Piazzola v. Watkins

• Citation: 316 F. Supp. 624
• Decision Date: 15 July 1970
• Docket Number: Civ. A. No. 3071-N.
• Parties: Frank PIAZZOLA and Terrance Marinshaw, Petitioners, v. John WATKINS, Warden, et al., Respondents.
• Court: U.S. District Court — Middle District of Alabama

316 F. Supp. 624

Frank PIAZZOLA and Terrance Marinshaw, Petitioners, v. John WATKINS, Warden, et al., Respondents.

Civ. A. No. 3071-N.

United States District Court, M. D. Alabama, N. D.

July 15, 1970.

Morris S. Dees, Jr., and Joseph J. Levin, Jr., Montgomery, Ala., for plaintiffs.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., Montgomery, Ala., for defendants.

ORDER

JOHNSON, Chief Judge.

The petitioners were indicted by a grand jury of Pike County, Alabama, for the offense of illegal possession of marijuana. After pleas of not guilty were interposed, trials were had, and petitioner Piazzola was convicted on April 25, 1968 and petitioner Marinshaw on April 26, 1968. The convictions were affirmed by the Alabama Court of Criminal Appeals. The matter is presented to this Court upon a habeas corpus petition filed April 24, 1970. The basis for the petition is that the convictions violate the Fourth Amendment to the Constitution of the United States. The State's motion to dismiss on the ground that the petitioners have failed to exhaust the remedies available to them in the courts of the State of Alabama, as required by Section 2254, Title 28, United States Code, was denied by this Court in a formal order entered June 17, 1970, this Court holding that coram nobis is not available in Alabama to correct the admission of illegally obtained evidence, citing Johnson v. Williams, 244 Ala. 391, 13 So.2d 683; Ex parte Banks, 42 Ala. App. 669, 178 So.2d 98. Furthermore, it affirmatively appears that petitioners have already raised the illegal search and seizure issue before the Alabama Supreme Court. Since they have done so, it is not necessary that they attempt to do so again through collateral proceedings. Brown v. Allen, Warden, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

The writ of habeas corpus filed on behalf of each of the petitioners is submitted to this Court at this time by agreement of counsel. The submission is upon a stipulation of facts, which includes a transcript of the testimony taken on petitioners' motion to suppress evidence prior to their trial in the State court. Upon this submission this Court, as authorized by Rule 52, Federal Rules of Civil Procedure, now makes in this memorandum opinion the appropriate findings of fact and conclusions of law.

On the morning of February 28, 1968, the Dean of Men of Troy State University was called to the office of the Chief of Police of Troy, Alabama, to discuss "the drug problem" at the University. Two State narcotic agents and two student informers from Troy State University were also present. Later on that same day, the Dean of Men was called to the city police station for another meeting; at this time he was informed by the officers that they had sufficient evidence that marijuana was in the dormitory rooms of certain Troy State students and that they desired the cooperation of University officials in searching these rooms. The police officers were advised by the Dean of Men that they would receive the full cooperation of the University officials in searching for the marijuana. The informers, whose identities have not yet been disclosed, provided the police officers with names of students whose rooms were to be searched. Still later on that same day (which was during the week of final examinations at the University and was to be followed by a week-long holiday) the law enforcement officers, accompanied by some of the University officials, searched six or seven dormitory rooms located in two separate residence halls. The rooms of both Piazzola and Marinshaw were searched without search warrants and without their consent. Present during the search of the room occupied by Marinshaw were two State narcotic agents, the University security officer, and a counselor of the residence hall where Marinshaw's room was located. Piazzola's room was searched twice. Present during the first search were two State narcotic agents and a University official; no evidence was found at this time. The second search of Piazzola's room, which disclosed the incriminating evidence, was conducted solely by the State and city police officials.

At the time of the seizure the University had in effect the following regulation:

The college reserves the right to enter rooms for inspection purposes. If the administration deems it necessary, the room may be searched and the occupant required to open his personal baggage and any other personal material which is sealed.

Each of the petitioners was familiar with this regulation. After the search of the petitioners' rooms and the discovery of the marijuana, they were arrested, and the State criminal prosecutions and convictions ensued. The basic question presented is whether the evidence that formed the basis for the petitioners' convictions and present incarceration was obtained as a result of an unreasonable search and seizure within the meaning of the Fourth Amendment to the Constitution of the United States. As justification for the search and seizure, the respondents rely almost entirely upon this Court's opinion in Moore v. Student Affairs Committee of Troy State University, 284 F.Supp. 725 (M. D.Ala.). The Moore case involved judicial review of the constitutional validity of University administrative proceedings which resulted in the suspension of Gary Moore from Troy University. The suspension in the Moore case was based upon a search of Moore's dormitory room by University officials and the discovery of marijuana in his room. In Moore, this Court emphasized:

A student naturally has the right to be free of unreasonable searches and seizures, and a tax-supported public college may not compel a "waiver" of that right as a condition precedent to admission.

Upon the facts presented in Moore, this Court held that the University regulation authorizing the search of dormitory rooms was a reasonable exercise of University supervisory duties, stating:

The student is subject only to reasonable rules and regulations, but his rights must yield to the extent that they would interfere with the institution's fundamental duty to operate the school as an educational institution. A reasonable right of inspection is necessary to the institution's performance of that duty even though it may infringe on the outer boundaries of a dormitory student's Fourth Amendment rights. People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N. E.2d 596 (1967). The regulation of Troy State University in issue here is thus facially reasonable. Footnotes omitted. 284 F.Supp. at 730.

After making a finding that the regulation was "facially reasonable", this Court further held that the regulation was reasonably applied and stated:

The regulation was reasonably applied in this case. The constitutional boundary line between the right of the school authorities to search and the right of a dormitory student to privacy must be based on a reasonable belief on the part of the college authorities that a student is using a dormitory room for a purpose which is illegal or which would otherwise seriously interfere with campus discipline. Upon this submission, it is clear that such a belief existed in this case.

This standard of "reasonable cause to believe" to justify a search by college administrators—even where the sole purpose is to seek evidence of suspected violations of law—is lower than the constitutionally protected criminal law standard of "probable cause." This is true because of the special necessities of the student-college relationship and because college disciplinary proceedings are not criminal proceedings in the constitutional sense.

* * * * * *

It is settled law that the Fourth Amendment does not prohibit reasonable searches when the search is conducted by a superior charged with a responsibility of maintaining discipline and order or of maintaining security. A student who lives in a dormitory on campus which he "rents" from the school waives objection to any reasonable searches conducted pursuant to reasonable and necessary regulations such as this one. Footnotes omitted. 284 F.Supp. at 730-731.

This Court does not find Moore applicable in the case sub judice. Here, the search was instigated and in the main executed by State police and narcotic bureau officials. The only part the University officials played in the search of the petitioners' dormitory rooms was at the request of and under the direction of the State law enforcement officers. Under such circumstances the State of Alabama, upon the petitioners' motion to suppress, had the burden of showing probable cause for the search of petitioners' rooms. The standard of "reasonable cause to believe" laid down by this Court in Moore as a justification for a search by college officials that resulted in school disciplinary proceedings cannot be the justification for a search by a police officer for the sole purpose of gathering evidence for criminal prosecutions. The transcript of the hearing held by the State court on petitioners' motion to suppress the evidence in this case reflects that of the State's two witnesses from the police search group, Mr. Ward, the first witness, gave only the following testimony relating to probable cause:

Q * * * Mr. Ward, prior to going to Troy State campus on that day did you or

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