Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded on the road in Surprise, Arizona, during a week of advanced search and seizure, advanced criminal investigations, and bulletproof report writing classes. The question came in from an officer who keeps getting called to hotels for evictions and wants to know what he can look at once the guests are gone.
So this question is, when can cops search a hotel room? This situation comes up under various circumstances. People are getting evicted from the hotel room. The occupancy has been completed and they leave, and now the cops want to go in there and search around.
Basically, the first premise is that hotel rooms do enjoy a lot of protection. They are quasi homes. They’re not homes. They have real world consequences, people can be evicted on a moment’s notice for violating rules and so forth. But they have real, real world consequences.
Can a hotel evict a guest on the spot?
So let’s first talk about evicting people. Now, check out your state law, there might be some differences here, but generally speaking hotels have a common law right to evict people for cause. Common law means that it was judge made law. This has been around for a long time. We don’t really necessarily have a statute on this, but the courts will allow it under common law.
And it’s eviction for cause. That means that we are evicting people for fighting, partying, smoking, and various other policy violations. Something somewhat serious. And so they have that right. They can recover the room at a moment’s notice if the people are violating the terms of the occupancy.
Is a hotel eviction a criminal investigation or a civil standby?
Cops arrive on these scenes and what are cops really doing? What they are doing is civil standbys. So that’s one thing I want to keep in mind, that these are not criminal investigations, these are civil standbys.
And what I mean by that is, you’ve got to let the hotel decide what to do. This is not your call. You’re not the one encouraging or directing the manager to kick these people out. That’s not your call, that’s their call. If you do encourage them, direct them to kick people out for certain reasons, there’s an argument that you’re turning the manager of the hotel into your agent, and you don’t have the authority to remove people from rooms because they smoked and so forth. So just remember that. Let the hotel make the decisions.
You can certainly give your opinion, but leave the decision up to them.
Now, once the hotel has decided that they are going to evict the person for cause, the eviction is immediate, essentially. I mean, that is the way it works. It’s immediate. So you knock on the door, you get them to answer, you basically say hey look, the manager wants you out. You start getting them to get their stuff together.
How much time do they have? Look, it’s a simple standby. So do what you normally do for civil standbys. Typically what, 15 minutes, depending on how much stuff they have. Have the hotel play a part in this. But the hotel says we’ll give them an hour, and you’re going to be like, well, I don’t have an hour. So if you’re looking for a civil standby, I’m out of here in 15 or 20 minutes. I mean, you may have to give some feedback to the manager that you don’t have all day.
Can police enter a hotel room during the eviction?
All right, can you enter the room during the eviction? Yes, but have a reason for it. Have a reason for it, especially if there’s any allegation or evidence that the people could be dangerous to you. They could try to barricade themselves into the room. They’re highly intoxicated, so they could be a safety issue, make bad decisions, do something stupid like try to attack police officers or damage property. I would have a reason. You probably don’t need much, but you want something here.
Now when you go into the room, can you search around? The answer is no. Don’t do that, because they’re still in the room. They are being evicted, but I don’t think it’s going to be reasonable to start looking through the drawers, refrigerator, and all the stuff when they’re actively getting their stuff together. So don’t do that. If you think there’s a weapon somewhere you can seize it, you can maintain proper safety precautions. But basically, when the room becomes truly abandoned is at the point where they’re out.
When does a hotel room become abandoned?
So let’s say 15 minutes goes by, they grabbed all their stuff, and they’re out. Well, whatever’s left is fair game if it’s controlled or owned by the hotel. So dresser drawers, refrigerators, safes, toilet bowl tanks, that’s all fair game.
Can police search a backpack the guest left behind?
What about stuff that they leave behind, like a backpack, a suitcase, and so forth? Well, the next question is, is that stuff abandoned? If they just leave it there, strewn about near the trash can and so forth, it’s probably abandoned. But if they tell you look, we can’t grab all our stuff because our buddy has the car, we’ll come back for this later, it’s not abandoned. So you cannot search it under abandonment. You’re going to have to let the hotel do whatever they want.
Now if the hotel says hey officer, do you want me to search this stuff, you’re going to have to tell them, hey look, I can’t tell you to search or not to search. Do whatever you’re going to do and we go from there. You don’t want to turn the manager into your agent again. These are civil issues. You don’t have a right to go through people’s unabandoned property.
If the motel is going to give you the backpack for safekeeping because that’s their policy, then you go from there and you search it under inventory. However, if you have a primary motive, if you think that there’s going to be evidence in here and you have probable cause, well, go get a warrant. Go get a warrant. Don’t use inventory searches as a ruse to get into backpacks.
When does a hotel guest’s expectation of privacy end?
Well, there you go. Now the next issue I want to bring up is this. When does the occupancy end on a hotel room? Well, it ends when they check out. So if checkout is at 11 a.m. but they choose to check out earlier at 9 a.m., well then the room is done. They have no more privacy expectation.
But if you arrest the person at 10:30 a.m. and you take them to jail, and they have not been evicted, they do not lose their privacy interest until the hotel would have kicked them out.
Does a hotel’s grace period extend the guest’s privacy?
Here’s what I mean by this. Many hotels have 11 a.m. checkout. Okay, that’s official, that’s on the door, that’s when you sign in and so forth. I get that. But most hotels have a grace period. They’ll say 11 a.m., but their business practice is to allow them to stay there until 1 p.m., and at that point they’re going to call it. You either got to go or you got to re-up on the room.
You want to find out what that grace period is, if any, because that is the end of their reasonable expectation of privacy.
Therefore, if you arrest a person at 10:30 a.m., the checkout period is 11 a.m., and then you go into the room at 11:30 a.m. and you start looking around, you find evidence in plain view, but the defendant gets an affidavit from the hotel that says our business practice is 1 p.m., we would have given this guy the opportunity up to 1 p.m. to re-up on the room, he is going to argue that you violated his expectation of privacy because he could have gotten somebody to re-up on the room.
Now whether this works or not is up to the court, but it’s not a frivolous argument.
What should you do before going back into the room after an arrest?
And so if you are going to go back into the room, I want you to find out when the grace period ends. Let’s say it’s 1 p.m. And then go into the room after the grace period and search. Search anything that the hotel owns: dressers, safes, refrigerator, and so forth.
Whether or not you can search his property post arrest is determined by whether or not it’s been abandoned. Most likely not, because he’s been arrested. There’s no indication there that he doesn’t want his stuff.
The short version
- Hotel rooms do enjoy a lot of protection. They are quasi homes. They’re not homes.
- Generally speaking, hotels have a common law right to evict people for cause. Check your state law, there might be some differences.
- These are not criminal investigations, these are civil standbys. Let the hotel make the decisions.
- If you encourage or direct the manager to kick people out, there’s an argument that you’re turning the manager of the hotel into your agent.
- You can enter the room during the eviction, but have a reason for it. You probably don’t need much, but you want something.
- Don’t search around while they’re actively getting their stuff together.
- Once they’re out, whatever’s left is fair game if it’s controlled or owned by the hotel. Dresser drawers, refrigerators, safes, toilet bowl tanks.
- Property left behind is only searchable if it’s abandoned. “We’ll come back for this later” is not abandoned.
- Don’t use inventory searches as a ruse to get into backpacks. If you have probable cause, go get a warrant.
- Occupancy ends when they check out. But find out the hotel’s grace period, because that is the end of their reasonable expectation of privacy.
- If you arrest someone before checkout, they do not lose their privacy interest until the hotel would have kicked them out.
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This article is an edited transcript of Roadside Chat Ep. #55. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.