Commonwealth v. Thomas J. Kearney.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-843

COMMONWEALTH

vs.

THOMAS J. KEARNEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a search of his hotel room uncovered a firearm,

ammunition, and drugs, the defendant was arrested and charged

with various offenses. He moved to suppress the items seized

during the search; after that motion was denied, the defendant

brought this interlocutory appeal. We affirm.

Background. "'In reviewing a ruling on a motion to

suppress evidence, we accept the judge's subsidiary findings of

fact absent clear error,' and we defer to the judge's

determination of the weight and credibility to be given to oral

testimony presented at a motion hearing." Commonwealth v.

Hoose, 467 Mass. 395, 399 (2014), quoting Commonwealth v.

Contos, 435 Mass. 19, 32 (2001). "[F]indings drawn partly or
wholly from testimonial evidence are accorded deference and not

set aside unless clearly erroneous." Commonwealth v. Tremblay,

480 Mass. 645, 655 (2018).

The defendant posted images of himself in a downtown Boston

hotel, including a video recording in which he brandished a

firearm on a social media application known as Snapchat. The

postings attracted the attention of a Boston police detective

monitoring social media. In the video footage, the defendant

rode an elevator to a twenty-sixth floor suite and identified

himself as "TK." From the scenery in the background and other

information, the detective identified the hotel.

Thereafter, a group of police officers in plain clothes

went to the hotel. They identified themselves to the desk clerk

as officers and learned that the defendant was a hotel guest on

the twenty-sixth floor. During a discussion with hotel

management, the officers learned that firearms are not allowed

in the hotel under any circumstances, regardless of whether the

guest has a license to carry.

At that moment, the detective who had seen the images on

Snapchat saw the defendant get out of an elevator and walk

through the hotel lobby toward the front entrance. The

detective (who testified, and whose testimony the judge

credited) recognized the defendant because he was wearing the

same clothes he wore in the video footage, as well as the same

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jewelry, a gem necklace with a large "TK" logo. The officers

stopped the defendant, identified themselves as police officers,

and informed him that they believed he had a gun in the hotel.

Officers advised the defendant of his Miranda rights.1 They

asked whether he had a gun on his person or in his hotel room,

and the defendant responded that he had a gun in a drawer in his

hotel suite and that a friend was also in the suite. The

defendant admitted that he did not have a license to carry.

After the defendant made these admissions, the officers

advised hotel management that they believed there was a gun in

the hotel suite on the twenty-sixth floor. Hotel management

responded that the defendant's hotel stay was terminated and

that his suite should be vacated. Together with hotel

management and security, the officers went to the twenty-sixth

floor. Hotel management admitted the officers to the room where

they found a loaded nine-millimeter handgun, marijuana, and

$10,000 in cash. The defendant was charged with carrying a

loaded firearm without a license (G. L. c. 269, § 10 [n]);

possessing ammunition without a firearm identification (FID)

card (G. L. c. 269, § 10 [h] [1]); possessing a large-capacity

firearm (G. L. c. 269, § 10 [m]), later dismissed at the request

of the Commonwealth; improper storage of a large-capacity

1 The defendant did not move to suppress his subsequent
statements.

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firearm (G. L. c. 140, § 131L [a], [b]), later amended to

possession of a firearm without a license (G. L. c. 269,

§ 10 [a]); possession of a firearm during the commission of a

felony (G. L. c. 265, § 18B); and distribution of a class D

substance (G. L. c. 94C, § 32C [a]).

Discussion. As noted above, "we adopt the motion judge's

factual findings absent clear error"; we "independently

determine whether the judge correctly applied constitutional

principles to the facts as found." Commonwealth v. Isaiah I.,

450 Mass. 818, 821 (2008). The parties agree, and we concur,

that the analysis in this case is governed by Commonwealth v.

Molina, 459 Mass. 819 (2011).

"To determine whether the search of the [hotel] room

violated the Fourth Amendment [and] art.14 . . ., we must first

determine whether a search in the constitutional sense took

place." Commonwealth v. Porter P., 456 Mass. 254, 259 (2010).

"This determination turns on whether the police conduct has

intruded on a constitutionally protected reasonable expectation

of privacy." Id., quoting Commonwealth v. Montanez, 410 Mass.

290, 301 (1991). "The measure of the defendant's expectation of

privacy is (1) whether the defendant has manifested a subjective

expectation of privacy in the object of the search, and (2)

whether society is willing to recognize that expectation as

reasonable." Molina, supra at 824, quoting Porter P., supra.

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"The defendant bears the burden of establishing both elements."

Montanez, supra.

"Although a guest may enjoy a reasonable expectation of

privacy in a hotel room, his privacy rights and reasonable

expectations are limited by the unique and transient nature of

his room occupancy." Molina, 459 Mass. at 825. Among those

limitations, hotel management may lawfully evict a guest "based

in part or wholly on a guest's misconduct." Id. at 826. "[A]

justified ejection is no different than a termination of the

rental period, when the guest has completely lost the right to

use the room and any privacy associated with it" (quotation and

citation omitted). Id. at 827. When a hotel evicts a guest,

"the room revert[s] to the control of the management," and "the

guest no longer has a legitimate expectation of privacy in the

hotel room" (citation omitted). Id. at 826.

The defendant maintains that he had a reasonable

expectation of privacy because hotel management did not provide

him "actual or constructive notice" that his stay was

terminated. The Supreme Judicial Court rejected this argument

in Molina, 459 Mass. at 827. As the court noted, "[t]he

Legislature could have imposed a notice requirement on

innkeepers, but notably did not." Id. at 827 n.11. Rather, the

court concluded, "in terms of reasonable, objective societal

expectations, the touchstone of the constitutional analysis, the

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defendant could not have believed that his right to use the

hotel room could not be permanently curtailed by management if

the hotel became aware of [his] criminal offense in a room."

Id. at 827. "Nor could he have believed that management could

be stymied from taking action if the defendant could evade a

run-in with hotel management" and thus avoid receiving notice.

Id.

Once hotel management told the police that the defendant's

stay was terminated, the defendant was "ejected for good cause,

the room revert[ed] to the control of the management, and the

[defendant had] no continuing right to privacy in the room"

(quotation and citation omitted). Molina, 459 Mass. at 826.

"The subsequent police search was undertaken with [hotel

management's] consent and was, in the circumstances,

constitutional." Id. at 828.

In addition, although the judge did not address the issue,

we agree with the Commonwealth's argument that, alternatively,

the search was independently justified by exigent circumstances.

Once the defendant admitted that he had something he was "not

supposed to" in the hotel room, namely, an unlicensed firearm,

"[t]he officers were entitled to act to insure their safety, the

safety of others in the [hotel], and the safety of the public."

Commonwealth v. Moore, 54 Mass. App. Ct. 334, 340 (2002).

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"Generally, a warrant must be secured before a search is

conducted, and warrantless searches are presumptively

unreasonable" (quotation and citation omitted). Commonwealth v.

Ramos, 470 Mass. 740, 745 (2015). However, "this presumption

may be overcome when '"the exigencies of the situation" make the

need of law enforcement so compelling that [a] warrantless

search is objectively reasonable under the Fourth Amendment.'"

Id., quoting Kentucky v. King, 563 U.S. 452, 460 (2011).

The Commonwealth must demonstrate "that the authorities had

reasonable ground to believe that an exigency existed, and [that

their] actions . . . were reasonable under the circumstances"

(quotation and citation omitted). Commonwealth v. Morrison, 429

Mass. 511, 515 (1999). This includes demonstrating that the

police "had probable cause" and faced circumstances like "danger

to their lives, danger to the lives of others, or the

destruction of evidence, such that it would be impracticable to

obtain a warrant." Moore, 54 Mass. App. Ct. 334 at 338.

"Reasonableness must be evaluated in relation to the scene as it

could appear to the officers at the time, not as it may seem to

a scholar after the event with the benefit of leisured

retrospective analysis." Commonwealth v. McDermott, 448 Mass.

750, 766, cert. denied, 552 U.S. 910 (2007), quoting

Commonwealth v. Young, 382 Mass. 448, 456 (1981).

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Here, the officers had probable cause to believe that there

was an unlicensed, unsecured firearm in the hotel room, and an

unknown person either was in the room or had access to it. The

officer testified to concerns about large gatherings in hotels

at the time due to the COVID-19 pandemic. Thus, when the police

learned there was an unsecured weapon with at least one unknown

person remaining in the room, the search of the hotel room

became reasonable in the interest of safety for the officers,

other hotel occupants, and the public. See Commonwealth v.

Samuel, 80 Mass. App. Ct. 560, 563 (2011) (seizure "was

necessary to remove the firearm in order to protect life and to

prevent injury to others"). See also Moore, 54 Mass. App. Ct.

at 339-340 (knowledge of additional "still undiscovered" weapon

justified search of duffel bag). The search of the hotel room

"did not exceed the scope justified by the exigency and probable

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cause to believe that [a] gun remained on the premises." Id. at

340. "Given the facts, their conduct was reasonable." Id.

Order denying motion to
suppress affirmed.

By the Court (Vuono,
Hershfang & Tan, JJ.2),

Clerk

Entered: May 8, 2025.

2 The panelists are listed in order of seniority.

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