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  • Jim Chapman

Search of a Hotel Hallway

Author: Jim Chapman


In United States v. Lewis, ___ F.4d ___, 2022 WL 2206888 (7th Cir. June 21, 2022), the Defendant Dewayne Lewis asked the United States Court of Appeals for the Seventh Circuit to review his conviction and sentence. Lewis argued that the United States District Court for the Northern District of Indiana committed reversible error when, after a bench trial, the District Court found him guilty of possession with intent to distribute five kilograms or more of cocaine. Specifically, Lewis argued that the District Court erred in denying his motion to suppress based upon his reasonable expectation of privacy in the search of a hotel hallway that revealed the drugs, that the District Court erred in denying his motion to suppress because the application for the tracking order for his cell phone lacked probable cause, and that the District Court erred in finding him guilty on the charge in the indictment because the Government failed to present sufficient evidence with which to convict him. The relevant facts are as follows.

Lewis reported to a man named Allan Bates. In December 2014, Bates introduced Lewis to Thomas “TJ” Boyle. Lewis drove a black Mercedes SUV to the meeting and gave Bates $125,000 in cash. Unbeknownst to Bates and Lewis, Boyle was actually an FBI informant. Boyle had agreed to provide the FBI with evidence of Bates’ drug operation in exchange for working off a probation revocation. The FBI considered Boyle to be very reliable because his information previously had led to the seizure of $400,000 from Bates’ right-hand man, Larry Norton. Boyle also passed on information about a barn near Butler, Indiana, where the drug-trafficking operation stored cash and drugs in a hidden compartment.

On January 27, 2015, the FBI served search warrants in Indiana, Ohio, and Texas in connection with its investigation of Bates’ operation. Bates fled, and Lewis helped him escape to Mexico. On February 1, 2015, Bates told Lewis that he and an associate, Chris Cook, needed to retrieve over $1 million and 20 kilograms of cocaine from the Butler barn. Lewis and Cook did as Bates instructed, and Lewis told Bates that there were only 19 kilograms, not the expected 20 kilograms. At Bates’s direction, Cook kept $60,000 in cash, and Lewis transferred the remaining cash and drugs to his car.

Meanwhile, the FBI obtained search warrants to review text messages on a phone that Bates was using in Mexico. On January 29, Bates texted Lewis and asked him to check on Boyle. Bates also told Boyle that “Nap” in Indianapolis (meaning Lewis) could help Boyle get cash and a rental car so he could flee to Texas. Crucially, Bates gave Boyle Nap’s cell phone number.

On February 3, 2015, in reliance on the Sprint location data, eight to ten Marshals’ Task Force Officers checked parking lots across Greenwood, Indiana, for a black Mercedes SUV. They also asked clerks at five local hotels if a black male had recently checked in. Sometime after 2:00 p.m., Officer Jason York checked a police database and discovered that Lewis lived in Greenwood and had two cars registered in his name: a black Mercedes and a white Cadillac Escalade.

Around 3:00 p.m., an officer on the team learned that a “Michael Jackson” (in actuality, Lewis) from Evansville, Indiana, had checked into Room 211 of the Greenwood Red Roof Inn at 10:10 a.m. Room 211 is on the second floor of the hotel and is accessible via an exterior hallway and a staircase leading directly to the parking lot. Sometime after 3:00 p.m., an officer on the team saw a white Cadillac Escalade drive into the Red Roof Inn parking lot. The driver was a woman who resembled a picture of Lewis’ wife. A license plate check confirmed that the car was registered to Lewis. The woman took a duffel bag out of the car, brought it inside Room 211, and left the room less than five minutes later.

At 3:35 p.m., several officers approached Room 211 and knocked on the door. No one answered. At 3:41 p.m., a K-9 handler walked a trained drug-detection dog up the exterior staircase and along the second-floor hallway. After passing seven other doors, the dog alerted at Room 211. Based on the dog sniff/alert, a Greenwood police sergeant applied for a search warrant for Room 211. A local judge approved the warrant at 4:50 p.m., and officers executed the warrant at 5:05 p.m. The officers found Lewis, $2 million in cash, and 19.8 kilograms of cocaine in duct-taped packages. Lewis later confessed to his role in the drug-trafficking organization.

After his arrest, Lewis waived his right to counsel and proceeded pro se. A United States Magistrate Judge construed Lewis’ “motion to dismiss the indictment” as a motion to suppress evidence resulting from the dog sniff. In February 2016, the Magistrate Judge conducted a two-day evidentiary hearing focused primarily on the dog sniff, followed by a supplemental hearing in January 2017 focused on the cellphone tracking order. Thereafter, the Magistrate Judge recommended that the District Court suppress all of the evidence from the hotel room and Lewis’ subsequent confession, reasoning that the dog sniff violated the Fourth Amendment.

However, the District Court rejected the Magistrate Judge’s recommendation and denied Lewis’ motion to suppress. The District Court noted that the Supreme Court had recently explained that dog sniffs do not necessarily infringe upon the reasonable expectations of privacy. The District Court further opined that the dog sniff in this case did not invade the curtilage, and so, there was no Fourth Amendment violation. Finally, the District Court concluded that any error in the application for the cell phone tracking order was harmless because the officers were not relying on cell-site location information after 11:34 a.m., when Sprint stopped reporting data.

After the District Court denied his motion to suppress, Lewis waived his right to a jury trial. After a three-day bench trial, the District Court found Lewis guilty of possessing more than five kilograms of cocaine with the intent to distribute. The District Court expressly found that, even if the evidence from the hotel room and Lewis’ cell phone had been suppressed, Lewis was still guilty beyond a reasonable doubt. Lewis, then, timely filed a notice of appeal to the Seventh Circuit.

The Seventh Circuit began its consideration of Lewis’ appeal by noting that the Fourth Amendment safeguards the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Generally, a law enforcement officer may not perform a search without a warrant supported by probable cause unless an exception to the warrant requirement applies. Conversely, if something is not a search, there is no need for a warrant.

In determining whether a police officer has conducted a “search” for purposes of the Fourth Amendment, courts apply two tests. Under the property-based approach, a search occurs when an officer enters a constitutionally protected area, such as the home, for the purpose of gathering evidence against the property owner. This approach derives from common-law trespass. Alternatively, under the privacy-based approach, courts ask whether a person has a legitimate expectation of privacy in a given situation. The privacy-based approach also limits the government’s ability to exploit technological advances.

Lewis argued that the dog sniff outside his hotel room constituted a search and violated his Fourth Amendment rights. The Seventh Circuit rejected Lewis’ argument.

As for the property-based approach, the Seventh Circuit stated that the key question was whether the area outside Lewis’ hotel room door was constitutionally protected. The Seventh Circuit noted that the hallway of this particular hotel was open-air and was accessible via an exterior staircase that led directly to a parking lot. Thus, unlike a homeowner, Lewis lacked the right to exclude members of the public from passing through the exterior hallway, and the exterior hallway of the Red Roof Inn was afield from a front porch of house (which the Supreme Court has found to constitute protected curtilage) than an interior apartment hallway. Therefore, the Seventh Circuit agreed with the District Court that there was no Fourth Amendment violation because there was no search for purposes of the Fourth Amendment under the property-based approach.

Lewis fared no better under the privacy-based approach. According to the Seventh Circuit, even assuming that Lewis had a subjective expectation of privacy, the Supreme Court’s prior decisions demonstrated that his expectation was not reasonable.

For example, the Supreme Court has held that exposing luggage to a drug-sniffing dog in an airport was not a search, in large part, because the sniff discloses only the presence or absence of narcotics, a contraband item. Unlike an officer rummaging through the contents of the luggage, a dog sniff does not require opening the luggage and does not expose non-contraband items that otherwise would remain hidden from public view. Moreover, the Supreme Court has reasoned that any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest.

The Seventh Circuit conceded that it could not say that Lewis had no reasonable expectation of privacy whatsoever inside of his hotel room, and it further agreed that Lewis was correct that the Fourth Amendment extends to temporary dwelling places, such as hotel and motel rooms. Indeed, the Seventh Circuit noted that a hotel guest has a reasonable expectation that there is not a hidden camera in the hotel room.

However, the Seventh Circuit explained that this expectation does not ipso facto mean that an expectation of privacy that is reasonable in a home (i.e., to be free from warrantless dog sniffs) is necessarily reasonable in a hotel room. In that respect, the Seventh Circuit concluded that the exterior hallway of a hotel adjacent to a parking lot is much closer to the public settings, in which the Supreme Court has held that there is no legitimate expectation of privacy under the Fourth Amendment, than a front porch of a house, in which the Supreme Court has held that there may be such an expectation.

Furthermore, the Seventh Circuit noted that Lewis was a mere guest, not a resident. While it is true that hotel guests have some legitimate expectations of privacy, they cannot exclude others from entering a hallway—particularly where, as here, an exterior hallway is accessible from a staircase leading directly to the parking lot. In fact, the Supreme Court has recognized that, when 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. If hotel guests have only a limited right to exclude hotel staff from a room, then it is hard to see how guests at the Red Roof Inn could reasonably expect to be free of dog sniffs in the exterior hallway.

Accordingly, the Seventh Circuit affirmed the District Court’s denial of Lewis’ motion to suppress, and the Seventh Circuit affirmed the Lewis’ conviction. According to the Seventh Circuit, Lewis lacked a reasonable expectation of privacy in the exterior hallway of his hotel where the dog sniff occurred. And, regardless of whether the Government’s use of real-time cellphone tracking data amounted to a search, the good-faith exception applied. Finally, because the District Court correctly denied Lewis’ motion to suppress, the Seventh Circuit did not address his sufficiency of the remaining evidence argument.

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