NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0533n.06 No. 10-3401 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. MI CHAEL

A. SPI CER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

Be fore : BOG GS, GI L MAN, and COOK , Circuit J udg es. COOK, Circuit J udg e. After a g rand jury indicted Michae l Spicer on drug char g es, he moved to suppress evidenc e that police obtained from his hotel room. The district court denied the motion, holding that the private- sear ch doctrine permitted the office rs to sear ch his room without a war rant. Be cause this d o ct ri n e d o es not extend to residential sear ches, and beca use the court declined to addre ss other exceptions to the war rant rule , we va cate the dec ision and remand the case .

I
. On the morning of J uly 26, 2007, Spicer left his non- smoking room at the Marr iott to have
a smoke in the parking lot. Whil e he was out, a housekeeper enter ed his room, wher e she was struck by the smell o f s m o k e an d the prese nce of marijuana residue on the floor. Following hotel proce dure, she showed the room to her supervisor and then notified the front desk that someone inNo. 10-3401

United States v. Spice r the room had violate d the Marr iott’s no-smoking policy
. The Marr iott’s Human Resource Supervisor and Assistan t M an age r went to the room to document the i n fr ac t i o n . They smelled smoke, saw marijuana buds, and noti ced a backpack on a chair
. Bel i ev i n g t h e ro om to be vaca nt, they picked up the bag and unzipped it, hoping to find contac t information inside; instead, they found what appea red to be drug s. This prompted a call to the Gene ral Manag er (GM), who said that he thought he had re- keyed the room’s door, and another call to the police.
Two police office rs responde d an d ap p ro ache d the hotel’s front desk. The staff informed them o f t h e backpa ck situation, and the GM broug ht them to Spicer’s room. Much to g ener al surprise, the alleg ed re- k ey ing appar ently failed, beca use Spicer had re- enter ed the room. The office rs told Spicer to vac ate the r oom and wait with them in the hallway until detectives ar

rived. He c omplied.
Ten min ute s la te r, two narc otics detec tives joined the scene , and the GM escor ted them inside the room. The detec tives perf ormed a protec tive swee p to ensure that the ro o m had no other occupa nts, and they observe d th e u n z i pped, drug- filled backpa ck in plain view. They then ex ited the room, arr ested Spicer, and obtained a sear ch war rant. Their subsequent s ea rc h re veale d that Spicer’s ba ckpac k contained a pproxi mately

three kilogr ams of coc aine wr apped in c ellophane.
A gr a n d jury char g ed Spicer with possession with intent to distribute over five hundred g rams
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United States v. Spice r

o f co caine , see 21 U.S.C. § 841(a) (1), (b)( 1)(B )(ii), and Spicer moved to suppress the drug s evidenc e. He argued that the detec tives’ warra n t l es s “swe ep” violated his constitutional rig hts, rende ring the evidenc e inadmissible. But the district court denied the motion, noting that the hotel employ ees discovere d the drug s during a private sear ch, and that, under United States v. Jacobse n , 466 U.S. 109 (1984), the police could re trac e the pr ivate sea rch w ithout a warr ant.
In view of this ruling , Spicer enter ed a conditional plea of guilty
. The district court sentenc ed h i m t o six ty -three months’ imprisonment, followed by five y ear s of supervised rele ase. He n o w appea ls the denial of his motion to suppress.
I I
. W e re v i ew the district court’s fac tual finding s for clea r err or, viewing the evidenc e i n t h e l i gh t m o s t favorable to the g overnme nt. United States v. Perez , 440 F.3d 363, 365–66 (6th Ci r. 2006). And we g ive a f

resh look to its leg al conc lusions. Id.
The Four th Amendment cloaks a hotel-room guest with a rea sonable expectation of privac y , which “make s a war

rantless sear ch of [hi s]
. . . room unrea sonable unless it falls within an exception to the war rant require ment.” United States v. Caldwell , 518 F.3d 426, 429 (6th Cir. 2008). One such potential exception is the private-se arc h doctrine.
Under this doctrine, police office rs may , u n d er cer tain circ umstances, retra ce a private individual’s sear ch without obtaining a war rant. The doctrine finds its roots i n Un i t ed States v. - 3 -No. 10-3401

United States v. Spice r Jacobse n , a case involving a fede ral ag ent’s war rantless sear ch of a suspicious packa g e that Fe dera l Ex press employ ees had alre ady opened. 466 U .S. at 111–12. Using a s its founda tion the fac t that the Four th Amendment is “wholly inapplicable” to private- party sear ches, id. at 113, the Court held that “[t] he ag ent’s viewing of what a pr ivate par ty had fre ely made available for his inspec tion did not violate the Four

th Amendment,” id. at 119. It noted that the hotel employ ees destroyed any “priva cy interest in the contents of the packa g e,” id. , and that “the ag ent’s visual inspection of [i ts] contents enable d the ag ent to le arn nothing that had not pr eviously been lear ned during the private
sear ch,” id. at 120.
The district court viewed this case as a cut-a nd-d r ie d a p p li c a ti o n o fJ a cobsen ’s private- sear ch doctrine, noting that private hotel employ ees discovere d Spicer’s drug s, and that the police proper ly retra ced their sear ch without uncover ing any thing new. On appe al, Spicer c ontends that the court “made insufficient finding s of fa ct[] to support its application of the ‘private[-] sear ch doctr ine.’”
The problem i s t his: we have alre ady explained, unequivoca lly , that we are “unwilling to extend the holding in Jacobse n to case s involving private sear ches of residenc es.” United States v. Allen , 106 F.3d 695, 699 (6th Cir. 1997). Recognizi ng the differ ence betwee n one’s privac y interest in a residenc e and one’s privac y expectation in an opened parc el, we decline to stre tch the privatesear ch doctrine to residential sear ches, including police sear ches of hotel rooms premised on private employ ees’ discoverie s. Id. at 698–99; see also United States v. W illiams , 354 F.3d 497, 510 (6th Cir. 2003). Spicer is thus rig ht, but for the wrong reason—it is not that the di strict court failed t o
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United States v. Spice r proper ly apply Jacobse n ; it is that Jacobse n does not apply at all.
A look at t he dis trict court’s decision shows us why this err or occurre d. The district cour t cites United States v. Richards , 301 F. App’x 480 (6th Cir. 2008), in which, it say s, we applied the private- sear ch doctrine to a police sear ch of a “hotel room” that followed hotel employ ees’ private discovery of child pornog raphy
. In fac t, Richards did not involve a hotel room, or any residenc e for that matter: the pornography was found in a storag e unit , by employ ees of the s torag e unit
. Id. at 481–82. And t h e court also cites United States v. Clutt er , 914 F.2d 775 (6th Cir. 1990), which it
co rr ectly notes involved a police sear ch of a private residenc e. But Clutt er prec eded A l l en , i t s discussion of Jacobse n occur red in dicta, and we have expli citly rec og nized that its “fa ilure to make any rea l distinction betwee n a fede ral express packa g e and a home
. . . casts doubt on the alterna tive holding in that dec ision.” W illiams , 354 F.3d a

t 510. Of course, the district court’s misapplicatio n o f Jacobse n does not end the matter because S p icer ’s rea sonable expectation of privac y may have been proper ly exti nguished throug h ot h er
means. The court could have found, as the Gover n m en t argue d below, that the GM had divested Spicer of his status as an occupa nt of the room, entitling the GM to consent to a police sear ch. See,

e. g . , A l l en , 106 F.3d at 699–700. Or it could have found, as also argued below, that a protec tive
swee p was war

rante d beca

use t h e d et ec t i ves had “a rea sonable belief based on specific and articula ble fac ts
. . . that the are a swept harbor ed an individual posing a dang er.” Maryland v. Buie , 494 U.S. 325, 327 (1990) (inter nal quotation marks and c itation omit ted).

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United States v. Spice r But the district court expressly declined to addre ss these issues, and the parties acc ording ly have not briefe d them here
. As Spicer acknowledg es, t he court “re st[ ed] its decision sol ely on its application of the private[-] sear ch doctr ine and did not make a ny finding s of fa ct[] or conc lusions of law relating to any [ot her] exceptions to the Four th Amendment war

rant require ment.” We agree and re mand so that it may do so now.
I I I
. For these re asons, we va cate the district court’s or der de nying Spice r’s motion to suppress and re mand for f

urther pr ocee dings c onsistent with thi s opinion.

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