FOR PUBLICATION                                         Jan 31 2013, 9:04 am




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JOHN RAZUMICH                                  GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               CYNTHIA L. PLOUGHE
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DARROL FOX,                                    )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 49A02-1206-CR-475
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                           Cause No. 49G20-1111-FA-79007



                                    January 31, 2013


                              OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

      Darrol Fox brings this interlocutory appeal from the trial court’s denial of his

motion to suppress evidence. Fox raises two issues for our review, which we restate as

the following issue: whether he has standing under either the Fourth Amendment to the

United States Constitution or Article I, Section 11 of the Indiana Constitution to

challenge the State’s warrantless entry into a hotel room in which Fox was an

unregistered guest. We affirm.

                      FACTS AND PROCEDURAL HISTORY

      At about 11:00 p.m. on November 5, 2011, Detective John Howard and other

officers of the Indianapolis Metropolitan Police Department went to the America’s Best

Inn on North High School Road to check the hotel’s registry against a list of wanted

suspects. The clerk at the hotel’s front desk provided Detective Howard with a guest list,

and he identified Cody Lange as a match with his suspect list. According to the guest

list, Lange was registered to room 220.

      Detective Howard received a key for room 220 from the desk clerk, and he and the

other officers entered the room. Upon entering, the officers saw that the room had been

occupied but was currently vacant. The officers were then approached by James Giles, a

maintenance worker for the hotel. Giles informed the officers that “in [r]oom 212 there

was a person sleeping on the bed and that they were [sic] not registered in the room and

not supposed to be there.” Transcript at 19. Giles suggested that the person in room 212

“could be the person [the officers] were looking for, and that that person was not



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supposed to be . . . in that room.” Id. at 20. Detective Howard confirmed that the guest

registry did not show anyone registered in room 212.

        Giles then told the officers that he could let them into room 212 with his key, and

the officers followed Giles to room 212. At the threshold to the room, Detective Howard

observed that “the door jamb was broken as if it was kicked in or had been kicked in

previously.” Id. at 21.1 Giles then let the officers into the room. Inside, they found a

black male asleep on the bed.

        The officers woke the man and asked him who he was. The man refused to talk to

the officers, and they handcuffed him and “look[ed] around the room to see if anybody

else was in the room . . . [and] to locate any identification that we could find to help us

figure out who this person was.” Id. at 24. The officers observed items near the dresser,

and the man stated, “None of this is mine, none of this is mine.” Id. at 23. The officers

then found photo identification identifying the man as Fox. In a drawer of the nightstand

directly beside the bed, the officers found a set of digital scales that had a white powder

on them.

        During the course of the officers’ search of the room, Fox told the officers that the

manager had let him into the room. Detective Howard went to the front desk to ask the

manager if that was true, and the manager confirmed that he had let Fox into the room

and “didn’t tell any of his staff that he had let him in.” Id. at 27. The manager offered no

further specifics on his permission for Fox to be in room 212, although Fox later

acknowledged that he had not paid for a room, that he had told the manager he only

        1
           In his statement of the facts, Fox asserts, without citation to the record, that “the detectives did
not notice any signs of a disturbance that would lead them to believe that the room had been broken into
at that time.” Appellant’s Br. at 3. This statement is contradicted by Detective Howard’s testimony.
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needed the room “for the day,” that he had been in the room since 8:00 a.m., and that the

manager was doing him a “favor.” Id. at 7-10.

      On November 14, the State charged Fox with dealing in cocaine, as a Class A

felony; possession of cocaine, as a Class B felony; possession of a narcotic, as a Class B

felony; possession of a controlled substance, as a Class B felony; maintaining a common

nuisance, as a Class D felony; and possession of marijuana, as a Class A misdemeanor.

On April 3, 2012, Fox filed a motion to suppress the evidence seized from room 212.

The court held an evidentiary hearing on Fox’s motion and, thereafter, it denied his

motion to suppress the evidence. The court then certified its order for interlocutory

appeal, which we accepted.

                             DISCUSSION AND DECISION

      Fox appeals the trial court’s denial of his motion to suppress. Where a party

appeals the denial of its motion to suppress evidence, it appeals from a negative judgment

and must show that the ruling on the motion was contrary to law. State v. Keller, 845

N.E.2d 154, 160 (Ind. Ct. App. 2006). We reverse only where the evidence is without

conflict and all reasonable inferences lead to a conclusion opposite that reached by the

trial court. Id. Moreover, our standard of review for the denial of a motion to suppress

evidence is similar to other sufficiency issues. Ammons v. State, 770 N.E.2d 927, 930

(Ind. Ct. App. 2002), trans. denied.    We determine whether substantial evidence of

probative value exists to support the trial court’s denial of the motion. Id. We will not

reweigh the evidence, and we consider only the evidence most favorable to the trial




                                            4
court’s ruling along with any uncontroverted evidence to the contrary. Smith v. State,

780 N.E.2d 1214, 1216 (Ind. Ct. App. 2003), trans. denied.

        We agree with the State’s contention that the evidence most favorable to the trial

court’s ruling demonstrates that Fox lacks standing to challenge the State’s search of the

hotel room under either the Fourth Amendment to the United States Constitution or

Article I, Section 11 of the Indiana Constitution.2 It is well established that a defendant

must have a legitimate expectation of privacy in the premises that is the subject of the

search before he can challenge the search as unconstitutional. Arcuri v. State, 775

N.E.2d 1095, 1100 (Ind. Ct. App. 2002), trans. denied. “An expectation of privacy gives

rise to Fourth Amendment protection where the defendant had an actual or subjective

expectation of privacy and the claimed expectation is one which society recognizes.”

Krise v. State, 746 N.E.2d 957, 969 (Ind. 2001). Likewise, “to challenge evidence as the

result of an unreasonable search or seizure under Article I, Section 11, a defendant must

establish ownership, control, possession, or interest in either the premises searched or the

property seized.”3 Peterson v. State, 674 N.E.2d 528, 534 (Ind. 1996).                        When the

constitutionality of a search is challenged, defendant has the burden of demonstrating a

legitimate expectation of privacy in the premises searched. Arcuri, 775 N.E.2d at 1100.




        2
           In his Reply Brief, Fox states that the trial court did not address the issue of standing in its
order. Fox is incorrect. The trial court’s order was premised on the distinction between registered hotel
guests, who have reasonable expectations of privacy in their rented rooms, and persons who are merely
present with the consent of the registered guest. See Transcript at 55. That distinction is the crux of the
standing issue.
        3
          Fox’s argument on appeal is focused only on his purported interests in the hotel room. He does
not suggest any interest in the property seized. Accordingly, we do not consider that potential issue.
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       As the United States Supreme Court has held, “an overnight guest in a home may

claim the protection of the Fourth Amendment, but one who is merely present with the

consent of the householder may not.” Minnesota v. Carter, 525 U.S. 83, 90 (1998).

Further, a person’s hotel room is a “home” for Fourth Amendment purposes. Ceroni v.

State, 559 N.E.2d 372, 373 (Ind. Ct. App. 1990), trans. denied.

       Here, the undisputed evidence shows that Fox was an invitee of the hotel manager

at the time of the officers’ warrantless entry into room 212. Although Fox construes the

manager’s invitation as equivalent to being a registered, overnight guest, his own

testimony belies his claim on appeal.         At the motion to suppress hearing, Fox

acknowledged that he had not paid for a room, that he had told the manager he only

needed the room “for the day,” that he had occupied the room that morning, and that the

manager was doing him a “favor.” Transcript at 7-10.

       Fox has not met his burden of demonstrating that the trial court’s interpretation of

those facts is contrary to law. See Arcuri, 775 N.E.2d at 1100. To the contrary, Fox’s

own testimony, when viewed in the light most favorable to the trial court’s judgment,

shows that Fox was merely present in the hotel room with the consent of the hotel

manager and that Fox was not an overnight guest in room 212. Accordingly, he does not

have standing under the Fourth Amendment to challenge the officers’ warrantless entry

into the room. Likewise, he does not have standing under Article I, Section 11. Thus, we

affirm the trial court’s denial of Fox’s motion to suppress.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.


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