United States v. Wali Ebbin Rashee Ross

941 F.3d 1058

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 29, 2019
• Docket: 18-11679
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11679 ________________________

D.C. Docket No. 3:17-cr-00086-MCR-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WALI EBBIN RASHEE ROSS, a.k.a. Wali Ibn Ross, a.k.a. Wal Ebbin Rashee Ross, Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(October 29, 2019) Case: 18-11679 Date Filed: 10/29/2019 Page: 2 of 32

Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, * District Judge.

NEWSOM, Circuit Judge:

This appeal arises out of the denial of a defendant’s motion to suppress

evidence found in two separate, warrantless searches of his motel room—the first

turned up a gun; the second, drugs and associated paraphernalia. On appeal, the

defendant, Wali Ross, challenges the constitutionality of both searches. The

government responds by defending the searches on the merits and, as a threshold

matter, by disputing Ross’s Fourth Amendment “standing” to contest them. (For

the uninitiated, Fourth Amendment “standing” really has nothing to do with true-

blue standing; rather, it constitutes a threshold element of a defendant’s

constitutional challenge on the merits. More on that later.) With respect to the

standing issue, the government first argues that Ross “abandoned” his room, and

any privacy interest therein, when, after seeing police officers staked out in the

parking lot, he fled the motel on foot. Accordingly, the government says, Ross

lacks Fourth Amendment standing to challenge either of the two subsequent

searches. Moreover, and in any event, the government contends that any

reasonable expectation of privacy that Ross might have had in the room expired at

* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation. 2 Case: 18-11679 Date Filed: 10/29/2019 Page: 3 of 32

the motel’s standard 11:00 a.m. checkout time, and that he therefore lacks

standing, at the very least, to challenge the second of the two searches.

We hold as follows: In the circumstances of this case, Ross did not abandon

his room when he ran, and he therefore has Fourth Amendment standing to

challenge the officers’ initial entry and the ensuing protective sweep, which they

conducted within about 10 minutes of his flight. We further hold, however, that

Ross’s constitutional challenge to the officers’ entry and sweep fails on the merits.

As to the second search, which officers carried out with the consent of hotel

management shortly after 11:00 a.m., we hold that Ross lost any reasonable

expectation of privacy in his room at checkout time—and with it, his Fourth

Amendment standing to contest the search.

I

A

The following took place between [approximately] 8:00 a.m. and 12:00 p.m.

on July 21, 2017.

Early that morning, a joint state-federal task force gathered outside a

Pensacola motel to arrest Wali Ross on three outstanding felony warrants—for

trafficking hydrocodone, failure to appear on a battery charge, and failure to appear

on a controlled-substances charge. Although the officers had information that

Ross was staying at the motel, he wasn’t a registered guest, so they set up

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surveillance around the building and waited for him to make an appearance. The

officers knew that Ross was a fugitive who had a history of violence and drug

crimes.

Sometime between 9:00 and 9:30 a.m., Special Agent Jeremy England saw

Ross leave Room 113, head for a truck, return to his room briefly, and then

approach the truck again. When Ross spotted the officers, he made a break for it,

scaling a chain-link fence and running toward the adjacent Interstate 10. The

officers went after Ross, but when they reached the opposite side of the interstate

to intercept him, he wasn’t there. In the meantime, it dawned on Agent England

that none of the officers had stayed behind at the motel, and he feared that Ross

might have doubled back to the room unnoticed. So, about ten minutes after the

chase began, Agent England and Detective William Wheeler returned to the motel

to see if Ross had snuck back into his room. The door to Room 113 was closed,

and Ross’s truck remained in the parking lot.

Detective Wheeler obtained a room key and a copy of the room’s

registration from the front desk—the latter showed that the room was rented for

one night to a woman named Donicia Wilson. (Although the name meant nothing

to the officers at the time, they later learned that Ross was “a friend of a friend” of

Wilson’s husband; she had rented the room after she and her husband refused

Ross’s request to spend the night at their home because they had children and

4 Case: 18-11679 Date Filed: 10/29/2019 Page: 5 of 32

didn’t know him very well.) Using the key, Agent England and Detective Wheeler

entered Room 113 to execute the warrants and arrest Ross; they entered without

knocking, as they believed that someone inside—Ross, a third party, or both—

might pose a threat to them. Agent England testified that because Ross had a

history of violence it was “just protocol” to operate on the premise that there would

“possibly [be] someone [in the motel room] to hurt” them—in light of that risk, he

said, the officers “made a tactical entry into the room.” Once inside, they

conducted a quick protective sweep, and on their way out Agent England saw in

plain view a grocery bag in which the outline of a firearm was clearly visible.

Agent England seized the gun, touched nothing else, and left.

Deputy U.S. Marshal Nicole Dugan notified ATF about the gun while Agent

England and Detective Wheeler continued to surveil the motel. ATF Special

Agent Kimberly Suhi arrived at the motel around 10:45 a.m. to retrieve the

firearm. The motel’s manager, Karen Nelson, told Agent Suhi that she could

search Room 113 after the motel’s standard 11:00 a.m. checkout time; up until that

point, Suhi testified, Nelson “st[ood] in the doorway of the room” to “mak[e] sure

no one was entering.” 1 Nelson explained that if it looked like a guest was still

using his room at checkout time, she might place a courtesy call to ask if he wanted

1 Nelson testified that she had arrived at work after Ross fled from police, that she hadn’t seen anyone enter the room, and that she had no knowledge of the officers’ earlier entry and sweep. 5 Case: 18-11679 Date Filed: 10/29/2019 Page: 6 of 32

to stay longer; otherwise, she said, motel management assumed that every guest

had departed by 11:00 a.m., at which point housekeepers would enter the room to

clean it. Nelson also explained that it was the motel’s policy to inventory and store

any items that guests left in their rooms and to notify law enforcement if they

found any weapons or contraband.

At 11:00 a.m., Agent Suhi again sought and received Nelson’s permission to

search Room 113. When ATF agents entered the room, they found a cell phone

and a Crown Royal bag filled with packets of different controlled substances—

including around 12 grams of a heroin-laced mixture—cigars, and a digital scale.

B

Ross was charged with one count of being a felon in possession of a firearm

and ammunition, one count of knowingly possessing heroin with intent to

distribute, one count of firearms-related forfeiture, and one count of forfeiture

related to the property and proceeds obtained by a controlled-substances violation.

He moved to suppress the evidence found in both searches of his motel room. In

his motion, Ross argued that the officers’ initial entry—and the ensuing protective

sweep, which turned up the gun—violated the Fourth Amendment “because there

were no grounds for them to believe that a dangerous individual (or anyone) was

inside the room.” He asserted that “it would have been unrealistic for the officers

to believe that [he] had returned to the room and was inside at that time (after

6 Case: 18-11679 Date Filed: 10/29/2019 Page: 7 of 32

fleeing from them).” Accordingly, he said, the officers didn’t have the requisite

reasonable belief either to enter the room or to conduct the sweep. Ross also

argued that the second search—which was conducted with Nelson’s permission

just after 11:00 a.m., and in which the drugs were discovered—violated the Fourth

Amendment “regardless of the alleged consent of the hotel management because it

would not have occurred absent the illegal first search.” According to Ross, “[t]he

illegal seizure of the firearm . . . directly [led] to the agents’ desire to conduct the

second search and their discussion with management to try to get its consent.”

With respect to the initial entry and the protective sweep, the government

responded (1) that because the officers couldn’t find Ross near the interstate, they

had reason to believe that he had returned to his motel room; (2) that Ross’s

multiple drug- and violence-related felony arrest warrants led the officers to

conclude that he could be armed and dangerous; and (3) in addition, that exigent

circumstances justified the entry, as “there was a definite likelihood that further

delay could cause the escape of the defendant” and “jeopardize the safety of the

officers and the public.” With respect to the second search, the government argued

that Ross didn’t have Fourth Amendment “standing” to challenge it, as he had no

reasonable expectation of privacy in Room 113 after the 11:00 a.m. checkout time

and that, in any event, the search was valid because the officers reasonably

believed that Nelson had the authority to consent to the search. Finally, the

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government contended that even if the second search was tainted, motel staff

would inevitably have entered the room after checkout time and alerted police

when they found the gun in plain view.

The district court denied Ross’s motion to suppress. With respect to the

initial entry and sweep, the court found that “[t]he arrest warrant granted officers a

limited ability to enter to effectuate the arrest on [their] reasonable belief that Ross

was in the room.” Moreover, the court observed, the fact that Room 113 was not

registered in Ross’s name gave the officers “reason to be concerned that someone

else might be in the room as well.” Finally, the court held that “the chase and the

fact that the officers lost sight of Ross presented exigent circumstances” that

further justified the sweep—because the officers were in hot pursuit of a suspect

with a history of violent activity for whom they had an arrest warrant, and who

reasonably could have returned to the room, the first search was lawful.

With respect to the second search, the district court concluded that after

checkout time, Ross—who hadn’t requested a late checkout or paid for an

additional day—had no protectible privacy interest in the room. The court

separately held that even if the initial entry and sweep were unlawful, Nelson’s

consent provided ample authority for the officers’ post-checkout search. Finally,

the court found that the inevitable-discovery and independent-source doctrines

applied—either motel employees would have found the incriminating evidence

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when cleaning Room 113 after checkout time, or the task-force officers would

have eventually searched the room.

Ross pleaded guilty to possession of a firearm and ammunition by a

convicted felon and possession with intent to distribute heroin, reserving the right

to appeal the denial of his motion to suppress.2

II

The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. As already explained, this case involves two

separate searches of Ross’s motel room. We will consider them in turn.

Ross first challenges the officers’ initial entry and the ensuing protective

sweep, which they conducted roughly 10 minutes after Ross fled the motel on foot

and shortly after they lost sight of him during the chase. The government not only

defends the entry and sweep on the merits but also contends that Ross “abandoned”

his motel room when he ran and, therefore, that he lacks Fourth Amendment

2 “A ruling on a motion to suppress presents a mixed question of law and fact. We review the district court’s findings of fact for clear error and its legal conclusions de novo.” United States v. Johnson, 777 F.3d 1270, 1273–74 (11th Cir. 2015) (quotation omitted). “All facts are construed in the light most favorable to the party prevailing below”—here, the government. Id. at 1274 (quotation omitted). 9 Case: 18-11679 Date Filed: 10/29/2019 Page: 10 of 32

“standing” to complain. Because standing presents a threshold question, we will

address it first and then turn—if and as necessary—to the merits.

The Fourth Amendment’s protections extend to any thing or place with

respect to which a person has a “reasonable expectation of privacy,” California v.

Ciraolo, 476 U.S. 207, 211 (1986) (quotation omitted)—including a hotel room,

see, e.g., Stoner v. California, 376 U.S. 483, 490 (1964). By contrast, an

individual’s Fourth Amendment rights are not infringed—or even implicated—by

a search of a thing or place in which he has no reasonable expectation of privacy.

See, e.g., United States v. Brazel, 102 F.3d 1120, 1147 (11th Cir. 1997). This

threshold issue—whether an individual has a reasonable expectation of privacy in

the object of the challenged search—has come to be known as Fourth Amendment

“standing.” To be clear—stay tuned for additional detail—Fourth Amendment

“standing” and traditional Article III standing are not the same thing.

The government argues here that Ross “abandoned” any reasonable

expectation of privacy in his room when he fled the motel with no intention of

returning. Accordingly, the government says, Ross lacks Fourth Amendment

standing to challenge either the initial entry and the ensuing protective sweep—

which occurred after the officers’ ill-fated pursuit of Ross toward I-10, and in

10 Case: 18-11679 Date Filed: 10/29/2019 Page: 11 of 32

which they discovered the gun—or the subsequent search—which occurred shortly

after 11:00 a.m., and in which officers discovered the drug-related evidence.3

Although it’s a close call, we reject the government’s abandonment

argument. We hold, therefore, that Ross has standing—at least to challenge the

officers’ initial entry and sweep. (As explained below, we conclude for other

reasons that Ross lacks standing to challenge the officers’ second, post-checkout

search. See infra at 20–25.)

Before addressing the substance of the government’s position regarding

abandonment, we first have to deal with a threshold procedural issue—namely, that

the government didn’t argue abandonment in the district court. Accordingly, we

must determine whether the government has waived its Fourth Amendment

standing objection—abandoned its abandonment argument, so to speak—vis-à-vis

the initial entry and sweep.

As a general matter, we have held that if the government fails to contest

Fourth Amendment standing before the district court, it waives the issue for

appellate purposes. See United States v. Gonzalez, 71 F.3d 819, 827 n.18 (11th

3 In a footnote in its brief, the government seems to suggest, separately, that because Ross’s name wasn’t on the hotel registration, he never “established a legitimate expectation of privacy in Room 113 such that he had standing to contest either search [even] absent any abandonment.” It’s an interesting question—whether an individual who stays alone overnight in a hotel room rented by someone else has a protectible privacy interest in that room. But because the parties didn’t brief that issue, and it wasn’t raised before the district court, we won’t address it here. 11 Case: 18-11679 Date Filed: 10/29/2019 Page: 12 of 32

Cir. 1996), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332 (2009);

United States v. Kapperman, 764 F.2d 786, 791 n.6 (11th Cir. 1985). The

government contends, though, that a different rule applies here under our decision

in United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015). Sparks, the

government correctly says, holds that where a defendant has abandoned a

premises, he suffers no injury from a search of it—and therefore has no standing in

either the Fourth Amendment sense or the Article III sense. Id. at 1341 n.15. And,

the argument goes, because abandonment implicates Article III standing—and thus

subject matter jurisdiction—the issue isn’t waivable. Id.

We have misgivings about the correctness of Sparks, which seems to

“confuse[]” Fourth Amendment and Article III standing in precisely the way that

the Supreme Court has forbidden. See Byrd v. United States, 138 S. Ct. 1518, 1530

(2018) (“The concept of standing in Fourth Amendment cases can be a useful

shorthand for capturing the idea that a person must have a cognizable Fourth

Amendment interest in the place searched before seeking relief for an

unconstitutional search; but it should not be confused with Article III standing,

which is jurisdictional and must be assessed before reaching the merits.”). Even

so, we recognize that we are bound by Sparks’s holding that where, as here, the

challenge to Fourth Amendment standing results from a defendant’s alleged act of

abandonment, the challenge likewise implicates Article III jurisdiction, rendering it

12 Case: 18-11679 Date Filed: 10/29/2019 Page: 13 of 32

non-waivable. See, e.g., Breslow v. Wells Fargo Bank, 755 F.3d 1265, 1267 (11th

Cir. 2014) (“[I]t is the firmly established rule of this Circuit that each succeeding

panel is bound by the holding of the first panel to address an issue of law, unless

and until that holding is overruled en banc, or by the Supreme Court.”) (alteration

in original) (quotation omitted). Rightly or wrongly, therefore, we find ourselves

constrained to agree with the government that its failure to contest Ross’s standing

to challenge the officers’ initial entry and sweep in the district court doesn’t bar it

from doing so here.

We turn, then, to address the government’s abandonment argument on the

merits.

“[I]t is settled law that one has no standing to complain of a search or seizure

of property he has voluntarily abandoned.” United States v. Colbert, 474 F.2d 174,

176 (5th Cir. 1973) (en banc) (citations omitted).4 While a defendant bears the

initial burden of demonstrating that he has a reasonable expectation of privacy in a

place or thing, the government bears the burden of proving that he has abandoned

the property and, with it, his expectation of privacy. See United States v. Ramos,

12 F.3d 1019, 1023 (11th Cir. 1994).

4 See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (adopting pre-October 1981 Fifth Circuit case law as binding precedent).

13 Case: 18-11679 Date Filed: 10/29/2019 Page: 14 of 32

The “critical inquiry” for present purposes is whether Ross “voluntarily

discarded, left behind, or otherwise relinquished his interest in [his motel room] so

that he could no longer retain a reasonable expectation of privacy with regard to it

at the time of the search.” Id. at 1022 (emphasis omitted) (quoting United States v.

Winchester, 916 F.2d 601, 603 (11th Cir. 1990)). His intent “may be inferred from

acts, words and ‘other objective facts.’” Id. at 1023 (quoting United States v.

Pirolli, 673 F.2d 1200, 1204 (11th Cir. 1982)). In assessing abandonment, we

consider “[a]ll relevant circumstances existing at the time of the alleged

abandonment,” Colbert, 474 F.2d at 176 (citation omitted), as well as subsequent

events, which may provide “evidence of the defendant’s intent to abandon the

property at the previous time,” Winchester, 916 F.2d at 604 (citation omitted).

Abandonment under the Fourth Amendment “is not abandonment in the ‘strict

property-right sense’” but rather is evaluated using a “common sen[s]e approach.”

Sparks, 806 F.3d at 1342 (alteration in original) (quoting United States v. Edwards,

441 F.2d 749, 753 (5th Cir. 1971)).

The abandonment issue here is close; we can see both sides. For the reasons

explained below, however, we conclude that the government has not discharged its

burden of demonstrating that Ross had abandoned his room at the time of the

officers’ initial entry and protective sweep—which, again, occurred no more than

10 minutes after Ross fled the motel.

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The facts pertaining to Ross’s alleged abandonment are not well

developed—in large part because, as already noted, the government didn’t argue

abandonment in the district court. And indeed, on appeal, the government doesn’t

really make much of a factual argument regarding Ross’s abandonment, aside from

asserting that Ross never returned to Room 113 or sought to extend his stay.

Instead, the government relies primarily on statements in Ross’s opening brief.

There, Ross said, for instance, that “it was objectively unreasonable to think that

[he] would have returned to the room”—and, indeed, that “[t]he premise that [he]

would have returned to the room was absurd.” Br. of Appellant at 26. In fairness,

though, Ross made those statements in an effort to rebut the government’s merits-

based argument, in support of the initial entry’s constitutionality, that the officers

had good reason to believe that Ross was in Room 113—an argument that tends

(rather conspicuously) to undermine its contention that Ross had abandoned the

very same room.5 In his reply brief, Ross hastened to clarify that “[t]he

government [was] confus[ing his] lack of intent to return to Room 113 while police

5 Indeed, both parties are trying to have it both ways—Ross argues with respect to the merits of the initial entry and sweep that the officers had no reason to believe that he would have gone back to the room, while asserting with respect to abandonment that his flight didn’t reflect an intention not to return. For its part, the government simultaneously contends that the officers reasonably thought that Ross was in the room—and accordingly were justified in entering to arrest him and in conducting a protective sweep—and that it was inconceivable that Ross would have returned. Inconsistency all around. 15 Case: 18-11679 Date Filed: 10/29/2019 Page: 16 of 32

officers [we]re present with an abandonment of the property contained within the

room.” Reply Br. of Appellant at 7.

To be clear, we have held that an individual can abandon a reasonable

expectation of privacy solely as a result of police pursuit or presence. In United

States v. Edwards, a defendant involved in a high-speed chase that ended in a car

crash exited his vehicle—ditching it on a public highway, leaving the engine and

lights on—and fled from police on foot. 441 F.2d 749, 750 (5th Cir. 1971). After

unsuccessfully pursuing the defendant, officers returned to the car to inspect it,

where they found illegal whiskey in the trunk. Id. The defendant moved to

suppress the whiskey, arguing that he had a reasonable expectation of privacy in

the car’s trunk. Id. at 749. We held that even if the defendant might initially have

had a protectible privacy interest in his car, he had abandoned it by running away.

Id. at 751.

There are obvious similarities between Edwards and this case—like the

defendant there, Ross saw the police, bolted, and left his belongings in order to

avoid arrest. We conclude, though, that there are also important differences. Two,

in particular, convince us that the government hasn’t carried its burden of

demonstrating Ross’s abandonment.

First, the object of the search at issue here was a hotel room, not a car. Cars

have historically been accorded a reduced level of Fourth Amendment protection.

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See, e.g., California v. Acevedo, 500 U.S. 565, 569–70 (1991); United States v.

Holland, 740 F.2d 878, 879–80 (11th Cir. 1984) (explaining that there is “a

diminished expectation of privacy in automobiles” and that their “inherent

mobility” distinguishes them from homes). By contrast, while a hotel room is not

exactly a “house[]” within the meaning of the Fourth Amendment—one needn’t

ever “check out” of his own residence, for instance—the courts have long held that

hotel rooms are entitled to a home-like level of constitutional protection. See

Stoner, 376 U.S. at 490 (“No 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.”) (citation omitted); see

also United States v. Forker, 928 F.2d 365, 370 (11th Cir. 1991) (stating that a

person’s hotel room is the “equivalent” of his home).

Second, there are meaningful factual distinctions between Edwards and this

case. The defendant there left his car in the middle of a public highway, with the

keys in the ignition and the lights on, before running from the police. 441 F.2d at

750. When Ross fled the motel, by contrast, he locked his room and kept his key

with him. Especially given that only 10 minutes elapsed between Ross’s flight and

the officers’ warrantless entry, we simply can’t say that, by that time, Ross had

abandoned his privacy interest in the room.

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We hold, therefore, that Ross has the requisite standing to challenge the

officers’ initial entry and protective sweep on the merits.

That, for Ross, is the good news. The bad: We hold that the task-force

officers’ initial entry and accompanying protective sweep of Ross’s room complied

with the Fourth Amendment.

As already explained, when the officers arrived at the motel on the morning

of July 21, 2017, their objective was to arrest Ross on several outstanding

warrants. “[F]or Fourth Amendment purposes, an arrest warrant founded on

probable cause implicitly carries with it the limited authority to enter a dwelling in

which the suspect lives when there is a reason to believe the suspect is within.”

United States v. Williams, 871 F.3d 1197, 1201 (11th Cir. 2017) (alteration in

original) (quotation omitted). We can assume for present purposes that a person’s

hotel room counts as a “dwelling,” see Forker, 928 F.2d at 370, and, therefore, that

the rules we have articulated for in-home arrests pursuant to valid warrants apply

here, as well.

In particular, in order to enter a hotel room to execute an arrest warrant, a

law enforcement officer “must have a reasonable belief” both (1) that the room is

in fact the suspect’s and (2) that the suspect is inside. See Williams, 871 F.3d at

1201. “In undertaking this two-part inquiry, we consider the totality of the

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circumstances known to the officer at the time the warrant is executed and are

guided by ‘common sense factors.’” Id. (quotations omitted). Officers need not be

“absolutely certain” that a suspect is inside before entering “to execute an arrest

warrant.” United States v. Magluta, 44 F.3d 1530, 1538 (11th Cir. 1995). Rather,

they “may make reasonable inferences and presumptions based on the time of day

or observations at the scene”—for instance, “that a person is [there] when his

vehicle is parked outside.” Williams, 871 F.3d at 1201. If, based on such rational

deductions, the officers have a reasonable belief that a suspect is inside, they may

search for him “until [he] is found.” Id. Moreover, in order “[t]o protect their

safety while making, and after, an arrest, [the] officers may also perform a

‘protective sweep’” of the premises. Id. (quotation omitted). And finally, while

inside, the officers “are permitted to seize any contraband in plain view.” Id.

Here, the officers clearly knew that Ross was staying in Room 113—they

had watched him walk out the door, approach a truck in the parking lot, return to

the room, and then reemerge. The facts also support the conclusion that the

officers had the requisite “reasonable belief”—based on “common sense factors”

and permissible “inferences and presumptions”—that Ross had returned to the

room following his flight toward I-10. The officers knew, for instance, not only

that Ross had been in Room 113 but also that he had left his truck in the motel’s

parking lot. They also knew that after chasing Ross, they had lost sight of him and

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that no one had thought to stay behind to surveil the motel. Finally, they knew that

when they returned, Ross’s truck was still in the motel’s parking lot, eliminating

the possibility that he had driven away and (on balance) increasing the probability

that he was back inside the room. Particularly given that the officers’ ill-fated

pursuit of Ross had lasted no more than 10 minutes, we think it was eminently

reasonable for them to conclude that Ross had doubled back to the motel and taken

refuge in his room.

Because the officers reasonably believed that Ross was in Room 113, they

had authority (1) to enter the room to execute the arrest warrants, (2) to conduct a

limited protective sweep of the room to ensure that no one inside posed a danger to

them, 6 and (3) to seize the gun, which they found in plain view. See Williams, 871

F.3d at 1201. The officers’ entry, sweep and seizure, therefore, complied with the

Fourth Amendment. We affirm the district court’s denial of Ross’s motion to

suppress the gun.

We turn, then, to the second search, which the officers conducted with motel

management’s consent shortly after 11:00 a.m. and in which they discovered drug-

6 Recall that before they entered, the officers knew that Room 113 was rented in someone else’s name, which increased the risk that a second person, in addition to Ross, might also be inside. Cf. United States v. Standridge, 810 F.2d 1034, 1037 n.2 (11th Cir. 1987) (holding that a protective sweep of a hotel room was permissible where “the police had not followed [the defendant] when he went to the motel and the room had not been constantly watched,” and “thus, the police could not know whether [the defendant] was alone”). 20 Case: 18-11679 Date Filed: 10/29/2019 Page: 21 of 32

related evidence. Once again, we begin—and this time find that we can end—with

the government’s contention that Ross lacks Fourth Amendment standing. The

government’s standing argument concerning the second search—which it clearly

made, and thus preserved, in the district court—is slightly different from its

argument concerning the initial entry. With regard to the second search, the

government contends that Ross’s reasonable expectation of privacy in his motel

room expired—lapsed—as of the motel’s standard 11:00 a.m. checkout time. For

the reasons that follow, we agree.

While our existing precedent provides a few hints, it doesn’t squarely

answer what we’ll call the “checkout time” question. In United States v. Savage,

for instance, we stated in a footnote that the defendant there had “automatically

relinquished possession of [his room] . . . at 11 a.m., the motel’s checkout time.”

564 F.2d 728, 730 n.5 (5th Cir. 1977). In that case, though, the defendant “had

turned in his key the night before,” thereby clearly evidencing an affirmative intent

to quit the room. Id. In a later decision, United States v. Ramos, we clarified that

“[m]ore evidence than mere possession of a key” after checkout time “is necessary

to satisfy a claimant’s burden of establishing a legitimate expectation of privacy.”

12 F.3d at 1024 (citation omitted). There, we concluded that because the

defendant had a two-month rental agreement for a specific condominium unit and

still had a key to the unit when the lease expired, he had a “far more ‘regular or

21 Case: 18-11679 Date Filed: 10/29/2019 Page: 22 of 32

personal’” connection to the premises than a short-term hotel guest like the one in

Savage. Id. As a result, we held that the defendant retained an expectation of

privacy in a locked briefcase that he had failed to remove from the condo before

the mandatory moveout time. Id. at 1025–26.

Neither Savage nor Ramos is precisely on point here. Like the defendant in

Ramos—and unlike the defendant in Savage—Ross apparently kept the key to his

room beyond the motel’s standard 11:00 a.m. checkout time. (There’s certainly no

evidence that he returned it early.) But Ramos teaches that one’s post-checkout

possession of a room key isn’t conclusive, and its holding, in any event, ultimately

concerned only the defendant’s expectation of privacy in a locked briefcase left in

a room—not the room itself. 7 Moreover, unlike the defendant in Ramos, Ross had

no long-term interest in Room 113. Quite the contrary, in fact; like the defendant

in Savage, Ross was an overnight guest in an ordinary motel room—and even

further attenuating Ross’s interest, “his” room was rented in someone else’s name.

Accordingly, Ross’s connection to Room 113 was not remotely (in the words of

Ramos) “regular or personal.”

7 We note that Ross argues here only that he retained an expectation of privacy in Room 113 itself; he does not assert a separate privacy interest in any closed containers inside the room— say, for instance, the Crown Royal bag full of drugs. That might—or might not, we needn’t decide—have presented a different issue. Cf. United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (holding that even if an individual “did not retain a protected privacy interest in his [motel] room” after checkout time, “it certainly would have been reasonable for him to expect that the contents of closed containers he kept in his room would not be exposed to scrutiny by the police or motel personnel”). 22 Case: 18-11679 Date Filed: 10/29/2019 Page: 23 of 32

We hold, with one minor caveat explained below, that a short-term hotel

guest like Ross has no reasonable expectation of privacy in his room after checkout

time, and thus no standing to object to a room search that police conduct with the

consent of hotel management after checkout time has passed. What, one might

ask, is the magic of checkout time? After all, even before then, during a hotel

guest’s tenure, hotel employees may enter the guest’s room—say, to make the bed

or restock toiletries. It’s about control. Those sorts of fleeting, pre-checkout

entries don’t fundamentally compromise a guest’s reasonable expectation of

privacy in his room because as long as the guest is lawfully in the room, he has at

least a qualified right to exclude others, including hotel staff—see, e.g., the “DO

NOT DISTURB” doorhanger. Unsurprisingly, therefore, the Supreme Court has

held that hotel employees may not validly consent to a search of an occupied hotel

room without the guest’s permission—during his authorized tenancy, he has a right

to privacy in the space that the hotel cannot pierce. See, e.g., Stoner, 376 U.S. at

489–90.

At checkout time, everything changes. At that point the housekeeping crew

will need to—and has the authority to—access the room to clean and prepare it for

the next registered guest, often on a very tight turnaround. A guest’s doorhanger

no longer bars entry. Accordingly, as the Second Circuit has held, after checkout

time, even if a guest “ha[s] not completely vacated [his] room, the motel manager

23 Case: 18-11679 Date Filed: 10/29/2019 Page: 24 of 32

ha[s] the right to enter and examine the room as if it had been relinquished,”

because the guest no longer has “sufficient control over the premises to establish a

right to privacy therein.” United States v. Parizo, 514 F.2d 52, 55 (2d Cir. 1975);

see also United States v. Akin, 562 F.2d 459, 464 (7th Cir. 1977) (holding that

“[s]ince the record supports the district court’s conclusion that the rental period

ended at the 1:00 [p.m.] check-out time rather than at 6:00 [p.m.] when an

individual would be billed for an additional day, . . . the authorized representative

of the hotel had the authority to consent to the search of the room” after 1:00 p.m.).

We hold, therefore, that a hotel guest loses his reasonable expectation of

privacy in his room following checkout time, and that hotel management can

validly consent to a search of the room at that point.8 Because Ross had no

cognizable privacy interest in Room 113 after 11:00 a.m., he has no Fourth

8 We add the following commonsense caveat: If a guest asks for and receives a late checkout— say, from the standard 11:00 a.m. to 12:00 noon—then he retains his reasonable expectation of privacy until the arrival of the mutually agreed upon time. Because Ross neither sought nor received permission to extend his stay, we needn’t explore our caveat’s application here. To the extent, though, that some courts have held, more generally—and even absent express agreement between management and guest—that a hotel’s “policies,” “patterns,” or “practices” can extend a guest’s expectation of privacy beyond checkout time, see, e.g., United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001); United States v. Kitchens, 114 F.3d 29, 32 (4th Cir. 1997), we disagree. As the Sixth Circuit has explained, “[j]ust because a hotel does not change keycards at 11:00 a.m. [every day], or does not charge guests for an extra night every time they have not removed all of their personal items by 11:00 a.m., does not mean that the guest, as opposed to the hotel, retains control over the room.” United States v. Lanier, 636 F.3d 228, 233 (6th Cir. 2011). “What the hotel may voluntarily give as a general matter it can take away in an individual instance, at least where the guest has not secured a promise from the hotel that he may stay late.” Id. For the good of citizens and police alike, courts have long preferred clear Fourth Amendment rules, and extending a guest’s reasonable expectation of privacy based on an uncommunicated and ethereal policy, pattern, or practice would only obscure matters.

24 Case: 18-11679 Date Filed: 10/29/2019 Page: 25 of 32

Amendment standing to challenge the second, post-checkout-time search of the

room. 9 On that basis—and without considering the constitutionality of the second,

consent-based search on the merits—we affirm the district court’s denial of Ross’s

motion to suppress the drug-related evidence found during the post-checkout-time

search.

III

In sum, we hold as follows:

1. The government has not carried its burden of demonstrating that Ross

abandoned his motel room—and his reasonable expectation of privacy in it—

before the initial entry and accompanying protective sweep, which officers

9 There is one loose end. Ross argues that he had a continuing possessory interest in Room 113 due to the motel’s failure to honor Fla. Stat. § 509.141(1), which states that “[t]he operator of any public lodging establishment . . . may remove . . . in the manner hereinafter provided, any guest of the establishment . . . who . . . fails to check out by the time agreed upon in writing by the guest and public lodging establishment at check-in unless an extension of time is agreed to . . . prior to checkout.” The statute requires a hotel “operator [to] . . . notify such guest that the establishment no longer desires to entertain the guest and shall request that such guest immediately depart from the establishment”—if the guest doesn’t comply, he is guilty of a second-degree misdemeanor. Id. § 509.141(2)–(3). Ross contends that because the motel didn’t provide such notice to vacate before the search of his room, he still “had a continuing possessory interest in Room 113 . . . [and] hotel management did not possess the legal authority to consent to the search.” Reply Br. of Appellant at 10.

We agree with the government that nothing in § 509.141 justifies the conclusion that Ross continued to enjoy an exclusive right to occupy an unpaid-for room absent formal notice. Rather, the hotel’s noncompliance with the statute simply means that Ross couldn’t be charged with misdemeanor trespassing for his holdover. See, e.g., Brown v. State, 891 So. 2d 1120, 1122 (Fla. Dist. Ct. App. 2004). Under Ross’s expansive reading of the statute, an individual could maintain an indefinite possessory interest—and a reasonable expectation of privacy for Fourth Amendment purposes—in a hotel room as long as the hotel doesn’t explicitly tell him to vacate. We don’t think the statute can be read so broadly. 25 Case: 18-11679 Date Filed: 10/29/2019 Page: 26 of 32

conducted no more than 10 minutes after he fled on foot. Accordingly, Ross has

Fourth Amendment standing to challenge the entry and sweep, which resulted in

the seizure of the gun.

2. Ross’s challenge to the initial entry and sweep fails on the merits.

Because the officers had reason to believe that Ross was in Room 113, they had

authority to enter the room to execute their arrest warrants, to conduct a protective

sweep to ensure their safety, and to seize the gun, which they found in plain view.

3. Ross forfeited any reasonable expectation of privacy in Room 113

following the 11:00 a.m. checkout time, at which point the motel’s management

had the authority to consent to a search; accordingly, he has no Fourth Amendment

standing to challenge the ensuing search, during which officers discovered the

drug-related evidence.

AFFIRMED.

26 Case: 18-11679 Date Filed: 10/29/2019 Page: 27 of 32

NEWSOM, Circuit Judge, concurring:

As noted in the main opinion, under our decision in United States v. Sparks,

806 F.3d 1323 (11th Cir. 2015), we are obliged to consider the government’s

argument—which it raises for the first time on appeal—that Ross abandoned Room

113, and any Fourth Amendment privacy interest therein, when he fled the motel

on foot shortly after spotting the task-force officers in the parking lot. See Maj.

Op. at 11–13. The reason: Sparks holds that when a suspect abandons his

possessory interest in the object of a search, the search causes him no “injury,” and

he thus has no “standing” to contest it—not just in the Fourth Amendment sense,

but in the more fundamental Article III case-or-controversy sense. See Sparks, 806

F.3d at 1339–41. And because, Sparks says, a person must “of course” have

standing “for a court to have jurisdiction,” the abandonment issue “may not be

waived for forfeited,” and a reviewing court must if necessary consider the matter

sua sponte. Id. at 1340. So, to put it slightly differently, even where, as here, “the

issue of abandonment … ha[s] never been mentioned in the case previously,” this

Court “still ha[s] an obligation to consider whether the record show[s]

abandonment because where abandonment occurs, we lack jurisdiction.” Id. at

1341 n.15.

For the reasons explained below, I’m not convinced that Sparks is correct—

27 Case: 18-11679 Date Filed: 10/29/2019 Page: 28 of 32

indeed, I’m fairly well convinced that it’s not, and I urge the Court to reconsider it

en banc, either in this case or in another that properly presents the abandonment-

as-Article-III-jurisdiction issue.

First, Sparks contravenes Supreme Court precedent, which has clearly,

consistently, and recently distinguished between Fourth Amendment “standing”

(scare quotes intended) and Article III standing. Most recently, in Byrd v. United

States, the Court—building on its earlier decision in Rakas v. Illinois, 439 U.S. 128

(1978)—explained that while “[t]he concept of standing in Fourth Amendment

cases can be a useful shorthand for capturing the idea that a person must have a

cognizable Fourth Amendment interest in the place searched before seeking relief

for an unconstitutional search,” it “should not be confused with Article III

standing, which is jurisdictional and must be assessed before” addressing other

aspects of a Fourth Amendment claim. 138 S. Ct. 1518, 1530 (2018); cf. also

United States v. Leon, 468 U.S. 897, 924 (1984) (“Defendants seeking suppression

of the fruits of allegedly unconstitutional searches or seizures undoubtedly raise

live controversies which Art. III empowers federal courts to adjudicate.”). Sparks,

it seems to me, “confuse[s]” Fourth Amendment standing and Article III standing

in exactly the way that Byrd forbids.1

1 Indeed, the Sparks opinion seems to bounce back and forth between traditional Article-III- standing phraseology and Fourth-Amendment-facing language. The decision begins its abandonment analysis with an Article III overview, see 806 F.3d at 1339 (“Article III of the 28 Case: 18-11679 Date Filed: 10/29/2019 Page: 29 of 32

Second, Sparks bucks the general trend in the law—which the Supreme

Court instituted and which we have faithfully followed—that courts should not

“jurisdictionalize” issues that are more properly characterized as “claim-

processing” rules or, as here, aspects of a party’s merits case. See, e.g., Orion

Marine Constr., Inc. v. Carroll, 918 F.3d 1323, 1328–29 (11th Cir. 2019);

Secretary v. Preston, 873 F.3d 877, 881–82 (11th Cir. 2017); cf. also Target Media

Partners v. Specialty Marketing Corp., 881 F.3d 1279, 1292 (11th Cir. 2018)

(Newsom, J., concurring) (observing that Rooker-Feldman doctrine has a tendency

to unduly “jurisdictionalize” ordinary preclusion rules). Sparks takes an issue that

is part and parcel of a Fourth Amendment claim on the merits—whether a suspect

had but somehow relinquished a reasonable expectation of privacy in a place or

thing—and converts it into a jurisdictional prerequisite.

Third, Sparks defies common sense. As the main opinion here points out, in

the typical Fourth Amendment “standing” case—in which the controlling question

is whether the defendant had a reasonable expectation of privacy in the first

place—the government waives its standing objection by failing to raise it before

Constitution extends the jurisdiction of federal courts to ‘Cases’ and ‘Controversies’ only.”); id. at 1340 (“[S]tanding requires a showing of injury in fact, causation, and redressability.”), before verging into a discussion of Fourth Amendment basics, id. (“[I]f the person from whom the item was seized lacks a cognizable possessory interest in the item, that person’s Fourth Amendment rights are not violated . . . .”), only to double back to Article III, id. at 1340–41 (“[F]ederal courts are ‘obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking,’ and the issue may not be waived or forfeited.”)—all in the span of four short paragraphs. 29 Case: 18-11679 Date Filed: 10/29/2019 Page: 30 of 32

the district court. See United States v. Gonzalez, 71 F.3d 819, 827 n.18 (11th Cir.

1996) (“[S]ince the government declined to press this standing issue before the

district court, we conclude that this issue has been waived.”), abrogated on other

grounds by Arizona v. Gant, 556 U.S. 332 (2009); United States v. Kapperman,

764 F.2d 786, 791 n.6 (11th Cir. 1985) (“Given the government’s failure to raise

th[e standing] question, we do not address it.”). Sparks suggests that abandonment

somehow uniquely implicates Article III subject-matter jurisdiction in a way that

differentiates it from the typical scenario. That distinction strikes me as

counterintuitive, if not 180º wrong. Why would a person who once had but later

abandoned a reasonable expectation of privacy be un-“injured” in the Article III

sense, while a person who never even had a reasonable expectation of privacy

isn’t? Either, it would seem, both persons are equally uninjured or, perhaps more

likely, the latter individual—who never had a protectable privacy interest to begin

with—is the more uninjured.

Fourth, Sparks offends—or is at the very least capable of offending—

considerations of fundamental fairness. This case is Exhibit A. The government

raised no abandonment issue in the district court, and that court (unsurprisingly)

didn’t address it. In his opening brief on appeal, therefore, Ross sensibly

proceeded directly to the merits of his argument that the officers’ initial entry and

protective sweep of his motel room violated the Fourth Amendment—on the

30 Case: 18-11679 Date Filed: 10/29/2019 Page: 31 of 32

ground that they had no “reasonable belief that [he] was located” in there. Br. of

Appellant at 23. In so arguing, Ross asserted, among other things, that “it was

objectively unreasonable to think that [he] would have returned to the room”—and,

indeed, that “[t]he premise that [he] would have returned to the room was absurd.”

Br. of Appellant at 26. The government then filed an answering brief that led with

the argument, never so much as mentioned before, that Ross had abandoned the

room—and in so doing proceeded to clobber Ross with his opening brief’s

statements, making them a focus of its position. Br. of Appellee at 16–17. Rope-

a-dope, bait-and-switch, whipsaw, whatever you want to call it—just doesn’t seem

very fair.

Finally, Sparks impedes sound judicial administration. This Court treats

determinations regarding abandonment as findings of fact and reviews them only

for clear error—which makes sense, as “[w]hether abandonment occurred is a

question of intent.” United States v. Ramos, 12 F.3d 1019, 1022–23 (11th Cir.

1994). By permitting the government to raise abandonment for the first time on

appeal as a “jurisdictional” issue, Sparks thrusts this Court into the uncomfortable

position of making a de novo determination of a purely factual issue, with respect

to which there has been no fact-finding and no lower-court analysis. That strikes

me as more than a little a little topsy-turvy—and unnecessarily so.

* * *

31 Case: 18-11679 Date Filed: 10/29/2019 Page: 32 of 32

Sparks seems not just wrong to me, but also wrongheaded. I urge the Court

to revisit it en banc and to clarify that a suspect’s alleged abandonment of his

privacy interest in a place or thing—just like the absence of a reasonable

expectation of privacy in the first place—is an issue that runs to the merits of his

Fourth Amendment claim rather than Article III jurisdiction, and that the

government waives any abandonment-based standing argument by failing to raise

it in the district court.