MA: “There is no ‘firearm exception’ to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip”

An uncorroborated anonymous tip that a man pointed a gun in the air but never fired it was not sufficient to justify a stop and frisk. Commonwealth v. Gomes, 458 Mass. 1017, 937 N.E.2d 13 (2010), aff’g Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009):

The Commonwealth’s failure to introduce a recording of the 911 telephone call at the suppression hearing hampered the ability of the parties and the judge properly to address the caller’s reliability. Compare Commonwealth v. Mubdi, 456 Mass. 385, 396-397, 923 N.E.2d 1004 (2010) (where recording of 911 call not played at suppression hearing, court’s assessment of caller’s basis of knowledge and veracity was limited), with Commonwealth v. Depina, 456 Mass. 238, 243-245, 922 N.E.2d 778 (2010) (playing of 911 call allowed court to determine caller’s basis of knowledge and that her statements were reliable as excited utterances). The Commonwealth would be well advised in the future to make reasonable efforts to introduce such evidence.

. . .

The defendant moved to suppress the physical evidence under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. In denying the motion, the judge concluded that the information provided by the dispatch “was not simply that an individual was carrying a firearm, but rather that he was standing on the street, pointing the gun in the air. Such behavior suggested a potential threat to public safety.” We disagree that the evidence justified the stop and frisk of the defendant.

There is no “firearm exception” to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip. See Florida v. J.L., 529 U.S. 266, 272-274, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). This case involves such a tip, as there was no evidence about the 911 caller’s identity or identifiability. See Commonwealth v. Gomes, 75 Mass. App. Ct. 791, 794-795, 917 N.E.2d 231 (2009), and cases cited. See also Florida v. J.L., supra at 270-271. Moreover, there was no evidence of the caller’s basis of knowledge or veracity; no predictions by the caller of facts later confirmed by the police, to show the caller had inside knowledge; and no evidence of corroboration by the police of more than innocent details, i.e., the defendant’s presence near a green Honda, his race, and his gray shirt. See Florida v. J.L., supra at 270-272. Thus, there was no basis to conclude that the 911 caller’s report of possibly criminal behavior was reliable. See id. at 272 (reasonable suspicion requires that tip be reliable “in its assertion of illegality, not just in its tendency to identify a determinate person”). See also Commonwealth v. Gomes, supra at 795-796, and cases cited.