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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 patfrisk 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 viceprincipal 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 viceprincipal. 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.