Date: 10-07-2017

Case Style:

Case Number: 08-1220

Judge: Cook

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Western District of Michigan (Kent County)

Plaintiff's Attorney: Hagen W. Frank

Defendant's Attorney: Dennis Belli, Deno Fotieo, Chris Gibbons and Britt Cobb for William Serrano Domenech

Scott Graham, Travis Alan Rossman, Ray Kent (FPD), Richard D. Stroba (FPD) and Clare Elizabeth Freeman (FPD) for Alejandro Serrano Domenech

Description: Alejandro and William Domenech appeal their
convictions for multiple firearm and drug trafficking offenses, the inculpating evidence
1
Nos. 08-1220/1221 United States v. Domenech, et al. Page 2
for which came from a warrantless search of their motel room. Because the Domenech
brothers’ legitimate expectation of privacy entitled them to suppression, we reverse.
I. Background
A man who called himself “Rogelio” rented Rooms 22 and 31 at the Green Acres
Motel and filled out a registration card later described by officers as “full of nonsense.”
After noting suspicious activity at the motel, officers from the local sheriff’s department
and the Michigan State Police approached Room 22. Two sheriff’s deputies knocked
on the door while Trooper Burchell from the state police went around behind the motel
room and stationed himself behind the closed, frosted bathroom window of Room 22.
When the officers knocked on the front door, Burchell saw the light turn on and
observed a figure enter the room and lean over; but the frosted window prevented him
from actually seeing any fixtures or the person in the bathroom. Expecting (correctly)
that the person in the bathroom was about to flush away evidence, Burchell opened the
window and swung his flashlight at Alejandro. The commotion prompted the officers
at the front of the motel room to burst through the door and to find Alejandro and his
brother William with two women, drugs, guns, and counterfeit currency.
After a state court suppressed the evidence found in the room as the result of an
illegal search, the federal government charged Alejandro and William Domenech with
possessing a firearm to further a drug trafficking crime, possessing a firearm as
convicted felons, possessing with intent to distribute five or more grams of crack
cocaine, possessing with intent to distribute marijuana, and possessing counterfeit
currency. The defendants jointly moved to suppress the fruits of the warrantless entry.
At the suppression hearing, the government focused on the defendants’ privacy
expectation. Although the defendants did not testify, they offered a transcript of one of
the females’ testimony from a prior hearing regarding the renting of the rooms. The
district court denied suppression, finding that the Domenech brothers lacked an
expectation of privacy in the motel room as they failed to demonstrate that they “were
either the registrants or they were sharing the room with someone who was.”
At trial, another female occupant testified regarding room arrangements, telling
Nos. 08-1220/1221 United States v. Domenech, et al. Page 3
1 Oral argument yielded mootness concessions as to the other briefed issues.
2 Although the parties use “standing” as a shorthand throughout their briefs, it is not the proper
term in this context. See United States v. Britton, 335 F. App’x 571, 574 (6th Cir. 2009).
the court that: Alejandro paid for the rooms and directed Rogelio to rent them for the
group’s use; the group spent the previous night in Room 41 (a double room) before
Alejandro sent Rogelio to rent Rooms 22 and 31—Room 22 for William and 31 for
Alejandro. All the participants were in Room 22 when the police arrived. Other
relevant testimony described the Domenech brothers’ state of undress at the time of
police entry, possession of the room key, and the luggage in the motel room. At the
close of the defense case, the defendants unsuccessfully renewed their motion to
suppress, arguing that the evidence established their expectation of privacy in the motel
room. The jury convicted the brothers on all counts and the court sentenced them to
imprisonment with accompanying fines. This appeal challenges the district court’s
refusal to suppress the evidence. When reviewing a district court’s denial of a motion
to suppress, we apply de novo review to its legal conclusions and clear error review to
its findings of fact. United States v. Purcell, 526 F.3d 953, 959 (6th Cir. 2008).1
II. Analysis
A. Reasonable Expectation of Privacy
“The Fourth Amendment generally requires police officers to obtain a warrant
before searching or seizing persons, houses, papers, and effects. This constitutional
protection also applies to hotel rooms.” United States v. Allen, 106 F.3d 695, 698 (6th
Cir. 1997) (internal quotation marks and citations omitted). “The proponent of a motion
to suppress has the burden of establishing that his own Fourth Amendment rights were
violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 132 n.1
(1978). A defendant meets this burden, sometimes referred to as standing,2 by
establishing an expectation of privacy in the place searched and society’s willingness to
accept the reasonableness of this expectation. Minnesota v. Carter, 525 U.S. 83,
88 (1998). “Legitimation of expectations of privacy by law must have a source outside
of the Fourth Amendment, either by reference to concepts of real or personal property
Nos. 08-1220/1221 United States v. Domenech, et al. Page 4
law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S.
at 143, n.12. When determining the legitimacy of a defendant’s subjective expectation
of privacy, we consider all of the facts and circumstances of the case, and “no single
factor invariably will be determinative” in deciding the reasonableness of asserted
privacy expectations. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001) (internal
quotation marks omitted).
Although accepting that the brothers possessed a subjective expectation of
privacy in the room, the government labels that expectation objectively unreasonable in
light of the criminal activity conducted there, the use of an agent to rent the rooms, and
the agent’s use of an alias. Finding that none of these circumstances—individually or
cumulatively—defeat the reasonableness of the privacy expectation here, we reverse.
1. Criminal activity
This court explicitly rejected the principle that criminality undermines privacy
expectations in United States v. Washington, holding: “the notion that drug use or illegal
activity eviscerates any right to challenge a search cannot possibly be sustained. A
criminal may assert a violation of the Fourth Amendment just as well as a saint.”
573 F.3d 279, 283–84 (6th Cir. 2009). At oral argument, the government suggested that
society accepts a celebrity’s hotel registration under an assumed name to avoid the
paparazzi, but insisted that society would reject the Domenech brothers’ use of an alias
because it hides their illegal activity. Yet Washington holds that “the use of a space for
illegal activity does not alter the privacy expectations of a person who would otherwise
have” a reasonable expectation. 573 F.3d at 283.
2. Use of agent
Had the Domenech brothers rented Room 22 under their own name, they
unquestionably would possess a legally cognizable expectation of privacy. See Allen,
106 F.3d at 699. That they used an agent to rent the room for them does not change this.
The D.C. Circuit focused on the relationship of self-registration to one’s expectation of
privacy in a hotel room in United States v. Lyons, where “a key to the room that had
Nos. 08-1220/1221 United States v. Domenech, et al. Page 5
been rented on [the defendant’s] behalf was given to him by a third party (whose identity
remains secret) . . . .” 706 F.2d 321, 324 (D.C. Cir. 1983). The court held that one can
possess a reasonable privacy expectation—even though lacking a legally enforceable
contract or property right to the room—because “each [guest] regards the space provided
for him as his temporary place of abode.” Id. at 327; see also Washington, 573 F.3d at
283 n.1 (“A person may acquire a reasonable expectation of privacy in property in which
he has neither ownership nor any other legal interest.”).
3. Use of an alias by the agent
Like its agent argument, we find unpersuasive the government’s
argument—premised on United States v. Carr, 939 F.2d 1442 (10th Cir. 1991)—that the
agent’s use of an alias forecloses the Domenech brothers from holding any reasonable
privacy expectations. In Carr, after the defendant failed to present any evidence to
establish his expectation of privacy, the district court denied his motion to suppress,
citing the failure of proof. The defendant sought to remedy the evidentiary shortcoming
later with an affidavit. The Tenth Circuit affirmed the district court’s refusal to consider
the affidavit, but went on—obviously in dicta—to explain that even if the properlyrejected
affidavit were considered, the same result would obtain due to the defendant’s
inability to “demonstrate that the room was registered to him . . . or that he was sharing
it with someone to whom the room was registered.” Id. at 1446.
Carr’s dicta lends support to the government’s general contention that rental
through an alias militates against deeming the occupant’s expectation of privacy
legitimate, as does dicta from our decision in United States v. Bruce, 396 F.3d 697, 709
n.7 (6th Cir. 2005), vacated on other grounds, 405 F.3d 1034 (6th Cir. 2005), where we
suggested that using an alias or false documents to secure lodging diminishes the
legitimacy of the expectation of privacy. Yet, the Tenth Circuit’s dicta does little for the
government in the specific factual setting presented here.
We do not read Carr as espousing the registration-required-for-privacy rule
applied by the district court, but, instead, understand it to confirm that “[i]mportant
considerations in the expectation of privacy equation include ownership, lawful
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possession or lawful control of the premises searched.” Carr, 939 F.2d at 1446; see also
United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (relying on Carr’s list of
considerations). Carr and Bruce easily reconcile with suppression of the evidence
garnered from Room 22 at the Green Acres Motel. The Domenech brothers
demonstrated lawful control/possession with evidence that they procured the room for
their own use through their agent, paid for the room, possessed the key to the room, and
occupied it both physically and with belongings.
Cases from other Circuits also hold that the use of an alias does not eliminate
Fourth Amendment protections. The Eleventh Circuit, for example, recognized a
reasonable expectation of privacy in a hotel room registered under an alias. United
States v. Newbern, 731 F.2d 744, 748 (11th Cir. 1984). And the Fifth, Seventh, and
Eighth Circuits similarly acknowledged privacy expectations as legitimate in analogous
circumstances. See United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992)
(packages delivered under fictitious name); United States v. Watson, 950 F.2d 505, 507
(8th Cir. 1991) (defendant possessed expectation of privacy in house purchased under
an alias); United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981) (packages); see
also United States v. Pitts, 322 F.3d 449, 457–59 (7th Cir. 2003) (“the expectation of
privacy for a person using an alias in sending or receiving mail is one that society is
prepared to recognize as reasonable”).
4. Use of invalid registration
Only to the motel is the Domenech brothers’ invalid registration a legal concern.
See United States v. Cunag, 386 F.3d 888, 895 (9th Cir. 2004) (occupant of fraudulently
obtained hotel room had expectation of privacy until hotel took affirmative steps to
repossess the room); see also Allen, 106 F.3d at 699 (occupant with insufficient funds
possessed expectation of privacy until locked out); Washington, 573 F.3d at 284–85
(apartment tenant in violation of lease maintained expectation of privacy because
landlord did not evict him); United States v. McClendon, 86 F. App’x 92, 95–96 (6th Cir.
2004) (invalid sublet in violation of lease insufficient to render expectation
unreasonable). Green Acres accepted a registration card “full of nonsense” for two
Nos. 08-1220/1221 United States v. Domenech, et al. Page 7
rooms from an individual acting for someone else who admitted that others would stay
with him. Because the Domenech brothers exercised control over Room 22 with this de
facto permission of the motel, their lawful possession/control legitimizes their
expectation of privacy, even if diminished by their agent’s use of an alias.
5. Social-guest status of Alejandro
Alejandro possessed a reasonable expectation of privacy as a social guest in his
brother’s room. “In certain cases, this circuit has even extended standing to challenge
a search to non-overnight guests who are permitted to keep items in the residence.”
Washington, 573 F.3d at 283; see also United States v. Haynes, 108 F. App’x 372, 374
(6th Cir. 2004) (finding “social guest to have a reasonable expectation of privacy in his
host’s residence where the guest was able to show a meaningful connection to his host’s
residence”). Alejandro clearly demonstrated a meaningful relationship to his brother’s
room: he paid for the room, had his personal belongings in the room, and held the room
key in his pocket. Consequently, because William demonstrated a reasonable
expectation of privacy—showing that he legitimately regarded Room 22 as his
temporary residence—Alejandro’s meaningful connection validates his own expectation.
B. Exigent Circumstances
The government urges that, despite any legitimate expectation of privacy, the
search can be upheld because the potential destruction of evidence constituted exigent
circumstances. Having initially searched Room 22 without a valid warrant, the
government bears the burden of establishing the legality of the search by a
preponderance of the evidence. United States v. Haynes, 301 F.3d 669, 677 (6th Cir.
2002). Where probable cause exists, officers may enter without a warrant “when
evidence of drug crimes is in danger of destruction.” United States v. Elkins, 300 F.3d
638, 655 (6th Cir. 2002). The officers must reasonably believe that the occupants of the
structure are likely to destroy evidence. Id. at 656. Probable cause exists when “there
is a fair probability that contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
Nos. 08-1220/1221 United States v. Domenech, et al. Page 8
The district court found that the officers lacked probable cause for the
warrantless entry. Trooper Burchell admitted that the frosted glass prevented him from
seeing a sink, shower, or toilet through the bathroom window. He could not see the hand
movements of the individual in the bathroom; he could see only that a person entered the
bathroom after officers knocked on the front door. Because the trooper could not see
through the frosted window, the district court correctly held that he lacked probable
cause to believe that the defendant would destroy evidence of a drug crime. Without
probable cause, the officers cannot rely on exigent circumstances to justify this
warrantless search. Consequently, the district court should have excluded the evidence
found in the motel room.
III. Conclusion
We reverse judgment of the district court and remand for proceedings consistent
with this opinion.
Nos. 08-1220/1221 United States v. Domenech, et al. Page 9
_________________
DISSENT
_________________
ALAN E. NORRIS, Circuit Judge, dissenting. As the Majority recognizes, “[t]he
ultimate question is . . . whether one’s claim to privacy from government intrusion is
reasonable in light of all of the surrounding circumstances.” Rakas v. Illinois, 439 U.S.
128, 152 (1978) (concurrence). Moreover, a defendant seeking to suppress evidence
under a Fourth Amendment claim of unlawful search bears the burden of establishing
a reasonable expectation of privacy. United States v. McRae, 156 F.3d 708, 711 (6th Cir.
1998) (citing Rakas, 439 U.S. at 130 n.1). That burden includes two elements: “(1) he
had a subjective expectation of privacy in the searched premises and (2) that society is
prepared to recognize that expectation as legitimate.” Id. This is not a case where
appellants, acting on their own behalf used an alias to register as hotel guests. Instead,
the appellants instructed a third party to rent a motel room under an assumed name
(purportedly for his own use) where they could conduct illegal activity. While
defendants had a subjective expectation of privacy, I am unconvinced that they have met
their burden to establish that society would recognize that their expectation as legitimate
when viewed “in light of all of the surrounding circumstances.”
I respectfully dissent.

Outcome: We reverse judgment of the district court and remand for proceedings consistent
with this opinion.

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