Commonwealth v. Villagran

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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.