On day one, motel manager agrees to take D's rent late. D has been there for two months and previously manager has taken late rent. On day three, manager sends maintenence man to room to see if D has abandoned it. A cursory glance satisfies the maintenence man D still has property in the room. Maintenence man pulls back the sheet on the bed to reveal a quantity of marijuana. Maintenence man takes manager to the room and shows him; manager calls police. Manager takes police into room, shows them the mj and they obtain a search warrant. Manager says one attains "resident" status after renting thirty continuous days. (What the manager refers to as a "week-to-week" tenant.) After thirty days, the motel no longer taxed the D; a status different from that of a night-to-night guest. Is the search good?

[This message was edited by BLeonard on 08-10-04 at .]

No. The guest has a reasonable expectation of privacy whether he has a one night rental or a 60 day rental. Additionally, CCP Art. 38.23 appplies to a search by a citizen or peace officer. Even if the maintenance man had a right to conduct an inspection to see if the guest had moved out, he did more than that. What authority did he have to look under the sheet?

Are we sure the maintenance person was acting on behalf of the State? The relevant inquiry is whether the State took action or a person took action on behalf of the State.

If the Manager had apparent authority to enter the room, didn't the police enter properly?

Mr. Sparks: I agree, but there are cases out there which tell us that if a person is late with the motel/hotel rent, the person loses any reasonable expectation of privacy due to the fact that they have not paid for the time period in question. I think the manager's agreement to accept the fee late and the difference between the overnight "guest" and the week-to-week tenant may serve to cut off that line of cases as well. As to Mr. Ray's question: the fact that the maintenence man is not a state actor gets us out of 4th amendment problems but we must still contend with the 38.23 CCP issue raised by Mr. Sparks....what right/reason did the maintenence man have to raise the sheet? How about the question of the police' reliance on the apparent authority of the manager to enter the room?

All of which shows a very good reason to do away with the part of 38.23, CCP, which has been interpreted to cover the illegal acts of people not covered by the Fourth Amendment.

The question could be stated another way: Would you feel comfortable prosecuting the maintenance man for trespass? Would a jury convict him?

In my humble opinion the first issue is whether he has standing. The question is not whether he thought he could stay but whether he, under the law, was lawfully in possession of the room. Assuming for a moment that the defendant could establish standing [his burden] the next question I have is what law did the custodian break. 38.23 only excludes evidence obtained in violation of the law or constitution. Is it against the law to pull back the covers of bed in a room that you are lawfully in? Are we trying to imply a scope of search argument to a civillian? I agree whole heartedly with John that the law itself needs changed.

Did he have turn down service? That would be a good question to ask.

I think the law needs to stay the same. Otherwise, the silver platter doctrine would be resurrected and citizens would be conducting searches on behalf of the police.

Sorry, Ken, but that's absurd. The only reason that the law is as it is in Texas regarding 38.23 is that the legislature drafted the statute so poorly that the CCA felt they had no choice but to interpret it to apply to anyone rather than only to police officers or those acting at their behest. I don't believe the legislature intended to provide more protection in this area than the 4th Amendment does. And, if you think it through, excluding evidence obtained by citizens in "violation" of the law accomplishes nothing. The point of the exclusionary rule is to deter law enforcement from violating laws and rights to obtain evidence; to create a disincentive to violate the law to get evidence. No such purpose is served by 38.23 with respect to private citizens. This is a stupid law and we should do whatever we can to get rid of it. Sorry about the rant, but I've had to deal with this issue in significant cases and it makes no sense to me.

What is the "silver platter doctrine"?

For example: citizen does search for police, obtaining evidence they couldn't get, and then hands it all to police "on a silver platter." Led to SC extensions of exclusionary rule.