United States v. Wali Ebbin Rashee Ross ( 2020 )


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  •             Case: 18-11679   Date Filed: 07/07/2020   Page: 1 of 20
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-11679
    ________________________
    D.C. Docket No. 3:17-cr-00086-MCR-1
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    WALI EBBIN RASHEE ROSS,
    a.k.a. Wali Ibn Ross,
    a.k.a. Wal Ebbin Rashee Ross,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    ________________________
    (July 7, 2020)
    Case: 18-11679       Date Filed: 07/07/2020      Page: 2 of 20
    Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, * District Judge.
    NEWSOM, Circuit Judge:
    This case is back before us on remand from the en banc court. In United
    States v. Ross, No. 18-11679, 
    2020 WL 3445818
    (11th Cir. June 24, 2020) (en
    banc), the full court unanimously overruled United States v. Sparks, 
    806 F.3d 1323
    (11th Cir. 2015), and held “that a suspect’s alleged abandonment [of his privacy or
    possessory interest in the object of a search or seizure] implicates only the merits
    of his Fourth Amendment challenge—not his Article III standing—and,
    accordingly, that if the government fails to argue abandonment, it waives the
    issue.” Ross, 
    2020 WL 3445818
    , at *1. Applying that holding here—and free
    from our allegiance to Sparks—we conclude that the government waived its
    abandonment argument by failing to raise it in the district court. We reaffirm the
    balance of our earlier decision.
    * * *
    This appeal arises out of the denial of a defendant’s motion to suppress
    evidence found in two separate, warrantless searches of his motel room—the first
    turned up a gun; the second, drugs and associated paraphernalia. On appeal, the
    defendant, Wali Ross, challenges the constitutionality of both searches. The
    *
    Honorable R. David Proctor, United States District Judge for the Northern District of Alabama,
    sitting by designation.
    2
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    government responds by defending the searches on the merits and by disputing
    Ross’s Fourth Amendment “standing” to contest them. With respect to the
    standing issue, the government argues—for the first time on appeal—that Ross
    “abandoned” his room, and any privacy interest therein, when, after seeing police
    officers staked out in the parking lot, he fled the motel on foot. Accordingly, the
    government says, Ross lacks Fourth Amendment standing to challenge either of
    the two subsequent searches. Moreover, and in any event, the government
    contends that any reasonable expectation of privacy that Ross might have had in
    the room expired at the motel’s standard 11:00 a.m. checkout time, and that he
    therefore lacks standing, at the very least, to challenge the second of the two
    searches.
    We hold as follows: In the circumstances of this case, the government
    waived its abandonment argument by failing to raise it before the district court.
    Nevertheless, Ross’s constitutional challenge to the officers’ initial entry and
    sweep fails on the merits. As to the second search, which officers carried out with
    the consent of hotel management shortly after 11:00 a.m., we hold that Ross lost
    any reasonable expectation of privacy in his room at checkout time—and with it,
    his Fourth Amendment standing to contest the search.
    3
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    I
    A
    The following took place between [approximately] 8:00 a.m. and 12:00 p.m.
    on July 21, 2017.
    Early that morning, a joint state-federal task force gathered outside a
    Pensacola motel to arrest Wali Ross on three outstanding felony warrants—for
    trafficking hydrocodone, failure to appear on a battery charge, and failure to appear
    on a controlled-substances charge. Although the officers had information that
    Ross was staying at the motel, he wasn’t a registered guest, so they set up
    surveillance around the building and waited for him to make an appearance. The
    officers knew that Ross was a fugitive who had a history of violence and drug
    crimes.
    Sometime between 9:00 and 9:30 a.m., Special Agent Jeremy England saw
    Ross leave Room 113, head for a truck, return to his room briefly, and then
    approach the truck again. When Ross spotted the officers, he made a break for it,
    scaling a chain-link fence and running toward the adjacent Interstate 10. The
    officers went after Ross, but when they reached the opposite side of the interstate
    to intercept him, he wasn’t there. In the meantime, it dawned on Agent England
    that none of the officers had stayed behind at the motel, and he feared that Ross
    might have doubled back to the room unnoticed. So, about ten minutes after the
    4
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    chase began, Agent England and Detective William Wheeler returned to the motel
    to see if Ross had snuck back into his room. The door to Room 113 was closed,
    and Ross’s truck remained in the parking lot.
    Detective Wheeler obtained a room key and a copy of the room’s
    registration from the front desk—the latter showed that Room 113 was rented for
    one night to a woman named Donicia Wilson. (Although the name meant nothing
    to the officers at the time, they later learned that Ross was “a friend of a friend” of
    Wilson’s husband; she had rented the room after she and her husband refused
    Ross’s request to spend the night at their home because they had children and
    didn’t know him very well.) Using the key, Agent England and Detective Wheeler
    entered Room 113 to execute the warrants and arrest Ross; they entered without
    knocking, as they believed that someone inside—Ross, a third party, or both—
    might pose a threat to them. Agent England testified that because Ross had a
    history of violence it was “just protocol” to operate on the premise that there would
    “possibly [be] someone [in the motel room] to hurt” them—in light of that risk, he
    said, the officers “made a tactical entry into the room.” Once inside, they
    conducted a quick protective sweep, and on their way out Agent England saw in
    plain view a grocery bag in which the outline of a firearm was clearly visible.
    Agent England seized the gun, touched nothing else, and left.
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    Deputy U.S. Marshal Nicole Dugan notified ATF about the gun while Agent
    England and Detective Wheeler continued to surveil the motel. ATF Special
    Agent Kimberly Suhi arrived at the motel around 10:45 a.m. to retrieve the
    firearm. The motel’s manager, Karen Nelson, told Agent Suhi that she could
    search Room 113 after the motel’s standard 11:00 a.m. checkout time; up until that
    point, Suhi testified, Nelson “st[ood] in the doorway of the room” to “mak[e] sure
    no one was entering.” 1 Nelson explained that if it looked like a guest was still
    using his room at checkout time, she might place a courtesy call to ask if he wanted
    to stay longer; otherwise, she said, motel management assumed that every guest
    had departed by 11:00 a.m., at which point housekeepers would enter the room to
    clean it. Nelson also explained that it was the motel’s policy to inventory and store
    any items that guests left in their rooms and to notify law enforcement if they
    found any weapons or contraband.
    At 11:00 a.m., Agent Suhi again sought and received Nelson’s permission to
    search Room 113. When ATF agents entered the room, they found a cell phone
    and a Crown Royal bag filled with packets of different controlled substances—
    including around 12 grams of a heroin-laced mixture—cigars, and a digital scale.
    1
    Nelson testified that she had arrived at work after Ross fled from police, that she hadn’t seen
    anyone enter the room, and that she had no knowledge of the officers’ earlier entry and sweep.
    6
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    B
    Ross was charged with one count of being a felon in possession of a firearm
    and ammunition, one count of knowingly possessing heroin with intent to
    distribute, one count of firearms-related forfeiture, and one count of forfeiture
    related to the property and proceeds obtained by a controlled-substances violation.
    He moved to suppress the evidence found in both searches of Room 113. In his
    motion, Ross argued that the officers’ initial entry—and the ensuing protective
    sweep, which turned up the gun—violated the Fourth Amendment “because there
    were no grounds for them to believe that a dangerous individual (or anyone) was
    inside the room.” He asserted that “it would have been unrealistic for the officers
    to believe that [he] had returned to the room and was inside at that time (after
    fleeing from them).” Accordingly, he said, the officers didn’t have the requisite
    reasonable belief either to enter the room or to conduct the sweep. Ross also
    argued that the second search—which was conducted with Nelson’s permission
    just after 11:00 a.m., and in which the drugs were discovered—violated the Fourth
    Amendment “regardless of the alleged consent of the hotel management because it
    would not have occurred absent the illegal first search.” According to Ross, “[t]he
    illegal seizure of the firearm . . . directly [led] to the agents’ desire to conduct the
    second search and their discussion with management to try to get its consent.”
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    With respect to the initial entry and the protective sweep, the government
    responded (1) that because the officers couldn’t find Ross near the interstate, they
    had reason to believe that he had returned to his motel room; (2) that Ross’s
    multiple drug- and violence-related felony arrest warrants led the officers to
    conclude that he could be armed and dangerous; and (3) in addition, that exigent
    circumstances justified the entry, as “there was a definite likelihood that further
    delay could cause the escape of the defendant” and “jeopardize the safety of the
    officers and the public.” With respect to the second search, the government argued
    that Ross didn’t have Fourth Amendment “standing” to challenge it, as he had no
    reasonable expectation of privacy in Room 113 after the 11:00 a.m. checkout time
    and that, in any event, the search was valid because the officers reasonably
    believed that Nelson had the authority to consent to the search. The government
    further contended that even if the second search was tainted, motel staff would
    inevitably have entered the room after checkout time and alerted police when they
    found the gun in plain view.
    The district court denied Ross’s motion to suppress. With respect to the
    initial entry and sweep, the court found that “[t]he arrest warrant granted officers a
    limited ability to enter to effectuate the arrest on [their] reasonable belief that Ross
    was in the room.” Moreover, the court observed, the fact that Room 113 was not
    registered in Ross’s name gave the officers “reason to be concerned that someone
    8
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    else might be in the room as well.” Finally, the court held that “the chase and the
    fact that the officers lost sight of Ross presented exigent circumstances” that
    further justified the sweep—because the officers were in hot pursuit of a suspect
    with a history of violent activity for whom they had an arrest warrant, and who
    reasonably could have returned to the room, the first search was lawful.
    With respect to the second search, the district court concluded that after
    checkout time, Ross—who hadn’t requested a late checkout or paid for an
    additional day—had no protectible privacy interest in the room. The court
    separately held that even if the initial entry and sweep were unlawful, Nelson’s
    consent provided ample authority for the officers’ post-checkout search. Finally,
    the court found that the inevitable-discovery and independent-source doctrines
    applied—either motel employees would have found the incriminating evidence
    when cleaning Room 113 after checkout time, or the task-force officers would
    have eventually searched the room.
    Ross pleaded guilty to possession of a firearm and ammunition by a
    convicted felon and possession with intent to distribute heroin, reserving the right
    to appeal the denial of his motion to suppress.2
    2
    “A ruling on a motion to suppress presents a mixed question of law and fact. We review the
    district court’s findings of fact for clear error and its legal conclusions de novo.” United States v.
    Johnson, 
    777 F.3d 1270
    , 1273–74 (11th Cir. 2015) (quotation omitted). “All facts are construed
    in the light most favorable to the party prevailing below”—here, the government.
    Id. at 1274
    (quotation omitted).
    9
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    II
    The Fourth Amendment guarantees “[t]he right of the people to be secure in
    their persons, houses, papers, and effects, against unreasonable searches and
    seizures.” U.S. Const. amend. IV. As already explained, this case involves two
    separate searches of Ross’s motel room. We will consider them in turn.
    A
    Ross first challenges the officers’ initial entry and the ensuing protective
    sweep, which they conducted roughly 10 minutes after Ross fled the motel on foot
    and shortly after they lost sight of him during the chase. The government not only
    defends the entry and sweep on the merits but also contends—for the first time on
    appeal—that Ross “abandoned” his motel room when he ran and, therefore, that he
    lacks Fourth Amendment “standing” to complain.
    1
    The Fourth Amendment’s protections extend to any thing or place with
    respect to which a person has a “reasonable expectation of privacy,” California v.
    Ciraolo, 
    476 U.S. 207
    , 211 (1986) (quotation omitted)—including a hotel room,
    see, e.g., Stoner v. California, 
    376 U.S. 483
    , 490 (1964). By contrast, an
    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.
    See, e.g., United States v. Brazel, 
    102 F.3d 1120
    , 1147 (11th Cir. 1997). This
    10
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    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.” To be clear, though, as we took pains to emphasize in our recent en
    banc decision, Fourth Amendment “standing” and traditional Article III standing
    are not the same thing. Unlike Article III standing—which constrains the federal
    “judicial Power” and constitutes a nonwaivable jurisdictional limitation—Fourth
    Amendment “standing” is an ordinary, and waivable, aspect of the merits of a
    defendant’s constitutional challenge. U.S. Const. art. III, § 1; see Ross, 
    2020 WL 3445818
    , at *4.
    The government argues here—again, for the first time on appeal—that Ross
    “abandoned” any reasonable expectation of privacy in his room when he fled the
    motel with no intention of returning. Accordingly, the government says, Ross
    lacks Fourth Amendment standing to challenge either the initial entry and the
    ensuing protective sweep—which occurred after the officers’ ill-fated pursuit of
    Ross toward I-10, and in which they discovered the gun—or the subsequent
    search—which occurred shortly after 11:00 a.m., and in which officers discovered
    the drug-related evidence.3 We needn’t address the merits of the government’s
    3
    In a footnote in its brief, the government seems to suggest, separately, that because Ross’s
    name wasn’t on the hotel registration, he never “established a legitimate expectation of privacy
    in Room 113 such that he had standing to contest either search [even] absent any abandonment.”
    It’s an interesting question—whether an individual who stays alone overnight in a hotel room
    rented by someone else has a protectible privacy interest in that room. But because the parties
    didn’t brief that issue, and it wasn’t raised before the district court, we won’t address it here.
    11
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    new abandonment argument, however, because it waived the issue by failing to
    raise it in the district court. See Ross, 
    2020 WL 3445818
    , at *1.
    We assume for purposes of this appeal, therefore, that Ross has the requisite
    Fourth Amendment standing to challenge the officers’ initial entry and protective
    sweep on the merits.
    2
    That, for Ross, is the good news. The bad: We hold that the task-force
    officers’ initial entry and accompanying protective sweep of Ross’s room complied
    with the Fourth Amendment.
    As already explained, when the officers arrived at the motel on the morning
    of July 21, 2017, their objective was to arrest Ross on several outstanding
    warrants. “[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 a reason to believe the suspect is within.”
    United States v. Williams, 
    871 F.3d 1197
    , 1201 (11th Cir. 2017) (alteration in
    original) (quotation omitted). We can assume for present purposes that a person’s
    hotel room counts as a “dwelling,” see United States v. Forker, 
    928 F.2d 365
    , 370
    (11th Cir. 1991), and, therefore, that the rules we have articulated for in-home
    arrests pursuant to valid warrants apply here, as well.
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    In particular, in order to enter a hotel room to execute an arrest warrant, a
    law enforcement officer “must have a reasonable belief” both (1) that the room is
    in fact the suspect’s and (2) that the suspect is inside. See 
    Williams, 871 F.3d at 1201
    . “In undertaking this two-part inquiry, we consider the totality of the
    circumstances known to the officer at the time the warrant is executed and are
    guided by ‘common sense factors.’”
    Id. (quotations omitted).
    Officers need not be
    “absolutely certain” that a suspect is inside before entering “to execute an arrest
    warrant.” United States v. Magluta, 
    44 F.3d 1530
    , 1538 (11th Cir. 1995). Rather,
    they “may make reasonable inferences and presumptions based on the time of day
    or observations at the scene”—for instance, “that a person is [there] when his
    vehicle is parked outside.” 
    Williams, 871 F.3d at 1201
    . If, based on such rational
    deductions, the officers have a reasonable belief that a suspect is inside, they may
    search for him “until [he] is found.”
    Id. Moreover, in
    order “[t]o protect their
    safety while making, and after, an arrest, [the] officers may also perform a
    ‘protective sweep’” of the premises.
    Id. (quotation omitted).
    And finally, while
    inside, the officers “are permitted to seize any contraband in plain view.”
    Id. Here, the
    officers clearly knew that Ross was staying in Room 113—they
    had watched him walk out the door, approach a truck in the parking lot, return to
    the room, and then reemerge. The facts also support the conclusion that the
    officers had the requisite “reasonable belief”—based on “common sense factors”
    13
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    and permissible “inferences and presumptions”—that Ross had returned to the
    room following his flight toward I-10. The officers knew, for instance, not only
    that Ross had been in Room 113 but also that he had left his truck in the motel’s
    parking lot. They also knew that after chasing Ross, they had lost sight of him and
    that no one had thought to stay behind to surveil the motel. Finally, they knew that
    when they returned, Ross’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. Particularly given that the officers’ ill-fated
    pursuit of Ross had lasted no more than 10 minutes, we think it was eminently
    reasonable for them to conclude that Ross had doubled back to the motel and taken
    refuge in his room.
    Because the officers reasonably believed that Ross was in Room 113, they
    had authority (1) to enter the room to execute the arrest warrants, (2) to conduct a
    limited protective sweep of the room to ensure that no one inside posed a danger to
    them, 4 and (3) to seize the gun, which they found in plain view. See 
    Williams, 871 F.3d at 1201
    . The officers’ entry, sweep, and seizure, therefore, complied with the
    4
    Recall that before they entered, the officers knew that Room 113 was rented in someone else’s
    name, which increased the risk that a second person, in addition to Ross, might also be inside.
    Cf. United States v. Standridge, 
    810 F.2d 1034
    , 1037 n.2 (11th Cir. 1987) (holding that a
    protective sweep of a hotel room was permissible where “the police had not followed [the
    defendant] when he went to the motel and the room had not been constantly watched,” and “thus,
    the police could not know whether [the defendant] was alone”).
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    Fourth Amendment. We affirm the district court’s denial of Ross’s motion to
    suppress the gun.
    B
    We turn, then, to the second search, which the officers conducted with motel
    management’s consent shortly after 11:00 a.m. and in which they discovered drug-
    related evidence. Once again, we begin—and this time find that we can end—with
    the government’s contention that Ross lacks Fourth Amendment standing. The
    government’s standing argument concerning the second search—which it clearly
    made, and thus preserved, in the district court—is slightly different from its
    argument concerning the initial entry. With regard to the second search, the
    government contends that Ross’s reasonable expectation of privacy in his motel
    room expired—lapsed—as of the motel’s standard 11:00 a.m. checkout time. For
    the reasons that follow, we agree.
    While our existing precedent provides a few hints, it doesn’t squarely
    answer what we’ll call the “checkout time” question. In United States v. Savage,
    for instance, we stated in a footnote that the defendant there had “automatically
    relinquished possession of [his room] . . . at 11 a.m., the motel’s checkout time.”
    
    564 F.2d 728
    , 730 n.5 (5th Cir. 1977). In that case, though, the defendant “had
    turned in his key the night before,” thereby clearly evidencing an affirmative intent
    to quit the room.
    Id. In a
    later decision, United States v. Ramos, we clarified that
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    “[m]ore evidence than mere possession of a key” after checkout time “is necessary
    to satisfy a claimant’s burden of establishing a legitimate expectation of privacy.”
    
    12 F.3d 1019
    , 1024 (11th Cir. 1994) (citation omitted). There, we concluded that
    because the defendant had a two-month rental agreement for a specific
    condominium unit and still had a key to the unit when the lease expired, he had a
    “far more ‘regular or personal’” connection to the premises than a short-term hotel
    guest like the one in Savage.
    Id. As a
    result, we held that the defendant retained
    an expectation of privacy in a locked briefcase that he had failed to remove from
    the condo before the mandatory moveout time.
    Id. at 1025–26.
    Neither Savage nor Ramos is precisely on point here. Like the defendant in
    Ramos—and unlike the defendant in Savage—Ross apparently kept the key to his
    room beyond the motel’s standard 11:00 a.m. checkout time. (There’s certainly no
    evidence that he returned it early.) But Ramos teaches that one’s post-checkout
    possession of a room key isn’t conclusive, and its holding, in any event, ultimately
    concerned only the defendant’s expectation of privacy in a locked briefcase left in
    a room—not the room itself. 5 Moreover, unlike the defendant in Ramos, Ross had
    5
    We note that Ross argues here only that he retained an expectation of privacy in Room 113
    itself; he does not assert a separate privacy interest in any closed containers inside the room—
    say, for instance, the Crown Royal bag full of drugs. That might—or might not, we needn’t
    decide—have presented a different issue. Cf. United States v. Owens, 
    782 F.2d 146
    , 150 (10th
    Cir. 1986) (holding that even if an individual “did not retain a protected privacy interest in his
    [motel] room” after checkout time, “it certainly would have been reasonable for him to expect
    that the contents of closed containers he kept in his room would not be exposed to scrutiny by the
    police or motel personnel”).
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    no long-term interest in Room 113. Quite the contrary, in fact; like the defendant
    in Savage, Ross was an overnight guest in an ordinary motel room—and even
    further attenuating Ross’s interest, “his” room was rented in someone else’s name.
    Accordingly, Ross’s connection to Room 113 was not remotely (in the words of
    Ramos) “regular or personal.”
    We hold, with one minor caveat explained below, that a short-term hotel
    guest like Ross 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 hotel management after checkout time has passed. What, one might
    ask, is the magic of checkout time? After all, even before then, during a hotel
    guest’s tenure, hotel employees may enter the guest’s room—say, to make the bed
    or restock toiletries. It’s about control. Those sorts of fleeting, pre-checkout
    entries don’t fundamentally compromise a guest’s reasonable expectation of
    privacy in his room because as long as the guest is lawfully in the room, he has at
    least a qualified right to exclude others, including hotel staff—see, e.g., the “DO
    NOT DISTURB” doorhanger. Unsurprisingly, therefore, the Supreme Court has
    held that hotel employees may not validly consent to a search of an occupied hotel
    room without the guest’s permission—during his authorized tenancy, he has a right
    to privacy in the space that the hotel cannot pierce. See, e.g., 
    Stoner, 376 U.S. at 489
    –90.
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    At checkout time, everything changes. 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, often on a very tight turnaround. A guest’s doorhanger
    no longer bars entry. Accordingly, as the Second Circuit has held, after checkout
    time, even if a guest “ha[s] not completely vacated [his] room, the motel manager
    ha[s] 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.” United States v. Parizo, 
    514 F.2d 52
    , 55 (2d Cir. 1975);
    see also United States v. Akin, 
    562 F.2d 459
    , 464 (7th Cir. 1977) (holding that
    “[s]ince the record supports the district court’s conclusion that the rental period
    ended at the 1:00 [p.m.] check-out time rather than at 6:00 [p.m.] when an
    individual would be billed for an additional day, . . . the authorized representative
    of the hotel had the authority to consent to the search of the room” after 1:00 p.m.).
    We hold, therefore, that a hotel guest loses his reasonable expectation of
    privacy in his room following checkout time, and that hotel management can
    validly consent to a search of the room at that point.6 Because Ross had no
    6
    We add the following commonsense caveat: If a guest asks for and receives a late checkout—
    say, from the standard 11:00 a.m. to 12:00 noon—then he retains his reasonable expectation of
    privacy until the arrival of the mutually agreed upon time. Because Ross neither sought nor
    received permission to extend his stay, we needn’t explore our caveat’s application here. To the
    extent, though, that some courts have held, more generally—and even absent express agreement
    between management and guest—that a hotel’s “policies,” “patterns,” or “practices” can extend a
    guest’s expectation of privacy beyond checkout time, see, e.g., United States v. Dorais, 
    241 F.3d 18
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    cognizable privacy interest in Room 113 after 11:00 a.m., he has no Fourth
    Amendment standing to challenge the second, post-checkout-time search of the
    room. 7 On that basis—and without considering the constitutionality of the second,
    consent-based search on the merits—we affirm the district court’s denial of Ross’s
    motion to suppress the drug-related evidence found during the post-checkout-time
    search.
    1124, 1129 (9th Cir. 2001); United States v. Kitchens, 
    114 F.3d 29
    , 32 (4th Cir. 1997), we
    disagree. As the Sixth Circuit has explained, “[j]ust because a hotel does not change keycards at
    11:00 a.m. [every day], or does not charge guests for an extra night every time they have not
    removed all of their personal items by 11:00 a.m., does not mean that the guest, as opposed to the
    hotel, retains control over the room.” United States v. Lanier, 
    636 F.3d 228
    , 233 (6th Cir. 2011).
    “What the hotel may voluntarily give as a general matter it can take away in an individual
    instance, at least where the guest has not secured a promise from the hotel that he may stay late.”
    Id. For the
    good of citizens and police alike, courts have long preferred clear Fourth Amendment
    rules, and extending a guest’s reasonable expectation of privacy based on an uncommunicated
    and ethereal policy, pattern, or practice would only obscure matters.
    7
    There is one loose end. Ross argues that he had a continuing possessory interest in Room 113
    due to the motel’s failure to honor Fla. Stat. § 509.141(1), which states that “[t]he operator of
    any public lodging establishment . . . may remove . . . in the manner hereinafter provided, any
    guest of the establishment . . . who . . . fails to check out by the time agreed upon in writing by
    the guest and public lodging establishment at check-in unless an extension of time is agreed to
    . . . prior to checkout.” The statute requires a hotel “operator [to] . . . notify such guest that the
    establishment no longer desires to entertain the guest and shall request that such guest
    immediately depart from the establishment”—if the guest doesn’t comply, he is guilty of a
    second-degree misdemeanor.
    Id. § 509.141(2)–(3).
    Ross contends that because the motel didn’t
    provide such notice to vacate before the search of his room, he still “had a continuing possessory
    interest in Room 113 . . . [and] hotel management did not possess the legal authority to consent
    to the search.” Reply Br. of Appellant at 10.
    We agree with the government that nothing in § 509.141 justifies the conclusion that
    Ross continued to enjoy an exclusive right to occupy an unpaid-for room absent formal notice.
    Rather, the hotel’s noncompliance with the statute simply means that Ross couldn’t be charged
    with misdemeanor trespassing for his holdover. See, e.g., Brown v. State, 
    891 So. 2d 1120
    , 1122
    (Fla. Dist. Ct. App. 2004). Under Ross’s expansive reading of the statute, an individual could
    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.
    We don’t think the statute can be read so broadly.
    19
    Case: 18-11679     Date Filed: 07/07/2020   Page: 20 of 20
    III
    In sum, we hold as follows:
    1. The government waived its abandonment argument by failing to raise it
    in the district court. Accordingly, we assume for purposes of our decision that
    Ross has Fourth Amendment standing to challenge the entry and sweep, which
    resulted in the seizure of the gun.
    2. Ross’s challenge to the initial entry and sweep fails on the merits.
    Because the officers had reason to believe that Ross was in Room 113, they had
    authority to enter the room to execute their arrest warrants, to conduct a protective
    sweep to ensure their safety, and to seize the gun, which they found in plain view.
    3. Ross forfeited any reasonable expectation of privacy in Room 113
    following the 11:00 a.m. checkout time, at which point the motel’s management
    had the authority to consent to a search; accordingly, he has no Fourth Amendment
    standing to challenge the ensuing search, during which officers discovered the
    drug-related evidence.
    AFFIRMED.
    20