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Commonwealth v. Villagran

Supreme Judicial Court of Massachusetts, Norfolk

August 29, 2017

COMMONWEALTH
v.
JONATHAN VILLAGRAN.

          Heard: March 7, 2017.

         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.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. [1]

          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 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.0., 469 U.S. 325, 341 (1985) (T.L.O.).

         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 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 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."
(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 "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 school[6] 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 ...


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