                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JUL 24 2001
                                     TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 00-1522
          v.                                                (D. Colo.)
 ORLANDO GILL,                                     (D.C. No. 99-CR-395)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Orlando Gill was charged with one count of making counterfeit United

States currency, a violation of 18 U.S.C. § 471, and one count of possessing


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
electronic equipment used for the production of counterfeit currency, a violation

of 18 U.S.C. § 474. During the proceedings below, Mr. Gill filed a motion to

suppress the evidence of counterfeiting seized from his motel room. The district

court denied the motion, after which Mr. Gill pleaded guilty to the first count of

the indictment. The guilty plea, however, included a provision reserving Mr.

Gill’s right to appeal the denial of the motion to suppress. Mr. Gill now appeals

on that basis, and, for the reasons stated below, we affirm.



                                          I.

      On July 21, 1999, Donna Boatwright and Dinah Lee Shaw were working at

the Suburban Lodge, a motel located in Aurora, Colorado. Ms. Boatwright was

the general manager of the motel, and Ms. Shaw a front desk clerk. Mr. Gill was

a guest at the Suburban, but his occupancy was due to expire at 11:00 a.m. that

day. 1 Some time after 11:00 a.m., Mr. Gill went to the front desk of the motel and

told Ms. Boatwright and Ms. Shaw that his electronic room key was not working.

The employees informed Mr. Gill that his key had expired at 11:00 a.m. because

he had not paid for his room for that day. Mr. Gill replied that “he needed his key

to be renewed so that he could go up to his room to get money to pay for the rest


      1
        The record indicates that Mr. Gill had been a guest at the Suburban for
approximately two weeks. See Rec. vol. II, doc. 57, at 23 [hereinafter Tr.]
(suppression hearing testimony of Ms. Shaw, July 7, 2000) .

                                         -2-
of his stay.” Tr. at 5 (suppression hearing testimony of Ms. Shaw, July 7, 2000).

Consequently, Ms. Boatwright remade Mr. Gill’s key. The purpose of remaking

the key was “so [that Mr. Gill] could go up to his room immediately and . . . get

the room rent to bring it back down so [the employees] could renew his keys for

the length of time he was going to stay.” Id. (emphasis added); see also id. at 6

(“He was supposed to come back right away with the rent money . . . .”)

(emphasis added).

      After Ms. Boatwright reissued the key, Mr. Gill walked off in the direction

of his room. “Right after that,” Ms. Boatwright and Ms. Shaw “noticed that there

was a package that had been sitting there for about four or five days” for Mr. Gill.

See id. at 7. The employees waited for Mr. Gill’s supposed immediate return, but

after fifteen or twenty minutes he still did not appear, thus prompting Ms.

Boatwright to telephone him in his room. Upon getting no response, Ms.

Boatwright decided to take the package to Mr. Gill’s room. According to Ms.

Shaw, Ms. Boatwright was concerned in part that Mr. Gill might “book” on the

motel – i.e., leave without paying the rent. See id.

      When Ms. Boatwright reached Mr. Gill’s room, Room 224, she knocked on

the door three times and said, “Front desk.” After receiving no response, Ms.

Boatwright used her general manager key to open the door. When Ms. Boatwright

opened the door, she saw that counterfeit money was being produced by a copier


                                         -3-
in the room. Ms. Boatwright thereafter returned to the front desk, contacted the

police, and disenabled the key she had given to Mr. Gill earlier.

         In response to Ms. Boatwright’s call, two police officers were dispatched to

the Suburban: Officer Donald Poor and Officer Walt Martin. When Officer Poor

arrived at the motel at approximately 1:35 or 1:45 p.m., Officer Martin was

already at the scene and had spoken to Ms. Boatwright. Officer Martin told

Officer Poor that, according to Ms. Boatwright, Mr. Gill was in the room. Officer

Poor and Officer Martin then went to Room 224, which is located on the second

floor.

         The officers knocked on the door, announcing that they were with the

police department, but received no response. Officer Martin looked through the

peephole and said that he saw movement in the room. Both officers then put their

ears to the door and heard what Officer Poor described as a rustling or gathering

noise. See id. at 27 (suppression hearing testimony of Officer Poor, July 7,

2000). According to Officer Poor, “with that rustling noise, I assumed that

someone was maybe going to destroy” the evidence that Ms. Boatwright said was

in the room. Id. at 28.

         Consequently, Officer Martin tried to open the door of Room 224 with a

key, which presumably he had been given by Ms. Boatwright. See id. at 39

(suppression hearing testimony of Officer Poor, July 7, 2000) ( “I don’t know


                                           -4-
when Officer Martin got the pass key. I don’t remember him getting it at the door

[of Room 224]. He may have got it prior to going up to the room.”). The door

did not open up completely because of a safety lock, but, by this time, Ms.

Boatwright had followed the officers to Room 224 and she explained to them how

to “defeat the [door] lock,” id. which would allow the door to swing all the way

open.

        With Ms. Boatwright’s assistance, the officers successfully overcame the

safety lock and, upon entering the room, they conducted a cursory search of the

room – according to Officer Poor, “[f]or safety reasons.” Id. at 30. During this

search, the officers saw evidence of criminal activity, including “sheets of paper

laying around that had $50 images on them,” id. at 29, and a copier printing

counterfeit currency. Subsequently, federal authorities were contacted regarding

the evidence.



                                         II.

        On July 7, 2000, a suppression hearing was held, during which Mr. Gill

contested the admissibility of the various evidence seized from his motel room on

the basis of the Fourth Amendment. The district court denied Mr. Gill’s motion

to suppress on several grounds. First, it concluded that Mr. Gill had no standing

to allege a Fourth Amendment violation because his tenancy was terminated prior


                                         -5-
to the arrival of the officers at the Suburban – once, when Mr. Gill did not pay the

rent at 11:00 a.m., and a second time, when Ms. Boatwright disenabled Mr. Gill’s

key after witnessing the evidence of counterfeiting in his room. Second, the

district court suggested that, even if Mr. Gill did have standing, there was no

Fourth Amendment violation because there were exigent circumstances – namely,

the removal or destruction of evidence – justifying the warrantless search by the

officers.

      The district court, however, expressed its concern that this was “a close

issue.” Id. at 76. According to the district court, “without . . . the addition of the

consent of the person in control [i.e., Ms. Boatwright], I don’t know whether I

would rule the same way.” Id. Because of its concern, the district court limited

its denial of the motion to suppress to the evidence “in plain view upon entry of

the front door.” Id.



                                          III.

      On appeal, Mr. Gill raises two arguments: (1) that the district court erred in

determining that he lacked standing to challenge the search of his room at the

Suburban and (2) that the district court erred in concluding that there were

exigent circumstances justifying the search of his room without a warrant.

             In reviewing a ruling on a motion to suppress, we accept the
      district court’s factual findings unless they are clearly erroneous. We

                                          -6-
      view the evidence in the light most favorable to the prevailing party.
      However, the ultimate determination of whether the challenged
      conduct is reasonable under the Fourth Amendment is a legal
      question that we examine de novo. Whether a defendant has standing
      to challenge a search is also a legal question subject to de novo
      review.

United States v. Elycio-Montoya, 70 F.3d 1158, 1161 (10th Cir. 1995) (citations

omitted).

      We address first the standing argument. In determining whether a

defendant has standing in the Fourth Amendment context, we ask first “whether

the defendant manifested a subjective expectation of privacy in the area searched

and [second] whether society is prepared to recognize that expectation as

objectively reasonable.” United States v. Allen, 235 F.3d 482, 489 (10th Cir.

2000) (internal quotation marks omitted).

      Mr. Gill contends that, at the time of the search, he had a subjective

expectation of privacy in his room at the Suburban as demonstrated by two facts:

(1) that “the door [to the room] was locked” and (2) that “his belongings were

still in the room.” Aplt’s Br. at 10-11. He then asserts that his expectation of

privacy in the room was reasonable because the Suburban employees had

extended his rental period at the motel beyond the 11:00 a.m. checkout time on

July 21, 1999. According to Mr. Gill, the following facts confirmed this

extension: (1) that Ms. Boatwright renewed his key after the checkout time and

gave him permission to pay the rent at a later time, (2) that Ms. Boatwright

                                         -7-
delivered a package to his room after the checkout time, and (3) that the motel

used part of his security deposit of $99.00 to cover the rent for July 21, 1999. In

support of his position, Mr. Gill relies primarily on United States v. Owens, 782

F.2d 146 (10th Cir. 1986), and United States v. Watson, 783 F. Supp. 258 (E.D.

Va. 1992).

      For purposes of this opinion, we need not decide whether or not Mr. Gill

had a subjective expectation of privacy at the time of the search because, even if

he did, that expectation was not reasonable. Cf. United States v. Lyons, 706 F.2d

321, 328 (D.C. Cir. 1983) (noting that “[m]odern doctrine in this area . . . has

concentrated for the most part on the . . . ‘objective’ branch of this test”). In

arriving at this conclusion, we begin with the general rule that “a defendant’s

expectation of privacy in a [m]otel room expires at checkout time” but that “the

policies and practices of a [m]otel may result in the extension past checkout time

of a defendant’s reasonable expectation of privacy.” United States v. Dorais, 241

F.3d 1124, 1129 (9th Cir. 2001); see also Owens, 782 F.2d at 150 (concluding

that the defendant had a reasonable expectation of privacy past the checkout time

in part because, a few days earlier, he “had remained in his room past check-out

time without consequence”).

      In the instant case, we conclude that the Suburban did have a policy or

practice that extended Mr. Gill’s reasonable expectation of privacy beyond the


                                          -8-
11:00 a.m. checkout time. Ms. Shaw testified at the suppression hearing that “it’s

really normal that a lot of guests forget about their keys expiring at 11:00 a.m., so

it’s not abnormal to make a key for the guest to go up to room to pay.” Tr. at 7

(suppression hearing testimony of Ms. Shaw, June 7, 2000). However, we also

conclude that the duration of that expectation was extremely limited under the

circumstances. See Dorais, 241 F.3d at 1129 (“The existence and duration of that

expectation depend on the facts and circumstances in each case.”). As Ms. Shaw

testified, the understanding between the Suburban employees and Mr. Gill that

Mr. Gill would return immediately to the front desk with the money to pay for

rent. Nothing in the record controverts this fact.

      Because of this understanding, it was not reasonable for Mr. Gill to

maintain any expectation of privacy in his room beyond the time necessary to go

to his room and come back with the rent money. Cf. United States v. Singleton,

922 F. Supp. 1522, 1529 (D. Kan. 1996) (“Having failed to pay the rent for

another night within the time given by [the manager], [the defendant] could not

have had a legitimate expectation of privacy in the room simply because she . . .

remained in possession of it.”); State v. Mitchell, 20 S.W.3d 546, 559 (Mo. Ct.

App. 2000) (“[T]he record nowhere suggests that he asked for permission to stay

a second night or that he was granted an indefinite or lengthy extension of the

prior night’s rental.”). Exactly how much time Mr. Gill had to return to the front


                                          -9-
desk is not important. It is enough that we know (1) that his immediate return

was required and (2) that the search did not take place – at the very least – until

more than fifteen to twenty minutes later. See Tr. at 7 (suppression hearing

testimony of Ms. Shaw, June 7, 2000) (stating that Ms. Boatwright “waited at

least 15, 20 minutes” for Mr. Gill, that Ms. Boatwright thereafter went to Mr.

Gill’s room where she saw evidence of counterfeiting, that Ms. Boatwright

subsequently contacted the police). By this time, the extension of Mr. Gill’s

reasonable expectation of privacy had certainly lapsed. 2

      Mr. Gill suggests, however, that the motel’s withholding of his security

deposit demonstrates that his rental period was actually extended for a full day.

We remain unconvinced. As the district court noted, “because of the defendant’s



      2
         Because of this conclusion, we need not discuss whether Mr. Gill also
lacked a reasonable expectation of privacy as a result of Ms. Boatwright’s
disenabling his key. See United States v. Allen, 106 F.3d 695, 699 (6th Cir.
1997) (“Upon learning that [the defendant] was keeping contraband within the
motel, the motel manager locked [him] out of his room. With this action, the
motel manager divested [the defendant] of his status as an occupant of the room,
and concomitantly terminated his privacy interest in its contents.”); State v. Loya,
18 P.3d 1116, 1121 (Utah Ct. App. 2001) (“A defendant may still have possession
of or access to the room, but if check out time has passed and management is
attempting to exercise control over the room, defendant no longer has a
reasonable expectation of privacy in the room.”); cf. United States v. Haddad, 558
F.2d 968, 975 (9th Cir. 1977) (“[The defendant] had no reasonable expectation of
privacy with respect to a room from which he had been justifiably ejected.
Whether his checking out was voluntary is irrelevant. Once ejected for good
cause, the room reverted to the control of management, and the former occupant
had no continuing right to privacy in the room.”).

                                         -10-
activities the [motel] did not have full access or could not rent the premises for

that day. And it would logically be appropriate to charge the security deposit that

amount.” Tr. at 75 (suppression hearing, July 7, 2000); see also id. at 17

(suppression hearing testimony of Mr. Shaw, July 7, 2000) (“We have guests that

come in that would like to use the $99 towards room rent which we do not allow. .

. . We didn’t use [the security deposit] towards room rent at all. We used it

towards room rent after we checked the guests out . . . .”).



                                         IV.

      Because Mr. Gill did not have standing, we do not address the secondary

issue of whether the warrantless search conducted by the officers violated the

Fourth Amendment. Accordingly, the judgment of the district court is

AFFIRMED.

                                                     Entered for the Court,



                                                     Robert H. Henry
                                                     Circuit Judge




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