NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12239
COMMONWEALTH vs. JONATHAN VILLAGRAN.
Norfolk. March 7, 2017. - August 29, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.1
Firearms. Controlled Substances. Disturbing the Peace.
Constitutional Law, Search and seizure, Reasonable
suspicion, Probable cause. Search and Seizure, Reasonable
suspicion, Protective frisk, Probable cause. Probable
Cause.
Complaint received and sworn to in the Quincy Division of
the District Court Department on March 26, 2015.
A pretrial motion to suppress evidence was heard by Diane
E. Moriarty, J., and the cases were tried before Robert P.
Ziemian, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Mathew B. Zindroski for the defendant.
Laura A. McLaughlin, Assistant District Attorney (David M.
Ringius, Assistant District Attorney, also present), for the
Commonwealth.
1
Justice Hines participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
HINES, J. After a jury trial in the Quincy District Court,
the defendant, Jonathan Villagran, was convicted of carrying a
firearm without a license, G. L. c. 269, § 10 (a); carrying a
dangerous weapon on school grounds, G. L. c. 269, § 10 (j);
possession of a firearm without a firearm identification card,
G. L. c. 269, § 10 (h); disturbing a school, G. L. c. 272, § 40;
and possession of a class D substance with intent to distribute,
G. L. c. 94C, 32C.2 The complaint issued after a police officer,
responding to a report of an unauthorized person on the property
of Milton High School (school), searched the defendant's
backpack and discovered a firearm, money, and marijuana.
Prior to trial, the defendant filed a motion to suppress
statements and physical evidence seized during the search of his
backpack, arguing that the police officer lacked a
constitutionally permissible basis for the patfrisk and the
subsequent search. A judge of the District Court denied the
motion. The defendant appealed, asserting that the denial of
the motion to suppress violated his rights under the Fourth
Amendment to the United States Constitution and art. 14 of the
Massachusetts Declaration of Rights.3 He also challenges the
2
The trial judge allowed the defendant's motion for a
required finding of not guilty on a charge of minor in
possession of alcohol, G. L. c. 138, § 34C.
3
The defendant does not challenge the denial of the motion
to suppress statements.
3
sufficiency of evidence to support the conviction of disturbing
a school.
We transferred the case to this court on our own motion and
take this opportunity to reaffirm the distinction between the
traditional standard applicable to a police officer's conduct
implicating the Fourth Amendment and the less stringent standard
applicable to a school official who does the same. When a
police officer conducts a patfrisk, the applicable standard for
assessing its constitutionality is reasonable articulable
suspicion, Terry v. Ohio, 392 U.S. 1, 27 (1968), and when a
police officer conducts a search, the Fourth Amendment requires
a warrant based on probable cause unless the search is justified
by probable cause and an exception to the warrant requirement.
Commonwealth v. Tyree, 455 Mass. 676, 684 (2010). Although the
question has not been presented directly, we previously have
assumed that a police officer's conduct in a school setting is
governed by the traditional Fourth Amendment standard.
Commonwealth v. Carey, 407 Mass. 528, 535 n.4 (1990) (discussing
distinction between standard applicable to police officers and
school officials). On the other hand, when a school official
conducts a search, it is constitutionally permissible under the
Fourth Amendment and art. 14 so long as it is "reasonable[]
under all the circumstances." New Jersey v. T.L.O., 469 U.S.
325, 341 (1985) (T.L.O.).
4
Applying the Terry standard to this case, we conclude that
the police officer lacked reasonable articulable suspicion that
the defendant had committed a crime and that the circumstances
of the encounter with the defendant did not warrant a reasonable
belief that the defendant was armed and dangerous to the officer
or others. Nor was the search permissible under any exception
to the warrant requirement. Thus, because neither the patfrisk
nor the search of the defendant's backpack was justified on any
of these grounds, the denial of the motion to suppress was
error. Therefore, we vacate his convictions of the firearms and
drug charges. Because the conviction of disturbing a school was
based, at least in part, on his possession of a firearm, which
should have been suppressed, we vacate that conviction and
remand for a new trial.
Discussion. 1. Motion to suppress. a. Standard of
review. "In reviewing a ruling on a motion to suppress
evidence, we accept the judge's subsidiary findings of fact
absent clear error and leave to the judge the responsibility of
determining the weight and credibility to be given . . .
testimony presented at the motion hearing." Commonwealth v.
Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v.
Wilson, 441 Mass. 390, 393 (2004). "A finding is clearly
erroneous if it is not supported by the evidence, or when the
reviewing court, on the entire evidence, is left with the firm
5
conviction that a mistake has been committed." Commonwealth v.
Hilton, 450 Mass. 173, 178 (2007). "We review independently the
application of constitutional principles to the facts found."
Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting
Wilson, supra.
b. Facts. In the written order denying the defendant's
motion to suppress, the judge found the following facts based on
the testimony of two Milton police officers, Sergeant Kristen
Murphy and a detective.4
"On March 25, 2015, at approximately 2:00 P.M.,
[school] officials observed an unknown individual on the
grounds of the school. Later identified as [the
defendant], he entered the facility and told school
officials that he was a student and needed to get back into
the building. He eventually changed his story stating that
he needed to use the restroom, after presenting an
obviously fictitious name to the school official. The
[d]efendant then exited the building, but could be seen
pacing around the school parking lot.
"At this time, the principal and vice principal
approached the [d]efendant and noticed a strong smell of
marijuana. The [d]efendant proceeded to tell them that he
was waiting for a [sixteen] year old girl to meet him at
the school. At this point the principal and vice principal
worried about the surrounding students filling the area and
ushered the [d]efendant into a conference room in the
school.
"Sergeant [Murphy] of the Milton Police Department
arrived and smelled an overpowering scent of marijuana on
the defendant. Sergeant [Murphy] was informed that the
[d]efendant had lied about his identity and his reason for
being there, and that the [d]efendant tried to sneak into
4
None of the school officials who interacted with the
defendant on March 25, 2015, testified at the hearing on the
motion to suppress.
6
the school. Both school and law officials were suspicious
of the [d]efendant's strange demeanor as well as his
blatant lying and reasonably agreed that he may have
contraband on him. Sergeant [Murphy] then conducted a pat-
frisk on the [d]efendant and found marijuana in his
sweatshirt, in addition to a wad of money in the amount of
$2,964.88 in his pants pocket. After searching the
[d]efendant's person Sergeant [Murphy] pat-frisked the
exterior of the backpack, despite the defendant's
objections, and felt a hard object. Sergeant [Murphy] then
opened the bag, as she feared the hard object may be a
weapon. In the bag Sergeant [Murphy] discovered a bottle
of alcohol, another bag of marijuana, a scale, and a loaded
handgun. [Murphy] immediately removed the gun from the
[d]efendant's reach and read him his Miranda rights. The
school was then placed on lockdown. . . ."
The defendant contends, and the Commonwealth concedes, that
portions of these findings, central to the judge's ruling
denying the motion to suppress, were not supported by the
evidence and, thus, are clearly erroneous.5 See Hilton, 450
Mass. at 178-180. Specifically, the evidence does not support
the judge's findings that:
(1) At the time of the frisk, Murphy knew the defendant
"entered the facility and told school officials that he was
a student and needed to get back into the building. He
eventually changed his story stating that he needed to use
the restroom, after presenting an obviously fictitious name
to the school official. The [d]efendant exited the
building but could be seen pacing around the school parking
lot."
(2) "Sergeant [Murphy] was informed that the [d]efendant
had lied about his identity and his reason for being there,
and that the [d]efendant tried to sneak into the school."
5
The Commonwealth conceded at oral argument and in its
brief that the judge's findings regarding what Sergeant Murphy
knew when she initiated the frisk lacked support in the
evidence.
7
(3) The sergeant was "suspicious of the [d]efendant's
strange demeanor as well as his blatant lying and
reasonably agreed that he may have contraband on him."
(4) "Sergeant [Murphy] then opened the bag, as she feared
the hard object may be a weapon."
Instead, Murphy described in unequivocal terms the extent of her
knowledge of the events that occurred prior to her entry into
the conference room where the defendant had been brought by
school officials. "The call was given out that . . . a male
party was trying to gain entry into the high school. That's
what I knew. When I got there [the vice-principal] told me we
have a kid in the conference room, he's not a student here.
Basically, that's what I knew."
In addition to the findings that survive the clear error
standard, the evidence at the motion to suppress hearing also
established the following. On her arrival, Murphy observed that
the vice-principal, whom she had known for over twenty years,
was "excited" and that both the vice-principal and the principal
appeared to be "rattled." Once inside the building, the
sergeant and the vice-principal proceeded to the conference room
where the principal was waiting with the defendant, who was
seated at a table. The principal told Murphy, "Something's
wrong. Something's not right with this kid. Something's not
right. He has something on him. I know he has something on
him." The principal did not, however, explain the basis for his
8
"hunch" that the defendant had contraband in his possession or
express a concern that the contraband might be a firearm.
Murphy did not inquire further to determine the basis of the
principal's suspicion that the defendant "had something on him."
Nor was Murphy told of the defendant's interactions with school
officials or the substance of his lies to gain entry into the
school6 before she commenced the patfrisk that culminated in the
search of the backpack.
c. Analysis. The judge concluded that Murphy conducted a
lawful patfrisk of the defendant's person and his backpack based
on Murphy's "reasonable apprehension of fear, danger and unknown
factors present during the period of [the d]efendant's
interaction with the school and law officials" and, therefore,
all of the evidence seized from the defendant was admissible.
In reaching this conclusion, the judge expressly relied on the
finding that Murphy was aware of the defendant's "blatant lies"
to gain entry into the school. We consider the
constitutionality of the patfrisk and the search of the
backpack, omitting the clearly erroneous findings related to
Murphy's knowledge of the circumstances of the defendant's entry
into the school but taking cognizance of those facts supported
6
Murphy learned that the defendant had lied to school
officials but she became aware of that fact only after she had
initiated the patfrisk during which the defendant admitted,
without specificity, that he had lied.
9
by the evidence and supplemented by uncontroverted evidence that
was implicitly credited by the judge. Commonwealth v. Melo, 472
Mass. 278, 286 (2015).
Although the police conduct at issue here occurred in a
public school, the less stringent standard of T.L.O., 469 U.S.
at 341 -- "reasonableness[] under all the circumstances" -- does
not apply. In T.L.O., the United States Supreme Court
emphasized that its holding applied only to "searches carried
out by school authorities acting alone and on their own
authority" and not to searches carried out by police officers or
school officials acting in conjunction with police officers.
Id. at 341 n.7. The less stringent standard for the school
setting was necessary to accommodate both "the privacy interests
of schoolchildren [and] the substantial need of teachers and
administrators for freedom to maintain order in the schools."
Id. at 341. However, when a police officer rather than a school
official engages in conduct that implicates the Fourth Amendment
and art. 14, we apply the traditional standard as articulated in
Terry and followed by our cases. Thus, the patfrisk at issue
here must be justified by reasonable and articulable suspicion
that the defendant was engaged in criminal activity and that the
defendant was armed and dangerous. Commonwealth v. Narcisse,
457 Mass. 1, 9 (2010). The subsequent search of the defendant's
backpack must be justified by probable cause and an exception to
10
the warrant requirement. See Commonwealth v. Cast, 407 Mass.
891, 901 (1990).
i. The frisk. Because the "stop" in this case was
conducted by school officials, we need not address the propriety
of the stop. Rather, our inquiry is whether the frisk was
justified by a reasonable suspicion that the defendant was
engaged in criminal activity and that he was armed and
dangerous. Narcisse, 457 Mass. at 9. Whether the facts as
found by the judge established reasonable articulable suspicion
that the defendant was committing a crime presents a close
question, but we are persuaded they do not.
We acknowledge that the defendant, a nonstudent, was on
school property surrounded by school officials who believed he
possessed contraband of some sort. When Murphy arrived,
however, she knew only that school officials had a male
nonstudent detained in the conference room and that the police
had been called for assistance in the matter. See Commonwealth
v. Mendez, 476 Mass. 512, 515 (2017). The principal voiced his
strong suspicions of the defendant, but neither he nor the vice-
principal reported any conduct suggestive of criminal activity.
The odor of marijuana, which Murphy appreciated upon her entry
into the conference room, also was not sufficient to support
reasonable suspicion of criminal activity. See Commonwealth v.
Rodriguez, 472 Mass. 767, 775 (2015) ("[W]here the only factor
11
leading an officer to conclude that an individual possesses
marijuana is the smell of . . . marijuana, this factor supports
a reasonable suspicion that that individual is committing the
civil offense of possession of a small quantity of marijuana").
See also Commonwealth v. Meneide, 89 Mass. App. Ct. 448, 451 n.4
(2016) (smell of burnt or unburnt marijuana insufficient basis
for either reasonable suspicion or probable cause).
What is left then is the defendant's mere presence, a
possible criminal trespass in violation of G. L. c. 266, § 120.
However, reasonable suspicion of a criminal trespass did not
arise where none of the information available to Murphy
suggested that the defendant "remain[ed] in or upon the building
. . . of another . . . after having been forbidden so to do by
the person in lawful control of said premises." Id. Murphy was
not told that the defendant had been asked to leave the
premises.7 For these reasons, we discern no basis for reasonable
articulable suspicion of criminal activity.
Even if the defendant's conduct led to a reasonable
suspicion of criminal activity, the frisk was not justified.
When Murphy pat frisked the defendant, she had no information
from school officials to suggest that the defendant was armed.
7
The evidence at trial, which revealed that the defendant
had attempted to leave but was detained by school officials to
await the arrival of the police, explains the unlikely inference
of a criminal trespass at the time of the encounter in the
school's conference room.
12
The principal's unsubstantiated hunch that the defendant "had
something on him," alone, was insufficient for a reasonable
belief that the defendant was armed and dangerous, especially
where the principal had invited the defendant to return to the
school, the defendant had already emptied his pockets at the
principal's direction, and the reasonable inference was that the
principal believed that the defendant had marijuana or some
other controlled substance on his person based on the strong
odor of marijuana present in the room. See Wilson, 441 Mass. at
394. See also Commonwealth v. Martin, 91 Mass. App. Ct. 733,
740-741 (2017) (possession of marijuana, without more,
insufficient for reasonable suspicion that defendant was armed).
Moreover, the principal's hunch combined with Murphy's
observations of the defendant's nervousness and Murphy's
testimony that both the principal and the vice-principal
appeared to be "rattled" still did not establish a reasonable
belief that the defendant was armed and dangerous where the
defendant was compliant and did not make any furtive gestures or
reach into his pockets in a manner that would suggest that he
was carrying a weapon. See Commonwealth v. Brown, 75 Mass. App.
Ct. 528, 534 (2009) ("nervous or anxious behavior in combination
with factors that add nothing to the equation will not support a
reasonable suspicion that an officer's safety may be
compromised"). Also, Murphy's testimony is devoid of any
13
reference to her suspicion that the defendant was armed or her
fear for her safety or for the safety of the school. Therefore,
nothing in the record of the hearing on the motion to suppress
established the specific and articulable facts required to show
that Murphy's patfrisk was the result of her reasonable belief
that the defendant was armed and dangerous. See DePeiza, 449
Mass. 367, 374 (2007), citing Wilson, 441 Mass. at 394.
ii. The search of the backpack. As is well established,
the search of the backpack must be justified by probable cause
and an exception to the warrant requirement. See Tyree, 455
Mass. at 684. The Commonwealth failed to meet its burden to
justify the search of the backpack on this basis.
First, the facts fall far short of the showing necessary
for probable cause. Because the patfrisk was not justified,
Murphy's observation that a "hard object" was present in the
backpack cannot be considered in the probable cause analysis.
Nor was the presence of a "hard object" sufficient to establish
that it was a firearm. Cf. Commonwealth v. Flemming, 76 Mass.
App. Ct. 632, 638 (2010) (search under defendant's clothing
unreasonable where there was no evidence that hard object felt
like weapon). Second, a search incident to a lawful arrest, the
only plausible exception that fits the circumstances of this
14
case,8 does not apply. Under our law, Murphy could have searched
the backpack for the "fruits, instrumentalities, contraband and
other evidence of the crime . . . and remov[ed] any weapons
that the arrestee might use to resist arrest or effect his
escape." G. L. c. 276. § 1. See Commonwealth v. Madera, 402
Mass. 156, 160 (1988) (search incident to arrest under art. 14
permissible to retrieve weapon or evidence of crime). This
exception fails, however, because as discussed above, there was
no crime for which the defendant lawfully could have been
arrested.
The dissent rejects the bedrock constitutional principles
that a patfrisk of a suspect must be justified by reasonable
articulable suspicion of both criminal activity and
dangerousness and that a warrantless search must be justified by
probable cause and an exception to the warrant requirement as
dictated by Terry and its progeny. Terry, 329 U.S. at 20. See,
e.g., Narcisse, 457 Mass. at 6-7; Commonwealth v. Catanzaro, 441
Mass. 46, 71 (2004); Commonwealth v. Torres, 433 Mass. 669, 672
(2001). Instead, the dissent contends that a person who enters
upon school property, where public access is restricted, lacks
the same expectation of privacy as one in a public place and, as
a consequence, a patfrisk and search need not be justified by
8
Consent is eliminated as a possibility based on the
judge's finding that the defendant explicitly objected to Murphy
touching the backpack.
15
reasonable articulable suspicion or probable cause. Post at
. Without citing case law supporting this alternative view of
the protections inherent in the Fourth Amendment and art. 14, or
articulating the contours of this diminished expectation of
privacy, the dissent relies instead on highly publicized
examples of school violence as support for the proposition that
the very nature of the place, a school, justifies a less
rigorous constitutional standard. Post at . We discern no
such limitation in the protections guaranteed by the Fourth
Amendment or art. 14.
We acknowledge that our cases have taken judicial notice of
"the actual and potential violence in our public schools."
Commonwealth v. Milo M., 433 Mass. 149, 156 (2001). See id. at
156-157 & n.8; Commonwealth v. Whitehead, 85 Mass. App. Ct. 134,
138-139 (2014) (reciting instances of school shootings as basis
for "heightened sensitivity" and reasonable suspicion for
patfrisk and search of backpack where defendant was dressed in
camouflage attire, openly displayed weapons, and affixed
threatening decals to vehicle). However, that fact alone has
not been used to limit a defendant's constitutional rights. In
Milo M., supra at 150-151, the court's reference to school
violence arose in the context of a juvenile's challenge to a
delinquency finding based on a violation of the Massachusetts
threat statute, G. L. c. 275, § 2. The juvenile argued that the
16
judge focused on the apprehension of the teacher, who was the
recipient of the threat, and that her subjective state of mind
was insufficient to establish that he had the intent and ability
to carry out the threat. Milo M., supra at 151-152. The court
rejected this argument. Relying on the judicially noticed fact
of "actual and potential violence in our public schools," the
court concluded that the teacher's apprehension was objectively
reasonable where the threats could come to fruition. Id. at
156-158. Thus, the recognition of school violence served an
evidentiary purpose only; it was accorded no constitutional
significance as the dissent suggests it should have in this
case.
As a second basis for rejecting the traditional Fourth
Amendment and art. 14 analytical framework, the dissent contends
that in the school setting, the defendant had a diminished
expectation of privacy such that neither reasonable articulable
suspicion for the patfrisk nor probable cause for the search
were required. Post at . In reaching this conclusion, the
dissent applies the test for determining whether a defendant has
a reasonable expectation of privacy in the place searched such
that he or she may invoke the protections of the Fourth
Amendment and art. 14 against unreasonable searches. In that
analysis, the inquiry is whether the defendant has a subjective
expectation of privacy in the place searched and, if so, whether
17
society is willing to recognize that expectation of privacy as
reasonable. See California v. Ciraolo, 476 U.S. 207, 211
(1986). See also Commonwealth v. Montanez, 410 Mass. 290, 301
(1991). The dissent then summarily concludes that society would
be unwilling to recognize a nonstudent's expectation of privacy
in the school setting as reasonable. Post at .
Nothing in the Fourth Amendment or our art. 14
jurisprudence supports such limitations on a person's reasonable
expectation of privacy. Even in T.L.O., the Supreme Court did
not tie its less stringent standard to an assumption that a
student had a diminished expectation of privacy in the school
setting. Rather, the court's holding reflects a judgment that a
balancing of the student's privacy interests and the school's
interest in maintaining order could be fairly accomplished
without offending the fundamental Fourth Amendment requirement
of reasonableness. See T.L.O., 469 U.S. at 341-343.
Last, the dissent, quoting Commonwealth v. Johnson, 454
Mass. 159, 164 (2009), reasons that "[w]here a warrantless
search is based on a reasonable suspicion that an individual
presents a danger, '[t]he officer need not be absolutely certain
that the individual is armed; the issue is whether a reasonably
prudent [person] in the circumstances would be warranted in the
belief that his [or her] safety or that of others was in
danger.'" Post at . This is not our law. We have never
18
held that a warrantless search may be justified on this basis.
As noted earlier, a police officer may initiate a patfrisk if
she has reasonable suspicion of criminal activity and that the
suspect is armed and dangerous. Narcisse, 457 Mass. at 9. A
search, however, requires probable cause and a warrant unless
the circumstances excuse the warrant requirement. The search in
this case, lacking both, was not lawful.
We do not underestimate the threat of violence in schools
and other public places. Recent history bears out the folly of
doing so. Nonetheless, our task is to respect the jurisprudence
that has developed under the Fourth Amendment and art. 14. And
we do so with confidence that public safety and constitutional
rights are not inherently incompatible. We acknowledge that
school officials, likely cognizant of other incidents where
unauthorized persons entered school property and engaged in
conduct with tragic consequences, are pressed to exercise
caution in circumstances where they lack control of the person
or the situation. The school officials in this case were
appropriately cautious of the defendant and did what was
expected of them to insure the safety of the students in their
charge; they called the police. Thus, it is important to
emphasize here that our ruling does not bear on what school
officials themselves can and should do to insure the safety of
students. Nor does our ruling handicap school officials in
19
responding to behavior that presents a potential or real threat
to student safety. What we have said here relates only to
conduct of police officers, who as the Supreme Court noted in
T.L.O., 469 U.S. at 343, are "school[ed] . . . in the niceties
of probable cause" and other constitutional requirements. Where
school officials who engage in protective activity are "not
acting 'in conjunction with or at the behest of law enforcement
agencies,'" their actions are governed by a less stringent
constitutional standard. Commonwealth v. Lawrence L., 439 Mass.
817, 820-821 (2003), quoting T.L.O., supra at 341 n.7.
2. Sufficiency of the evidence at trial. The defendant
argues that the evidence -- possession of a concealed firearm in
the absence of disruptive, violent, or threatening behavior --
is insufficient to support the conviction for disturbing a
school, G. L. c. 272, § 40,9 and that the conviction must be
reversed. We disagree. In determining the sufficiency of the
evidence, we consider "the evidence in its entirety, including,
not excluding, that admitted [at] trial but found inadmissible
on appeal." Commonwealth v. DiBenedetto, 414 Mass. 37, 46
(1992), quoting Glisson v. Georgia, 192 Ga. App. 409, 410
(1989). See Lockhart v. Nelson, 488 U.S. 33, 34 (1988).
Considering the entirety of the evidence, we reject the
9
The issue is preserved, as the defendant filed a motion
for a required finding of not guilty at the close of the
evidence.
20
defendant's argument that the evidence was insufficient and that
the conviction must be reversed. Nonetheless, we conclude that
because the conviction was based, at least in part, on the
defendant's possession of a firearm which should have been
suppressed, we vacate the conviction and remand for a new trial.
a. Facts. We recite the facts the jury could have found
based on the evidence presented at trial. On March 25, 2015,
the defendant approached the entrance of the school, carrying a
backpack. He arrived at the school approximately five minutes
before dismissal. The school is a "lockdown" facility; it
employs a double door entry system, requiring visitors to the
school to ring the office to gain entry through two sets of
locked doors. When the defendant rang the buzzer, the
administrative assistant on duty viewed him on video
surveillance and then allowed him into the office. He first
told the assistant that he needed to use the bathroom, however,
when she replied that the bathrooms were not for public use, the
defendant told her that he was a student whose last name was
"Cruz" and that he needed to get back into the school to access
his locker. The assistant was suspicious; as she began to walk
back to her desk to verify his identity in the school database,
the defendant asked to be let back out of the building, because
he had left his automobile running.
21
The assistant became alarmed as she viewed the defendant on
the surveillance monitors quickly leave the building but not the
property. She contacted the principal and the vice-principal to
communicate her concerns that someone was trying to gain entry
into the school. The principal and the vice-principal asked for
a description of the defendant and immediately went outside the
school to locate him. They did so in the school parking lot,
just after classes had been dismissed. They approached the
defendant, noting the odor of unburnt marijuana10 and the
defendant's red, glassy eyes. They asked the defendant what he
was doing at the school, why he misrepresented his identity, and
his purpose for being on the premises. The defendant replied
that he was there to meet a girl. He complied with their
request to follow them back into the school "to discuss a little
more as to what he was doing [at the school] and . . . why he
tried to gain access to the building."
They brought the defendant into a conference room, adjacent
to the main office. Milton police were alerted. The principal
questioned the defendant, asking him why he was at the school,
why he lied about being a student, and whether he had been
drinking alcohol or smoking marijuana. The defendant replied
that he was at the school to meet a girl, but did not know her
10
The vice-principal also noticed a faint odor of alcohol
on the defendant's person.
22
name. He denied drinking or smoking and apologized for lying
about his identity. At the principal's request, the defendant
emptied the pockets of his pants. The defendant was apologetic
and asked whether he could leave, but he was not allowed to do
so.
When Murphy arrived at the school, the vice-principal, who
appeared to be upset, greeted her at the front entrance to the
school. She was led into a conference room where the defendant
and the principal were waiting. Murphy noticed the strong odor
of marijuana as she entered the room. The defendant was seated
at the head of the conference table; a black backpack and items
from his pockets were on the table. Murphy noted that the
principal also appeared to be upset.
The defendant appeared to be nervous; he was seated, but
his legs were shaking. Murphy asked for the defendant's name
and the principal gave her the defendant's Massachusetts
identification card. She then asked the defendant to stand up
and pat frisked his person.
As a result of the patfrisk, Murphy recovered a large bag
of what appeared to be marijuana and a "wad" of money from the
pocket of his hooded sweatshirt. Murphy asked about the
backpack; the defendant replied that it was his backpack but
that she did not have the right to look inside. Murphy "patted
down" the outside of the backpack and felt something hard
23
inside, so she opened it and removed the contents, including a
bottle of alcohol, more money, a pair of sneakers, and a small,
silver firearm with a pearl-colored handle. Murphy immediately
slid the firearm away from the defendant, placed him in
handcuffs, read him the Miranda warnings, and sat the defendant
back down at the table.
Murphy alerted Milton police that the high school was on
lockdown and requested that all available officers respond.
When a detective arrived, the school was already in lockdown.
As the detective entered the conference room, he noticed the
strong odor of marijuana. Murphy informed the detective that
she had read the defendant the Miranda warnings and left the
room. The detective secured the firearm and placed it in his
pocket. He then asked the defendant whether he understood the
Miranda warnings and whether he would agree to speak with him.
The defendant told the detective that he understood the Miranda
warnings and agreed to speak with him. He told the detective
that he arrived in Milton from Watertown and was meeting a
female student at the high school at her request. The defendant
admitted that he did not have a license to carry a firearm or a
firearm identification card. After the lockdown was lifted, the
detective drove the defendant to the police station where he was
booked.
24
b. Analysis. In reviewing the sufficiency of the
evidence, we consider whether the evidence, viewed in the light
most favorable to the Commonwealth, is sufficient to allow any
rational trier of fact to find the essential elements of the
charged crime beyond a reasonable doubt. See Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979). General Laws c. 272,
§ 40, provides, in pertinent part, "Whoever wilfully interrupts
or disturbs a school or other assembly of people met for a
lawful purpose shall be punished . . . ." To sustain a
conviction under the statute, the Commonwealth must prove beyond
a reasonable doubt that the defendant's conduct was willful and
"create[d] an interruption or disturbance of the normal
functioning of a school." Commonwealth v. Bohmer, 374 Mass.
368, 372 (1978).
The parties urge starkly different interpretations of the
evidence necessary to sustain a conviction under the statute.
The defendant argues that the possession of a concealed firearm
in the absence of disruptive, violent, or threatening behavior
does not meet the Latimore standard. The Commonwealth counters
that the evidence was sufficient, where the lockdown was a
"disturbance of the normal functioning of a school" and was the
natural and probable consequence of the defendant's wilful act
in bringing a loaded firearm onto school property. The
Commonwealth argues further that notwithstanding the lockdown,
25
the defendant's conduct prior to the arrival of police officers
was sufficiently alarming to disrupt the school's function.
Thus, the essential questions we must answer here are (1)
whether the defendant's conduct was wilful and (2) whether a
lockdown of the school's campus is a "disturbance of the normal
functioning of a school." Bohmer, supra at 372.
i. Wilful conduct. "The wilfulness requirement of G. L.
c. 272, § 40, demands . . . only that the acts of the
defendant[] be wilfully performed; so long as the acts were
intentional and not due to accident or inadvertence, the
requirement is satisfied." Id. at 377. The specific intent to
cause a disturbance is not an essential element of the crime.
Id. Here, the defendant does not challenge the wilfulness
element of the crime. We consider, therefore, only his claim
that the act of bringing a loaded, concealed firearm onto the
school campus, while he was in possession of marijuana and under
the influence of alcohol, was not unreasonably disruptive within
the meaning of the statute.
ii. Disturbance of the school's normal functioning. We
analyze disruptive conduct using a two-prong standard: first,
whether the conduct is such that "most people would find to be
unreasonably disruptive," and second, whether the conduct "did
in fact infringe someone's right to be undisturbed."
Commonwealth v. Orlando, 371 Mass. 732, 734-735 (1977). The
26
first prong is objective and "protects potential defendants from
prosecutions based on individual sensitivities"; the second
prong "requires that the crime have a victim," and only punishes
activities that "have detrimental impact." Id. at 735.
Disruptive conduct is context specific and is necessarily
dependent on its location and timing; therefore, conduct that
would be acceptable in one situation may be disruptive in
another. See id. In Bohmer, 374 Mass. at 370, we upheld the
defendant's convictions under G. L. c. 272, § 40, where the
defendant, in two separate incidents, interrupted classes in
progress at the Massachusetts Institute of Technology to address
the students in the classes after the professors asked him to
leave. Although classroom announcements in some situations may
not be objectively disruptive, in Bohmer, the defendant did not
have permission to make the announcements, interrupted the
classes in session, and had to be forcibly removed. See id.
The possession of a loaded, concealed firearm in certain
situations may not be objectively unreasonably disruptive, but
where, as here, that possession results in the lockdown of a
high school, the jury reasonably could conclude that "most
people would find [a school lockdown] unreasonably disruptive."
Orlando, supra.
In addition, the defendant's conduct had a measurable
impact on those present in the school. After Murphy discovered
27
the firearm in the defendant's backpack, the school was placed
in lockdown for approximately two hours.11 Although the
defendant was brought into the school shortly after school
dismissal, many people, both students and nonstudents, were
present, as many afterschool and community activities are
conducted there. When the school is placed in lockdown, all
staff members are trained to get into the first lockable room
that they are near. The doors are locked and faculty and
students are told to barricade themselves in the room so that no
one can gain entrance. Movements are restricted in the
building; no one is allowed to move freely through the hallways
except for police personnel, the principal, and the vice-
principal. Parents are restricted from picking up their
children, and no one may leave until the lockdown is lifted. As
a result of the lockdown on March 25, 2015, approximately twenty
Milton police officers were dispatched to the school and some
school officials were not able to leave until hours after the
lockdown ended.12
Based on the totality of the facts that could have been
found by the jury, the sufficiency of the evidence is not a
11
A lockdown occurs at the school when there has been a
breach of security. An indication is given to those in the
building that they need to lock their doors and follow
protocols, such as barricading the doors and restricting
movement, to ensure that all the students and adults are safe.
12
The vice-principal testified that he was unable to leave
the school until 6 P.M. or 7 P.M. as a result of the lockdown.
28
close question. Thus, the defendant's claim that retrial is
barred lacks merit. See Commonwealth v. Loadholt, 456 Mass.
411, 434-435 (2010), S.C., 460 Mass. 723 (20110), quoting
Commonwealth v. Kater, 421 Mass. 17, 18 (1995) ("If the evidence
admitted at the trial was sufficient to send the case to the
jury, but is insufficient to send the case to the jury if all
improperly admitted evidence is disregarded, double jeopardy
principles nevertheless do not bar a retrial"). Because,
however, the conviction was based, at least in part, on the
defendant's possession of a firearm which should have been
suppressed, we vacate the conviction and remand for a new trial.
Conclusion. For the reasons set forth above, we conclude
that the police lacked a reasonable belief that the defendant
was armed and dangerous and, therefore, the patfrisk and search
of the backpack was unreasonable under the Fourth Amendment and
art. 14. Therefore, we vacate the convictions of carrying a
firearm without a license, carrying a dangerous weapon on school
grounds, possession of a firearm without a FID card, and
possession of a class D substance with intent to distribute, and
remand those matters to the District Court for further
proceedings consistent with this opinion. We vacate the
conviction of disturbing a school and remand for a new trial.
So ordered.
LOWY, J. (dissenting, with whom Cypher, J., joins). I
disagree with the court's conclusion that it was unreasonable
for Sergeant Murphy of the Milton police department to search
the defendant's bag in the circumstances. Accordingly, I would
affirm the defendant's convictions, including his conviction of
wilful disturbance.
The "touchstone" of the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration
of Rights is reasonableness (citation omitted). Commonwealth v.
Blais, 428 Mass. 294, 297 (1998). Where a warrantless search is
based on a reasonable suspicion that an individual presents a
danger, "[t]he officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent
[person] in the circumstances would be warranted in the belief
that his [or her] safety or that of others was in danger."
Commonwealth v. Johnson, 454 Mass. 159, 164 (2009), quoting
Terry v. Ohio, 392 U.S. 1, 27 (1968). In determining the
reasonableness of a search, "we have consistently eschewed
bright-line rules, instead emphasizing the fact-specific nature
of the reasonableness inquiry." Blais, supra at 297, quoting
Ohio v. Robinette, 519 U.S. 33, 39 (1996). See Commonwealth v.
Sanborn, 477 Mass. 393, 396 n.3 (2017) (acknowledging
possibility that warrantless seizures to serve domestic abuse
prevention orders may be reasonable). See also id. at 396-397
2
(Gants, C.J., concurring) (same, even where facts do not satisfy
existing exception to warrant requirement).
Considering the totality of circumstances in this case, I
conclude that the defendant had a reduced expectation of privacy
and that Murphy's search of the defendant's backpack was
reasonable, based on the potential danger to students. Cf. New
Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (T.L.O.) (in "certain
limited circumstances neither [probable cause nor reasonable
suspicion] is required" [citation omitted]).
An individual who attempts to gain entry to a school, where
public access is restricted, does not have the same expectation
of privacy as an individual in a home, on a street corner, or
even in a motor vehicle. See Commonwealth v. Montanez, 410
Mass. 290, 301 (1991) (search in "constitutional sense" takes
place where police intrude on constitutionally protected
reasonable expectation of privacy). Determining whether such a
reasonable expectation exists is a two-step inquiry: "(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 [the reasonableness of] that expectation."
Id.
Although the defendant manifested a subjective expectation
of privacy, I conclude that society would not be willing to
accept the reasonableness of the defendant's expectation of
3
privacy in the circumstances of this case.1 The government has a
vital interest in ensuring the safety of our schools and the
children who attend them. In T.L.O., 469 U.S. at 340, it was
the "school setting" itself that required "some modification of
the level of suspicion of illicit activity needed to justify a
search." See id. at 352-353 (Blackmun, J., concurring)
("Indeed, because drug use and possession of weapons have become
increasingly common among young people, an immediate response
frequently is required not just to maintain an environment
conducive to learning, but to protect the very safety of
students and school personnel").
Even dating back to 2001 -- well before the highly
publicized tragedies at the Virginia Polytechnic Institute and
State University (Virginia Tech) and in Newtown, Connecticut --
we had taken judicial notice of the danger of violence in
schools. Commonwealth v. Milo M., 433 Mass 149, 156-157 & n.8
1
I do not dispute that students have a reasonable
expectation of privacy in their schools. The reasonableness of
that expectation, however, is lesser than the expectations of
privacy that are typically applicable in other contexts, because
students may be subject to search in the absence of either
probable cause of criminality or reasonable suspicion that they
are armed. See New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
The question here, however, is what expectation a person with no
apparent relationship to a school, its students, or its faculty
should have when attempting to enter school grounds. I agree
with the court that the analytical framework from T.L.O is not
applicable. The lesser expectation of privacy possessed by
students, at least with respect to searches by school officials,
is a helpful point of reference in analyzing the defendant's
expectation of privacy.
4
(2001). See Commonwealth v. Whitehead, 85 Mass. App. Ct. 134,
138 (2014) (taking judicial notice of school shootings in
Columbine, Colorado; Santee, California; and Newtown,
Connecticut). Given this widely-known backdrop, individuals
attempting to enter a school -- particularly without any
apparent relationship to the school or the people there -- have,
at best, an expectation of privacy to their persons and their
belongings that is significantly less than their expectation of
privacy in their homes or motor vehicles, or while on a street
corner. See Commonwealth v. Pina, 406 Mass. 540, 545, cert.
denied, 498 U.S. 832 (1990) (nature of location of search is
relevant to its reasonableness). See also T.L.O., 469 U.S. at
340 (school setting reason for reducing "level of suspicion").
Rather, such an individual attempts to gain entry into a place
where safety is of paramount importance and must be vigilantly
safeguarded.
Further, the circumstances of this case differ from those
involving searches of students, such that the distinction
between searches conducted by law enforcement and those
conducted by school officials does not bear the same import.
Although school officials may face dangers when searching
students, they are searching individuals with whom they have
some familiarity. Ostensibly, school officials are generally
equipped to deal with problems stemming from students. To
5
conclude that, on these facts, a search by officials at Milton
High School (school) of a nonstudent would have been subject to
reduced Fourth Amendment and art. 14 scrutiny could have the
undesirable effect of encouraging school officials to confront
potentially dangerous individuals, rather than encouraging them
to seek assistance from law enforcement with the appropriate
training to handle such scenarios.
Murphy's own knowledge at the time of the search
established a reasonable basis to search the defendant in the
circumstances.2 She knew that school officials had requested
police assistance to deal with a nonstudent who, by duplicity,
had tried to gain entry to the school.3 Murphy arrived in the
conference room where the school officials were with the
2
Murphy may well have had probable cause to believe the
defendant had committed trespass or attempted criminal trespass,
in which case the defendant may have been subject to a search
incident to arrest for that crime. See Commonwealth v.
Washington, 449 Mass. 476, 481-482 (2007) (search incident to
arrest may take place before arrest as long as search and arrest
are "substantially contemporaneous"). This issue, however, is
not argued on appeal, and in any event, I would affirm based on
the defendant's reduced expectation of privacy.
3
As the court concludes, the facts did not support the
judge's findings that Murphy had actual knowledge of the
defendant's specific lies. The parties did not argue, and thus
the court does not address, whether the "collective knowledge"
doctrine, which generally imputes the knowledge of one police
officer to other police officers who are engaged in a
cooperative effort, could be extended to apply to school
officials in this case. See Commonwealth v. Gullick, 386 Mass.
278, 283-284 (1982) (evaluating probable cause based on
collective knowledge of officers).
6
defendant, and it was thus reasonable for her to believe that
the defendant was the nonstudent about whom she had been called.
Murphy knew the school officials from previous interactions, and
she observed that they were visibly distraught throughout this
ordeal. Murphy also noticed the defendant appeared to be
nervous, and she noted the smell of marijuana and alcohol in the
school conference room. Finally, Murphy arrived shortly after
classes had ended for the day, making it likely that students
would be out and about the school grounds, increasing their
likelihood of exposure to the potentially intoxicated defendant,
should he have been released.
I conclude that the combination of the defendant's reduced
expectation of privacy, the heightened government interest in
school safety, and Murphy's knowledge made frisking4 the
defendant's person and backpack reasonable. Even without
specific facts to suggest that he was armed, the location, the
timing, the suspicious nature of the defendant's conduct, and
his potential intoxication warranted the officer's concern for
the safety of students at the school. See Johnson, 454 Mass. at
4
Because Murphy felt the exterior of the bag and felt a
hard object before she opened it, it is unnecessary to address
whether the sergeant could have simply opened the bag. Although
Murphy did not explicitly testify that she believed the hard
object was a weapon, the judge inferred that Murphy opened the
bag because she suspected the object was a weapon. This
inference was reasonable considering Murphy's testimony as a
whole, in which she described moving the bag out of the
defendant's reach and hearing a "clank" when she did so.
7
164. The only alternative -- apart from potentially arresting
the defendant for trespass, which would have allowed for a
search incident to arrest -- would have been to return the
backpack and release him, without knowing what the bag
contained, at a time students were likely to be milling about
the school grounds. I believe it was eminently reasonable --
and prudent -- in these circumstances for Murphy to feel the bag
for weapons before potentially returning it to the defendant and
allowing him to leave.
For these reasons, I respectfully dissent.