warrantless search of mr powell motel room conducted with the express permission and supervision of left seems an elite violated mr pelz th amendment right to privacy the government argues that mr powell had been evicted at the time  prior unaccompanied next after they finish their protective suite they supervise the search that eugene the b m and to be clear this was not in addition but indeed it was actually a search when the police didn't ask her to do the search did they i mean they didn't direct her minutes on one of these cases where there where the hotel people are helping the police at their direction i mean she called present and they did not direct her but they gave her express permission at the moment she asked was she going to make i don't think she requested their permission to search she called them as i understand the records in order to make sure that there wasn't any difficulty from the individual who rented the room while she was searching that that is your or others like you know with associated with the room returning create trouble isn't that the reason the police were summoned to the scene your honor to that point there are a few reasons the police were summoned to the scene yes eugene zita maintain that she called police for her safety purposes she also testified that she smelled marijuana knew that it was illegal and figured she'd call police she also testified that she wanted police to smell what she smelling in case the guests were to challenge her on the smoky so you know while she testified that it was for purposes of a safety suite she also went to the guest room fifteen minutes prior unaccompanied and knocked on the door without any regard to whether there would be somebody dangerous inside and there's no evidence in the record that the circumstance the circumstances changed now she didn't request their permission to take the package out of the fridge or greater and that's where we  it was her decision to take the package out of the fridge she unequivocally said no i don't think it was my decision i gave them the decision and when pressed she doubled down on the testimony and when asked what she would have done had they  leave the package where was she testified i would have left it finally at the end of the suppression hearing they asked what her state of mind was when they told her she could take the package out of the fridge and she testified that she would think you know ok take the package out of the fridge but for express permission i'm lucky to believe she would have not have taken that package out of the fridge i would also submit that she was would not have actually entered the room as well because she wants to the real fifteen minutes actually conducted that search yes it was allegedly to justify a smoking say by that when asked what you would have done if she instead found white powder she testified well that could be evidence of snorting so she's not trying to justify a smoking see if she's looking for evidence of illegal activity in fact that's what she testified she was looking for she in fact testified to was looking for evidence of illegal activity in the hotel man say i would agree with that premise and i feel asian and i think that's exactly what we have in spicer if we were to look at the spicer case there are motel cleaning staff smell marijuana entering the r that she called police she didn't have police conduct that search with her she did it independently and then actually existed the tenant prior to calling because i recall and find that there is a th circuit determined that mr spicer w both police and an insurance agent were investigating the turbines in the howards home coolies in conducted an unlawful search and it was properly excluded but the insurance agent also conducted a simultaneous search of the premises and that was admitted into evidence now the morning found that the the police were present for and had knowledge of the the insurance because that was why it wasn't an agent of the police because he was conducting his own independent investigation for his own purposes why is that case not support the government here the hotel managers conducting a search for her own wrong about i mean i understand that you can manifest that by reaching the room or doing something else but it seems to me that we've said at least she said that she had made a decision and in one of the cases i can't remember maybe it's past at least when say there was no decision made implying that if you have made a decision and you're going up there and here she's trying to gather evidence for the foreign not because she's already decided the decision is a subject of intent and bass actually tells us that no we cannot rely on the subjective intent of the motel management and if you need an affirmative step toward resembling a group in a certain dominion or control of rights in fact the bass steps to repossess the room even if unsuccessful the right to privacy is terminated in this case eugene zita performed a long string of affirmative steps to repossess the room she initially knocked on the called police st they produce the master key heat into the room while the police were there only to make sure the circumstance get out of hand she wants you inside the room she began gathering up the trash gathering up the belonging and began inspecting for a two hundred and fifty dollars fine that she was going to best in conjunction with the victim mr prout numerous affirmative steps depriving his out right of privacy in standing to challenge i agree with you judge clay that this court doesn't need to reach that issue if this court were to conclude that the hotel employee was not an agent of the government  and i think the record certainly indicates that she was not an agent of government she never meant must have instigated or participated in the search officer the test is quite clear this was just a routine call he was only there to ensure that any potential interaction with the guest inside didn't get out of hand because you've been on the end and it is these addictions fifty or so times before and sometimes people get upset so there was no participation or and the geisha and the court found their actions were recorded on body camera and there is no suggestion or request that mis evidence the smoking mr pausch counsel brought out the illegal activity or evidence a marijuana call that is laid out in the record in the government's brief what she fully said when she was asked why you care when you're looking  for evidence of smoking whether there is illegal activity or marijuana and she stated so that they have evidence to charge that yes the penalty for smoking in the room he further stated that sometimes they get the penalty and they  can test them with a credit card company that she goes through and tries to take photographic evidence of the smoking so on both prongs of the agent the determination she was not exact moment when she asked them about the refrigerator and whether she can take that out of the refrigerator may why isn't the why isn't that why aren't the police at that exact moment participating and directing her such that that's this that's a police search because if you look at the totality of the circumstances the police are standing at the door supervising and eviction while what was right all those words were right correct your honor correct since the words that were said were in jest one officer said you can and one officer said you can take it out and given the circumstances which were in the record that she in the room she testified that she is looking for evidence of smoking and she is in the process of addicting the event vigils removing the trash removing their belongings while the government it's one of the police officers are standing at the door those circumstances support the district court finding that there was no search there and that the words you can or you can take it out do not rise to the level urge me did if he had an expectation of privacy in the room at that time why would they go to make that understand the agency argument it doesn't matter whether he's addicted or not you you know would prevail but what about the the fact that they were in that they were actually in the room and would and would not be problematic if he had been addicted i don't think it would be problematic given the brief nature of a very limited protective suite and then retrieving it back to the door for it doesn't matter what the purpose of the protect i think it's certainly a factor that is important there and there to protect they knew what the officer testified is that some people get upset and that addiction process and he also said that he didn't want her to go and i believe that something to that extent if he didn't want her to go in and get jacked or horse or someone behind on the door when his partner would know they did the very protective sweep not to conduct any investigation and not caretaker exception thing ip one of those exceptions humanity caretaking are you that's one of those except for them i'm going exceptions sometimes applies although i think it's controversial about the thomas court specifically held that in the thomas the thomas case basically held that attempted transfer of the completed delivery or as a completed crime so we no longer i don't believe that that helping the police and that is if some objective analysis that we look at asked to be objective facts in this case she asked of lexington police for permission to take the package out of the fridge and they  affirmatively told her she could that is an objective fact in the records and we cannot conclude anything but what we knew about the search they were present during it and they participated by giving her express permission to carry it through and then the subject of inten can only be demonstrated by yuji and her intent with was clear in her testimony that no she does not believe it was her decision to take the package out of the fridge she gave that decision to l think you have st that she does but when she saw something in the fridge or something triggered for her that she ought to ask police whether or not she could take the package out of the fridge after that point she became a government agent if she truly believed that she could do this as a private search i mean if government or and if the police truly believe that she could conceive of the private search they should have stepped out of the room after they realized nobody was in the room but  again she would not have asked for xpress commission from lexington police if she had no intent to assist and at that point and moving forward she was acting as the express permission and instruction of police because