Some Montgomery County hotels where opioid trafficking is known to occur voluntarily provide guest lists to law enforcement agencies — tactics that have raised privacy concerns in other states.
Court testimony obtained by this news organization reveals that some hotels voluntarily turn over guest registries that law enforcement use to do background checks. In at least one case, a local hotel employee was paid hundreds of dollars as a confidential informant, testimony shows.
Compelling hotel managers to turn over the names of their patrons is a controversial practice that has encountered legal challenges. In a 5-4 decision from California in 2015, the U.S. Supreme Court ruled that police can't force hotel owners to turn over registries without a warrant.
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And earlier this month, the state of Washington’s attorney general sued the Motel 6 chain for providing guest lists to Immigration and Customs Enforcement (ICE) without a warrant.
According to the lawsuit, ICE agents perused the lists for Hispanic or Latino names in a search for undocumented immigrants.
Montgomery County Sheriff’s Office Capt. Mike Brem wouldn’t discuss the investigatory tactics of the two regional drug task forces he leads, but he said, “We do not step outside the law. We’re in total compliance with federal and state law.”
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‘Taking the poison off the streets’
Brem, who heads the Regional Area Narcotics & Gun Enforcement (RANGE) and Miami Valley Bulk Smuggling task forces, said 30 million deadly doses of fentanyl have been taken off the street by the two task forces. The units include members of local departments as well as Homeland Security, Ohio's Bureau of Criminal Investigation (BCI) and the Drug Enforcement Administration (DEA).
Brem said the task forces are underfunded, but do important work in a community nationally known for opioid overdose deaths.
“We’re taking the poison off the streets that killed about 600 people in 2017 in our county alone,” he said. “That, in and of itself, is a huge drug reduction for our county that we’re trying to save lives. … If you accumulate just the fentanyl, in dosage, you’re talking (roughly) 30 million lives with the amount of fentanyl that we’ve taken off the street.”
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The Dayton Daily News agreed not to provide specific information about the names of hotels, drug agents or hotel employees in deference to ongoing and future investigations.
But court hearings, including testimony from a local hotel employee and task force agents in two unrelated cases, show some hotels voluntarily turn over their guest lists.
One local police chief also confirmed the practice of hotels voluntarily giving guest list information to law enforcement in his jurisdiction.
Brem said said the work of the drug task forces doesn’t infringe on anybody’s civil liberties.
“We understand the concern,” he said. “Nothing is done with the information we that get on any kind of a case unless it leads to a drug violation. That’s the bottom line.”
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But Ohio ACLU spokesman Gary Daniels said it’s a concern if the lists are not used for a legitimate purpose.
“The ACLU of Ohio does not like law enforcement engaging in these types of efforts for the purposes of fishing around for people who they think might be doing something wrong, treating everybody like they are a suspect unless it’s proven otherwise,” he said.
‘It’s not just that hotel’
In a pair of drug task force cases in Montgomery County Common Pleas court, attorneys for defendants were unsuccessful in getting evidence suppressed that they argued should not have been allowed.
One of the cases dealt with a suspect who was followed from a hotel to a house where more than 500 pounds of marijuana was later seized by law enforcement.
A BCI agent testified how information is used by the task force. “We conduct background investigations on various people, all races, all individuals,” the agent testified, “and we try to identify subjects that are engaging in criminal activity. It’s not just that hotel.”
The agent also testified that guest lists are obtained from several hotels and sometimes checked for Hispanics from out of state.
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Montgomery County Sheriff Phil Plummer has often said Mexican drug cartels help fuel the illegal drug trade in the region, and so-called drug “mules” have been known to stay in area hotels as they move their product. Other trafficking, too, occurs in hotels, often near interstates.
A task force member with ties to Homeland Security testified that the group would use guest information to run a National Crime Information Center criminal records check on suspects.
A separate suppression hearing also provided insight into the ways law enforcement tries to stay ahead of drug traffickers.
“We get lists from every hotel we go to,” a task force member testified during one of the suppression hearings in common pleas court. “We’d go out to our vehicle, we’d look at the list, determine how they paid, where they’re from, and then at that point we’d conduct database checks on the individuals.”
It’s not clear how many of those lists were obtained using subpoenas, but the testimony indicated that some hotels provided the lists without a subpoena.
The crux of the suppression hearing dealt with the role a hotel employee played in an arrest after drugs were found in a hotel room. The employee was paid $300 two weeks after giving a tip to law enforcement that led to a prosecution.
The defendants’ attorneys argued for suppression of what was found in his room because they said the payment — and the involvement of a hotel manager — made the tipster a “state actor,” and therefore the evidence should not be allowed.
The judge denied the motion.
Random guest list checks by law enforcement have led to challenges.
In the Washington case, that state's Supreme Court ruled that the practice violates privacy protections in that state's constitution. Ohio has no similar law, and won't likely have one soon, according to Daniels.
“Here in Ohio, getting meaningful privacy protections introduced and passed is an uphill battle, to say the least,” he said. “Personal privacy isn’t something that’s exactly captured the imagination of the legislature a whole lot.”
Daniels, who also is the Ohio’s ACLU’s chief lobbyist, said he isn’t aware that Ohio has any law addressing hotels voluntarily providing guest list information to law enforcement.
Dr. Patrick Oliver, director of the Cedarville University criminal justice program and a former police chief in Fairborn, Grandview Heights and Cleveland, said the U.S. Constitution guarantees people be free from unreasonable searches and seizures by the government.
The U.S. Supreme Court invalidated a Los Angeles law in a 2015 case because it said it violated the 4th Amendment’s protection against unreasonable searches.
“If a governmental search or intrusion is unreasonable, one of the things that it usually turns on is there’s a legitimate expectation of privacy,” Oliver said. “That legitimate expectation of privacy is based on two principles: The person must hold an actual expectation of privacy; and society must be prepared to recognize that expectation as objectively reasonable.”
Oliver said, in his experience, police only gathered hotel information when it related to a specific case involving an individual or group of individuals.
“But there was no random collection — of course that’s illegal — of hotel information just to see what law enforcement agencies might find,” Oliver said. “As a chief, I would have never approved such a thing. You’ve got to have a law enforcement purpose.”
He quickly added: “It really depends” on why and how such a initiative is structured.
‘That’s how we build cases’
Brem said the RANGE task force, formed in 2010, is a mid-level task force usually driven by community complaints about car-to-car and hand-to-hand drug trafficking.
Brem said the bulk smuggling task force, which formed in late 2013, is focused more on interdiction, such as disrupting large deliveries of narcotics or their proceeds.
“We’ve been operating for over four years and most of our cases go to federal court and they’re prosecuted successfully,” he said.
Brem was asked about drug informants being paid or those who do controlled buys in exchange for lesser legal consequences.
“Every drug unit has confidential informants and those confidential informants are either working a case off or they’re paid,” Brem said. “That’s how we build cases.”
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‘Guests should be aware of this’
Not all Montgomery County hotels voluntarily provide guest lists to law enforcement, according to some hotel managers and local law enforcement.
Some national chains say they require a subpoena. Choice Hotels emailed the Dayton Daily News to say their policy is to require a valid subpoena.
Daniels said hotels should be more upfront about their practices.
“The ACLU’s opinion is that guests should be aware of this,” he said. “Ideally, maybe it’s like the hotel putting a sign up that says, ‘Check-in information is sometimes shared with law enforcement’ or things of that nature.”
Technology has made snooping easier and privacy harder to come by, Daniels said.
“In this day and age, I think people should assume that that type of information will be turned over to law enforcement,” he said. ‘That’s not to say it always will be, but given how much information law enforcement at all levels collects about us, that should be the operating assumption by anybody.”
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‘That’s a legitimate concern’
Public safety and privacy rights will continue to be intertwined, according to Oliver.
He mentioned the Las Vegas shooting last October when a gunman opened fire from his hotel suite 32 floors above where thousands of concertgoers had gathered, killing 58 people and injuring another 546.
“With the shooting incident in Las Vegas, I’m sure both private organizations and law enforcement are more concerned about who is checking into hotels, but they still need to be legal,” Oliver said.
“People certainly have a right to be concerned about violations of their right to privacy,” he added. “That’s a legitimate concern.”