Federal District Court Opinions

(CM). United States District Court, S.D. New York. May 11,


COLLEEN McMAHON, District Judge

On June 29, 2005, Detectives Vincent Starkey and Marvin
Oakley entered Room 129 at a Ramada Inn off Tuckahoe Road
in Yonkers, New York. In the room they found a bag
containing $50,200 in counterfeit United States currency.
The two persons who were admittedly in the hotel room when
the police found the counterfeit bills — defendants
Victor Cody and Patricia Lockette — are charged in a
one-count indictment with possession of counterfeit United
States currency, in violation of Title 18, United States
Code, Sections 472 and 2. Each of them has challenged as
unlawful the police entry into Room 129 and the recovery of
the counterfeit currency and other evidence from a duffel
bag situated on the bed.

At a hearing on March 16, 2006, the court heard the
testimony of Detective Starkey about the events of that
day. Neither defendant took the stand, though both have
submitted affidavits to the court. The court has also
reviewed the post-hearing briefs submitted by the
Government and defense counsel.

After careful consideration, I deny Cody’s motion to
suppress, because he lacks “standing” to challenge either
the detectives’ entry into the room (regardless of how it
happened) or the search of the duffel bag (ownership of
which he has never claimed). However, for the reasons
stated below, I grant defendant Lockette’s motion to

Findings of Fact

Some of the facts concerning this incident are undisputed.

On June 29, 2005, shortly before 9 AM, Det. Starkey, his
partner Det. Oakley and two other Yonkers Police Department
detectives were getting breakfast at the Dunkin’ Donuts on
Tuckahoe Road just west of the Sprain Brook Parkway in
Yonkers. Starkey recognized another Dunkin Donuts patron to
be Victor Cody, whom he had arrested in 2001 in connection
with a scam involving the use Page 2 of a disguise and a
fraud against an elderly lady.

Starkey watched Cody leave the restaurant and drive a
black Nissan Ultima to the Ramada Inn, which is located
directly across the street from Dunkin Donuts. He wondered
what Cody — whom he knew to be from New York City
— was doing in Yonkers. (Tr. 124). Acting on a hunch
(which is entirely appropriate and often the essence of
good police work), he ran the license plate on the Ultima.
The car was registered to Cody’s wife, Lessie Herring, at
an address in the Bronx. Starkey also ran a driver’s license
and warrant check on Cody; among other things, he confirmed
that Cody was on parole and that his parole address was the
address at which the car was registered.

Starkey was nonetheless suspicious and went with Oakley to
the Ramada Inn, where he engaged in more perfectly
acceptable police work. He first watched Cody’s parked car
for about an hour. When Cody did not return to the car,
Starkey called the Detective Division and asked for a
photograph of Cody, which was brought to the scene. He also
called a friend at New York State Division of Parole, and
learned that the terms of Cody’s parole prohibited him from
leaving the five boroughs of the City of New York.

Starkey and Oakley took the photograph into the hotel and
checked with the manager to see whether Cody or his wife
were registered as guests. They were not. The Ultima was
not registered with the hotel, either.

Starkey then showed the photograph to several hotel
employees. A male maintenance man indicated that he had
seen Cody in the hotel on one or two occasions —
Monday and Wednesday (June 29 was a Wednesday) — and
a woman at the front desk, Raven Green, saw Cody in the
hotel while Starkey was at another location, to which he
had been called. Green told Starkey that Cody had taken a
luggage cart to Room 129, which he entered. The two
detectives walked to the hallway outside Room 129, where
they stood about two feet from the door. They overheard
indecipherable conversation.

It is at this point that the parties’ accounts diverge. I
find all of the above as a matter of undisputed fact.[fn1]

Starkey’s Version of the Entry and Search

Cody “emerged” (Starkey’s word) from Room 129 to get the
luggage cart. (Tr. 19). He encountered the two detectives.
Starkey said, “Do you remember me?” Cody responded, “Yeah,
I remember you and Detective Bill Maher (Starkey’s partner
in 2001).” Starkey then said he wanted to ask Cody
questions about his parole status. Cody looked around, saw
that there were people in the hallway (employees, other
guests), and said, “Can we take this inside? I don’t want
everybody Page 3 to know my business.” At that point the
three men entered Room 129.

Starkey initially did not recall whether the door closed
behind Cody when he went into the hall or remain partly
open. On cross examination, Starkey conceded that the only
plastic card key for Room 129 that the police found on
April 29 was located in a Louis Vuitton purse, not on Cody
(Tr. 49), and also agreed with statements by defense
counsel that the door, “like all modern hotel doors, do[es]
not just stand open when a person leaves, they close,
because that’s a security device” and “if a person were to
emerge into the hallway and not deliberately try to keep
the door open, it would close, correct?” (Tr. 45). And he
agreed that the door could only be opened with a plastic
card key or from the inside. (Tr 50). He therefore
concluded, after defense counsel “enlightened me a little
bit,” that the door must not have closed after Cody walked
out of the room.

There is no evidence in the record concerning how far the
luggage cart was from the door to Room 129, although Starkey
said that Cody “reached” for it. (Tr. 51). The detectives
were themselves only two feet from the door. (Tr. 18-9).
Starkey does not “know whether Mr. Cody had, you know,
propped the door open. . . . . kept his foot against the
door to keep it open” when reaching for the luggage cart.
However, during the course of the hearing, he came to the
“firm belief that he had to have had the door propped open,
because it would have shut behind him, and Patricia
Lockette did not answer that door.” (Tr. 65)

When the three men entered the room, Oakley cased the
bathroom (just inside the door) to ensure that no one was
there. They proceeded into the bedroom, where Starkey saw a
bed, a desk, a chair, and defendant Patricia Lockette, who
was seated on the corner of the bed. She got up and took a
seat in the chair next to the desk. Oakley obtained
identification from her, which indicated that she was from
Georgia. In response to questions, Lockette stated that she
was on business in New York, and that she was having an
affair with Cody.

Starkey also saw luggage — a lot of it. There were
two pieces of luggage on the bed and three or four pieces
on the floor. The two items on the bed were a grayish Nike
backpack and a black leather duffel bag.

According to Starkey, the duffel bag was unzipped and
open. Inside the bag, clearly visible to Starkey as he
stood in the room, was money in denominations of $100s and
$20s, wrapped in money bands and rubber bands; a mannequin
head with a gray wig affixed to it, a blue bank
night-deposit-style bag; and two pink bag deposit slips.

Starkey asked who owned the duffel. Cody denied owning it.
He grabbed the backpack, emptied its contents onto the bed
and announced, “See, this is my bag.” (Tr. 26, 74). There
is no evidence that either detective reached for a gun or
otherwise attempted to prevent Cody from opening the duffel
bag, although it was not Starkey’s usual practice to allow
a suspect to open a closed bag, because “there could have
been a gun in that bag” (Tr. 107).

Both defendants disclaimed ownership of the black leather
duffel. When asked if the Page 4 contents of the black bag
were his, Cody reiterated, “It’s not my bag.” (Id.). When
asked whose bag it might be, both defendants shrugged their
shoulders. Oakley then said, “Well, if it’s not your bag,
do you mind it we look inside?” Both defendants said, “Go
ahead, it’s not my bag.”

At that point Oakley dumped the contents of the bag onto
the bed, revealing — in addition to what he had said
was in plain view — several additional items: men’s
ties; keys on a ring containing a CVS swipe card, a
Hallmark swipe card and a Samson gym pass from a gym in
Georgia; two checks made out to third parties in large
amounts; and numerous New York State lottery slips. (Tr.
29). Closer inspection of the cash revealed that all the
20s had the same serial number and all the 100s had the
same serial number. The mannequin had a peel-off moustache
attached to it. (Tr. 124).[fn2]

Unfortunately, no photograph was taken of the bag and its
contents prior to the time that Det. Oakley emptied the bag
onto the bed. Instead, the police called for a
photographer, put the items back into the bag and had a
photograph taken after the defendants were arrested. (Gov’t
Ex. 2). Starkey admitted on direct that the photograph is
not “an exact replica” of what the detectives had seen when
they entered the room. Starkey thought that the photograph
was “close enough” (Tr. 32) and testified that it
“approximate[d]” what he saw when he entered the hotel room
(Tr. 81).

The photograph shows a bag that is pulled wide open,
displaying nearly all of its contents to plain view. This
bears no relation whatever to what the court was told by
Starkey during the hearing. The Assistant United States
Attorney handed Starkey the bag and asked him to open it as
far as it had been open when he first saw it on the bed.
Starkey opened the bag and the court had the deputy clerk
measure the opening at its widest point. It was 10.5
inches, which is far less than the opening shown in the
photograph. As far as this court is concerned, the “posed”
photograph has no evidentiary value whatever.

Some of the items in the duffel bag were significant to
Starkey from his prior dealings with Cody. The bank bag and
deposit slips had significance because of the scam Cody had
pulled on the elderly lady, one known as the “pigeon drop.”
To pull it off, Cody gave the victim a bank bag, which he
told her contained a large sum of money. She was told she
could not open the bag until she gave some good faith money
to Cody — which the lady did. Needless to say, the
bank bag contained nothing but filler paper. The wig was
significant because Cody was wearing a wig when he was
arrested in 2001. (Tr. 69).

Starkey turned to Cody and said, “Victor, it looks like you
are back in the game.” Cody again denied ownership of the
bag. Starkey also asked Cody what he was doing outside of
New York City, when the terms of his parole required him to
stay in the City. (Tr. 89). Asked whether he was playing a
lottery scam, Cody replied that the tickets were “legit”
and that he had purchased at the BP Page 5 gas station
near the hotel. (Tr. 94; DX D). After giving Starkey access
to his police report of the incident, the detective
indicated that the lottery tickets Cody claimed to have
purchased were found in the duffel, not the backpack (Tr.
100). Since Cody claimed ownership of the tickets, this is
inconsistent with Starkey’s testimony that Cody denied
ownership of the contents of the duffel.

Starkey asked Lockette about the keys. They had a Georgia
gym pass on them, and Lockette had already stated that she
was from Georgia. Starkey suggested that the bag must
belong to her. She denied ownership of both the bag and the

The two detectives radioed for backup. Once other officers
responded, Cody and Lockette were cuffed. As a legal matter,
Cody and Lockette were clearly under arrest (i.e., they
were not free to leave) well prior to that time, although
Starkey changed his tune several times about when that
moment occurred: from as early as once Starkey first saw
the contents of the black duffel bag (Tr. 110) to as late
as after Oakley dumped the contents of the duffel onto the
bed and Starkey inspected the money and found the
duplicated serial numbers. (Tr. 112).

Defendants were advised that they were being arrested for
possession of a forged instrument. Cody was also arrested
for parole violation (Tr. 35) although his parole officer
was not working on April 29 and Starkey did not have any
indication that the parole officer wanted him arrested (Tr.
106). A warrant check on Lockette revealed that there were
numerous arrest warrants for her in multiple jurisdictions,
so she was detained on those as well. Defendants were
Mirandized once they arrived at the detectives’ office.
(Tr. 36-37).

The detectives did not open any other articles of luggage,
which were closed except for one suitcase that was unzipped
“maybe about twelve inches.” That was not enough to permit
Starkey to see inside. The detectives collected the rest of
the luggage and took it back to headquarters. Eventually,
they obtained a warrant and searched the luggage. There was
no testimony about the contents of those bags during the
hearing. (Tr. 36-37).

Cody’s Version of Events

Cody submitted two affirmations, one with his motion to
suppress and one at the hearing itself. Cody did not take
the stand and permit himself to be cross-examined —
even though his testimony could not have been used against
him at trial, see United States v. Salvucci, 448 U.S. 83,
99 (1980). The court views the affirmations with some

In the first affirmation, Cody claimed to be an invited
guest of Lockette, with whom he spent time in Room 129 on
“at least four occasions” while she was a registered guest
there. (1/27/06 Aff. at ¶¶ 2-3). On June 29,
the day of his arrest, he arrived at the room at about 8:45
am, spent some time with Lockette inside the room, left
with her and spent the day together, returned to the motel
with her, and went to get a luggage cart so she could
remove her luggage from the room and check out. He reentered
the room for a short time, then came out into the hallway,
where he was confronted by the officers. His backpack,
which he had deposited in the room upon his arrival that
Page 6 morning, remained in the room. (Id, ¶ 5).
While he did not spend the night in Room 129, he did go in
and out of the room on several occasions over the course of
several days. He also ate a meal in the room. (Id.,
¶ 6). He denied inviting the officers to enter Room
129, or consenting to their entry. (Id. ¶ 7). The
black duffel bag on the bed was closed, not open, when the
officers entered the room. (Id. ¶ 8). He was not
Mirandized prior to any questioning in Room 129, and was
not read his rights until the officers asked him to give a
statement, which occurred after his arrival at the Yonkers
Police Station. (Id. ¶ 9).

In his supplemental affirmation, Cody averred that, when
he left Room 129, the door closed and locked behind him
(3/16/06 Aff. at ¶ 2). He further averred that the
police asked if anyone was in the room with him. When he
said, “Yes, a woman friend of mine,” they asked if he was
scamming her. He denied it, but they said they wanted to
ask her themselves, and so knocked on the door. Lockette
opened the door from the inside, and the officers said they
wanted to ask her some questions. One of the officers
grabbed him by the arm and pushed him into the room. (Id.).
Cody also explicitly stated that he and Lockette were
engaged in an extramarital affair. (Id., at ¶ 3).

Lockette’s Version of Events

Lockette, too, submitted an affidavit with her motion to
suppress. She did not supplement that affidavit with any
evidence at the hearing.

Lockette averred that the officers “searched bags” in the
room that she described as “my room at the Ramada Inn on
Tuckahoe Road in Yonkers, New York (1/17/06 Aff. at
¶ 2). She denied that Cody asked law enforcement
agents to enter the hotel room (Id. at ¶ 3), or that
she permitted the agents to enter the room or consented to
their entry (Id. at ¶ 5). She denied that any of the
seized items were in plain view (Id. at ¶ 4) and
stated that the bag containing various items of physical
evidence was closed when the detectives entered her room,
and was opened without the permission or consent of herself
or Cody (Id. at ¶ 5).

Court’s Findings of Disputed Fact: Motion to Suppress

The first open issue regarding Cody is whether he had a
reasonable expectation of privacy that gives him a Fourth
Amendment-protected interest in Lockette’s hotel room. I
adhere to my preliminary conclusion that he did not.

In his first affidavit, submitted together with his
suppression motion, Cody presents himself as a visitor to
the registered guest (Lockette) in Room 129. While Cody
testifies that he was in the room on several occasions
— in one instance sharing a meal, in another leaving
a bag in the room — he does not suggest that he
actually stayed in the room as an overnight guest. After
reading this affidavit, the Court stated that, “I am not
convinced that Cody’s status as an intermittent guest of
Lockette is enough to give him standing to challenge the
search of the room.” See Decision on Pretrial Motions,
2/28/06. The Court nonetheless deferred final decision on
the issue until after the Page 7 hearing, to allow Cody to
present further evidence on the issue if he wished to do

After the direct examination of Detective Starkey, during
colloquy regarding the standing issue, the Court reiterated
its skepticism, stating, “As of right now, I haven’t heard
anything that will suggest to me that I am going to find
that Mr. Briccetti’s client (Cody) has standing. . . . (T.
37). Nonetheless, no additional evidence came in until the
end of the hearing, when Cody offered the statement in the
supplemental affirmation that he and Lockette were carrying
on an extramarital affair in Lockette’s hotel room. (Id.,
at ¶ 3).

The inference to be drawn from Cody’s carefully tailored
first affirmation is very clear: Room 129 was Lockette’s
room and he was just a visitor. When it became apparent
that the Court was skeptical about Cody’s reasonable
expectation of privacy in the hotel room, Cody offered
“extramarital affair” affirmation. The second affirmation
does not change the number of contacts Cody had with Room
129; rather, it attempts to recharacterize the quality of
those contacts.

If Cody and Lockette really were having an affair, Cody
might have held a subjective belief that his tryst with the
occupant of the hotel room was a private matter. However,
one’s subjective expectation of privacy is not necessarily
a reasonable expectation for Fourth Amendment purposes. See
Rakas v. Illinois, 439 U.S. 128, 156 (1978) (Harlan, J.,

In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme
Court held that an overnight guest had a legitimate
expectation of privacy in his host’s home and thus could
challenge the officers’ entry into the home. Minnesota v.
Olson, 495 U.S. at 98. The Court explained its reasoning as

To hold that an overnight guest has a legitimate
expectation of privacy in his host’s home merely
recognizes the everyday expectations of privacy that we
all share. Staying overnight in another’s home is a
longstanding social custom that serves functions
recognized as valuable by society. We stay in others’
homes when we travel to a strange city for business or
pleasure, when we visit our parents, children, or more
distant relatives out of town, when we are in between jobs
or homes, or when we house-sit for a friend. We will all
be hosts and we will all be guests many times in our
lives. From either perspective, we think that society
recognizes that a houseguest has a legitimate expectation
of privacy in his host’s home. . . . We are at our most
Page 8 vulnerable when we are asleep because we cannot
monitor our own safety or the security of our belongings.
It is for this reason that, although we may spend all day
in public places, when we cannot sleep in our own home we
seek out another private place to sleep, whether it be a
hotel room, or the home of a friend. Society expects at
least as much privacy in these places as in a telephone
booth — “a temporarily private place whose
momentary occupants’ expectations of freedom from
intrusion are recognized as reasonable,” Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

Minnesota v. Olson, 495 U.S. at 99.

Six years later, the Second Circuit Court of Appeals ruled
that two individuals could have a reasonable expectation of
privacy in premises even when he was not a tenant or
sublessee of the premises (i.e., he did not have a
possessory interest therein) and did not sleep there.
United States v. Fields, 113 F.3d 313 (1997). The
individuals in question, Fields and Crawley, were using a
bedroom in someone else’s apartment to bag crack cocaine.
The Second Circuit concluded that Fields had a “significant
connection” to the premises, because (1) he had a key to
those premises from the owner; (2) he paid $125 per week
for the privilege of using the apartment; (3) he was
permitted to be in the apartment even when Warner (the
owner) was not; (4) he was permitted to take guests into
the apartment; (5) he had visited the premises between 40
and 50 times. As the Second Circuit recognized, contacts of
this nature had been held by the Supreme Court to be
sufficient to confer a reasonable expectation of privacy.
Rakas v. Illinois, 439 U.S. 128 (1978) (houseguest who has
key and uses premises in host’s absence may have legitimate
expectation of privacy).

The second individual, Crawley, did not have a key, did not
pay anything that could be characterized as rent and
visited the apartment solely as Fields’ guest. In other
words, he had none of the indicia that were significant to
the Supreme Court in Rakas, and that gave Fields a
reasonable expectation of privacy in the apartment. The
Circuit nonetheless concluded that Crawley had standing
(the Circuit’s word), finding that Fields intended to share
his privacy with Crawley. The Circuit based its decision on
a single phrase from the Olson opinion: it held that “any
guest, in appropriate circumstances, may have a legitimate
expectation of privacy when he is there `with the permission
of his host, who is willing to share his house and his
privacy with his guest.'” United States v. Fields, 113 F.3d
at 320-21 (quoting Minnesota v. Olson, 495 U.S. at 99)
(Emphasis added).

The Second Circuit’s extremely broad holding would appear
to confer standing to challenge the entry on Cody. He was
in the room as Lockette’s guest; she had a legitimate
expectation of privacy in the hotel room.

However, the following year, the United States Supreme
Court handed down an opinion that eliminated any such
expansive reading of Olson. In Minnesota v. Carter, 525
U.S. 83 (1998), the Supreme Court concluded that two
defendants who were in an apartment of another solely for
the purpose of bagging cocaine did not have a legitimate
expectation of privacy in the apartment. Page 9

Carter is critically important to any analysis of this
issue because the facts of Carter are virtually
indistinguishable from those in Fields, but the result is
exactly the opposite. In both cases, the police looked into
a window and saw two individuals bagging cocaine. In
Carter, the individuals were residents of Chicago, not
Minneapolis, where the apartment was located; they were not
overnight guests in the apartment, although they were in
the apartment with the permission of the householder. The
Minnesota Supreme Court, like the Second Circuit in Fields,
ruled that defendants had a legitimate expectation of
privacy in the apartment because “society does recognize as
valuable the right of property owners or leaseholders to
invite persons into the privacy of their homes to conduct a
common task, be it legal or illegal activity.” State v.
Carter, 569 N.W.2d 169, 176 (Minn. 1997). The United States
Supreme Court reversed. The Court stated that, after Rakas
and Olson, “an overnight guest in a home may claim the
protection of the Fourth Amendment, but one who is merely
present with the consent of the householder may not.”
Minnesota v. Carter, 535 U.S. at 90. The majority in Carter
emphatically rejected the sort of expansive reading of
Olson that was the basis of both the Minnesota Supreme
Court’s ruling in the case before it and the Second
Circuit’s ruling about Crawley in Fields. It expressly
rejected Justice Ginsburg’s opinion that any person invited
by a homeowner or lessee into a home “to share in any
common endeavors,” also shared in the homeowner’s or
lessee’s Fourth Amendment protection. Id. at fn*, and 106
(Ginsburg, dissent). Indeed, the Supreme Court described
the language about staying overnight in another person’s
home as “the operative language.” Id. at fn*

After Carter, the Second Circuit’s holding about Crawley’s
purported expectation of privacy in Fields no longer
appeared to be good law. Overnight guests in a person’s
home share in their hosts’ expectation of privacy. Mere
invitees do not. In Carter itself, the Court concluded
— on facts it characterized as falling somewhere
between those two extremes — that the two
defendants, whose presence on the premises was analogous to
(indeed, indistinguishable from) Crawley’s in Fields, did
not have a legitimate expectation of privacy in the private
home (belonging to someone else) that they were using to
bag crack. The commercial nature of their activity, the
relatively short duration of their stay, and the lack of
any previous connection between respondents and the
householder led the high court to conclude that the
defendants did not have a legitimate expectation of privacy
in the home that would allow them to challenge a search
under the Fourth Amendment. Id. at 91.

The facts of this case, like the facts of Carter, fall
between Olson’s overnight houseguest on the one end and the
“mere invitee” on the other. Cody was in the hotel room with
the permission of Lockette. If defendants are to be
believed, they were together on multiple occasions and they
were engaged in a sexual affair. Cheating on one’s spouse
is certainly activity that one wishes and hopes to conduct
in private. But the issue is whether Cody had a legitimate
expectation of privacy in Lockette’s hotel room, not
whether they were engaged in activity that any civilized
person would hope to keep private.

There is no case precisely on point. In United States v.
Conway, 854 F. Supp 834, 838 (D. Page 10 Kan. 1994),[fn4]
a district court case similar to the case at bar, the court
held that the defendant, Quincy Conway, lacked standing to
object to the search of the motel room where he was
arrested. As in this case, Conway was not the registered
occupant of the motel room, did not stay in the room
overnight and told the officers that the room did not
belong to him. Conway did have a key to the room, which was
given to him by a friend so that he could enter the room
and engage in sexual intercourse with a woman who was not
the room’s registered guest. Id. at 836, 838. The fact that
Conway had a key might suggest that he had an expectation
of privacy in the room. However, the fact that his sexual
partner was not the guest to whom the room was registered
(i.e., was not the “householder,” when coupled with Conway’s
lack of any other connection to the room, caused the
district court to conclude that he did not have an
expectation of privacy. Id. at 838.

Here, there is no evidence that Cody had a key to the room,
and we know from his first affirmation (as well as from
Starkey’s conversations with the hotel staff) that he was
not registered in the room and did not spend the night
there. If Cody is to be believed, he made approximately
five or six visits to Lockette’s room: two “brief” visits
“on two separate days “a few days prior to my arrest” (Cody
1/27/06Aff. at ¶ 3); one visit of about two hours
duration on June 28 (Id. at ¶ 4); a subsequent visit
for about one hour later that same day (when they shared a
meal); a visit at about 8:45 AM on June 29 (when he left
his backpack in the room); and one last visit at the end of
the day, which was for the purpose of picking up Lockette’s
luggage. (Id. at ¶ 5). Even if I believed that Cody
was a social guest of Lockette’s and was having an affair
with her in her hotel room, I would conclude that such
intermittent contact with her room, with no extended time
spent in the room and no overnight stay, was insufficient
to give rise on his part to a reasonable expectation of
privacy. The issue, again, is an expectation of privacy in
the premises, not in the activity carried on therein. If a
homeowner were having an affair with the postal delivery
person in his/her own home, this court would not conclude
that the delivery person had an expectation of privacy in
the house that was cognizable under the Fourth Amendment
just because the householder enjoyed the paramour’s company
for 20 or 30 minutes several times a week. While the social
nature of a consensual affair augurs in favor of a finding
of privacy, the intermittent and insignificant nature of
Cody’s relationship to the hotel room augurs equally
strongly against such a finding.

As it happens, I believe, as the trier of fact, that the
“affair” Cody and Lockette were supposedly having in the
hotel room is a convenient fiction invented by Lockette.
Lockette told Oakley that she and Cody were having an
affair shortly after the detectives entered the hotel room.
But Cody never mentioned anything about an affair until
Starkey revealed Lockette’s statement during his testimony.
That Cody failed to mention anything about the affair until
Lockette’s statement to Oakley became public — when
the alleged affair is the only thing that even arguably
would give him the all important expectation of privacy he
needs to contest the police entry into the room —
suggests to me that he was not aware that he was having an
affair until the day of the hearing. Page 11 Then he
seized upon it.[fn5]

Because I do not believe that Cody and Lockette were having
an affair, I have no credible basis to conclude, as
defendants would have me do, that Cody visited Lockette’s
room for purely social purposes. This eliminates any reason
to conclude that Cody’s situation is closer to that of the
defendant in Olson than the defendant in Carter. But even
if defendants were sleeping together in the hotel room, the
facts of this case do not support a finding of reasonable
expectation of privacy.

Cody thus lacks “standing” (in the Fields sense) to
contest either the entry into the room or the search.

In addition, because he has never claimed ownership of the
duffel bag, Cody lacks standing to object to the search of
that bag. I do not need to rely on the testimony of
Detective Starkey to conclude that Cody lacks standing to
challenge the search; rather, I rely on the fact that he
has refused to claim ownership of the bag on repeated
occasions. So whether I credit Starkey’s testimony is
irrelevant to the standing analysis. However, I do credit
Starkey’s testimony that Cody disclaimed ownership of the
duffel bag when the detectives asked if it were his.[fn6]

The fact that the Government found Cody’s fingerprints on
items found in the bag and, no doubt, will attempt to link
him to that bag, does not persuade me to ignore his refusal
to claim ownership in the duffel bag. See United States v.
Watson, 404 F. 3d 163, 166 (2d Cir 2005). Indeed, a
district court may not grant a defendant standing to pursue
a suppression motion “relying solely on the government’s
theory of the case,” because to do so would amount to “an
evisceration of the defendant’s burden of proof as
established by the Supreme Court.” Watson, 404 F. 3d at
166; see also United States v. Singleton, 987 F.2d 1444,
1449 (9th Cir. 1993). Moreover, a person can handle items
that are deposited in someone else’s bag. Indeed, a person
can own items contained in someone else’s bag. It may be
the case that Cody owned some of the items in the duffel
bag. But this does not translate into ownership of the bag
itself and he has not claimed any of the items therein.

Therefore, Cody’s motion to suppress evidence is denied.

Findings of Fact: Lockette’s Motion to Suppress Page 12

Lockette has standing to contest any unlawful entry into
the hotel room, because it was her room, where she was
sleeping while away from home. She thus had a legitimate
expectation of privacy therein.

Lockette admits that she has no standing to challenge the
search of the duffel bag as long as the defendants entered
the hotel room lawfully. However, if the detectives did not
enter the room lawfully, then Lockette does not need
additional standing to obtain suppression of the evidence
in the duffel bag. The fact that the detectives were in the
room when they had no right to be there would invalidate
the search as to her.

I must, therefore, decide which story I credit concerning
how the detectives got into Room 129.

The Government and the defendants agree that Detectives
Starkey and Oakley first confront Cody in the hallway
outside Room 129. Neither side established exactly where
the luggage cart was positioned in relation to the door of
Room 129. I know, however, that the detectives were only
two feet from the door of the room. (Tr. 19). Starkey tells
us that he was told by a hotel employee that, “Cody came
in, grabbed a luggage cart, and he proceeded down to room
129” (Tr. 18), and that latter when the he and his partner
were near to the room (near enough to hear a male and
female having a conversation in the room), Cody “emerged
into the lobby, the hallway area, to grab the luggage
cart.” (Tr. 19). Cody’s affidavit merely states that he
retrieved a luggage cart from the lobby and returned to the
room. He does not mention the luggage cart again. He next
states that, he then “left the room and was confronted in
the hallway by detectives.” (Cody Aff ¶ 5). The
Court assumes he was retrieving the luggage cart; however,
there is a gap in the evidence.

I thus conclude that the cart must have been far enough
from the door to require a person to venture into the hall
to retrieve it. However, because it is illogical to think
that the cart was very far from the room, I do not believe
that Cody needed to go very far outside the room to
retrieve the cart. Indeed, because no key was found on Cody
when he was searched, I believe that he did not have to go
very far outside the room at all. He could have gone no
further than the longest distance from which he could
ensure that the door did not close and lock behind him
while he retrieved the cart.

Cody avers that the door closed and locked behind him when
he went into the hall. I do not credit that assertion. I
believe that, when he emerged from the room, one of two
things happened: either the door did not close entirely, or
Cody, who was less than two feet from the door (the
officers were two feet away) did something to prevent the
door from closing behind him while he reached for the cart
that he wanted to pull into the room (like prop it open
with his foot).

The real question is what happened next. I do not find it
credible that defendant, a seasoned veteran of the criminal
justice system, would have invited the detectives to enter
the room where the tools of his trade were in a bag on the
bed. I don’t believe everything in Cody’s affirmation. And
I understand that criminals often do strange and
inexplicable, even stupid, things. But I take into account
the kind of criminal Cody was. He was a professional
confidence man. I simply do not Page 13 believe that Cody
would have invited the man who was his nemesis — the
one person in all the world who would recognize the tools
of Cody’s trade when he saw them — into a room where
those tools were sitting in an open duffel bag, waiting to
be viewed. I do not credit Starkey’s testimony that Cody
invited the officers into the room because he did not want
strangers in the hall to be hearing about his business.
That simply does not ring true to me.

I also credit Lockette’s statement that she did not give
anyone permission to enter the room. Indeed, Starkey does
not testify that Lockette gave him permission to enter the
room. If she had invited the detectives to enter, Sharkey
would surely have relied on the permission given by
Lockette — the “tenant” of the room — and
would not have bothered with any permission allegedly given
by Cody.

Therefore, I conclude that the detectives entered the room
without anyone’s permission — Cody’s or Lockette’s
— and that they did not lawfully gain entry into
Room 129.

Accordingly, Lockette’s motion to suppress is granted. The
Government may not introduce any of the evidence seized from
Room 129 against Lockette.

[fn1] The defendants, who take great pains to paint an
unflattering picture of Detective Starkey, would perhaps
disagree with my characterization of his investigation as
good police work, but that is a conclusion I draw, rather
than a matter of fact.

[fn2] If I understand Starkey’s testimony correctly, that
means the contents of two different bags were dumped onto
the bed, and possibly commingled.

[fn3] The Supreme Court has rejected the use of the
“standing” doctrine in favor of an analysis under
substantive Fourth Amendment law. See Minnesota v. Carter,
525 U.S. 83, 87-88 (1998); Rakas v. Illinois, 439 U.S. 128,
139-140 (1978). However, the court finds the word
“standing” useful as short-hand when discussing Fourth
Amendment issues under the appropriate “reasonable
expectation of privacy” analysis. See, e.g., United States
v. Fields, 113 F.3d 313, 320 (2d Cir. 1997) (discussing the
defendant’s ability to assert his Fourth Amendment rights
using “standing” terminology while recognizing the analysis
is separate from traditional standing doctrine.). The
Government and the defense both use the term in connection
with this issue.

[fn4] Although, Conway predates the Supreme Court’s decision
in Olson and Carter, its similar fact pattern and the
reasoning applied by the court in that case is nonetheless
helpful for the present analysis.

[fn5] That Lockette told Oakley about an affair idea as soon
as she encountered the police does not make it true. It
could just mean that she is very quick on her feet and
knows some law. Lockette has never asserted under oath
— even in her affirmation — that she and Cody
were having an affair.

[fn6] I reject any suggestion that the court placed Cody in
an untenable position by telling him that I would not allow
him to wait and see how I ruled on the entry and search
questions before he decided whether or not to claim
ownership in the duffel bag.