The United States Supreme Court has ruled on a number of occasions that a hotel guest has a reasonable expectation of privacy when in a hotel room. But what does that mean exactly? If you are a typical guest, then your expectation of privacy will generally be determined by reference to the hotel’s practices and policies, which should be defined with a good dose of common sense. However, even using common sense, it is impossible to anticipate every possible situation. The Erin Andrews case is a good example of that. Guests also have the protection of the Fourth Amendment.
If you book a hotel room, you are a transient guest, not a tenant. The distinction is important because as a tenant you have the exclusive right to possess the premises even to the exclusion of the landlord. As a guest you hold a license which gives you the right to use the premises, but subject to hotel’s retention of control and right of access. Generally, this means that hotel personnel can enter the room to clean, for maintenance or to address safety or security issues. So a reasonable expectation of privacy in a hotel room does not mean that you shouldn’t expect anyone to enter your room.
Most likely in response to the Las Vegas shooting, Disney, Hilton and Wynn recently changed their security policies in a way that further reduces a guest’s expectation of privacy. Disney will no longer provide “do not disturb” signs and is advising guests that they should expect hotel personnel to enter their room at least once every 24 hours for any reason. Hotel personnel have been instructed to knock and announce themselves before they enter. Hilton has kept the “do not disturb” sign, but if it has been on a door for 24 hours, hotel personnel will alert management who will then decide whether to investigate further. Wynn has taken the most proactive position by stating that an investigation will be conducted if a “do not disturb” sign is on a door for more than 12 hours.
While hotels have flexibility in crafting their privacy policies, once established, the hotels must abide by them. The Motel 6 case is a good example of a privacy policy gone wrong. he hotels’ privacy policy provided that the hotels would not turn over guests’ personal information to police unless required to do so pursuant to a court order or to comply with the law. However, it is alleged that the hotels routinely and without a warrant voluntarily provided information to Homeland Security and Immigration and Customs Enforcement agents about guests with Latino sounding names. Agents would then go to the guests’ rooms and subject them to questioning, which resulted in at least six people being detained and one being deported.
At this point, it is unclear why the hotel employees provided this information, but Motel 6 has stated that employees were clearly instructed not to provide such lists. Motel 6 has been sued by the Attorney General of the State of Washington and immigration advocates for among other things, violation of privacy, civil and equal protection rights and consumer protection laws, discrimination, false imprisonment and intentional infliction of emotional distress.
Whatever privacy policies a hotel has in place, the expectation of privacy is completely lost upon expiration of the rental period. Although a clearly posted check-out time is helpful, the practices of some hotels may make the end of the rental period uncertain. For example, if a hotel routinely allows guests to stay in a room past the check-out time or allows a late check-out, then the guest will have a reasonable expectation of privacy during that extended period of time. In addition, if a guest is allowed to pay for the next night later than usual, that may create a reasonable expectation of privacy in the next night even before payment is made as well as the period between check-out and check-in. The way to avoid this ambiguity is to have clear procedures about check-out and to apply the procedures consistently. Some steps that may be taken are to notify guests of the check-out time when they check-in, remind the guest of the check-out time, post the check-out time in the room and to contact the guest directly if they have not checked-out by the posted time.
In addition, a guest no longer has a reasonable expectation of privacy after they have been evicted. A hotel can evict a guest for any number of reasons; however, the process is important especially if the reason is suspected criminal activity. First, the hotel must identify the problem. Eviction can be justified by any number of reasons including disorderly conduct, intoxication, nonpayment, use of the room for an unlawful purpose, bringing dangerous items onto the premises (guns), failing to register, using false pretenses to obtain the room, violating the law or hotel policies (for example, no pets or no smoking), failing to vacate at the end of the stay, using a fraudulent credit card or allowing too many people to stay in the room. While many of these reasons seem pretty clear cut, that’s not always the case. For example, can a hotel evict a guest simply because the hotel discovers that the guest is a minor? What about reports marijuana usage in states that allow medical and/or recreational use of that drug?
Second, the hotel must take affirmative action to repossess room. The guest does not need to be informed for an eviction to occur, but the action must be performed with the intention of dispossessing the guest of the room. Eviction can be done by locking a guest out of a room, asking the police to assist with removal of the guest (but police must be clear that they are acting at the request of the hotel staff), removal of the guest’s belonging from the room, placing a note on the door that the guest has been evicted or simply telling the guest. Whether the rental period has expired or the guest has been evicted, the Fourth Amendment no longer applies and the hotel can consent to the police entering the room without a warrant.
There can be no question that hotels are caught between issues of guest privacy and security. However, a well-defined policy that is communicated to guests and consistently applied is the best way to protect against potential liability.
Contributed by Tara Lattomus, Eckert Seamans, Wilmington, Delaware