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Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

14-2-9404 State v. Winslow, App. Div. (per curiam) (13 pp.)

A long standing standard ‘slow night’ policing tactic includes an officer conducted a “registry check” at the neighborhood low end ‘motels’ or hotels in town looking for anyone with an outstanding warrant for arrest for any reason.  In this case the Neptune police conducted such an ‘registration check’ at the Crystal Inn Motor Lodge and determined that there was an outstanding warrant for defendant, a registered guest at the inn. Specifically, the testimony elicited at the Motion to Suppress hearing was that the officer asked the desk clerk printed out a copy of the registry which typically includes the guest’s name, room number, check-in and anticipated check-out dates, and a photocopy of the guest’s driver’s license or credit card. The officer in this case also testified that he believed the registry contained a photocopy of defendant’s license.

With back up having arrived, the officers went to defendant’s room and arrested him and a ‘search incident to the arrest’ revealed three bags of crack cocaine and a bag of marijuana in the right front pocket of defendant’s pants. At the suppression hearing, defendant argued that the officer did not have the authority to get the information in the hotel registry. Specifically, defendant contended: (1) the holding of State v. Lopez, 395 N.J. Super. 98 (App. Div.), cert. denied, 192 N.J. 596 (2007), does not apply because the case relies on a statute that only pertains to hotels with ten rooms or less; (2) in the alternative, if the statute does apply, Los Angeles v. Patel, 576 U.S. ___, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015), determined such statutes to be unconstitutional; (3) the State did not obtain consent from the hotel to search, in that Officer Hagerman did not advise the hotel clerk that the registry did not have to be provided; (4) defendant has standing because of the proprietary information included in the registry; and (5) the arrest warrant was not executed correctly.

In opposing the motion, the State argued that Officer Hagerman’s acquisition of the registry did not violate defendant’s rights, thus the arrest and seizure of the drugs from defendant’s person incident to it were lawful. The State contended that Patel is not applicable because the registry was not provided pursuant to a statute, and more importantly, that case was brought by the hotel owners, not guests. Thus, the holding of Lopez is undisturbed, and defendant had no reasonable expectation of privacy in the information provided. Defendant’s motion to suppress the CDS was granted. On leave granted, the state appealed. The panel reversed. Initially, the court outlined the constitutional rights we all possess.

“Both the United States and New Jersey Constitutions guarantee the right of individuals to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. 1, ¶ 7; see also State v. Walker, 213 N.J. 281, 288—89 (2013). A defendant seeking to invoke the protections afforded by these constitutional provisions, however, must first “show that a reasonable or legitimate expectation of privacy was trammeled by government authorities.” State v. Evers, 175 N.J. 355, 368-69 (2003) (citation omitted). See also State v. Taylor, 440 N.J. Super. 515, 522 (App. Div. 2015) (“Absent a reasonable expectation of privacy in the place or thing searched, an individual is not entitled to protection under either the Fourth Amendment or Article I, Paragraph 7 of the New Jersey Constitution.”).

To meet that burden under the Fourth Amendment, a defendant must demonstrate (1) “‘an actual (subjective) expectation of privacy'” in the object of the challenged search, and (2) that his or her subjective privacy expectation is “‘one that society is prepared to recognize as reasonable.'” Evers, supra, 175 N.J. at 369 (quoting Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967) (Harlan, J., concurring)). “Unlikethe federal test, the New Jersey constitutional standard does not require the defendant to prove a subjective expectation of privacy. . . . Instead, Article I, Paragraph 7 . . . ‘requires only that an expectation of privacy be reasonable.'” Hinton, 216 N.J. 211, 236 (2013) (quoting State v. Hempele, 120 N.J. 182, 200 (1990)).”

Nevertheless, the court disregarded defendant’s arguments and the lower court’s reliance on improper legal analysis   The court, turning to the 2007 New Jersey appellate division case, State vs. Lopez., ruled the motion judge should not have extended any privacy interest enjoyed by hotel owners in their registries to hotel guests. Instead, the motion should have been denied based squarely on  Lopez.  The court wrote, “[a]s a matter of law, defendant had no reasonable expectation of privacy as to his identity when he registered as a guest of the hotel.” This is consistent with the longstanding United States Supreme Court precedent proclaiming that a person has no reasonable expectation of privacy in information revealed to third parties, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed. 2d 71, 79 (1976).

Defendant attempted to argue, in keeping with the greater protection afforded by our state courts against unreasonable searches and seizures, there exists a reasonable expectation of privacy, despite the fact the information is given to a third- party. See State v. Novembrino, 105 N.J. 95, 145 (1987). See also State v. Earls, 214 N.J. 564, 584 (2013). Defendant cites a string of cases to support this position, yet the facts of those matters are unlike those present here. This is consistent with the longstanding United States Supreme Court precedent proclaiming that a person has no reasonable expectation of privacy in information revealed to third parties, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed. 2d 71, 79 (1976).

The note for the future cases, outlined here in was defendant’s efforts to include the Hotel registration list with other more recent cases which the court has extended a private right of privacy, and the accompanying need for probable cause and a search warrant, Those case are include State v. Hunt, 91 N.J. 338 (1982); State v. Mollica, 114 N.J. 329 (1989); State v. McAllister, 184 N.J. 17 (2005); State v. Reid, 194 N.J. 386 (2008); and Earls, supra, 214 N.J. 564. However, those cases all dealt with much more intimate information than a name and room number, as disclosed here. For instance, in both Hunt and Mollica, the Court addressed the privacy of telephone billing records. The basis of both rulings was the Court’s view that the identity of persons and places called on the telephone is highly private. See Mollica, supra, 114 N.J. at 341-42. See Hunt, supra, 91 N.J. at 345-47. In McAllister, the Court addressed bank records, finding “[w]hen compiled and indexed, individually trivial transactions take ona far greater significance . . . . Indeed, the totality of bank records provides a virtual current biography.” McAllister, supra, 184 N.J. at 30-31 (citation omitted).

In Reid, the Court found that Internet subscriber information “can tell a great deal about a person. With a complete listing of IP addresses, one can track a person’s Internet usage” and “learn the names of stores at which a person shops, the political organizations a person finds interesting, a person’s fantasies, her health concerns, and so on.” Reid, supra, 194 N.J. at 398 (citation omitted). The Court acknowledged this could be “even more revealing” than telephone records. Id. at 398-99. In Earls, the Court addressed cell phone tracking and location information, finding it to be even more revealing than the classes of information noted above, functioning as a substitute for 24/7 surveillance without limits. Earls, supra, 214 N.J. at 586.

In conclusion, this court found that the motion judge should not have extended any privacy interest enjoyed by hotel owners in their registries to hotel guests. Instead, the motion should have been denied pursuant to New Jersey case law, which held that as a matter of law, defendant had no reasonable expectation of privacy as to his identity when he registered as a guest of the hotel. The panel rejected defendant’s claim that the officer’s failure to advise the hotel clerk that he had the right to refuse to produce the hotel registry rendered the consent invalid, finding that the officer had not demanded to see the registry but had requested a copy to be printed and the desk clerk readily complied, and the manner in which the officer had asked implied that the clerk was permitted to reject the request.