Zamora v. Pomeroy, 79-1611

• Decision Date: 26 January 1981
• Docket Number: No. 79-1611,79-1611
• Citation: 639 F.2d 662
• Parties: Grace ZAMORA, as Parent and Natural Guardian on behalf of Vidal Shawn (Lolly) Zamora, a minor child, Appellant, v. H. Fred POMEROY; Truett Worley; Elgin Mallory; H. C. Prichard; Dr. Morton Dann; Dr. Robert Smith; Stuart D. Shanor and Jane H. Baldock, individually and in their official capacity, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 662

639 F.2d 662

Grace ZAMORA, as Parent and Natural Guardian on behalf of Vidal Shawn (Lolly) Zamora, a minor child, Appellant, v. H. Fred POMEROY; Truett Worley; Elgin Mallory; H. C.

Prichard; Dr. Morton Dann; Dr. Robert Smith;

Stuart D. Shanor and Jane H. Baldock,

individually and in their

official capacity, Appellees.

No. 79-1611.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Nov. 19, 1980.

Decided Jan. 26, 1981.

Ramon I. Garcia and Antonio V. Silva, Southern New Mexico Legal Services, Roswell, N. M., for appellant.

John W. Bassett, Jr., of Atwood, Malone, Mann & Cooter, P. A., Roswell, N. M., for appellees.

Before BARRETT, DOYLE, McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This civil action was brought by the mother of an allegedly aggrieved high school student who maintains that his civil rights were violated contrary to 42 U.S.C. § 1983, Civil Rights Act of 1871. The son is a minor and hence the suit was brought on his behalf. The source of the claim is the conducting of a warrantless search of his school locker. That search revealed the presence of marijuana and the alternate contentions are that it was unlawful to use "sniffer" dogs to discover the drug, and that after discovery of it a warrant was essential to the opening of the locker and the removal of the marijuana.

The search referred to did not originate as an investigation of the minor son of the plaintiff. It was a general investigation. The Assistant District Attorney of the county in question contacted Mr. Worley, then Assistant Principal of the Roswell High School about conducting a search of the school lockers, using so-called "sniffer" dogs, which dogs would be available to them some time in the future. At that time no specific persons were suspected of possessing marijuana at Roswell High.

Permission for use of the dogs at Roswell High was not granted by Worley, because he had to clear it with the Principal, one Elgin Mallory. Mallory could not authorize the use of the dogs and the entry by the police officers into the school until he was granted permission by the defendant Pomeroy, the Roswell Independent School District Superintendent. After clearance was obtained from all these people, and permission was granted to conduct the program, the proposed search was started.

The Facts from the Standpoint of Appellants

The Assistant District Attorney contacted a Special Investigation Unit in Albuquerque, New Mexico, and at that time he requested the Albuquerque Police Department to send "sniffer" dogs to conduct a search of school lockers. On or about December 15, 1977, Sergeant Ken Keller, Officers Grady Tauty and Florentino Duran brought such dogs to the Roswell High School for the avowed purpose of carrying on this search of school lockers. The Albuquerque Police Officers, with Assistant District Attorney Jay Rosenthall, proceeded to Roswell High, where they met the defendants Worley and Mallory. They entered the school building, and Sergeant Keller, Officers Grady and Duran walked their dogs from locker to locker, searching for narcotics. When the dogs demonstrated that they had discovered narcotics, the locker was opened so as to seize any contraband found there. There were two lockers which were opened.

Before the first locker was opened, Sergeant Keller inquired as to whether a search warrant should be obtained. One of the school authorities replied that a search warrant was not necessary because a consent to search had been signed by the students. ¹ In any event, no search warrant was ever obtained by the police officers or by the defendants.

On December 16, 1977, the identical procedure was used to search the lockers at Goodard High School, the second high school in Roswell. Again, no search warrant was ever obtained by the police officers or by the defendants.

In the course of searching the lockers in the Roswell High School, a so-called "hit" was made by one of the dogs. It was the locker of plaintiff-appellant Zamora. The locker was opened and a substance which proved to be marijuana was found therein. Besides the substance and a leather strap, nothing else was found; neither books, clothes nor school supplies were in the locker. The marijuana was taken from the locker and given to Worley. He tested the substance and concluded that it was marijuana. Some little time after the test Vidal Zamora was taken from his classes and was questioned about the substance that had been found in his locker. Worley accused Vidal, based upon his own investigation, of having had marijuana in his possession. Zamora denied any wrong-doing and denied that the marijuana was in his possession. He said that he was not using that locker, but was using one in what was called the Vo-Core Building. Vidal was called out of class a second time. He contends that he was pressured by the defendant to confess that the alleged marijuana was his. On one occasion during the questioning, Vidal discovered that Worley was using an electronic recording device, although permission had not been asked to record his statement. It is also pointed out that he was not warned about self-incrimination. The relevance of this failure is questionable, because this procedure is not criminal in nature.

During the time Vidal was being questioned by Worley, he was given the impression, so it is maintained by counsel for Zamora, that it was his obligation to prove his innocence; and he was not told that he could confer with counsel.

Soon after these happenings, the appellant Vidal was transferred from Roswell High School to the District's Educational Services Center, another high school within the city which did not have the academic standing of Roswell High. An objection is made to the fact that Mrs. Zamora, the mother of the boy in question, did not receive notice through the mails as to what was happening. She did not, for example, receive notice, for whatever value it may have here, that charges were filed against the boy in school. Worley said that he could not get hold of her on the telephone because she did not have a telephone, and he did not mail a notice to her because he did not have an address for her.

On December 23rd the semester ended and school let out for Christmas. Mrs. Zamora sought to contact Worley during the Christmas vacation and was unable to do so. She finally contacted one Dan Gomez, an Assistant Principal, and asked about Vidal's problem. Gomez informed her that Worley was out of town and would not be back until the end of the Christmas vacation. On January 4th, Mrs. Zamora finally spoke to the defendant Worley, and she then asked why her son had been "expelled" from school, and inquired as to what was needed to get her son back into school. At that time a meeting was arranged with the defendants Worley and Mallory at Worley's office.

On January 9, 1978, Mrs. Zamora went to the offices of the Southern New Mexico Legal Services, and obtained counsel. Also on January 9th they were given an appointment with the principal. The lawyer, so it is said in the appellants' statement of the case, had no prior notice of the fact and was unable to make any preparation. At the meeting the Zamoras were informed by the defendants, so it is charged, that he had to prove his innocence in order to avoid being expelled from school; that a substance alleged to be marijuana was found in his locker and that the search of the lockers was legal. The point was made that there was no opportunity for cross-examination, etc., and the meeting was ended in a short time. The plaintiffs argue that Vidal was expelled from the high school. The order transferred him to the Educational Services Center.

On January 9, 1978, counsel for the Zamoras talked to the defendant H. Fred Pomeroy, who said he would think about giving Vidal a further hearing. On January 13, 1978, the lawyer for Zamora received a letter from the school's attorney, informing him that although they were not entitled to a hearing, one would be provided. Counsel for the Zamoras were not informed in the letter of the charges against Vidal, or any of the facts, so they say, on which the decision to "expel" Vidal was made.

A hearing was held on January 18, 1978, before a school hearing authority, which consisted of three Roswell Independent School District employees. It is maintained by the Zamoras that the hearing was not fair. Then on February 20, 1978, a hearing was held before the school board; about the same evidence, the Zamoras say, was presented on that occasion, and no opportunity was given for cross-examination. Mr. Worley did state that he had had no reason to believe that there was contraband in any of the lockers, but the school board affirmed the decision of the hearing authority.

The Version of the School Authorities

The defendants' side of the case brings out the fact that Zamora was enrolled in a special program for students who were potential drop-outs; that the courses given to him were easier ones than were offered average students. Even though Vidal was residing with his mother, he gave a different address, namely 1416 Hendricks in Roswell, as his address, and he knew that the notices from school would be sent to the latter place. It was brought out that during his high school career, Vidal's attendance was poor, and that he had a history of disruptive conduct and insubordination.

During the 1977-1978 school year the State Board of Education Regulation 77-3 was in effect. It prohibited the sale, possession, transportation or use of marijuana on school premises, and had a provision with regard to search of lockers, which said general searches of school property, including lockers and school buses, may be conducted at any time with or without the presence of students. This policy, so it is said, was adopted by the District Board of Education. Section 5130 was in effect at all times material to the action. It was contained in a publication entitled ...