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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12484
Non-Argument Calendar
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D.C. Docket No. 8:18-cr-00526-VMC-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARQUESE JERRODDA ALLEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 21, 2021)
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
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Marquese Allen appeals his conviction for possessing a firearm and
ammunition as a convicted felon. He argues that the district court erred by denying
his motion to suppress the gun and ammunition found during a search of a motel
room because he had a reasonable expectation of privacy and the maid who found
the gun acted as an agent for the police. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In July 2018, a woman staying at a motel in St. Petersburg, Florida called the
police to report that a man had “pointed a gun at her.” Three officers, including
Officer Corinna Branley, responded to the call. When the officers arrived, they saw
a man, Allen, in the parking lot who matched the description provided by the victim.
The officers approached Allen and told him to get “on the ground so [they] could
perform a quick pat-down.” Allen did not have a gun on him.
While the other two officers remained with Allen, Officer Branley went to
talk to the victim. The victim confirmed that Allen was the man who had pointed a
gun at her. She explained that she and her boyfriend were renting a room at the
motel and Allen was their neighbor. Her boyfriend asked her to tell Allen that “[h]e
was out of town caring for some sick family members.” When she told Allen, he
became “really upset, walked over to [his] nightstand, pulled out a silver and black
handgun, . . . pointed the handgun” at her, and said, “well, someone is going to pay
me my money.” The victim then left the room, went to her car, and called the police.
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After speaking with the victim, Officer Branley went to talk to Allen. At this
point, Allen had been arrested by the other two officers for possessing drugs. Officer
Branley read Allen his Miranda 1 rights and asked him if he wanted to give a
statement about the alleged assault with the gun. He declined.
The motel manager called the owner, Manji Jethwa, and told him what was
going on. Mr. Jethwa told the manager to evict Allen and “clean the room and let
him go.” When Mr. Jethwa arrived, he was “upset[,] angry[,] and perturbed,” and
told a maid to remove Allen’s belongings from the room because “he wanted [Allen]
out.” The maid “seemed afraid, a little fearful,” and “nervous” “because she knew
there was a gun involved.” “As [the maid] was going to the room to clear out
[Allen’s] belongings,” Officer Branley offered to “stand by in the room with [the
maid] for safety reasons” and the maid responded, “I would like you to stand in the
room.”
The maid went into the room and, as requested, Officer Branley followed.
Officer Branley told the maid that if she found a gun she should not touch it because
Officer Branley “didn’t want [the maid] to harm herself or manipulate the gun and
have it discharge.” As she was cleaning, the maid told Officer Branley that she
“found the gun” in a “travel size, black bag.” Officer Branley told the maid not to
touch the gun and called for a crime scene technician to process the gun.
1
Miranda v. Arizona,
384 U.S. 436 (1966).
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A grand jury indicted Allen for possessing the firearm and ammunition found
in the motel room, knowing that he had been previously convicted of multiple
felonies, in violation of 18 U.S.C. sections 922(g)(1) and 924(e). Allen moved to
suppress the firearm and ammunition, arguing that he had a reasonable expectation
of privacy in the motel room because he was not lawfully evicted, there were no
exigent circumstances to justify the warrantless search, the seizure of the gun was
unlawful because “Officer Branley was not lawfully in a place where she would have
been able to view it,” and the motel maid acted as a government agent when she
searched his bag and found his gun. The government responded that Allen lacked
standing to challenge Officer Branley’s presence in the motel room because he had
been evicted, and, even if he had standing, the search did not violate his Fourth
Amendment rights because it was conducted by the maid at the direction of the motel
owner and the gun and ammunition would have inevitably been found when the maid
cleared out the motel room.
The magistrate judge held an evidentiary hearing, at which the owner of the
motel and Officer Branley testified. In his report and recommendation, the
magistrate judge “fully credit[ed] the testimony of Officer Branley” because “[h]er
testimony was unequivocal and forthright” and “[t]here was nothing about Officer
Branley’s demeanor or responses that suggested deception.” The magistrate judge
recommended denying Allen’s motion because Allen did not have a reasonable
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expectation of privacy in the motel room after he had been evicted and, therefore, he
lacked standing to challenge Officer Branley’s presence in the motel room. The
magistrate judge also found that the search of Allen’s bag did not violate the Fourth
Amendment because it was conducted by the motel maid and she was not acting as
a government agent. The district court adopted the report and recommendation and
denied Allen’s motion.
After a bench trial, the district court found Allen guilty and sentenced him to
two-hundred months’ imprisonment, to be followed by five years of supervised
release. Allen appeals the district court’s order denying his suppression motion.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we review factual findings
for clear error and the application of facts to the law de novo. United States v.
Thomas,
818 F.3d 1230, 1239 (11th Cir. 2016). When considering a ruling on a
suppression motion, we construe all facts in the light most favorable to the prevailing
party below.
Id. We afford substantial deference to the district court’s credibility
determinations. United States v. Lewis,
674 F.3d 1298, 1303 (11th Cir. 2012).
“Clear error review is deferential, and we will not disturb a district court’s findings
unless we are left with a definite and firm conviction that a mistake has been
committed.” United States v. Cruickshank,
837 F.3d 1182, 1192 (11th Cir. 2016)
(quotation marks omitted).
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DISCUSSION
Allen contends that the district court erred by denying the motion to suppress
his gun and ammunition because: (1) he had standing to challenge the search of the
motel room; and (2) even if he lacked standing to challenge the search of the room,
he still had standing to challenge the search of his bag, and that warrantless search
was unlawful because the maid acted as the government’s agent. We address each
argument in turn.
Standing to Challenge the Search of the Motel Room
First, Allen lacks standing to challenge Officer Branley’s presence in the
motel room. “[A]n individual’s Fourth Amendment rights are not infringed—or
even implicated—by a search of a thing or place in which he has no reasonable
expectation of privacy.” United States v. Ross,
964 F.3d 1034, 1041 (11th Cir.
2020). “This issue—whether an individual has a reasonable expectation of privacy
in the object of the challenged search—has come to be known as Fourth Amendment
‘standing.’”
Id. Ordinarily, “[u]se of a motel room for lodging provides the same
expectation of privacy as does a home.” United States v. Ramos,
12 F.3d 1019, 1023
(11th Cir. 1994). But when control of the room shifts back to the motel’s
management—for example, when a motel guest’s rental period ends—the guest no
longer has a reasonable expectation of privacy in the motel room. See Ross, 964
F.3d at 1043–44 (“a hotel guest loses his reasonable expectation of privacy in his
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room following checkout time”); cf. United States v. Mercer,
541 F.3d 1070, 1075
(11th Cir. 2008) (motel management would have authority to consent to search after
defendant’s rental agreement terminated and control “reverted back to motel
management”).
In Ross, officers searched the defendant’s motel room with the consent of the
motel’s management and found drugs. 964 F.3d at 1041–42. We held that the
defendant lacked standing to challenge the search because it was conducted after the
motel’s checkout time. Id. at 1043–44. We explained that “a short-term [motel]
guest . . . has no reasonable expectation of privacy in his room after checkout time,
and thus no standing to object to a room search that police conduct with the consent
of [motel] management after checkout time has passed.” Id. at 1043. That is because
“[i]t’s about control” and, “[a]t checkout time, everything changes.” Id. “[A]fter
checkout time, even if a guest has not completely vacated his room, the motel
manager has the right to enter and examine the room as if it had been relinquished,
because the guest no longer has sufficient control over the premises to establish a
right to privacy therein.” Id. (cleaned up).
Similarly, in Mercer, a motel security guard found drugs in the defendant’s
motel room after he was arrested for unrelated conduct.
541 F.3d at 1072–73. The
motel manager turned the drugs over to the police and asked the officers “to search
the [defendant’s] room thoroughly because she feared there might be more meth,
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guns, or dangerous chemicals in the room.”
Id. The officers searched the room and
found more drugs and a gun, which the defendant later moved to suppress.
Id. at
1073. The district court denied the motion, concluding that “the officer had an
objectively reasonable good-faith belief that he obtained valid consent to search the
room.”
Id. On appeal, the defendant argued that “no reasonable officer could have
believed that control of the room reverted from [himself], a registered guest, back to
motel management.”
Id. at 1074. We rejected that argument because the officer
reasonably believed that “the motel had terminated [d]efendant’s rental agreement
and that control of the room had, in fact, reverted back to motel management,” at
which point the manager would have “had authority to consent to the search.”
Id. at
1075.
Here, Allen had no reasonable expectation of privacy in the motel room
because he had no control over the room after he was evicted. When Allen rented
his room, he agreed to the motel’s “Conditions of Room Rental,” which allowed the
owner to immediately evict a guest if he or she committed “[a]ny criminal conduct.”
The conditions were visible in the lobby when Allen signed his registration card and
were placed on the door of his motel room. Florida law permits motel staff to enforce
those conditions, see Fla. Stat. 509.101(1) (2015), and, when the motel owner
learned that Allen pointed a gun at another guest, he immediately evicted Allen and
had his staff remove Allen’s belongings from the room. At that point, like in Ross,
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any reasonable expectation of privacy Allen had in the motel room was terminated
because control of the room shifted from Allen back to the motel owner. See Ross,
964 F.3d at 1043–44; cf. Mercer,
541 F.3d at 1075; see also United States v.
Molsbarger,
551 F.3d 809, 812 (8th Cir. 2009) (holding that defendant had no
reasonable expectation of privacy after “the hotel manager, properly exercising his
authority, decided to evict the unruly guests”); United States v. Allen,
106 F.3d 695,
699 (6th Cir. 1997) (“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 or in any article therein of which the hotel lawfully takes possession.”
(quotation marks omitted)). Therefore, Allen lacks standing to challenge Officer
Branley’s presence in the motel room.
The Maid’s Search of Allen’s Bag
Allen also argues that even if he did not have a reasonable expectation of
privacy in the motel room after he was evicted, he still had a reasonable expectation
of privacy in his bag. The maid’s warrantless search of his bag, Allen argues,
violated his Fourth Amendment rights because she was acting on behalf of Officer
Branley.
The Fourth Amendment only curtails governmental action, and thus, “[a]
search by a private person does not implicate the Fourth Amendment unless he acts
as an instrument or agent of the government.” United States v. Steiger,
318 F.3d
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1039, 1045 (11th Cir. 2003). To determine whether a private person was acting as
the government’s agent, district courts “look to two critical factors: (1) whether the
government knew of and acquiesced in the intrusive conduct, and (2) whether the
private actor’s purpose was to assist law enforcement efforts rather than to further
his own ends.”
Id. As part of the inquiry, district courts may also consider whether
the government “openly encouraged or cooperated in the search.” United States v.
Ford,
765 F.2d 1088, 1090 (11th Cir. 1985). We review for clear error the district
court’s factual finding that a private person was not acting as the government’s
agent. See
id.
The evidence showed that the maid’s “purpose,” as directed by the motel
owner, was to clear out the motel room after Allen was evicted, not to assist law
enforcement in a search for the gun. As soon as the motel owner learned that Allen
had pointed a gun at another guest, the owner decided to evict Allen and told the
manager to “clean the room and let him go.” When he arrived at the scene, the motel
owner, not Officer Branley, told the maid to clear Allen’s belongings from the room
because Allen had been evicted. And there was no evidence that Officer Branley
openly encouraged or cooperated in the maid’s “search.” Officer Branley did not
tell the maid to enter the room or to conduct the search, and only accompanied the
maid because the maid said it would make her feel safer.
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Allen argues that Officer Branley encouraged the maid to search for the gun
because Officer Branley warned the maid not to touch the gun if she found it. But
Officer Branley warned the nervous maid not to touch the gun only after Allen was
arrested and the owner directed the maid to clean out the motel room. This was not
encouragement to search for the gun—the maid, at the direction of the motel owner,
was already on her way to clean out the room and was clearly nervous about the
potential presence of a gun because of what happened earlier. The maid’s “search”
of Allen’s room was well underway by the time Officer Branley warned her about
the potential danger of touching a loaded gun. Nothing Officer Branley said
encouraged the maid to do what she was already doing, and was clearly directed to
do by the motel owner—cleaning out the room. The district court did not clearly err
by finding that the maid was not acting as the government’s agent when she found
the gun. See United States v. Simpson,
904 F.2d 607, 609–10 (11th Cir. 1990)
(concluding FedEx employees did not act as the government’s agents because “[n]o
[g]overnment agent instructed the [FedEx] employees to open and inspect the box”
and “the sole purpose” of the search was to “determin[e] where to deliver the
parcel”); Ford,
765 F.2d at 1090 (concluding private person did not act as the
government’s agent where there was no evidence that the government “openly
encouraged or cooperated in the private citizen’s search”); see also United States v.
Smythe,
84 F.3d 1240, 1243 (10th Cir. 1996) (“It is clear that if a government agent
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is involved ‘merely as a witness,’ the requisite government action implicating Fourth
Amendment concerns is absent.”).2
AFFIRMED.
2
Allen also argues that there were no exigent circumstances that prevented Officer Branley
from obtaining a warrant to search the motel room. Because we conclude that the district court
did not err by finding that Allen did not have standing to challenge Officer Branley’s presence in
the motel room and the maid was not acting on behalf of Officer Branley, we don’t have to reach
the exigent-circumstances issue.
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