviction destroyed Powell’s expectation of privacy in the room, so he lacked

standing to challenge the search.

Powell then pled guilty to Count 2 of a Second Superseding Indictment—possession with

intent to distribute 40 grams or more of a substance containing a detectable amount of fentanyl.

He reserved the right to appeal whether he had a reasonable expectation of privacy in his hotel

room.

Before sentencing, Powell’s presentence investigation report revealed that he had multiple

convictions for delivery/manufacture of heroin or cocaine in violation of Mich. Comp. Laws §

333.7401. So the report classified Powell as a career offender under § 4B1.1 of the Federal

Sentencing Guidelines because Powell’s Michigan convictions qualified as controlled substance

offenses. Powell objected to that classification, but the district court overruled him and applied

the career-offender sentence enhancement. Powell’s guideline sentence range was, as a result of

the enhancement, 188 to 235 months, and the district court imposed a 210-month sentence.

Powell now appeals the district court’s denial of his motion to suppress the evidence from

the Microtel. He also appeals his sentence, arguing that the district court erred in classifying him

as a career offender. We affirm in both respects.

II.

In reviewing the district court’s denial of Powell’s motion to suppress, we review the

district court’s factual findings for clear error and its legal conclusions de novo. United States v.

Graham, 275 F.3d 490, 509 (6th Cir. 2001). “A factual finding will only be clearly erroneous

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when, although there may be evidence to support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake has been committed.” United States v.

Adams, 583 F.3d 457, 463 (6th Cir. 2009) (quoting United States v. Navarro-Camacho, 186 F.3d

701, 706 (6th Cir. 1999)). We consider the evidence in the light most favorable to the government

and most likely to support the district court’s decision. United States v. Pearce, 531 F.3d 374, 379

(6th Cir. 2008); Navarro-Camacho, 186 F.3d at 705. If the district court’s “conclusion can be

justified for any reason,” we will affirm the denial of the suppression motion. United States v.

Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994).

On the other hand, a district court’s determination that a prior offense qualifies as a

controlled substance offense is a legal determination that we review de novo. United States v.

Garth, 965 F.3d 493, 495 (6th Cir. 2020).

We begin with the suppression motion. Powell argues that police searched his hotel room

in violation of the Fourth Amendment. To win on this argument, Powell must establish two things:

first, that Zita was the government’s agent when she searched his room, and second, that the

Microtel hadn’t evicted him yet, preserving his reasonable expectation of privacy in the room.

Because Powell can’t pass the first hurdle, we need not reach the eviction issue.

“[T]he Fourth Amendment proscribes only governmental action.”

United States v.

Lambert, 111 F.2d 83, 89 (6th Cir. 1985). So it doesn’t apply to a search or seizure—even an

unreasonable one—conducted “by a private individual not acting as an agent of the government or

with the participation or knowledge of any governmental official.” Id.-, see United States v.

Jacobsen, 466 U.S. 109, 113 (1984). And when a person delivers evidence to police that he found

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during a private search, it’s not excludable just because he obtained it without a warrant. United

States v. Clutter, 914 F.2d 775, 778 (6th Cir. 1990).

We’ve developed a two-part test for determining when a “private” person acts as the

government’s agent. First, the police must instigate, encourage, or participate in the search.

Lambert, 111 F.2d at 89. And second, the individual must “engage[] in the search with the intent

of assisting the police in their investigative efforts.” Id. The defendant must establish both prongs

before the Fourth Amendment applies.

Whether a person acts as an agent of the government “necessarily turns on the degree of

the Government’s participation in the private party’s activities.” Skinner v. Ry. Lab. Execs’ Ass 'n,

489 U.S. 602, 614 (1989). But some bare level of contact between the person and the police isn’t

enough. “A person will not be acting as a police agent merely because there was some antecedent

contact between that person and the police.” Lambert, 771 F.2d at 89. Likewise, where the intent

of the party conducting the search “A entirely independent of the government’s intent to collect

evidence for use in a criminal prosecution,” the party isn’t the government’s agent. United States

v. Hardin, 539 F.3d 404, 418 (6th Cir. 2008) (emphasis in original) (quotations omitted). And

“there is no seizure within the meaning of the fourth amendment when an object discovered in a

private search is voluntarily relinquished to the government.” United States v. Coleman, 628 F.2d

961,966 (6th Cir. 1980).

Zita wasn’t the government’s agent when she searched Powell’s room. Indeed, Powell

cannot show that her actions meet either prong of the Lambert test. To see why, consider a case

in which we found agency: United States v. Hardin, 539 F.3d at 404. Hardin had an active warrant

for his arrest, and police received a tip that he was staying in an apartment. 539 F.3d at 407. So

they approached the apartment manager and asked him to enter the apartment to see if Hardin was

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there. Id. The police devised a ruse—which was “without a doubt” their idea—where the manager

would pretend to check for a water leak. Id. When the manager completed the ruse and confirmed

Hardin’s presence, police entered the apartment without a warrant and arrested Hardin. Id. at 408.

They also recovered drugs, cash, and several firearms. Id.

Hardin moved to suppress this evidence, but the district court denied the motion. Id. at

408-09. We reversed. Id. at 420. We noted that the ruse was the design of the government

(Lambert prong one), the police asked the manager to enter the apartment (also prong one), and

the manager had no reason to enter the apartment independent of his intent to assist the police

(prong two). Id. at 419. So “the manager was acting as an agent of the government” when he

entered the apartment. Id. at 420.

But the facts we relied on in Hardin to find agency are missing here. Unlike in Hardin,

Zita’s reason for entering Powell’s room didn’t come from the government. Indeed, Zita decided

on her own to evict Powell. And neither did the police ask Zita to conduct the search, like they

did the apartment manager in Hardin. Instead, they accompanied her to Powell’s room to ensure

her safety and then withdrew to the doorway when it was clear Powell wasn’t there. So evidence

showing police instigation and participation—the first Lambert prong—is absent here.

And

besides, evidence establishing the second prong is also missing. Zita was going through her

habitual and “automated” process of inspecting Powell’s room and looking for evidence to charge

him a fee for smoking. So, unlike the apartment manager in Hardin, she had a reason to search

his room independent of her intent to assist the police in a criminal investigation.

Now consider some cases in which we found agency lacking. Start with United States v.

Howard, 752 F.2d 220 (6th Cir.), opinion vacated on other grounds, 770 F.2d 57 (6th Cir. 1985)

(en banc). After the Howard residence burned down, both police and the homeowners’ insurance

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company investigated the remains for arson. Id. at 227. Although the insurance investigator could

enter the property under the insurance contract, the police had neither a warrant nor the Howards’

consent. Id. So when the government eventually prosecuted Howard and others for crimes related

to the house fire, the district court wouldn’t allow it to introduce testimony from the investigating

officer, which the court viewed as fruit of an unlawful search. Id. The district court did, however,

allow the insurance investigator to testify. Id.

The defendants appealed the introduction of that testimony. Id. They argued that the

investigator was the government’s agent. Id. We disagreed—even though “there is no question

that the government had knowledge of, and even participated in the search.” Id. In other words,

there was no question that the defendants satisfied the first Lambert prong, but they faltered on the

second. That’s because the knowledge and participation of the police alone weren’t enough.

Instead, where “the intent of the private party conducting the search is entirely independentof the

government’s intent to collect evidence for use in a criminal prosecution, ... the private party is

not an agent of the government.” Id. And “when police are merely assisting a private party, who

has authority to search and a legitimate need to do so, . . . courts are reluctant to exclude resulting

evidence.” Id. at 227-28 (alteration in original) (quoting United States v. Capra, 501 F.2d 267,

272 n.4 (2d Cir. 1974), cert, denied, 420 U.S. 990 (1975)). So the investigator was lawfully on

the property, and his actions weren’t attributable to the government. Id. at 228.

There are important similarities—and equally important distinctions—between the search

in Howard and the search here. Like Howard, the police were present when the search happened.

But that was hardly dispositive in Howard because that only goes to the first Lambert prong.

Besides, it’s hardly clear police “participated” in Zita’s search here like they did in the search in

Howard. Indeed, unlike Howard, the police weren’t in Powell’s room to investigate anything or

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gather evidence for prosecution. See Lambert, 111 F.2d at 89 (“First, the police must have

instigated, encouraged or participated in the search.”). They were just there to protect Zita if

anything went south during Powell’s eviction. At any rate, like the defendants in Howard, Powell

can’t satisfy the second Lambert prong. Just as the insurance investigator had his own reason to

search the Howards’ house, distinct from the government’s, Zita’s reason for searching the room

was to gather evidence for a smoking charge. That’s independent of any law enforcement purpose.

The officers were, in other words, “merely assisting” Zita in a passive, unengaged way, unrelated

to an investigatory intent. Howard, 752 F.2d at 227.

Next, consider United States v. Bruce, 396 F.3d 697 (6th Cir.), vacated in part on reh ’g on

other grounds, 405 F.3d 1034 (6th Cir. 2005). Bruce checked into a hotel and paid for a week’s

worth of lodging. 396 F.3d at 702. But a few days later, the hotel manager called the police to

report the smell of burning marijuana coming from either Bruce’s or his companions’ room. Id.

The police asked the hotel to save, secure, and mark the trash bags from those rooms—and hotel

employees were eligible for a cash reward for their assistance. Id.; id. n.2. After discovering

contraband in the trash, the police obtained search warrants for the rooms and arrested Bruce. Id.

at 703-04. Bruce unsuccessfully moved to suppress the evidence from the rooms and then

appealed after entering a guilty plea. Id. at 704.

We held that the hotel’s handling of Bruce’s trash didn’t violate the Fourth Amendment,

id. at 705, because neither of the Lambert prongs was met. Id. at 706. For one thing, “[tjhere

[wa]s no evidence that the staff were asked to look around the rooms, report any suspicious items,

or otherwise deviate from their typical cleaning routine.” Id. For another, “hotel employees

initiated contact with the police, and not vice versa, based on their detection of an apparent

marijuana smell emanating from” Bruce’s room. Id. And even though the government provided

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a financial incentive to the employees to assist them, that still wasn’t enough to make them the

government’s agents. Id. That’s because “they undoubtedly had the distinct and independent

intent—and, indeed, the obligation—to clean these rooms and empty their trash, just as they would

do with any other room in the hotel.” Id. So the employees didn’t become government agents just

“because the police took an interest in the items they planned to remove from the room during

their normal cleaning activities.” Id.

If the employees in Bruce weren’t government agents, then Zita wasn’t, either. The police

were more actively involved in directing hotel staff in Bruce—and the staff were more focused on

assisting a police investigation—than here. The police in Bruce told the employees what to do and

how to do it. Here, though, they passively stood by for protection as Zita searched the room. The

only evidence that Powell points to as showing agency is the ambiguous interaction between Zita

and the officers just after Zita opened the refrigerator and noticed Powell’s contraband.

But if obeying police direction in sorting trash—and expecting a reward for that

assistance—doesn’t make a person the government’s agent, then neither does asking officers “Can

I take it out?” after discovering a package of drugs and waiting for a response. Besides,

cooperation between Zita and the officers—if this can even be called that—doesn’t necessarily

mean that Zita became the government’s agent. See Howard, 752 F.2d at 227 (“We find, however,

that the insurance company investigator while cooperating with the police was not acting as an

agent of the government.”). That’s because agency requires more. It requires both that police

participate in the search and that the private party intend to assist law enforcement. Lambert,

III F.2d at 89. So even if this ambiguous interaction between Zita and the police could amount

to police “instigation” or “participation,” Powell still needs to show that Zita intended to assist a

police investigation. And he fails to do so.

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At any rate, we doubt the interaction rose to the level of police participation. Bruce,

396 F.3d at 706. Officers Johnson and Hogan didn’t ask Zita to “look around the room[], report

any suspicious items, or otherwise deviate from [her] typical cleaning routine.” Id. Instead, Zita

“initiated contact with the police, and not vice versa, based on [her] detection of an apparent

marijuana smell emanating from” Powell’s room. Id. And even assuming the moment at the

refrigerator satisfies the first Lambert prong (which we doubt), Zita still “undoubtedly had the

distinct and independent intent—and, indeed, the obligation—to clean” Powell’s room out. Id.

So Zita’s search meets neither of the Lambert prongs. And none of Powell’s other

arguments to the contrary is persuasive. Powell states: “All along, Zita was ready to assist police.”

(Appellant Br. at 25.) But the record doesn’t support this argument—she wasn’t there to assist

police, but police were there to protect her during an eviction. And it can hardly be said that Zita

was more “ready to assist police” than the employees in Bruce, whom the government paid for

their assistance. Bruce, 396 F.3d at 702 n.2. Besides, Zita “had the distinct and independent

intent” and obligation to clear Powell’s room out and find evidence to charge him a smoking fee.

Id. at 706; see id. (“[W]hatever motive or incentive the hotel employees might have had to assist

the police in detecting unlawful activity ... they undoubtedly had the distinct and independent

intent—and, indeed, the obligation—to clean these rooms and empty their trash, just as they would

do with any other room in the hotel.”).

Powell also argues that Zita was “looking for evidence of illegal activity.” (Appellant Br.

at 26 (quotations omitted).) Maybe so, but that’s not what matters. The court looks at Zita’s intent

when she conducted the search. Lambert, 111 F.2d at 89. And her intent wasn’t to assist an

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investigation, but to obtain evidence to further support her decision to evict Powell and charge him

a smoking fee.2

Next, Powell relies on the fact that Johnson and Hogan “stood inside” while Zita went

through Powell’s room, speaking with them all the while. (Appellant’s Br. at 24.) But “when

police are merely assisting a private party, who has authority to search and a legitimate need to do

so,... courts are reluctant to exclude resulting evidence.” Howard, 752 F.2d at 227-28 (alteration

in original) (quoting Capra, 501 F.2d at 272 n.4). And mere cooperation between the parties, by

itself, isn’t enough to establish agency. Id. at 227.

Powell fails to shoulder his burden of showing that Zita’s actions meet the Lambert

standard. So we don’t need to reach the issue of whether Powell had a reasonable expectation of

privacy in his hotel room at the time of the search. The Fourth Amendment doesn’t apply to Zita’s

search. We thus affirm the district court’s denial of Powell’s suppression motion.

Powell also challenges his designation as a career offender, although he acknowledged at

oral argument that recent circuit precedent forecloses his challenge.

Powell’s presentence

investigation report found, and the district court agreed, that Powell’s convictions under Mich.

Comp. Laws § 333.7401(2)(a)(iv) were controlled substance offenses. That qualified him for a

career offender sentencing enhancement. Powell objects, and we review his claim de novo. See

United States v. Garth, 965 F.3d 493, 495 (6th Cir. 2020).

Under the Federal Sentencing Guidelines, a career offender has “at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a).

2 Powell also argues that Zita would have no reason to look for evidence of illegal activity unless

she intended to assist the police. This is wrong. Zita testified that she was searching the room to

find evidence of smoking so she could charge Powell a fee.

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The Guidelines in turn define a “controlled substance offense” as one that, under state or federal

law, is punishable with a prison term of more than a year and prohibits the manufacture, import,

distribution, or dispensing of a controlled substance, or possession of a controlled substance with

intent to perform any of these acts. Id. § 4B 1.2(b). This tracks the Federal Controlled Substances

Act, which makes it unlawful to “manufacture, distribute, or dispense” certain drugs. 21 U.S.C.

§ 841(a)(1). And “distribute” in the CSA means “delivery”: the “actual, constructive, or attempted

transfer” of drugs. Id. § 802(8), (11).

A person with multiple controlled-substance offenses faces an increased prison term as a

career offender. Garth, 965 F.3d at 495. So when the probation officer and later the district court

designated Powell a career offender, it caused his offense level under the Sentencing Guidelines

to jump from 26 to 34—which bumped up his sentence range. That designation hinged on Powell’s

multiple convictions

for violating Mich.

Comp.

Laws

333.7401—in particular,

delivery/manufacture of cocaine and heroin. Section 333.7401(1) states: “a person shall not

manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled

substance.”

Normally, to determine whether a statute is a “controlled substance offense” that triggers

the career offender enhancement, we use what’s known as the categorical or modified categorical

approach. Garth, 965 F.3d at 495. But we don’t need to perform that complicated analysis here.

We’ve already held that Powell’s violation of § 333.7401 is a controlled substance offense. United

States v. Thomas, 969 F.3d 583, 584 (6th Cir. 2020) (per curiam) (holding that delivery of heroin

in violation of § 333.7401 is a controlled substance offense); see also United States v. House,

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872 F.3d 748, 753-54 (6th Cir. 2017).3 And we’ve said the same about other states’ statutes with

language virtually identical to our Michigan statute. See Garth, 965 F.3d at 496.

Still, after United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam),

there appears to be some confusion about this in lower courts. Compare United States v. Tillman,

No. l:07-cv-197, 2020 WL 1950835, at *3 (W.D. Mich. Apr. 23, 2020) (holding that previous

convictions under § 333.740l(2)(a)(iv) were controlled substance violations) with United States v.

McDougle, No. 19-20323, 2020 WL 3639589, at *1 (E.D. Mich. July 6, 2020) (holding that the

defendant’s prior conviction under § 333.7401 “does not qualify as a controlled substance offense

under the federal sentencing Guidelines”). To be clear, under a plain reading of the relevant

statutory language and our precedent, Powell’s convictions for violating § 333.7401 are controlled

substance offenses under § 4Bl.l(a) and 4B 1.2(b) of the Sentencing Guidelines.

The district court didn’t err in designating Powell a career offender. We affirm.

III.

For these reasons, we affirm both the district court’s denial of Powell’s motion to suppress

and its designation of Powell as a career offender.

3 See also United States v. Williams, 762 F. App’x 278, 280-82 (6th Cir. 2019); United States v.

Pittman, 736 F. App’x 551, 555 (6th Cir. 2018); United States v. BroM>n, 727 F. App’x 126, 129

(6th Cir. 2018); United States v. Tibbs, 685 F. App’x 456, 463-64 (6th Cir. 2017); Hopkins v.

United States, No. 17-1599,2017 WL 9477084, at *2 (6th Cir. Nov. 2, 2017) (order); United States

v. Solomon, 592 F. App’x 359, 361-62 (6th Cir. 2014).

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UNITED STATES OF AMERICA, Plaintiff, v. WALTER EUGENE POWELL. Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY. CENTRAL

DIVISION

2019 U.S. Dist. LEXIS 112678

Criminal Action No. 5:19-CR-69-DCR-MAS-1

June 21, 2019, Decided

June 21, 2019, Filed

Editorial Information: Subsequent History

Adopted by, Motion denied by United States v. PowelfT2019 U.S. Dist. LEXIS 113262 (E.D. Ky., July 8,

2019)Motion denied by United States v. Powell. 2019 U.S. Dist. LEXIS 143415 (E.D. Ky., Aug. 23,

2019)Objection overruled by United States v. Powell. 2019 U.S. Dist. LEXIS 209932 (E.D. Ky., Dec. 5,

2019)

{2019 U.S. Dist. LEXIS 1}For Walter Eugene Powell. Defendant:

Jeffrey A. Darling, LEAD ATTORNEY, Nichols Walter PLLC, Lexington, KY.

For Elisha Demitrius Wilson, Defendant: Andrew M. Stephens,

LEAD ATTORNEY, Lexington, KY.

For USA, Plaintiff: David C. Kiebler, LEAD ATTORNEY, U.S.

Attorney's Office, EDKY, Lexington, KY.

Judges: Matthew A. Stinnett, United States Magistrate Judge.

Counsel

Opinion

Opinion by:

Matthew A. Stinnett

Opinion

REPORT AND RECOMMENDATION

This case is before the Court on Defendant's Motion to Suppress. [DE 24], The district judge referred

this matter to the undersigned for a Report and Recommendation. The United States responded to

the Motion [DE 33] and the Court held a hearing at which the parties presented witnesses and

arguments to the Court. [DE 37], At the hearing, the Court requested the parties submit additional

briefing on the issue of the expectation of privacy in a hotel room vis-'-vis an eviction and search at

a hotel. The parties both submitted supplemental briefs. [DEs 39 and 40]. The matter is ripe for

decision. For the reasons stated herein, the Court recommends the District Court deny Defendant's

Motion to Suppress.

I. FACTUAL BACKGROUND

On January 29, 2019, Eugene Zita ("Zita"), an employee at the Microtel Inn in Lexington,{2019 U.S.

Dist. LEXIS 2} Kentucky, received complaints and concerns from guests and employees

concerning smoke and suspected marijuana smells emanating from hotel room #122. Because

smoking was prohibited in a guest's room, Zita chose to evict the guest, Defendant Walter Powell

("Powell"). Zita contacted the Lexington Police Department for assistance and protection in the

eviction process. [DE 41, Tr. at 7 and 47],

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When Officers Paul Hogan and Christopher Johnson of the Lexington Police Department arrived at

the hotel, Zita was busy with other customers. Zita, however, directed the officers to room #122 while

managed the customers. [DE 41, Tr. at 7-8]. The officers knocked on the hotel room door but

received no answer. [DE 41, Tr. at 8].

Officers Hogan and Johnson then returned to the ffont desk where Zita had taken care of the

customers. Zita then led the officers back to room #122 with the master key. [DE 41, Tr. at 9-10]. Ms.

Zita knocked on the door and identified herself as a hotel management. [DE 33, Ex. 2, Body Camera

Footage ("Body Cam 2") at 0:40], There was still no answer. Zita used a master key to open the hotel

room door. [Id. at 0:50]. The officers conducted a "protective sweep" of the hotel room{2019 U.S.

Dist. LEXIS 3} and determined there were no occupants. [DE 41, Tr. at 12]. The officers then

immediately receded to the entrance of the hotel room while Zita began gathering the belongings of

the guests to remove them from the room.

As Zita moved around the room, she opened the small refrigerator. Inside, Zita found a bag

containing individual packages of white powder. She asked the officers, "Do you smell it? There's

something in the fridge. Can you look? Or can I take it out?" [Body Cam 2 at 1:20-34], One officer

stated, "you can," while the other responded, "you can take it out." [Body Cam 2 at 1:35], Zita

removed the bag from the refrigerator and handed it to Officer Hogan. [Body Cam 2 at 1:42-47].

Officer Hogan looked at the open black bag, which contained many small baggies filled with white

powder. [Id.]. He immediately identified the contents of the black bag as possible narcotics. [DE 41,

Tr. at 44-45], He then put the bag down and stepped out of the hotel room to make a telephone call.

[DE 41, Tr. at 30].

Zita continued gathering the items in the room, including scales in the desk drawer. Zita also

gathered trash in her effort to clean the room, but the officers then intervened and asked{2019 U.S.

Dist. LEXIS 4} her to leave everything where it was because they were "freezing" the scene until a

search warrant for the room could be procured. [DE 33, Ex. 1, Body Camera Footage ("Body Cam

1") at 4:02-15].

The officers eventually obtained a search warrant from Fayette District Court for the room and a

vehicle parked outside the Microtel and registered to Powell. The evidence found by Zita directly led

to the Indictment in this case. Powell now moves the Court to suppress all the evidence seized from

the search of the hotel room.

II. ANALYSIS

A. There Was No Fourth Amendment Protection

Courts have long held that a hotel guest has some expectation of privacy in the room he or she

occupies. ”[W]hen a person engages a hotel room he undoubtedly gives 'implied or express

permission' to 'such persons as maids, janitors or repairmen' to enter his room 'in the performance of

their duties.'" Stonerv. State of Cal., 376 U.S. 483, 489, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964)

(quoting United States v. Jeffers, 342 U.S. 48, 52, 72 S. Ct. 93, 96 L. Ed. 59 (1951)). "To have

standing to challenge the search of a hotel room, the guest must show (1) that he had 'an actual

(subjective) expectation of privacy' in the room and (2) that this expectation was 'one that society is

prepared to recognize as "reasonable."'" United States v. Lanier, 636 F.3d 228, 231 (6th Cir. 2011)

(quoting Smith v. Md., 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)). The issue before

the Court is whether Powell had an expectation{2019 U.S. Dist. LEXIS 5} of privacy in his hotel

room when Zita, accompanied by police officers, sought to evict him from his room.

The Sixth Circuit Court of Appeals addressed this same issue in United States v. Allen, 106 F.3d 695

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(6th Cir. 1997). There, a motel manager believed the room's occupant, Allen, had vacated the room

without paying the bill. The manager entered the room with the intent of determining whether it was

still occupied after receiving no answer to her phone calls and knocks at the door. When the

manager entered the room, she discovered illegal drugs openly displayed in the room.

Upon learning that Allen was keeping contraband within the motel, the motel manager locked

Allen out of his room. With this action, the motel manager divested Allen of his status as an

occupant of the room, and concomitantly terminated his privacy interest in its contents. Once the

manager, through private action, took possession of the motel room, Allen could no longer assert

a legitimate privacy interest in its contents./d. at 699.

The result from the Sixth Circuit was the same in United States v. Spicer, 549 F. App'x. 373, 376 (6th

Cir. 2013). Like in Allen,

a hotel employee entered Spicer's room for housekeeping purposes, believing the room to be

vacant. The employee observed marijuana and smelled marijuana smoke. She then

summoned{2019 U.S. Dist. LEXIS 6} her supervisor who discovered cocaine in a backpack left

in the room. The presence of illegal drugs in the room gave the Marriott cause to lawfully

terminate Spicer's occupancy of the room. The hotel's general manager took affirmative steps to

repossess the room and assert dominion and control over it. The hotel manager then validly

consented to the search of the hotel room.Spicer, 549 F. App'x. at 377 (footnote omitted).

Turning back to the current case, there is no dispute that Zita's action and intent was the eviction of

Powell no matter what was found in his room. [DE 41, Tr. at 72-75], Once Zita used her master key

to enter Powell's room to effectuate the eviction, Pjowell could no longer assert a legitimate privacy

interest in its contents. Id. ("Once a hotel guest's rental period has expired or been lawfully

terminated, the guest does not have a legitimate expectation of privacy in the hotel room.") (citing

United States v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987)). Rather, Zita had regained possession of

the room and was merely performing the duties of a hotel employee required to evict guests who do

not abide by the rules of the hotel. Id. at 376 ("A hotel may lawfully terminate a guest's occupancy for

unauthorized activity."). Zita could even provide consent to a warrantless{2019 U.S. Dist. LEXIS 7}

search of the room at that point if she was so inclined. 1 See id. at 699. In short, Powell lacks

standing to challenge a search of the hotel room after Zita entered and took possession of it.

Accordingly, the Court recommends the District Court deny Powell's motion to suppress the evidence

found in the hotel room.

III. CONCLUSION

For reasons stated herein, the Court RECOMMENDS that the District Court DENY the Motion to

Suppress [DE 24], The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning

this recommendation, issued under subsection (B) of said statute. As defined by § 636(b) (1), Fed. R.

Crim. P. 59(b), and local rule, within fourteen days after being served with a copy of this

recommended decision, any party may serve and file written objections to any or all portions for

consideration, de novo,{2019 U.S. Dist. LEXIS 8} by the District Court.

Entered this 21st day of June, 2019.

Isl Matthew A. Stinnett

United States Magistrate Judge

Footnotes

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Although the Court is of the opinion Powell does not have standing to challenge the search warrant,

the Court believes there was not an actual search of Powell's hotel room. The body cam footage

clearly demonstrates that the police officers entered the room for approximately 20 seconds to

conduct a "protective sweep," during which time they did not touch anything. [Body Cam 2 at

1:00-20]. After they determined there was no one present in the room, the officers stood at or near

the doorway while Zita, in her role as a hotel employee, gathered items strewn about the room. [Body

Cam 2 at 1:47; Body Cam 1 at 2:15-3:47] [DE 41, Tr. at 14]. Zita testified there was "nothing

different" about the way she began cleaning and inspecting room #122 from the "automatic" way she

cleans and inspects every room in the hotel. [DE 41, Tr. at 59-60, 73]. Both Body Cams show that

she did not ask the police officers to search the room after the protective sweep, nor did they request

that she search the room. Even though the Sixth Circuit allows "a hotel employee with hotel

given-authority [to] consent to a search of the guest's former room" once the guest's tenancy is

terminated, the facts here do not support that this circumstance even went so far as a search. United

States v. Spicer, 549 F. App'x 373, 376 (6th Cir. 2013). Instead, the fact that Zita found narcotics in

the refrigerator was completely incidental to the eviction.

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UNITED STATES OF AMERICA, Plaintiff, v. WALTER EUGENE POWELL. Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY. CENTRAL

DIVISION

2019 U.S. Dist. LEXIS 113262

Criminal Action No. 5: 19-069-DCR

July 8, 2019, Decided

July 8, 2019, Filed

Editorial Information: Prior History

United States v. Powell. 2019 U.S. Dist. LEXIS 112678 (E.D. Ky., June 21, 2019)

{2019 U.S. Dist. LEXIS 1}For Walter Eugene Powell. Defendant:

Jeffrey A. Darling, LEAD ATTORNEY, Nichols Walter PLLC, Lexington, KY.

For Elisha Demitrius Wilson, Defendant: Andrew M. Stephens,

LEAD ATTORNEY, Lexington, KY.

For USA, Plaintiff: David C. Kiebler, LEAD ATTORNEY, U.S.

Attorney's Office, EDKY, Lexington, KY.

Judges: Danny C. Reeves, United States District Judge.

Counsel

Opinion

Opinion by:

Danny C. Reeves

Opinion

MEMORANDUM OPINION AND ORDER

Defendant Walter Powell is charged with conspiring to possess with intent to distribute fentanyl and

cocaine base and possessing with intent to distribute fentanyl and cocaine base. [Record No. 29]

Powell filed a motion to suppress evidence seized from a room at the Microtel Inn in Lexington,

Kentucky, which led to these charges. [Record No. 24] The motion was referred to United States

Magistrate Judge Matthew A. Stinnett for issuance of a Report and Recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). Magistrate Judge Stinnett conducted an evidentiary hearing and issued a

Report and Recommendation on June 21, 2019, concluding that the Court should deny the

defendant's motion. [Record No. 42] Thereafter, Powell filed objections to the Report and

Recommendation. [Record No. 43]

■

After careful review of the matter, the Court concludes{2019 U.S. Dist. LEXIS 2} that the motion to

suppress should be denied.

On January 25, 2019, a Microtel laundry worker complained to assistant manager Eugene Zita

regarding the odor of marijuana coming from room #122. [Record No. 41, p. 47] Zita checked the

hallway and observed an "extremely strong" odor of marijuana outside of room #122. Microtel has a

strict non-smoking policy, so Zita elected to evict the occupant. Id. at p. 49. She knocked on the

door, but no one answered. Id. at p. 47. Noting that the smell of marijuana was "very strong" and

fearing there might be dangerous individuals inside, Zita decided to call the Lexington Police

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Department for assistance with the eviction. Id.

Lexington Police Officers Johnson and Hogan arrived at the Microtel and contacted Zita, who was

busy with customers at the front desk. Id. at p. 7. Zita pointed the officers toward room #122. The

officers arrived at the room and knocked, but there-was no response. Id. at p. 8. When officers

returned to the front desk, Zita advised that she wanted to evict the occupant of room #122. Id. at p.

9. Zita produced a master key and she and the officers returned to the room.

After knocking and announcing herself as hotel staff, Zita opened the door using the master key. Id.

at pp. 10, 53. Officers Johnson{2019 U.S. Dist. LEXIS 3} and Hogan performed a brief protective

sweep of the room and, after confirming that no one was present, stepped back into the hallway. The

officers remained in the hall or doorway while Zita began clearing out the occupant's belongings. Zita

explained that she needed evidence of smoking in the room so that Microtel could assess a $250.00

penalty. Id. at pp. 48, 51-52.

Zita opened the refrigerator during her inspection of the room and found a container inside. Id. p. 58.

She apparently saw or suspected that it contained contraband because she asked the officers: "Can

you look or can I take it out?" Id. at p. 57. The officers, still standing in the doorway of the room,

advised Zita that she could take it out. Id. at pp. 13, 70. Zita removed the container from the

refrigerator and gave it to the officers. Id. at p. 71. It contained a powdery substance which,

according to Officer Johnson, tested positive for fentanyl and cocaine base. Id. at p. 15. Defendant

Powell was arrested when he returned to the Microtel later that day.

II.

The magistrate judge determined that Powell does not have standing to challenge the alleged*

search because he had been evicted. As he noted, a hotel guest does not have a legitimate

expectation of privacy in his room once his rental period has{2019 U.S. Dist. LEXIS 4} been lawfully

terminated. [Record No. 42, p. 4 (United States v. Spicer, 549 F. App'x 373, 377 (6th Cir. 2013))].

But Powell maintains that he has standing to challenge the "search" because he was never evicted.

"A hotel may lawfully terminate a guest's occupancy for unauthorized activity, including possession

of illegal drugs." Spicer, 549 F. App'x at 376. See also Raider v. Dixie Inn, 198 Ky. 152, 248 S.W.

229, 229-230 (Ky. 1923) (innkeeper may exclude individuals whose conduct annoys or endangers

others). Powell suggests that he had not been evicted because he had not been advised of the

hotel's decision. However, "[a] hotel terminates a guest's occupancy by taking justifiable affirmative

steps to repossess [a] room ... and to assert dominion and control over it." Spicer, 549 F. App'x at

376.

Powell relies on the non-binding decisions in United States v. Young, 573 F.3d 711 (9th Cir. 2009),

and United States v. Bautista, 362 F.3d 584, 590 (9th Cir. 2004), in opposing the magistrate judge's

conclusion. But these cases do not help Powell, as they are factually dissimilar to the instant case

and affirm that hotel guests do not have a reasonable expectation of privacy once their occupancy

has been lawfully terminated. In Young, hotel security staff entered the defendant's room while he

was not present to investigate a theft complaint. Once inside, they found a firearm and checkbooks

belonging to others. Security staff then placed Young's room on "electronic lockout" so that{2019

U.S. Dist. LEXIS 5} he could not re-enter the room. Staff members informed a police officer of their

suspicions, and the officer detained Young on the hotel premises. The officer accompanied staff to

Young's room and waited in the hallway while they searched. However, the officer observed a

firearm in plain sight, and he entered the room and seized the firearm and other items.

The Ninth Circuit determined that Young had a legitimate privacy interest in his room because he

was still the lawful occupant when the police officer entered it. The court concluded that the hotel had

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ORDERED as follows:

1. The magistrate judge's Report and Recommendation [Record No. 42] is ADOPTED and

INCORPORATED, in full.

2. Defendant Powell's motion to suppress [RecordTfo. 24] is DENIED.

Dated: July 8, 2019.

Singed By: Isl Danny C. Reeves

Danny C. Reeves

United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.