CA2: Nonpayment of hotel rent result in loss of REP in the room

Defense counsel couldn’t be ineffective for not raising that a motel operator couldn’t consent to a search of his room after defendant was locked out for nonpayment of rent. That’s established law. Bruno v. Superintendent, 2016 U.S. App. LEXIS 2075 (2d Cir. Feb. 5, 2016):

Although it is disputed whether Bruno had a reasonable expectation of privacy in the motel room, or whether Bruno was actually in arrears, the officers were entitled to rely upon Stearns’s representation that she was the motel manager and that Bruno’s tenancy had terminated for non-payment of rent. See United States v. Elliott, 50 F.3d 180, 186 (2d Cir. 1995) (“[E]ven if the third party did not have the requisite relationship to the premises, and therefore lacked the authority to give a valid consent, official reliance on his consent may validate the search if it was reasonable for the officers to believe he had the requisite relationship.”). Stearns, as the manager of the property, had apparent authority to consent to the search of unoccupied units in the motel, and the officers reasonably relied upon these representations. See id. at 185 (“Consent may validly be granted by the individual whose property is to be searched, or by a third party who possesses common authority over the premises.” (citations omitted)). To the extent there was a mistake of fact regarding consent or whether Bruno was still a tenant at the time of the inventory, it was reasonable, and Bruno’s suppression motion would have failed. Accordingly, the habeas petition must be denied and dismissed.