                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia


ROGER CRAIG WILLIAMS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2878-00-3            JUDGE RUDOLPH BUMGARDNER, III
                                            OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
                   Duncan M. Byrd, Jr., Judge

          Ross S. Haine, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Jennifer Franklin, Assistant Attorney General
          (Randolph A. Beales, Acting Attorney General;
          Thomas M. McKenna, Assistant Attorney
          General, on brief), for appellee.


     The trial court convicted Roger Craig Williams of petit

larceny and possession of cocaine.   On appeal, he contends the

trial court erred in denying his motion to suppress evidence

seized during a warrantless search of his hotel room.     Finding

no error, we affirm.

     "In reviewing the trial court's denial of a motion to

suppress, 'the burden is upon [the defendant] to show that the

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'"    McGee v.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)

(en banc) (citation omitted).     While we are bound to review de

novo the ultimate questions of reasonable suspicion and probable

cause, "we review findings of historical fact only for clear

error and . . . give due weight to inferences drawn from those

facts by resident judges and law enforcement officers."       Ornelas

v. United States, 517 U.S. 690, 699 (1996).

        At approximately 7:15 p.m. on Sunday, May 28, 2000,

Rockbridge County Deputy Sheriff J. Honts arrested the defendant

at White's Truck Stop and Wilco Travel Plaza for being drunk in

public and petit larceny, third or subsequent offense.    Several

stolen atlases were recovered from the defendant.    During the

arrest, Shirley Broughman, a desk clerk at Day's Inn, told Honts

that the defendant was a guest at the hotel and asked him to

keep her abreast of what happened to him.

        Honts telephoned Broughman later that evening and informed

her that the magistrate was holding the defendant until Tuesday

morning.    He told her that the magistrate had scheduled a bond

hearing for Tuesday because Monday was Memorial Day.    Broughman

stated that the defendant had paid for only one night and she

was not sure what to do.    Broughman confirmed the hotel's policy

with her manager, and called Honts to tell him that she would,

in fact, be checking the defendant out since he was not coming

back.    She asked Honts to take the defendant's belongings to

him.

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     When Honts arrived at the hotel, Broughman had already

checked the defendant out.   Broughman, Honts, and another hotel

employee went to the defendant's room.     Honts stood behind

Broughman in the hallway as she opened the door.     Once the door

was open, Honts observed in plain view a stack of atlases

similar to those the defendant was accused of stealing.     He then

entered and searched the room.

     In denying the defendant's motion to suppress, the trial

court found that the hotel invited Deputy Honts to the hotel and

that he was present as "an observer," stating, "[h]e certainly

had a right to be there and stand in the hallway."     The court

also found that after the hotel checked him out, before Honts

arrived, the defendant had a diminished expectation of privacy.

Upon checking him out, the hotel was obligated "to inventory the

contents of the room."   The court noted that Honts had apparent

authority to collect the defendant's belongings.

     The defendant contends the warrantless search of his room

violated his Fourth Amendment rights because he had a reasonable

expectation of privacy as a hotel guest and no exigent

circumstances justified the search.      We conclude the Fourth

Amendment is not implicated because Honts did not conduct a

search.

     The Fourth Amendment protects a person from unreasonable

searches and seizures conducted by state or government actors.

Burdeau v. McDowell, 256 U.S. 465, 475 (1921).      "[A] private

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search, no matter how unreasonable, does not constitute a

constitutional violation warranting the suppression of evidence

seized."    Mills v. Commonwealth, 14 Va. App. 459, 463, 418

S.E.2d 718, 720 (1992) (citations omitted).   Consequently, the

exclusionary rule applies to searches by private individuals

only when they are acting as agents of the government.       United

States v. Jacobsen, 466 U.S. 109, 113-14 (1984); Harmon v.

Commonwealth, 209 Va. 574, 577, 166 S.E.2d 232, 234 (1969).

Whether an individual is acting as an agent of the government

"'turns on the degree of the Government's participation in the

private party's activities, a question [of fact] that can only

be resolved "in light of all the circumstances."'"    Duarte v.

Commonwealth, 12 Va. App. 1023, 1026, 407 S.E.2d 41, 42 (1991)

(citations omitted); Mills, 14 Va. App. at 463, 418 S.E.2d at

720.

       The evidence established that the hotel, on its own

initiative and pursuant to its established policy, checked the

defendant out after learning that he would not be coming back.

Its policy was based on its private interest in preparing the

room for a new guest at the earliest possible time.   "'[I]t is

commonly known that those who operate [hotels and motels] are

understandably interested in maximum paying occupancy and thus

could be expected promptly to clear the room of a guest who has

overstayed so that another guest may be given the room.'"

McCary v. Commonwealth, 36 Va. App. 27, 37, 548 S.E.2d 239, 244

                                - 4 -
(2001) (citation omitted).     See also United States v. Jackson,

585 F.2d 653, 658 (4th Cir. 1978) (in dicta court recognized

that when defendant stays beyond rental period hotel may

repossess room, thereby destroying his expectation of privacy).

     Upon checking the defendant out, the hotel was obligated to

secure his personal property.    In order to do so, the hotel was

permitted to enter the defendant's room and to collect and

secure his property.    The hotel invited Honts to be present and

to take the defendant's belongings to him.    By the time Honts

arrived, Broughman had checked the defendant out, but had waited

for Honts to arrive before entering the defendant's room.      Honts

stood in the hallway, behind Broughman, as she opened the

defendant's room.    Broughman's conduct furthered the hotel's

private business objectives.    She was not acting as an agent of

the government.     See Duarte, 12 Va. App. at 1026-27, 407 S.E.2d

at 42-43 (evidence seized when college searched defendant's room

was admissible, college not acting as agents of the police).

     Honts did not request the hotel to check the defendant out

or to permit him to enter the defendant's room.    He was an

invitee of the hotel.    "[A] law enforcement 'officer's

observations from a public vantage point where he has a right to

be' and from which the activities or objects he observes are

'clearly visible' do not constitute a search within the meaning

of the Fourth Amendment."     United States v. Taylor, 90 F.3d 903,

908 (4th Cir. 1996) (officer's observations of dining room from

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street, walkway, and porch not a "search") (citations omitted).

Honts's presence does not make otherwise reasonable official

conduct unreasonable.   Jacobsen, 466 U.S. at 117 (government can

use disclosed, no longer private, information); id. at 119

("viewing of what a private party [hotel clerk] had freely made

available for [officer's] inspection did not violate the Fourth

Amendment").

     The hotel was not acting as a government agent, or at its

direction.   Its actions were lawful and served its private

legitimate business concerns.   The police did not ask the hotel

to check the defendant out, did not request permission to search

the defendant's room, did not ask them to open the defendant's

door, and did not enter the room before they had probable cause

to search it.   The hotel's decisions to check the defendant out,

to invite the police to take his belongings, and to wait for the

officer to arrive before entering the room, were made

independently of any request by police.

     Accordingly, we conclude that the defendant's Fourth

Amendment rights were not implicated and the motion to suppress

was properly denied.

                                                         Affirmed.




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