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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 23-P-0843main content

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COMMONWEALTH vs. THOMAS J. KEARNEY.
5/8/2025
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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
2
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
3
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.
4
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.
5
"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
6
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).
7
"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).
8
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
9
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.