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Tilghman v. State

Court of Appeals of Texas, Third District, Austin

June 7, 2019

Michael Joseph Tilghman, Appellant
v.
The State of Texas, Appellee

          FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT NO. CR-16-1126, HONORABLE GARY L. STEEL, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Kelly

          OPINION

          Gisela D. Triana, Justice

         Following the denial of his motion to suppress evidence, appellant Michael Joseph Tilghman pleaded guilty to the offense of possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code §§ 481.102(6), .112(a), (d). The district court sentenced Tilghman to 10 years' imprisonment. In a single issue on appeal, Tilghman argues that the district court abused its discretion in denying the motion to suppress. We will reverse the district court's judgment.

         BACKGROUND

         The evidence that Tilghman sought to suppress was found inside his hotel room at the Marriott Fairfield Inn in San Marcos, following a warrantless entry into the room by police officers. At the suppression hearing, the State called two witnesses: (1) Joshua Chapman, the hotel night manager who had accompanied the police to Tilghman's room and who had unlocked the door for the officers and (2) Officer Daniel Duckworth of the San Marcos Police Department, one of the officers who had opened the door and entered the hotel room without a warrant. Also admitted into evidence was a video recording of the entry that was taken from Duckworth's body camera.

         Chapman testified that when he arrived at the hotel on the night of October 14, 2016, he received a phone call from one of the managers of a previous shift asking him to remove the occupants of Room 123 "for having drugs in the room." According to Chapman, the basis for the previous manager's belief that drugs were present was "[t]he smell of marihuana coming from the room."[1] Chapman testified that he was familiar with the odor of marihuana and that, as he "walked down the hallway just to be sure," he, too, could smell marihuana emanating from the room.

         Chapman recounted that the Marriott chain of hotels has a nonsmoking policy that is advertised in a binder contained within each guest room. Although Chapman testified that there is "a fee" for violating that policy, he acknowledged that the policy does not mention eviction from the hotel as a consequence. Chapman also testified that according to Marriott policy, if a hotel guest commits a crime, "we have to ask them to leave." However, when asked if there was "any sort of rental agreement that describes that policy," Chapman testified, "Not that I know of."

         Chapman testified 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." In order to facilitate the eviction, Chapman "decided to call law enforcement because [he] knew there [were] multiple guys in the room" and he was concerned for his safety. Chapman added that he did not call law enforcement to "get anybody in trouble" or to "effect the arrest of anybody." Rather, "it was just to get them evicted from the room."

         Chapman further testified that after law enforcement arrived at the hotel, he explained the situation to them and then, after waiting for a third officer to arrive, he led them to the room. Once they were outside the room, Chapman recalled, one of the officers knocked on the door multiple times, but no one answered. One of the officers then advised Chapman that they did not have the right to enter the room, but Chapman did. Chapman then proceeded to unlock the door using a key card, and the officers opened the door.

         On cross-examination, Chapman testified that he had never communicated with the occupants of the room, either prior to or following the arrival of law enforcement, nor had he ever knocked on their door. Instead, it was a manager from a prior shift who had knocked on the door at some point prior to Chapman's arrival. Chapman also testified that he did not think the prior manager or any other hotel employees had slid anything under the door informing the occupants that they were no longer welcome at the hotel.

         Officer Duckworth testified that he and another officer, Austin Smith, were dispatched to the hotel at approximately 10:52 p.m. that night. Duckworth explained that the dispatch "came in as a marihuana call. The management could smell the odor of marihuana coming from a room and they were requesting assistance in evicting the occupants of that room." When they arrived at the hotel, Duckworth recalled, they were again advised that management and employees had smelled marihuana coming from the room in question. However, when asked if he could smell anything when he had arrived in the hotel lobby, Duckworth testified, "I can't recall."

         After a third officer arrived at the hotel, the officers accompanied Chapman to the room. Once there, "Officer Smith knocked on the door multiple times with no answer." The first and second times that Smith knocked on the door, Smith said nothing, but the third time that he knocked, Smith announced, "San Marcos Police. Come open the door." No one answered. However, Duckworth testified that he heard "whispering" inside the room, so he knew that people were inside. When asked if he heard "anything else relating to activity in the room while you were standing outside the door," Duckworth testified, "I did not."

         After Smith's announcement failed to bring anyone to the door, Duckworth told Chapman that they "wouldn't be able to do anything but he could." Specifically, Duckworth can be heard on the recording telling Chapman, "We don't have the authority to open the door, but you do." Chapman can then be seen taking his key card out of his pocket and holding it while Duckworth gestured toward the door with his hand. Chapman then approached the door, tapped the key card to the door lock, and stepped back as both Smith and Duckworth proceeded to turn the handle on the door and push the door open. Duckworth testified that as he opened the door, he heard the sound of a toilet flushing, which led him to believe that there was someone inside the bathroom.

         Duckworth recounted, "As the door opened there were two people standing in the hallway closest to the-closest to the door. One person was standing partially inside the open bathroom door. I couldn't see his left hand. I asked him to move to his right and show his hands, which he did." That man, later identified as Bo Zimmerhanzel, asked the officers, "What's going on here?" Duckworth informed the men "that they were no longer welcome at the hotel and that the management was requesting that they gather their belongings and leave." Duckworth then asked if there was anyone else inside the room, and Zimmerhanzel pointed to the bathroom and told the officers that another man was inside. That man, later identified as Travis Ward, then "popped his head out of the bathroom door" and was holding a disposable shaving razor. Ward told the officer that he had been shaving. Duckworth, however, did not see any water or shaving cream on Ward's face. The third occupant of the hotel room, who had been standing behind Zimmerhanzel when the officers opened the door, was later identified as Tilghman.[2]

         Approximately 30 seconds after opening the door, the officers entered the room. When asked to explain why they entered the room, Duckworth testified as follows:

With the flushing sounds and him saying that he was shaving with no evidence of him shaving; him being in the bathroom whenever I heard the flushing sound; and then the general behavior with the call of narcotics, we decided to make entry into the room to prevent further destruction of evidence and as officer safety whenever they were gathering their belongings because typically with narcotics comes firearms and weapons.

         Duckworth added, "I didn't ask for permission to enter, but as we were breaking that threshold [of the doorway, ] Mr. Zimmerhanzel invited us in."[3] Once the officers were inside the room, the occupants claimed that they had not heard the officers knocking on the door and that they had been playing a guitar. However, Duckworth testified that the officers "didn't hear any guitar sounds coming from the room," only whispering.

         According to Duckworth, after the officers had entered the room, they "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."[4] 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."

         On cross-examination, Duckworth was asked whether he would have been able to enter the room and evict the men if the only issue had been the outstanding $50 balance owed on the room. Duckworth answered, "No," and explained that hotel occupants "have a certain expectation of privacy in a hotel room," although he acknowledged that when there are payment issues, "it gets a little fuzzier . . . as far as law enforcement is concerned." Duckworth was also asked if he had smelled marihuana as he was standing outside the room. He answered, "I don't recall." Additionally, Duckworth agreed that the officers had stepped through the threshold of the doorway before any of the occupants had given them permission to enter the room.

         Duckworth further testified that he believed, given the circumstances, that Chapman could have evicted the occupants on his own but that he had contacted law enforcement for help because the occupants had earlier "refused to come to the door." Duckworth also explained that hotel guests can be charged with criminal trespass if their reservation expires and they refuse to leave despite receiving notice from management that they need to go. Duckworth acknowledged, however, that no such notice had been given in this case, although he claimed that this was because "the residents of the room refused to answer their door." Duckworth also testified that following the arrests of the men, he had attempted to ascertain whether there had been a rental agreement in place for the room, but hotel management informed him that "there's no written rental agreement that the occupants would have to sign."

         After hearing the above evidence, the district court took the matter under advisement and subsequently denied the motion to suppress. Later, the district court made findings of fact and conclusions of law, including the following:

1. The Court finds that the Defendant had a substantially diminished expectation of privacy in the hotel room he was occupying with co-Defendants due to their eviction by hotel staff, including Joshua Chapman, for hotel policy violations.
2. The Court finds that Joshua Chapman had a right to enter the room to facilitate that eviction and as a result, Officers, including Officer Duckworth, had a right to enter the room at the invitation of Mr. Chapman to assist in facilitating the eviction.
3. The Court finds that the presence of contraband in plain view allowed for the lawful arrest of the Defendant and co-Defendants ...

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