Bordley v. State

SHARER, J. The prosecution of Charles Vernon Bordley, appellant, stemmed from the discovery of controlled dangerous substances (“CDS”) and paraphernalia during a.warrantless entry by police into an unoccupied and locked-out hotel room in Grasonville, Queen Anne’s County, which had been rented by appellant. After denying appellant’s motion to suppress the evidence seized from Room 118, and statements made by him thereafter, the Circuit Court for Queen Anne’s County, in a bench trial (Hon. Thomas G. Ross), convicted appellant of nine drug-related offenses. 1 Appellant challenges those convictions, raising the following issues for our review, which we quote: I. Did the court err by denying Appellant’s motion to suppress evidence?

II

Was the evidence legally insufficient to sustain Appellant’s convictions? We have found no Maryland precedent addressing the constitutionality of a police officer’s warrantless entry of a locked-out hotel room at the request of the hotel staff. Nor have we been directed to a case deciding whether hotel management may consent to a warrantless entry and search of a room that it locked out for security reasons involving someone other than the registered guest. Applying Fourth Amendment jurisprudence, we conclude that the circuit court ⁶⁹⁹ did not err in denying appellant’s motion to suppress because the hotel asserted control over the room for valid and legitimate security reasons after appellant advised that he was no longer occupying it, so that appellant did not have a subjective expectation of privacy and the hotel could consent to the warrantless entry and search.

In addition, we conclude that there was sufficient evidence to establish that appellant constructively possessed the CDS and paraphernalia found in his hotel room, and therefore to convict him of possession, possession with intent to distribute, and conspiracy offenses based on such possession. To develop the factual history, we shall separately review the records of the suppression hearing and the trial. FACTS and LEGAL PROCEEDINGS Before trial, appellant moved to suppress the tangible evidence seized from Room 118 as well as statements made by him to police. The circuit court denied that motion and then convicted appellant based on such evidence.

Suppression Hearing Appellant testified in support of his motion and also presented the testimony of his mother, who was the night auditor on duty at the Kent Island area Sleep Inn on August 31-September 1, 2009. Barbara Bordley recounted that while she was alone at the front desk that evening, a short African American man whom she had never seen before came into the hotel talking on a cell phone and “was looking ... around, ... surveying the property.” When she offered help, the man asked, “ ‘May I go to my room?’ ” Thinking that was unusual for a hotel guest, Ms. Bordley asked his name so she could check it against the list of registered guests. In response, the man “just walked out the door” back into the parking lot. Because she “was a little uncomfortable,” Ms. Bordley “locked the door and ... started looking at the video monitor.” She observed the same man walk around to the back door, and shortly thereafter she saw him inside the hotel in the company of a “real tall person.” The two men “were up ⁷⁰⁰ and down the hallway” until they finally went into a room.

Although Ms. Bordley could not see the specific room, she knew it had to be one of “two or three rooms that are ... blocked together.” She “looked at the in house list,” which identified “who’s in the hotel ... by room number.” According to Ms. Bordley, “in that area there were several vacant rooms and then there was room # 118 which was the room that was in [her] son’s name.” Ms. Bordley testified that she knew that “room # 118 [was] occupied” but that her son “wasn’t in the room because [she] left him home” with his daughter when she left for work that evening. 2 After observing the two men in the hallway, Ms. Bordley called home and talked with appellant, telling him, “now I don’t know whether it’s your room or what but there is activity in the hallway and I’m going to lock out the room.” She continued, “In the meantime, these guys were back up and down in the hallway” and eventually “went out the back door[.]” At that point, Ms. Bordley telephoned the hotel owner, because she “was afraid” that the hotel was “going to be robbed.” According to Ms. Bordley, the owner “said that if at any time you are feeling uncomfortable, call the police, which is normal.” But Ms. Bordley did not do so right away. Instead, while the two men were outside, she made a new key card and put it in the door lock, thereby invalidating the key cards that previously had been issued to appellant so that they would no longer open Room 118 or the back door to the hotel. Unable to enter the back door, the two men in the parking lot returned to the front door and “starting beating on the glass[.]” Ms. Bordley again called the owner, who reiterated his advice to use her discretion and “to call the police if she was uncomfortable.” She called 911, asking “would [police] secure the ... hotel parking lot because there was unusual ⁷⁰¹ traffic in the parking lot at that point.” She then hid under a desk in the office until the police arrived. Two police officers responded and reported that there was no one in the parking lot.

Ms. Bordley recounted to them the events that prompted her to call 911. She told them that she believed the two men had gone into Room 118, “[b]ased on the fact that there were no occupancies in and around that same area where these two men were walking.” She claimed that she only “asked [the officers] to secure the parking lot ... and the hallway” and denied telling the officers that “room 118 wasn’t to have anyone in it because it was only rented for one day,” or asking them to enter the room and clear anyone out “because no one was allowed to be in the room.” Differing from the officers’ testimony, Ms. Bordley insisted that she told the officers that the room was rented, and that they went to the room then “came back and asked for a key,” which she provided. Appellant testified that he rented Room 118 at the Sleep Inn for the nights of August 30 and 31, 2009. He explained that he was home with his daughter on the evening of August 31, until his “distraught” mother “called the house between like 11:00 and 12 o’clock.” As a result of her call, appellant phoned a relative to come stay with his daughter, and he went to the Sleep Inn with his friend Sidney Roy, arriving about 45 minutes after his mother called.

According to appellant’s account, he and Roy went into the hotel through the back door and proceeded down the hall toward Room 118 because Ms. Bordley told him that he “needed to take care of’ his room due to “the activity there.” Police officers stopped them in the hallway, saying that they “fit the description” of the two men seen by Ms. Bordley. Appellant explained that he was “letting other people use” the room, that those people had both of the room keys that had been issued to him, that he never entered the room, and that he did not “know what was in the room.” In addition, he denied telling his mother that there was not supposed to be ⁷⁰² anyone in the room and denied that after she called him, he came to the hotel “to correct ... drug activity in there[.]” Queen Anne’s County Sheriffs Deputy Christopher Schwink testified that Ms. Bordley told him and Deputy Jason Rickard “that there was some gentlem[e]n trying to gain access to the hotel through the rear entry door, and that she had seen them going in and out of room 118 earlier in the evening and nobody was suppose[d] to be in that room because it was not paid for.” The officers knocked on the door of Room 118 and got no answer. According to Schwink, Ms. Bordley then “made a copy of the room key” and “[t]old [them] to go in and make sure nobody was in the room. If anybody was in the room, they were to leave, because the room was not paid for.” Schwink said that the officers found no one in the room, but “[a]s soon as [they] entered the room” they “found contraband laying throughout the room.” On the top of the dresser in plain view were what Schwink, based on his experience and training, believed to be “marijuana, cocaine, heroin, smoking devices, scales and bags.” Specifically, he “saw a small bag full of glassine baggies, a white rock, later identified and tested as cocaine, two small bags of greenish vegetable substance” that he “recognized ... to be marijuana,” “a piece of brown paper that had a line of brown powder which was tested and proven to be heroin, and then a smoking devi[c]e made out of an airplane ... liquor bottle.” In addition, next to the suspected heroin, there was a scale with “traces of a brown powder,” which indicated that it had been used “to measure different amounts of heroin for purposes of sale.” Although Schwink also saw “a checkbook on the bed,” “it was left there at that time.” Deputy Rickard stayed in the room while Schwink went “to notify ...

Ms. Bordley” of the discovery. While Schwink was away from the room, “two individuals came through the back door of the hotel,” and Rickard “made contact with them. They saw him in the room and tried to elude him [by] running down the hallway.” The officers stopped the two men, and both claimed “that they knew nothing about the room.” How ⁷⁰³ ever, when Schwink returned to the room to “run their I.D.’s, he “picked up the checkbook and noticed it had the same name ... as the one subject’s name [he] was running, Mr. Bordley.” Both men were detained but continued to deny “any knowledge of the room” and, instead, “advised that they were going to meet a girl on the second floor.” While these events were taking place, Ms. Bordley “had left and a new night clerk/manager had arrived[.]” The hotel owner and manager, Neelish Patel, gave Schwink “a copy of the sales receipt,” which “showed that the room was rented to Mr. Bordley.” In addition, Patel provided the officers with “a copy of the video in the hotel,” from which Schwink “could see the two individuals and a third individual who[m][he] was unable to identify, come through the rear door of the hotel[.]” Schwink described what was portrayed on the video: the two men who were detained, identified as appellant and Roy, “walked down towards the hotel room, saw Deputy Rickard, and you see them make movements to try to get away from that hotel room. One of them threw a key card” that “landed in front of room 119.” Based on the video, Schwink recovered a key card from that location.

Patel “checked the card and said that it was no longer a valid card,” and therefore it could not be identified as having previously been issued to a particular room. Patel accompanied the officers to Room 118 and authorized another search in order to “to make sure that there was nothing hidden anywhere else.” In the process, he told the officers that “the room was not paid for for the date of September 1st so nobody should have been in the room.” In addition to the contraband previously listed, this search yielded from the refrigerator a baggie containing a white powder substance. Initial field tests indicated it might be cocaine, but ultimately it tested negative for CDS. Corporal Tyson Brice, who was assigned to the Maryland State Police Drug Enforcement Division Queen Anne’s County Task Force, testified that at approximately 1:00 p.m. on September 1, 2009, he received a call from the Queen Anne’s ⁷⁰⁴ County Sheriffs Office that additional CDS was found in Room 118 of the Sleep Inn.

When Corporal Brice responded to the hotel, John Shagen, the hotel maintenance man, advised that he had been called upon to open the room safe because the key was missing. “And, when he opened the safe, he saw what he believed were controlled dangerous substances inside the safe and that’s why he called” the Sheriffs Office. Brice went to the room with Shagen and Patel, then collected from the already open safe what he immediately recognized as “Oxycontin and heroin.” At the conclusion of this testimony, the court denied appellant’s motion to suppress, ruling that appellant did not have an expectation of privacy because he claimed that he had “never been in the room” and Ms. Bordley justifiably locked out the room for reasons of security and gave police authority to enter it. Trial At trial, Deputy Rickard, who did not testify at the suppression hearing, gave an account of the officers’ encounter with Ms. Bordley and the search of Room 118 that was substantively consistent with Schwink’s suppression hearing testimony. Rickard testified, inter alia, that Ms. Bordley told the officers that “the room wasn’t rented to anybody at the time” and “that she was given permission by the general manager of the hotel to issue a key to [the deputies] ... and to clear the room and to secure it, and if there was anybody in the room, to advise them that they were not suppose[d] to be in the room at the time.” About ten minutes after Schwink left to notify the hotel of their discovery, while Rickard remained outside the room to secure it, Schwink observed appellant and Roy “swipe” a key card and enter the back door.

As the two approached Room 118, Rickard stepped out into the hallway to ask them which room they were going to. Upon seeing the deputy, the two men reversed direction and “tried to run back out of the door they came in.” With Schwink’s assistance, appellant and Roy were detained. Appellant and Roy told Rickard “that they ⁷⁰⁵ were just there visiting a friend, that they were not guests of the hotel at any time.” When the deputy asked how they were able to get into the hotel, they claimed that “somebody opened the door for them.” At that point, Schwink found a key card laying on the floor outside Room 119, which was the area where Rickard had stopped appellant and Roy. Schwink’s trial testimony was also consistent with his suppression hearing testimony and Rickard’s trial testimony.

Schwink recounted that Barbara Bordley “advised that she had seen two ... suspicious males trying to get into the building” and “[bjelieved they were staying in room 118,” although “[tjhere was nobody to be in that room.” Appellant and Roy initially told Schwink that “they were not staying in any room in the hotel, had no connections with any room in the hotel, and were here to see a female friend but [were] unsure of what room she was in.” Both men “had bags of food, groceries, milk[.]” After Schwink advised appellant that a checkbook found on the bed in Room 118 bore his name, appellant “stated ... that he hadn’t seen his checkbook in several days.” Later, when Schwink became aware that appellant had rented the room, he showed appellant a hotel receipt, and appellant “advised ... that he did rent the room but had never been in the room. He rented it for somebody else.” Following his arrest, appellant made a written statement to that effect, and the statement was admitted into evidence. John Shagen, Sr., the maintenance worker at the Sleep Inn, testified that on September 1, 2009, he let a police detective into Room 118. Because the key to the safe in that room was missing, Shagen obtained a master key from the hotel manager and opened the safe.

Corporal Brice testified that after being called to the Sleep Inn around 1:00 p.m. on September 1, 2009, he seized the contents of the safe in Room 118, which was later determined to be 50 Oxycodone/Tylenol pills, a plastic bag containing 6.9 grams of heroin, a razor blade, and several unused plastic ziploc bags. According to Brice, who was qualified as an ⁷⁰⁶ expert in CDS distribution and packaging, these quantities of CDS and the presence of a scale, razor blade, and packaging materials indicated an intent to distribute. Barbara Bordley and appellant testified in the defense case. Ms. Bordley expanded her account of the events preceding her 911 call, explaining that she saw, via the security surveillance cameras, the first man, a shorter Afro-American with dreadlocks, exit Room 118 in the company of a “very tall” and “robust” dark-skinned Afro-American man.

The two men walked up and down the hallway before returning to the room, and “this proceeded to happen two or three times.” Ms. Bordley called her son at home to tell him that she was frightened that the “hotel is getting ready to be robbed” and that the suspicious activity was “ ‘in the area where the room that [he] rented is.’ ” Appellant responded, “ ‘Well, that room should be vacant, Mom.’ ” After that, Ms. Bordley left the hotel, drove to her nearby home (approximately five minutes away), and saw appellant there. After she told appellant how seared she was, he advised her “to go back and call the police.” Ms. Bordley then returned to the hotel and observed the two men exit Room 118 and go out the back door. At that point, she called the hotel owner, got permission from him to “lock out the door that was the room that [her] son was registered in,” and then went to the room and changed the lock. She watched the surveillance camera as the two men came back around to the locked front door and “started shaking the door really, really hard.” At that point, she “became traumatized” and again called the hotel owner/manager, “who then gave [her] permission to call the police.” After she called 911, she hid in the office under a desk with two phones, “calling home for help because [she was] afraid.” When police arrived, Ms. Bordley told them Room 118 was not supposed to be occupied and that “no one was renting the room anymore” because “that’s what my son had said.” Although appellant told her that he “ ‘had rented the room,’ ” he did not “know why his name was still on the register” and ⁷⁰⁷ insisted that Room 118 “was only rented for the one night.” Ms. Bordley explained that when she testified in the suppression hearing, she believed that he had rented the room for the second night based on the hotel register and a hotel receipt that appellant later “said was no good.” She could not recall whether it was she or the hotel owner who provided key cards to the officers.

With the owner’s permission, she left the hotel because she was “unnerved.” She did not learn that her son had been arrested until 8:30 or 9:00 a.m. Appellant testified that he rented a room at the Sleep Inn for Vaughn Watson, somebody he knew from the “neighborhood,” as “a favor” because Watson did not have an identification card. Watson gave appellant the cash that appellant used to pay for the room Sunday night, and appellant gave him both room keys. Appellant never spoke to Watson after he rented the room.

When his mother first called around 11:00 p.m. on Monday night, asking about his name on the hotel registry, he told her he rented the room but did not tell her why. Before she returned to the hotel, “she said she was going to ... call the police” because “the activity was getting greater and greater.” Appellant told her that she should do so if she felt uncomfortable and believed that “something is going to happen.” After his mother left, appellant arranged for house guests to watch his daughter and drove to the hotel by himself “[t]o see what ... was going on” because his name was showing on the hotel register. He entered through the back door instead of the front door because “there was like activity in there and ... in the parking lot” and “the back door was open.” Sidney Roy, whom appellant knew from the community, was walking “in front” of him in the building, but they “weren’t together.” Appellant denied having a key card or running when he saw a police officer. He claimed that he had his checkbook in his pocket when he arrived at the hotel and that a police officer took it from him while he was detained in the hallway.

Although Roy told the officers he was there to see a female friend, appellant denied making that comment. He claimed ⁷⁰⁸ that he did not tell police that he was there to check on his mother who works there because “they never asked ... any question ... like that[.]” He denied knowing “anything that was going on in that room from any of the people in the neighborhood” or any other knowledge of what was in the room. We shall add facts as they pertain to our discussion of the issues raised by appellant. DISCUSSION L Motion to Suppress Appellant argues that “[t]he hearing court should have granted the motion to suppress evidence removed from room 118 in the Sleep Inn because [a]ppellant had rented the room, had a reasonable expectation of privacy in it, and the entry into the room by law enforcement officers was not permissible.” 3 The State responds that the evidence supports the motion court’s conclusions that appellant did not have a reasonable expectation of privacy and that the hotel consented to the officers’ warrantless entry and search.

In reviewing the denial of a motion to suppress, appellate courts consider only the evidence presented at the suppression hearing and “extend great deference to the fact finding of the suppression hearing judge[.]” Briscoe v. State, 422 Md. 384, 396 (2011). We review the motion court’s factual findings, including its credibility determinations, for clear ⁷⁰⁹ error, then review de novo the legal conclusion that the warrantless entry, search, and seizure was constitutionally permissible by applying the law to those facts. Id.; Williams v. State, 372 Md. 386, 401 , 813 A.2d 231 (2002). “The Fourth Amendment to the United States Constitution, made applicable to the State through the adoption of the Fourteenth Amendment, guarantees the people’s right ‘to be secure in their houses ... against unreasonable searches and seizures.’ ” Laney v. State, 379 Md. 522, 545 , 842 A.2d 773 (2004). Because this constitutional protection arises only if the individual has a reasonable expectation of privacy in the searched premises, “[t]he one invoking the Fourth Amendment protection bears the burden of demonstrating his or her legitimate expectation of privacy in the placed searched[.]” Id. “The burden consists of two inquiries: (1) whether the individual has a subjective expectation that his or her property ... will not be searched, and (2) whether the expectation is objectively reasonable under the circumstances.” Id.

Although “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed[,]’ [a] motel room can be protected by the Fourth Amendment as much as a home or an office.” Williams, 372 Md. at 402 , 813 A.2d 231 (citing Hoffa v. United States, 385 U.S. 293, 301 , 87 S.Ct. 408, 413 , 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490 , 84 S.Ct. 889, 893 , 11 L.Ed.2d 856 (1964); United States v. Jeffers, 342 U.S. 48, 51-52 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 (1951)). See also Gross v. State, 235 Md. 429, 439 , 201 A.2d 808 (1964) (“it is well-established law that a person’s hotel room is protected against unreasonable searches”). Nevertheless, courts have recognized that a hotel guest’s “privacy rights and reasonable expectation of privacy are limited by the unique and transient nature of his room occupancy.” Massachusetts v. Molina, 459 Mass. 819 , 948 N.E.2d 402, 408 (2011). Whereas during his or her stay, “a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room[,]” ⁷¹⁰ Georgia v. Randolph, 547 U.S. 103, 112 , 126 S.Ct. 1515 , 164 L.Ed.2d 208 (2006), that “guest’s reasonable expectation of privacy expires completely when the rental contract lapses,” Laney, 379 Md. at 548 , 842 A.2d 773 , so that hotel staff may enter a room, lock it out, and/or authorize police to enter it based on non-payment of hotel charges.

See, e.g., United States v. Kitchens, 114 F.3d 29, 31-32 (4th Cir.1997) (“Generally, a guest does not have a reasonable expectation of privacy in his hotel room after his rental period has terminated” unless the hotel has a pattern and practice of accepting late check out or payment); United States v. Huffhines, 967 F.2d 314, 318 (9th Cir.1992) (hotel room search conducted with the valid consent of hotel management falls within exception to the warrant requirement). See generally In re Tariq A-R-Y, 347 Md. 484, 490-91 , 701 A.2d 691 (1997) (“A permissive search pursuant to voluntary consent is one ... limited exception” to the warrant requirement for hotel searches because “the individual whose right it is to be free from unreasonable searches and seizures may waive Fourth Amendment protection.”). Similarly, a hotel may justifiably evict a guest as a result of misconduct or illegal activity, thereby extinguishing his or her expectation of privacy. See, e.g., Molina, 948 N.E.2d at 408-09 (collecting federal and state cases); New York v. Hardy, 77 A.D.3d 133 , 907 N.Y.S.2d 244 (2010) (same), appeal denied, 16 N.Y.3d 743 , 917 N.Y.S.2d 625 , 942 N.E.2d 1050 (2011).

For example, in the frequently cited case of United States v. Allen, 106 F.3d 695, 699 (6th Cir.1997), the defendant guest failed to increase his credit balance as required by the motel. The motel manager used a pass key to enter the unoccupied room in order to determine whether the defendant “had skipped without paying.” Id. at 697 . After observing large quantities of marijuana in plain sight, the manager “used a separate key to engage the ‘lock-out,’ a deadbolt lock only she could open.” Id. The manager then called police and opened the room for responding officers.

Id. The Sixth Circuit rejected the defense contention that this warrantless entry violated the Fourth Amendment, reasoning ⁷¹¹ that “a hotel guest’s use of a room for illegal purposes, and beyond the pre-paid rental period vitiates the guest’s reasonable expectation of privacy.” Id. at 699 . As long as the motel had a “valid and legitimate” reason for terminating the tenancy, “[t]he manager’s consent to the officers’ search of the room was all that was required to avoid constitutional infirmity.” Id. (footnote omitted).

Thus, “[o]nce a manager, through private action, took possession of the motel room,” the defendant guest “could no longer assert a legitimate privacy interest in its contents.” Id. Although we found no Maryland precedent considering the warrantless entry of a locked-out hotel room at the request of hotel management, 4 we conclude that here, as in Allen , the legality of the hotel’s consent depends upon whether the hotel locked out the room for a “valid and legitimate reason.” See id. In answering that question, however, we recognize that the Sleep Inn’s asserted reason for locking out Room 118 was not non-payment or misconduct by the registered guest, but rather to safeguard hotel employees and guests. 5 ⁷¹² After reviewing the evidence, the suppression court concluded that appellant did not have an expectation of privacy in Room 118 given that appellant advised that he was not occupying the room and the hotel thereafter locked it out for legitimate security reasons. The court reasoned that in terms of witness testimony, the officers, both of them were credible.

My concern with Ms. Bordley’s testimony is that I think that it’s tainted to a certain extent with her bias. She clearly has a bias in favor of her son. She thinks she’s helping him by providing him with a certain amount of standing, if you will. Although, as I have already indicated, I think there is enough evidence to show that he may have rented this room.

But, through his own testimony to the Court, he has no reasonable expectation of privacy. He’s never been in the room. He has nothing in the room. That’s what he’s testified about so how can he have any reasonable expectation of privacy.

But we can go on from there. And on from there is ... that Ms. Bordley was rightfully concerned because she had seen two people that had no business being there. She knew they