I mentioned the American Hotel & Lodging Association (AHLA) in my last blog entry, and am going to mention it again here. Another presentation at this year’s Midwest Lodging Investment Summit featured an AHLA video titled, “If you see something, say something.” (If that wasn’t the title of the video, it was the central phrased used within it.) The video recalled that shortly after September 11, 2001, in a dumpster outside a hotel at the Newark Airport where some of the hijackers had stayed the night before, investigators found documents related to their conspiracy. The video encouraged hotel employees to keep a watchful eye and report similar suspicious materials they may see in guests’ rooms. The video included a dramatization of a housekeeper finding a diagram of an airplane in plain view in a guestroom, and then picking up the guestroom phone and asking for the General Manager.
It’s hard to argue against this policy, especially if it could stop another 9/11.
However, the lawyer in me had to ask to what extent a hotel may be hindered from this strategy by existing law. I have thought it through and concluded that existing law does not present much of a hindrance to this policy. But I know there are other lawyers who would dissagree with me. The law on this subject is ancient: An innkeeper has a common law duty to protect the privacy of guests of the inn. Guests’ greatest expectation of privacy is behind closed doors in the guestrooms. When law enforcement officials call hotels seeking to search or “bug” guestrooms, or seeking copies of records of guests’ stays, hospitality lawyers advise their clients to demand warrants and subpoenas before letting the police in. (Most police departments know this and come prepared with subpoenas and warrants; some don’t.) There are exceptions to this policy, one of them being to give more leeway to an officer in fresh pursuit of a fleeing suspect. But the general rule remains the same: Demand a subpoena before producing documents, and demand a warrant before allowing a search, a wiretap or installation of a hidden ip camera. Otherwise, your former guest may successfully sue you as soon as he’s checked out of his next accommodation at the county jail.
But does a guest’s expectation of privacy in a guestroom extend to items left in plain view that any housekeeper can see? It certainly doesn’t apply if those items are contraband. If a housekeeper sees a gun or narcotics on the desk, she should call a manager, who should call the police—immediately. After all, the innkeeper also owes duties to its other guests and its employees. But what about something like a diagram of an airplane or a flight manual? Is that enough? Don’t pilots stay in airport hotels every day? Here are some thoughts: (1) If something is in plain view to a housekeeper, it’s also in plain view to a hotel manager. (2) If a guest should expect that a housekeeper or engineer may enter his room, he has no right of privacy against the manager doing so as well. (3) The manager should be able to quickly access guest records that would indicate, for example, whether a guest is a member of a flight crew. (4) The same guest will have much less of an expectation of privacy to anything he may say in the hotel lobby if law enforcement authorities are called to monitor him there.
So, I have to agree that if a hotel employee “sees something,” he or she should “say something” up the chain. And it never hurts to call a lawyer to talk through these things. These problems usually have practical solutions.
Here is a related question for hotel lawyers: Does a hotel’s common law duty to respect a guest’s privacy mirror the guest’s Constitutional rights against the government? In other words, if the guest can suppress evidence in a criminal case because of something the police did, does it automatically follow that the guest has a tort claim against the hotel for assisting the police in whatever the action was? I don’t know whether any court has declared this, but it seems to be a presumption in this area of practice.