Dissenting Opinion
dissenting.
{¶ 2} I respectfully dissent from the majority’s decision to dismiss this appeal as having been improvidently accepted because I believe that the court of appeals creates an inconsistency in Fourth Amendment jurisprudence by holding that an individual’s abandonment of a hotel room does not apply to his privacy rights in the contents left in the hotel room.
{¶ 3} A review of the facts is necessary to understand my reasoning. At 2:45 a.m., Terry Taylor rented room 130 at the Royal Hotel so that he and appellant, Darnell Jones, would have a room to have sex with a woman whom Taylor had picked up. Jones and the woman occupied the room while Taylor left for several hours to check on his mother.
{¶ 4} Upon Taylor’s return to the hotel at approximately 11:00 a.m., Officers Florea and Olmsted of the Dayton police observed Taylor’s vehicle turning into the hotel parking lot without signaling. Taylor parked the vehicle in front of room 130, where the officers executed a traffic stop. Because Taylor did not have a valid driver’s license, Officer Olmsted asked Taylor to step out of his car and into the officers’ cruiser. Officer Florea then spotted Jones exiting room 130 with a bag.
{¶ 5} Believing that Jones might be approaching the car, Officer Florea asked Jones whether he had a driver’s license. Officer Florea testified that Jones denied having a valid ID, but claimed that “his girl” did. Officer Florea testified that Jones then reentered the room and after a brief time reemerged with a female. He was no longer carrying the bag.
{¶ 7} Officer Florea testified that he then asked Jones whether he had a driver’s license. Officer Florea testified that Jones admitted that he had only a fake ID. Officer Florea next asked Jones for his Social Security number. However, Officer Florea found that the description of the individual with that Social Security number did not match Jones’s physical description.
{¶ 8} Officer Florea then asked who had rented the room. Officer Florea testified that the female stated that she did not know who had rented the room. He also testified that Jones denied that it was his room.
{¶ 9} Officer Florea testified that he and Officer Olmsted found that the door to room 130 was open, so they decided to enter, believing that Jones’s ID might be in the bag that he left in the room. The officers discovered that the bag contained what proved to be cocaine and crack cocaine. After Jones’s motion to suppress the evidence was denied, Jones pleaded no contest and was convicted of drug charges.
{¶ 10} In reversing the trial court’s denial of Jones’s motion to suppress, the court of appeals held: “Although Jones may have disclaimed any reasonable expectation of privacy in the motel room by denying it was his and by leaving the room with the door not fully closed, the motel room was not a public place of the same character as the bus station in State v. Freeman [(1980),
{¶ 11} Thus, the court of appeals clearly held that Jones had abandoned his right to claim an expectation of privacy in the hotel room. The question is whether Jones’s abandonment of his expectation of privacy regarding the room also applied to the bag within the room.
{¶ 13} The expectation of privacy under the Fourth Amendment extends to hotel occupants. Stoner v. California (1964),
{¶ 14} “ ‘Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir.1968,
{¶ 15} However, an individual’s express abandonment can alone be sufficient to extinguish an expectation of privacy in a property interest. State v. Ross (Tenn.2001),
{¶ 16} The trial court denied the defendant’s motion to suppress, finding that Ross had abandoned his expectation of privacy in the room when he denied that he had rented it. A jury convicted defendant on drug charges.
{¶ 17} The Supreme Court of Tennessee affirmed, stating that “a defendant’s disclaimer is more than just another factor to consider [in determining abandonment], and ‘when one disclaims interest in the premises or possessions searched or in the articles seized he cannot question the legality of the search and seizure.’ ” Ross,
{¶ 18} While Ross is not squarely on all fours with the instant case, it stands for the proposition that a defendant’s express disclaimer of “ownership” of a hotel room alone is sufficient to extinguish his or her expectation of privacy in that room and its contents. Relying on the rule of abandonment and the rationale in Ross, I would hold that the court of appeals erred in concluding that Jones’s intent when he reentered the room controls our disposition in determining whether the bag was subject to Fourth Amendment protections. Irrespective of his intent at that time, Jones later left the bag in the room with the door open and expressly disclaimed ownership of the room. Consistent with Ross, Jones’s express abandonment alone was sufficient to extinguish his expectation of privacy in the hotel room and its contents, including the bag.
{¶ 19} Finally, upon questioning Jones, the officers discovered that he had only a fake ID in his immediate possession and had produced a Social Security number that was not his. Therefore, even though it is a moot point because Jones lacks standing to raise a Fourth Amendment challenge, it was reasonable for the officers to believe that they might find something in the bag that would identify Jones.
{¶ 20} Consequently, I would consider the state’s appeal and hold that Jones’s express disclaimer of any expectation of privacy in the hotel room operated to nullify any expectation of privacy that he had in the bag. Therefore, because Jones had no standing to challenge the officers’ seizure of the bag, I would reverse the judgment of the court of appeals. Accordingly, I respectfully dissent.
Notes
. The officers later learned that Jones’s “girl” was Ashley Brooks, who was not at the hotel.
Dissenting Opinion
dissenting.
{¶ 21} I dissent from the court’s decision to dismiss this appeal as having been improvidently accepted. ■ Because it is uncontroverted that appellee, Darnell Jones, did not have a reasonable expectation of privacy in the room searched and because he had abandoned the property before the search took place, I would reverse the decision of the court of appeals and reinstate the trial court’s decision denying the motion to suppress.
{¶ 22} On January 18, 2007, two city of Dayton police officers on routine patrol observed a green Mercury Sable make an abrupt turn into a motel parking lot without signaling. The officers followed the vehicle into the parking lot and determined that the driver, Terry Taylor, did not have a valid driver’s license.
{¶ 23} While the officers were in the process of arresting the driver for operating the vehicle without a license, appellee, Darnell Jones, emerged from the motel room in front of the parked car. He was carrying a grocery bag and started to walk toward the vehicle. One of the officers asked Jones whether he had a valid driver’s license. Jones stated that he did not, but told the officers that his “girl” did. Jones immediately returned to the motel room, and moments later, he reappeared with a female. This time, Jones was no longer carrying the grocery bag. Jones informed the police that his girlfriend, who was not present, owned the vehicle.
{¶ 24} Trying to determine to whom they could release the vehicle, the officers obtained the woman’s identification. It was discovered that the woman had an outstanding warrant, which resulted in her arrest. The officers asked Jones whether he had any identification, and he told the police that he had only a fake ID that he used to get into clubs. Jones gave the officers his Social Security number, but when the officers checked that number, police records indicated that it belonged to someone who did not match Jones’s description. The officers then attempted to obtain identification for Jones.
{¶ 25} The officers asked Jones to whom the motel room belonged, and Jones denied that it was his room. The door to the motel room was already open, so the officers entered the room to look for identification for Jones. Having seen Jones carrying a grocery bag when he initially left the motel room, the officers thought it might contain some information that would assist in ascertaining Jones’s identity. They looked for the bag inside the room and found it stuffed between a mattress and the nightstand. Inside the bag, the officers found a measuring cup full of a rock-like substance that they suspected to be crack cocaine, a compressed brick that appeared to be powdered cocaine, and scales.
{¶ 26} Jones was arrested and charged by indictment with one count of possession of cocaine in an amount exceeding 100 grams, but not exceeding 500 grams; one count of possession of crack cocaine in an amount exceeding five grams, but not exceeding ten grams; and three counts of possession of criminal tools. Jones moved to suppress the evidence, arguing that its discovery was the result of an unlawful search and seizure. The trial court denied Jones’s motion to suppress, holding that he did not have an expectation of privacy in the motel room. The trial court did not consider whether Jones had a privacy interest in
{¶ 27} On appeal, the Second District Court of Appeals agreed that Jones had disclaimed any privacy interest in the motel room. State v. Jones, Montgomery App. No. 22558,
{¶ 28} We granted the state’s discretionary appeal to address the important constitutional issues implicated in this appeal. State v. Jones,
Jones Did Not Have a Privacy Interest in the Grocery Bag
{¶ 29} The Fourth Amendment to the United States Constitution provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.” Article I, Section 14 of the Ohio Constitution is virtually identical.
{¶ 30} However, an individual cannot challenge a warrantless search or seizure unless he has a legitimate expectation of privacy in the property or place that is searched. State v. Buzzard,
{¶ 31} Because Jones challenges the propriety of the officers’ search of the grocery bag, he bears the burden of establishing that he had an expectation of privacy in the bag and that society is prepared to recognize the expectation as objectively reasonable. State v. Williams (1995),
{¶ 32} Contrary to the court of appeals’ holding, I would hold that Jones (a) failed to establish that he had any possessory or privacy interest in the grocery bag and (b) abandoned any privacy interest when he left the bag in a motel room and then disclaimed any privacy interest in the room.
{¶ 33} The court of appeals based its finding of a privacy interest on the fact that the officers initially saw Jones exit the motel room carrying the bag. Jones,
{¶ 34} The fact that Jones possessed the bag at one moment in time, in and of itself, does not establish that he had a possessory interest or a legitimate expectation of privacy in the bag. Jones did not assert a possessory interest in the grocery bag at the time of the search, he did not have possession of the bag at the time of the search, and he did not instruct the police not to search the bag. Without a property or possessory interest in the grocery bag, Jones did not have a legitimate expectation of privacy and thus does not have a cognizable challenge to the officers’ search. State v. Tibbetts (2001),
B
{¶ 35} It is undisputed that Jones abandoned any privacy interest he might otherwise have had in the motel room when he left it, with the door open, and told the officers that it was not his room. But Jones argues, and the court of appeals agreed, that although he disclaimed any expectation of privacy in the motel room, he did not disclaim his expectation of privacy in the bag. Jones,
{¶ 37} Jones did not need to expressly deny ownership of the grocery bag for the court to find that he relinquished any possessory interest. Rather, his intent to abandon the property is clear from the facts. Jones relinquished control over the grocery bag by leaving it in a motel room over which he had disclaimed any privacy interest.
{¶ 38} Jones argues that property is deemed abandoned only when it is left in a public place, such as a trash container or bus station. He contends that a motel room is not a “public place.” In support of his argument, Jones relies on a number of cases in which property was abandoned in “public places.” See, e.g., Abel v. United States (1960),
{¶ 39} The fact that Jones left the grocery bag in a motel room, rather than in a bus stop, trash can, or any other public location, is not dispositive. Rather, the critical inquiry is whether a defendant has a reasonable expectation of privacy in property left in a given location. Here, Jones cannot be said to have had a reasonable expectation of privacy in property he left in a location (the motel room) that he expressly denied was his. By its nature, a motel room is subject to
{¶ 40} Finally, Jones argues that he cannot be considered to have abandoned the bag because nothing in the record suggests that he would be prevented from reentering the motel room to retrieve the bag after the police officers left. Whether Jones intended to retrieve the grocery bag after he was questioned by the police officers is relevant to whether he intended to relinquish control over the bag, thereby abandoning it, or whether he merely sought to protect the bag from inspection by the officers. Smith v. Ohio (1990),
Conclusion
{¶ 41} Because I would hold that Jones did not establish a legitimate expectation of privacy in the grocery bag and that he abandoned any expectation of privacy that he had, I would reverse the decision of the court of appeals and would reinstate the trial court’s decision denying Jones’s motion to suppress. Therefore, I respectfully dissent.
Lead Opinion
{¶ 1} The cause is dismissed, sua sponte, as having been improvidently accepted.