MA: Smell of MJ on a nonstudent at school wasn’t RS for a frisk of backpack

When defendant, a nonstudent, arrived at school and was surrounded by school officials who smelled of marijuana (a civil offense), the frisk of her backpack was without any reasonable suspicion of criminality or that there was a weapon present. Commonwealth v. Villagran, 477 Mass. 711 (Aug. 29, 2017):

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, 69 N.E.3d 968 (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, 37 N.E.3d 611 (2015) (HN5Go to the description of this Headnote.“[W]here the only factor 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, 52 N.E.3d 167 (2016) (HN6Go to the description of this Headnote.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. For these reasons, we discern no basis for reasonable articulable suspicion of criminal activity.