UNIVERSITY OF THE DISTRICT OF - UDC Law Review

establish a right to privacy therein.
Thus, if the search in Parizo had been conducted before check-out time, then it would be necessary to establish that the
defendant had abandoned the premises “in the sense of having no apparent intention to return and make further use of
them,”21 unless the defendant’s prior conduct had been such to constitute a waiver of his privacy expectation.22 And
doubtless there are cases in which no abandonment will be deemed to have occurred even after the initially indicated term of
rental, as where the tenant had arranged for credit card payment of all charges and both the motel and tenant treated the
tenant’s nondeparture as extending the term.23 Indeed, an abandonment conclusion may sometimes be inappropriate because
of “the hotel’s generally lax practices in enforcing its checkout time.”24
Another difference between houses and apartments, on the one hand, and transient quarters, on the other, is discernible in
those cases where the defendant has been arrested prior to the time of the search. When a person is regularly residing at
certain premises, “[a]bsence due to arrest and incarceration while awaiting trial is not of itself a sufficient basis upon which to
conclude that the accused has abandoned any reasonable expectation of privacy in his home.”25 By comparison, where a
person occupying a hotel or motel room is arrested under circumstances indicating that his incarceration will be more than
temporary, the arrest may be viewed as terminating the occupancy of the room.26 This is particularly likely if, as in Abel v.
United States,27 the arresting officers see to it that the defendant checks out of the hotel after his arrest. In Abel the Supreme
Court upheld a search of the room defendant had occupied at the time of his arrest, reasoning that because he “had vacated
the room” the hotel “had the exclusive right to its possession” at the time of the search.
At least one commentator has called Abel into question, stating:
It may be argued that the petitioner had not voluntarily relinquished control of the premises, and therefore the theory
of abandonment is most tenuous. Additionally, subsequent movement of Fourth Amendment conceptualization
toward an increased emphasis on constitutionally protected privacy renders the viability of Abel increasingly
dubious.28
But, while it may be true that an intent to abandon cannot be presumed merely from the fact of arrest and incarceration, it
does not follow that a person lawfully arrested cannot be said to have abandoned the room by electing to check out after the
arrest. The problem here, as a practical matter, is that the arrested transient may find himself in a “Catch-22” situation; he
may be confronted with the choice of abandoning the room and certain personal effects there (thus subjecting them to police
scrutiny because of the abandonment) or of taking the effects with him (thus subjecting them to inventory at the station).
Perhaps limits upon the inventory authority would alleviate this situation somewhat.29
Another variation of the problem arises when the defendant has not checked out but, by virtue of being in police custody, is
not in a position to extend his occupancy. Such was the situation in United States v. Croft,30 where the court asserted:
Defendant argues that the expiration of the rental period should not control in this case because his arrest prior
to check-out time prevented him from returning to the motel and perhaps extending the rental period. We are
not persuaded by this argument for it was defendant’s own conduct that prevented his return to the motel.
It may be questioned, however, whether expiration of the rental period-especially under these circumstances-can be said to
terminate fully the guest’s justified expectation of privacy as to personal property he had secured in the privacy of his room.
Certainly the innkeeper must be able to remove those effects from the room so that it can be rented to another, and if in that
process he finds evidence of crime it may well be that the former guest cannot complain if, as in Parizo, that incriminating
evidence is made available to the police. But the innkeeper is not without responsibility as to personalty left behind,31 and
thus it might be doubted whether he can give the police carte blanche to rummage through those effects.32 However, if the
hotel places the guest’s effects in storage and then, upon learning of the guest’s arrest, turns them over to the police, this
provides a basis for police inventory of those effects.33
Yet another situation in which courts have had to decide whether the premises have been abandoned to the extent that the
occupant’s justified expectation of privacy therein has ceased is where those premises have been seriously damaged by fire.
Certainly there will be instances in which it may fairly be concluded that the tenant in those premises has left without any
intention to return,34 but the notion that the owner of the burned premises has abandoned them merely because they are not
inhabitable35 is a highly questionable one. No such abandonment should be found when the owner has boarded up the
premises36 or when it appears that there are salvageable items of personal property in the premises which the owner could be
expected to retrieve.37 However, even absent a fire, it sometimes happens that premises are in such an extreme state of
disrepair and apparently unoccupied as to support the conclusion that those premises apparently have been abandoned.37.1
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