Police investigating a suspicious person in a school must have evidence the person committed a crime before they can conduct a pat-frisk, and must have a warrant before searching a backpack for firearms, the state’s highest court ruled Tuesday.
The issue split the Supreme Judicial Court, 5 to 2, with now-retired Justice Geraldine S. Hines, a former defense attorney, writing for the majority that the right to privacy under both the state and federal constitutions is undiminished in a school setting, even when it comes to people who are not students.
“We do not underestimate the threat of violence in schools and other public places. Recent history bears out the folly of doing so,’’ Hines wrote. But “nothing in the Fourth Amendment or our [Article 14 of the state Constitution] jurisprudence supports such limitations on a person’s reasonable expectation of privacy.”
The dissent, led by Justice David A. Lowy, a former prosecutor, argued that protecting students and staff from falling victim to mass killings, as happened in schools in Newtown, Conn., in 2012, and Virginia Tech in 2007, should be the paramount concern.
“The government has a vital interest in ensuring the safety of our schools and the children who attend them,’’ wrote Lowy, who was joined by Justice Elspeth B. Cypher. “I conclude that society would not be willing to accept the reasonableness of the defendant’s expectation of privacy in the circumstances of this case.”
The incident that led to Tuesday’s ruling was the arrest by Milton police of Jonathan Villagran, a nonstudent who showed up at Milton High School reeking of both alcohol and marijuana. He was eventually convicted of firearms and drug charges after a gun was found in his backpack and marijuana was found on his person.
In its ruling Tuesday, the majority threw out Villagran’s gun and drug convictions, concluding the evidence used against him in Quincy District Court was illegally obtained and should be suppressed.
Villagran spent about 18 months behind bars and has since been released, but he remains on probation, his appellate attorney, Mathew B. Zindroski, said Tuesday. He said he expects the case will return to court, where the charges will be formally dismissed and wiped off Villagran’s record.
Zindroski said the ruling makes it clear that constitutional protections for nonstudents do not end once they go on campus or enter a school. He said he does not believe it raises security concerns for law enforcement, students, and staff.
Police “will just have to make sure they apply constitutional rights equally, to make sure they have enough reasonable suspicion to search in the first place,’’ Zindroski said. “This specifically applies to police searching nonstudents on the campus. So I think they should be able to keep campuses safe.”
David Traub, a spokesman for the Norfolk district attorney’s office, said the office was reviewing the decision “and assessing what may remain possible.” He had no further comment.
Milton Police Chief John E. King credited his officers and school officials for “acting in the best interest of students and staff safety. They had to make a quick decision based on facts known to them at the time.”
He said in an e-mail that their instincts turned out to be correct “as this individual did in fact possess alcohol, drugs, and a loaded firearm inside a school building.”
But he also said he recognized “that the end does not justify the means. I fully respect the legal process and the SJC’s decision.”
Milton School Superintendent Mary Gormley said in an e-mail that the court’s ruling will not change the “strong collaborative relationship” the schools have with the town’s police.
The SJC ruling “does not change our commitment to continue working with the police to maintain and ensure student safety as our highest priority,’’ Gormley wrote.
According to the court, Villagran arrived at the school around 2 p.m. on March 25, 2015, where he falsely claimed he was a student inadvertently locked out of the building and was let inside.
He then changed his story to say he was meeting a 16-year-old female student before walking outside, where he mingled with students at dismissal time.
Worried that Villagran might pose a risk to legitimate students, the principal and vice principal steered him from the parking lot to a conference room where he apologized for lying, emptied his pockets when asked, and said he did not know the name of the girl he came to meet.
Villagran asked school administrators if he could leave but was told he had to wait for police, which the majority said eliminated the possibility of prosecuting him for trespassing because a school official had ordered him to remain in the school.
Villagran was still in the conference room, acting nervously, when Milton Police Sergeant Kristen Murphy arrived, having been told that a nonstudent tried to get into the high school and that the principal believed “something’s wrong with the kid,’’ according to the SJC.
Villagran smelled of marijuana and was acting nervously, according to the court. Murphy conducted a pat-frisk and found suspected marijuana and a wad of cash. Villagran confirmed that he had a backpack with him but refused to give Murphy permission to search it.
Murphy felt a “hard object” inside the backpack, opened it up and found a pistol, a discovery that sent the school into lockdown mode, the court said.
Hines wrote that neither Villagran’s behavior nor his actions that day qualified as probable cause that a crime had been committed.
“Police lacked a reasonable belief that the defendant was armed and dangerous and, therefore, the pat-frisk and search of the backpack was unreasonable,” Hines wrote.
“What is left [without the items seized from Villagran] then is the defendant’s mere presence. We discern no basis for reasonable articulable suspicion of criminal activity.”
Hines explicitly noted that school officials have broader constitutional authority to search students, visitors, and their possessions while on school grounds than do police, a standard that is unchanged by Tuesday’s ruling.
“Our ruling does not bear on what school officials themselves can and should do to ensure the safety of students . . . nor does our ruling handicap school officials in responding to behavior that presents a potential or real threat to student safety,’’ Hines wrote.
“What we have said relates only to conduct of police officers.’’
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