VA: Dog sniff outside a motel room door did not violate Jardines or any REP

Applying a sensitive analysis of Dunn and Jardines and “other societal norms establishing an objectively reasonable expectation of privacy,” the court concludes that a dog sniff outside the door of a motel room is not at all like that of a home. Essentially, there is no reasonable expectation of privacy in the common areas and walkways of a motel. Sanders v. Commonwealth, 2015 Va. App. LEXIS 179 (May 26, 2015) (Treatise § 17.02 n.2):

Whether an occupant of a motel room has a reasonable expectation of privacy in the external walkways adjacent to it has not been addressed by Virginia’s appellate courts. In Logan v. Commonwealth, 47 Va. App. 168, 622 S.E.2d 771 (2005) (en banc), this Court considered an occupant’s privacy interest in the common areas of a rooming house. The Court observed that the Commonwealth had made a factual concession that the rooming house premises were “not open to the general public,” and it concluded that this concession resolved the question whether residents had a reasonable expectation of privacy in the relevant areas of the rooming house. 47 Va. App. at 171, 622 S.E.2d at 772-73. In Londono v. Commonwealth, 40 Va. App. 377, 397, 579 S.E.2d 641, 650-51 (2003), the Court evaluated the expectation of privacy of the occupant of a sleeping compartment on a train. It held that the occupant had a lower expectation of privacy than in a fixed dwelling and no reasonable expectation that the police would not use the public hallway outside his compartment. Id. Therefore, Londono, like Logan, although instructive, does not resolve the issue currently before the Court.

Assessing whether a defendant had an objectively reasonable expectation of privacy in a particular location involves an analysis of the totality of the circumstances. See McCary, 36 Va. App. at 36, 548 S.E.2d at 243. Factors considered when applying this analysis are much like the considerations that Dunn specifies for assessing whether property is curtilage. See supra Part II.C.1. They include whether the defendant: (1) owned the property, had a possessory interest in it, or was legitimately on the premises; (2) had the right to exclude others from it; (3) demonstrated a subjective expectation of privacy that it would remain free from governmental intrusion; and (4) took normal precautions to maintain his privacy. See McCoy v. Commonwealth, 2 Va. App. 309, 311-12, 343 S.E.2d 383, 385 (1986); State v. Talley, 307 S.W.3d 723, 731, 734 (Tenn. 2010). The general rule regarding dwellings such as apartment buildings and motels is that an occupant has no legitimate expectation of privacy in areas subject to common use. See Wayne R. LaFave, Search and Seizure § 2.3(c), at 758-62 (5th ed. 2012). This rule applies to external and internal hallways, even those immediately adjacent to private areas such as individual apartments and motel rooms. Id.7

In keeping with the general rule, an assessment of the totality of the circumstances supports the conclusion that the appellant had no objectively reasonable expectation of privacy in the external motel walkways. The walkways belonged to the owner, not the occupants of the individual rooms, and no evidence indicated that the police lacked permission to be present on the walkways. The appellant had a possessory interest in the two rooms themselves, but as to the walkways, his interest, like that of the other motel guests, was one of common, not exclusive, use and access. See United States v. Miravalles, 280 F.3d 1328, 1332 (11th Cir. 2002) (reasoning that common areas in an apartment building are available for the use of other tenants, visitors of other tenants, the landlord, delivery people, repair workers, and the like). The outside walkway of a motel, unlike a traditional curtilage, frequently must be traversed at all hours by strangers, including guests and hotel staff. Although the appellant had a reasonable expectation of privacy inside the rooms he rented, he had no expectation of privacy in the sights, sounds, and smells detectible without unconstitutional intrusion from outside each room. See infra Part II.C.2.b. & n.8. Accordingly, the presence of law enforcement officers on the motel walkways was not a search within the meaning of the Fourth Amendment.