Tilghman, Michael Joseph

• Court: Court of Criminal Appeals of Texas
• Decided: June 23, 2021
• Docket: PD-0676-19
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0676-19

MICHAEL JOSEPH TILGHMAN, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS HAYS COUNTY

MCCLURE, J., filed a concurring opinion. OPINION

Today the Court holds a hotel has a right to evict a guest, without advance

notice, if the guest engages in behavior that violates the hotel’s policies, and that the

hotel has the right to call the police for assistance with the eviction. The Court has

therefore decided that a hotel manager’s instant eviction of a hotel guest immediately

terminates a guest’s reasonable expectation of privacy. It arrives at this decision by TILGHMAN CONCURRENCE ― 2

looking at federal case law, and the case law of several of our sister states. Today’s

holding is consistent with other jurisdictions that have considered this issue, as well

as consistent with the right of a property owner, absent a landlord-tenant

relationship, to control under what circumstances a guest may stay on property. And

yet I write separately to express my concern that under this eviction theory, there is

a danger that a hotel manager could simply show up with police, immediately

extinguish any privacy interest that a guest has in their room via eviction, and allow

police to search a room without regard for the Fourth Amendment. Without direction

from the Legislature as to specific eviction and notice requirements involving hotel

guests, however, I reluctantly concur with the majority that in this case, hotel

management lawfully evicted Appellant, which terminated his expectation of

privacy in the room, without prior notice.

The circumstances surrounding the eviction and subsequent arrest of the

occupants of Room 123 of the Marriott Fairfield Inn on October 14, 2016, were

captured on Officer Daniel Duckworth’s body-worn camera. The San Marcos Police

Department received a phone call from one of the hotel’s managers asking assistance

in evicting the occupants of Room 123 “for having drugs in the room.” After the

officers arrived, they accompanied the hotel manager to Room 123. The officers

knocked on the door repeatedly, announced that they were with the San Marcos

Police Department, and proceeded to open the door. TILGHMAN CONCURRENCE ― 3

As seen on the body-worn camera footage, two occupants, Bo Zimmerhanzel

and Michael Joseph Tilghman (the Appellant), can be seen standing near the door,

with Zimmerhanzel appearing surprised. One of the officers tells the occupants,

“How’s it going? San Marcos Police Department. What’s going on, guys?”

Zimmerhanzel, who is standing partly inside the bathroom, responds, “Nothing.

Goddamn. What’s going on here?” An officer replies, “Hey, let me see your other

hand.” Zimmerhanzel complies by stepping outside the bathroom and showing the

officers both of his hands. He then tells the officers, “Oh, I’m sorry. Damn, what the

hell’s going on?”

One of the officers announces, “Here’s the deal. Y’all, it’s time for y’all to

leave.” Zimmerhanzel asks, “What did we do?” The officer replies, “You are no

longer welcome guests of this hotel.” Zimmerhanzel again asks, “What did we do,

sir? Damn.”

One of the officers asks if there are only two men in the room and

Zimmerhanzel points at the bathroom and indicates that another person is inside.

Travis Ward then emerges from the bathroom, holding a disposable shaving razor,

and tells the officers, “Sorry, I’m shaving.”

Zimmerhanzel again asks, “What, what’s the problem here?” Officer

Duckworth then gestures his hand toward the door, telling the other officers to “go

in, make sure.” Officer Smith then enters the room, with another officer following TILGHMAN CONCURRENCE ― 4

closely behind him. As Smith is walking past the door, Zimmerhanzel then says,

“Come on, come on in, man.” All of this occurs within 30 seconds of the officers

opening the door.

After the officers had entered the room, the three officers “stood around . . .

in different areas and then we just told them to collect their belongings and

essentially stood there until we started observing narcotics in plain view.” This

evidence included “a glass container containing marihuana on the nightstand in

between the two beds” and, in the drawer to the nightstand, “a small, clear plastic

bag containing a white crystalline substance” that Duckworth recognized as

methamphetamine. After detaining the men, the officers “searched the areas

immediately around them” and found additional narcotics in the trash can,

specifically “another plastic bag containing many smaller, clearer plastic bags

containing methamphetamine.”

The majority opinion holds that Appellant was evicted when the hotel staff

took affirmative steps to evict the occupants of Room 123 when the hotel manager

(1) initially knocked on the door, and (2) called the police to assist in an eviction. It

is at this moment, according to the majority, that Appellant’s expectation of privacy

in the hotel room was extinguished.

While I agree that a hotel’s lawful eviction of a guest from his

room may terminate a guest’s legitimate expectation of privacy, I would prefer that TILGHMAN CONCURRENCE ― 5

the guest being evicted have knowledge of the eviction before it occurs, or at a

minimum, before the police conduct a search of the room. Such a knowledge

requirement would be somewhat analogous, in my mind, to the notice requirement

in the criminal trespass statute. A prosecution for criminal trespass requires that the

State prove that Appellant had “notice” that he may no longer remain on or in

property of another as defined by Section 30.05(b)(2). “Notice” means: (A) oral or

written communication by the owner or someone with apparent authority to act for

the owner; (B) fencing or other enclosure obviously designed to exclude intruders

or to contain livestock; (C) a sign or signs posted on the property or at the entrance

to the building, reasonably likely to come to the attention of intruders, indicating that

entry is forbidden. TEX. PENAL CODE § 30.05(b)(2).

In this case, the record before us is void of any evidence that Appellant had

“notice” of an eviction. According to the record, hotel staff knocked on Appellant’s

door to alert him that he was being evicted but Appellant did not come to the door

or answer those attempts.1 But unlike the criminal trespass statute, notice is not a

requirement in a hotel eviction. In fact, Texas law allows eviction from a hotel

without legal process. McBride v. Hosey, 197 S.W.2d 372, 375 (El Paso, 1946, writ

1 The night manager testified at the suppression hearing that prior to his arrival at the hotel that night, another manager or hotel employee had knocked on the door of the room “[t]o get [the occupants] to leave” but that “nobody answered” and that “another gentleman said that they were gone.” TILGHMAN CONCURRENCE ― 6

ref’d n.r.e). Ideally, hotels would have eviction policies, give them to guests, and

provide notice before an eviction. But none of these requirements exist in Texas law,

and I am not suggesting that this Court judicially create hotel eviction notice

requirements. This type of law-making is left to the Legislature.

Do people have an expectation of privacy in a hotel? Yes, but it’s limited.

The Fourth Amendment protects people, not places. Katz v. United States, 389 U.S.

347, 351 (1967). A guest in a hotel room is protected against unreasonable searches

and seizures, and the general requirement for a search warrant is not suspended

merely because of the guest status of the occupant of the room. Stoner v. California,

376 U.S 483, 490 (1964). The United States Supreme Court has held that hotel guests

are “people” entitled to this protection “[n]o less than a tenant of a house, or the

occupant of a room in a boarding house, a guest in a hotel room is entitled to

constitutional protection against unreasonable searches and seizures” and that this

“protection would disappear if it were left to depend upon the unfettered discretion

of an employee of the hotel.” Stoner, 376 U.S. at 490. The Court added, “It is

important to bear in mind that it was the petitioner’s constitutional right which was

at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which

only the petitioner could waive by word or deed, either directly or through an

agent.” Id. at 489. TILGHMAN CONCURRENCE ― 7

Given this framework, it seems that the intermediate court is correct that a

Fourth Amendment violation occurred at the moment officers opened the door and

were able to enter and see what was inside. This is because, as the Supreme Court

held in Stoner, it is the rights of the occupant of the room are what is at stake, not

the apparent authority of the hotel employee. On the other hand, I find no error in

this Court’s opinion in that hotel management was within their rights to evict

Appellant; indeed, the police may assist with eviction when asked by hotel staff; and

a hotel manager is not prohibited from entering the room. See Voelkel v. State, 717

S.W.2d 314, 315 (Tex. Crim. App. 1986).

While I realize that this was a highly fluid situation with no obvious solution,

I do not like the officers’ warrantless entry into the room. It would have been better

(and this case would not be before us) if the officers had waited in the hallway or

obtained consent to enter the room prior to doing so. Yet here we are. Under the

Court’s holding, there is a danger that a hotel manager can simply show up with

police and immediately extinguish any privacy interest that a guest has in their room.

Then police could search the room without regard for the Fourth Amendment. The

action of the hotel clerk would make the search of a hotel room lawful, which is the

result the Supreme Court cautioned against in Stoner. See Stoner, 376 U.S. at 487-

88. TILGHMAN CONCURRENCE ― 8

I also take issue with this Court’s holding that Appellant’s expectation of

privacy in the hotel room extinguished when hotel staff took “affirmative steps” to

evict the occupants of Room 123. A hotel guest’s knowledge of an eviction, which

would terminate any privacy rights, is critical to the protections offered by the Fourth

Amendment. A person’s belief or understanding cannot be terminated without one’s

knowledge. Therefore, it logically follows that a hotel guest has an expectation of

privacy in the room he is occupying that cannot be terminated without the guest’s

knowledge.

This is not what happened in this case. The facts show that the occupants of

Room 123 were not aware of the eviction until the moment they were asked by the

officers to leave. It was at this moment, and no sooner, that the occupant’s reasonable

expectation of privacy began to erode. But, as evidenced by the body-cam recording,

police officers entered the room without Appellant’s consent. At the time the police

entered, Appellant was simultaneously being evicted and losing his expectation of

privacy in the room.

I would prefer that any hotel guest, even one who was previously engaging2

in misconduct in his room, maintain his expectation of privacy in that room unless

2 I am by no means implying that during every police-assisted eviction, the police should stand outside a room, particularly if a valid warrant exception exists. However, that was not the situation here. The day manager had smelled marijuana earlier in the day, but there was no evidence that the night manager or the officers smelled marijuana outside Room 123. TILGHMAN CONCURRENCE ― 9

and until the hotel notifies him that he has been or is being evicted, and has been

given a reasonable amount of time to vacate the premises, and law enforcement

would be able to provide a reasonable amount of assistance to hotel management to

effectuate the eviction. Applying this standard to the facts of this case, once

Appellant was told by the manager that he was evicted, Appellant should have been

given a reasonable amount of time to gather his belongings and leave before the

police entered the room without the guest’s permission, without a warrant, or without

an exception to the warrant requirement. This would allow an evicted hotel guest to

retain a reasonable, but steadily dwindling, expectation of privacy, and prevent the

police from entering the room unless the guest resists eviction. Because Appellant

had not lost his legitimate expectation of privacy in Room 123 at the time the police,

at the invitation of the hotel, entered and searched the room, that search would be

unreasonable, and the evidence seized would be suppressed.

The court of appeals raised the concern that allowing for “instant” evictions

may be abused by police agencies to get around the requirement to get a search

warrant. The majority seeks to allay that concern by pointing out that hotels acting

in such a way would risk bad reviews online and customer complaints. I note that

the hotel in this case is a Marriott property – a hotel typically used by business and

leisure guests staying for a relatively short amount of time (less that a week; often

no more than a couple of nights). While getting a bad review on Yelp may be a TILGHMAN CONCURRENCE ― 10

concern for a Marriott hotel owner, some hotels might be resistant to these concerns,

such as “extended stay” hotels that operate much more like apartments without

leases creating landlord-tenant relationships. Many of these properties are used by

people as transitional housing over the course of weeks and months, and many such

properties are used for illegal activity ranging from prostitution to narcotics sales. It

is at this type of property that abuses of instant evictions are more likely to occur.

There is now a risk that someone residing at such a hotel for several months could

be instantly evicted and subjected to an invasive search without a warrant based on

mere suspicion, or even nefarious motives by hotel management. Hence my belief

that ideally, a hotel guest should have reasonable time to gather belongings and leave

upon eviction. Until and unless the Legislature intervenes, this risk will persist.

In conclusion, I do not like the contemporaneous eviction and termination of

expectation of privacy that occurred in this case. Yet I agree that hotel management

was within their rights to evict Appellant. Without direction from the Legislature as

to the type of notice required for the eviction of hotel guests, I reluctantly concur

with the majority’s holding that hotel management can evict guests and terminate

their expectation of privacy in the room at any time, with no prior notice required.

Filed: June 23, 2021

PUBLISH