United States of America v. Jeffery A. Winder, also known as Jeff A. Winder

United States Court of Appeals
For the Eighth Circuit
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No. 23-1829
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United States of America
Plaintiff - Appellee
v.
Jeffery A. Winder, also known as Jeff A. Winder
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: January 11, 2024
Filed: April 4, 2024
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Before SMITH, Chief Judge,1 GRUENDER and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
Jeffrey A. Winder challenges the district court’s2 denial of his motion to
suppress. We affirm.
1 Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).
2 The Honorable Beth Phillips, Chief Judge, United States District Court for
the Western District of Missouri, adopting the report and recommendation of the

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I.
Winder and Heather “Nikki” Durbin checked into the motel at Hood’s Service
Center early one morning in March 2021. During check-in, the motel manager, Gary
McCullough, advised Winder that his room rental would be terminated if he engaged
in any illegal activity.
The next morning, McCullough entered Winder’s room to clean because he
was expected to stay another night. No one was in the room at the time. McCullough
noticed that the box spring of one of the beds in the room had been moved, and when
he went to realign it, he observed a brown canvas backpack under the box spring.
Believing it may have been left by a prior guest, McCullough pulled out the
backpack and opened its flap. Inside, he saw a freezer bag with “long pieces” of
what appeared to be methamphetamine. McCullough left the backpack where it was,
exited the room, locked the door behind him, and called 911 to report that he “had
discovered drugs in a room.” He considered Winder evicted at that time.
Greene County Sheriff’s Deputy Toby Smith was first on the scene, and
Deputy Kelsey Whitcomb and Sergeant Long arrived shortly after him. McCullough
reported to Deputy Smith that one of the beds in Room 209 was off-center and
recounted how he had found the backpack and the illegal drugs that he believed to
be inside of it. The officers requested McCullough’s permission to enter the room.
McCullough gave them “full permission” and unlocked the door.3
Deputy Smith and Sergeant Long entered the room first. Deputy Smith went
straight to the bathroom to check for any potential threats; he saw the backpack as
he entered but did not notice if it was open. Sergeant Long went directly to the
Honorable David P. Rush, United States Magistrate Judge for the Western District
of Missouri.
3 According to the affidavit in support of the search warrant, McCullough also
communicated the motel’s policy “that if any violation of their rules to include
criminal activity occurs, the rental agreement . . . is terminated.” However, it is not
clear when in the course of events this conversation occurred.

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backpack. When Deputy Smith returned from the bathroom, the backpack was open,
and the plastic bags of suspected methamphetamine and the bottom of a pistol’s
magazine were visible. Deputy Smith and Sergeant Long left the room so that
Deputy Whitcomb and her canine partner, Zeke, could enter to see if Zeke alerted
for drugs in the backpack. He did.
The officers then paused their investigation to obtain a search warrant. After
obtaining a warrant, they recovered three gallon-sized Ziploc bags of
methamphetamine and a 9-millimeter handgun from the backpack. The officers then
left the room and waited nearby for Winder and Durbin to return. Meanwhile,
McCullough rekeyed the door so that Winder and Durbin would not be able to get
back into the room. When they returned, Durbin came to the front office to let
McCullough know that her key was not working. McCullough told her that a search
warrant had been executed and offered to call one of the detectives to speak to her.
Durbin quickly left, got back in her vehicle, picked up Winder, and started driving
toward the highway. Officers immediately pulled them over. After removing
Winder from the vehicle, the deputies seized another handgun from his car seat, as
well as additional methamphetamine and plastic baggies from under his seat.
Winder was arrested and indicted on four counts related to his possession of
the drugs and guns. He moved for suppression of all evidence arising out of the
deputies’ initial warrantless search of the motel room, arguing that his Fourth
Amendment rights were violated by the search and seizure of the motel room and
his backpack. A suppression hearing was held before a magistrate judge, who issued
a report and recommendation that the motion to suppress be denied. Over Winder’s
objection, the district court adopted and supplemented the magistrate judge’s report
and recommendation, concluding that Winder was evicted at the moment
McCullough decided to expel him and that the officers had probable cause for a
warrantless search of the backpack based on McCullough’s statements about a
brown bag in the room that contained drugs.
Winder conditionally pleaded guilty to one count of possession of
methamphetamine with intent to distribute and one count of possession of a firearm

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in furtherance of a drug trafficking crime, preserving his right to appeal the denial
of his motion to suppress. See Fed. R. Civ. P. 11(a)(2). He was sentenced to 228
months’ imprisonment. He now appeals the denial of his motion to suppress.
II.
“In considering [the] denial of a motion to suppress evidence, we review the
district court’s conclusions of law de novo and its factual findings for clear error.”
United States v. Molsbarger, 551 F.3d 809, 811 (8th Cir. 2009) (internal quotation
marks omitted). The Fourth Amendment of the United States Constitution provides
that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated.” U.S.
Const. amend. IV. And “[a]s a rule, searches and seizures are unreasonable unless
accompanied by a warrant.” United States v. Chipps, 410 F.3d 438, 442 (8th Cir.
2005). Winder argues that his Fourth Amendment rights were violated in three
ways: (1) he was not “lawfully ejected” prior to the officers’ search of his room, (2)
the officers’ initial warrantless search exceeded the scope of McCullough’s search,
and (3) officers’ subsequent reentry into the room and use of a drug dog before
obtaining a warrant further violated Winder’s Fourth Amendment rights.
We first consider his argument that the officers’ initial entry and search of the
motel room was unlawful. The Supreme Court and this circuit have been clear that
the Fourth Amendment’s protection against warrantless searches “appl[ies] with
equal force to a properly rented hotel room during the rental period.” United States
v. Rambo, 789 F.2d 1289, 1295 (8th Cir. 1986); see also Hoffa v. United States, 385
U.S. 293, 301 (1966) (concluding motel rooms can as “clearly be the object of Fourth
Amendment protection . . . as a home or an office”). However, “once a guest has
been justifiably expelled, the guest is without standing to contest an officer’s entry
into his hotel room on Fourth Amendment grounds . . . because, upon eviction, the
rental period terminates and control over the hotel room reverts to management.”
United States v. Peoples, 854 F.3d 993, 996 (8th Cir. 2017) (internal quotation marks
and citation omitted). One basis for justifiable expulsion arises when an occupant is
evicted in manner permitted by and consistent with state law. See id. (“[J]ustification

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for . . . evictions may come from state statutes authorizing the removal of guests
under certain circumstances.”).
Under Missouri law, “[a]n owner or operator of a hotel may eject a person
from the hotel and notify the appropriate local law enforcement authorities . . . [if]
[t]he owner or operator reasonably believes that the individual is using the premises
for an unlawful purpose.” Mo. Rev. Stat. § 315.075(3). Winder does not contend
that McCullough’s private search was unlawful, and he concedes that, in light of
section 315.075(3), McCullough had cause and authority as the motel manager to
eject Winder after the discovery of the backpack and its illegal contents. However,
Winder argues that McCullough had not yet done so when he allowed the officers to
enter and search the room.
In Peoples, we made clear that whether an ejection under section 315.075(3)
has taken place does not turn on the physical removal of an individual from a motel
room. 854 F.3d at 995. Instead, the motel room occupants’ reasonable expectation
of privacy terminated at the time when the “motel clerk handed [the police officer]
the [room] key” to go remove them. Id. Our decision in that case neither identified
nor relied upon any explicit statement by the motel clerk that he had evicted the
occupants. Id. at 997. We instead found that the record as a whole “demonstrate[d]
that, in giving the key to [an officer], the clerk wanted the occupants of the room
removed.” Id.
As in Peoples, the record in this case sufficiently establishes Winder’s lawful
ejection prior to the officers’ initial entry into the room. McCullough notified
Winder at check-in that illegal activity would lead to his eviction. McCullough then
found drugs in Winder’s room. At that point, McCullough considered their rental
agreement “null and void” and Winder evicted. McCullough then took further
actions consistent with that belief. He contacted the authorities, as expressly
permitted by section 315.075(3). He let deputies into the room. And then, as soon
as they left, he rekeyed the lock to prevent Winder’s reentry. These facts establish
Winder was ejected prior to the officers’ initial entry. Thus, Winder has no standing
to challenge the search of the room.

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Winder takes the view that this evidence is insufficient. He points out that
there is no evidence establishing that McCullough explicitly told the officers that
Winder had been evicted prior to allowing them to access the motel room. He further
notes that McCullough did not reach out to Winder to notify him that he was being
evicted. According to Winder, these facts make this case analogous to Stoner v.
California, 376 U.S. 483, 489-90 (1964). There, a hotel clerk granted police access
to search a guest’s rented room after the police told hotel management that the guest
was a suspect in a robbery. The Supreme Court determined that this violated the
guest’s Fourth Amendment rights. Id. But, in that case, there was no indication that
the hotel clerk intended to eject the guest—let alone that the clerk had the authority
to do so under the applicable state law. See id. at 487-88. It is thus inapposite.
Winder also argues more broadly that section 315.075(3) does not authorize a
motel operator to eject someone “in his mind.” Put differently, he contends that
“some action beyond the mere decision to evict . . . [is] required to ‘eject’ a guest
from a motel room.” However, McCullough was not required to say magic words
to eject Winder or to give the officers the authority to enter the hotel room. See
Peoples, 854 F.3d at 995; see also United States v. Bohmont, 413 F. App’x 946, 950-
51 (8th Cir. 2011) (finding defendant had no reasonable expectation of privacy in
the hotel room he rented after he was arrested and hotel security asked police officers
to enter the room). And though Winder points out that “the Eighth Circuit cases
finding justifiable ejection from a motel room all involve some action toward” the
removal of individuals from a rented room, this is not because ejection requires
physical removal. In each of the cases he cites, one or more individuals were in the
motel room at issue at the time of the ejection. Their physical removal was a
practical necessity, not a legal prerequisite. See Rambo, 789 F.2d at 1295; Young v.
Harrison, 284 F.3d 863, 865-66, 869 (8th Cir. 2002); Bohmont, 413 F. App’x at 950-
51. No authority identified by Winder stands for the proposition that physical
removal is required to effect an ejection under Missouri law. Winder’s arguments
do not change our conclusion that he was ejected prior to the officers’ initial entry.
Next, Winder argues that, even if the officers’ entry into the motel room was
proper, their search of his backpack violated the Fourth Amendment because it

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exceeded the scope of McCullough’s private search. We have previously noted that
it is a close question whether an individual loses his expectation of privacy in locked
luggage stored in a motel room from which he has been evicted. See Rambo, 789
F.2d at 1296. In this case, however, Winder’s backpack was not locked, and
McCullough had already seen that it contained a bag full of what appeared to be
methamphetamine.
Winder emphasizes that it is not clear from the record whether his backpack
was open with contraband visible when the officers entered the room or if the
backpack’s flap had fallen closed after McCullough looked inside of it. “Because a
private search frustrates . . . an expectation [of privacy], . . . an ensuing police
intrusion that stays within the limits of the private search is not a search for Fourth
Amendment purposes.” United States v. Miller, 152 F.3d 813, 815 (8th Cir. 1998)
(internal citation omitted); see also United States v. Starr, 533 F.3d 985, 995 (8th
Cir. 2008) (“When the government re-examines materials following a private search,
the government may intrude on an individual’s privacy expectations without
violating the Fourth Amendment, provided the government intrusion goes no further
than the private search.”). There is no dispute that McCullough, as a private actor,
opened the backpack flap, looked inside, and saw a plastic bag containing what
appeared to be methamphetamine. So, even if the officers reopened the backpack
flap, they did not exceed the scope of McCullough’s search by doing so.
Once the backpack flap was opened, the plain-view doctrine applied. Under
the plain-view doctrine, officers may seize any contraband so long as “they are
lawfully present in a place to view the object, the incriminating character of the
object is immediately apparent, and the officers have a lawful right of access to the
object.” United States v. Hayes, 7 F.4th 925, 928 (8th Cir. 2023) (internal citation
omitted). We know from McCullough that the first bag of methamphetamine was
visible as soon as the flap was opened. Thus, the officers had the right to seize it.
Even if the other bags or the gun only became visible when Sergeant Long—the first
officer to reach the bag—touched or moved the first bag of methamphetamine, their
subsequent seizure would not violate the Fourth Amendment because the plain-view
doctrine authorized him to seize the first bag. See United States v. Lloyd, 396 F.3d

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948, 954 (8th Cir. 2005) (“Objects in plain view of an officer properly in position to
view the objects may be seized . . . .” (citing Harris v. United States, 390 U.S. 234,
236 (1968))). This argument also fails.
Finally, because Winder’s challenges to the initial search of the room and
backpack fail, so too does his argument that the officers’ subsequent reentry and use
of a drug dog in the room violated his Fourth Amendment rights. See United States
v. Mendoza, 677 F.3d 822, 828 (8th Cir. 2012) (“It is well settled that a drug-dog
sniff, without more, is not a search within the meaning of the Fourth Amendment.”
(internal quotation marks omitted)).
III.
For the foregoing reasons, Winder’s Fourth Amendment rights were not
violated, and the motion to suppress was properly denied. We affirm the judgment
of the district court.
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