No Expectation of Privacy When Motel Rent Is Overdue

by | May 22, 2024

United States v. Gay, 2024 WL 1595285 (7th Cir. 2024)

Anthony Gay was a passenger in a car that was stopped by the police after a high-speed chase. When the driver stopped, Gay got out of the car, “walked away briskly, ignored an order to halt, then took off running.” He stumbled and fell, then ran again before eventually surrendering. Officers found a stolen Glock handgun in the spot where Gay had fallen.

Gay was a convicted felon, having served nearly 25 years in prison on a seven-year sentence (extended multiple times for prison rule breaches and parole violations). Unbeknownst to his parole officer, Gay had been living in a motel room, and his stay was up the day after his arrest. Gay called the motel manager and asked for permission for his girlfriend to pick up his belongings. The manager told Gay the room would be locked until the police accompanied Gay’s girlfriend or he obtained a court order.

“Parole is a form of custody. Gay’s sentences had not expired; all parole did was allow him to serve some of his sentences outside prison walls.”

Two weeks later, the manager wanted to rent the room. As Gay had not paid any additional rent, the manager entered the room and found a bag of bullets in a dresser drawer. The manager then notified the police, and an officer came and seized the bullets.

Gay was charged with being a felon in possession of a gun and ammunition. Gay unsuccessfully petitioned the trial court to suppress the bullets found in his motel room, arguing their discovery violated his Fourth Amendment rights. Gay also argued the Second Amendment permits convicted felons to possess both firearms and ammunition, even though federal and local laws prohibit possession.

The appellate court held Gay’s Fourth Amendment expectation of privacy in the motel room had expired when his right to occupy the room ended. Moreover, the bullets were not found in a police search; they were located by the manager. The Fourth Amendment does not protect searches conducted by private persons. Furthermore, the court found the manager was entitled to allow the police into the room to search. Though the trial court did not rely on Gay’s parole status, the court of appeals noted that “Gay, who was on parole, had a severely diminished expectation of privacy to begin with.” Citing Samson v. California (547 U.S. 843 (2006)), the court noted: “Parole is a form of custody. Gay’s sentences had not expired; all parole did was allow him to serve some of his sentences outside prison walls.”

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The court found Gay’s bold claim to Second Amendment rights to be unavailing. In recent Supreme Court Second Amendment decisions, including District of Columbia v. Heller (554 U.S. 570 (2008)) and New York State Rifle & Pistol Association v. Bruen (597 U.S. (2022)), the Court repeatedly referred to the gun rights of “law-abiding, responsible citizens.” The appellate court just couldn’t see Gay as a law-abiding, responsible citizen. Gay has a record of 22 felony convictions, including aggravated battery of a peace officer. He severely beat a teen one day after his release from a prior prison stay and was discovered to have possessed a weapon while in prison. He fled from the police by car and on foot. The court upheld his conviction and his seven-year sentence. One wonders whether Gay will once again turn a seven-year sentence into a 25-year stretch.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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