{"id":4924,"date":"2011-01-08T10:04:50","date_gmt":"2010-11-24T06:51:37","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-11-24T06:51:37","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4924","title":{"rendered":"MA: \u201cThere is no \u2018firearm exception\u2019 to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip\u201d"},"content":{"rendered":"

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<\/a>, 458 Mass. 1017, 937 N.E.2d 13 (2010), aff’g Commonwealth v. Gomes<\/a>, 75 Mass. App. Ct. 791, 917 N.E.2d 231 (2009):<\/p>\n

The Commonwealth\u2019s 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\u2019s reliability. Compare Commonwealth v. Mubdi<\/a>, 456 Mass. 385, 396-397, 923 N.E.2d 1004 (2010) (where recording of 911 call not played at suppression hearing, court\u2019s assessment of caller\u2019s 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\u2019s 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.<\/p>\n

. . .<\/p>\n

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 \u201cwas 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.\u201d We disagree that the evidence justified the stop and frisk of the defendant.<\/p>\n

There is no \u201cfirearm exception\u201d to the general rule barring investigatory stops and frisks on the sole basis of an anonymous tip. See Florida v. J.L.<\/a>, 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\u2019s identity or identifiability. See Commonwealth v. Gomes<\/a>, 75 Mass. App. Ct. 791, 794-795, 917 N.E.2d 231 (2009), and cases cited. See also Florida v. J.L.<\/a>, supra at 270-271. Moreover, there was no evidence of the caller\u2019s 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\u2019s presence near a green Honda, his race, and his gray shirt. See Florida v. J.L.<\/a>, supra at 270-272. Thus, there was no basis to conclude that the 911 caller\u2019s report of possibly criminal behavior was reliable. See id. at 272 (reasonable suspicion requires that tip be reliable \u201cin its assertion of illegality, not just in its tendency to identify a determinate person\u201d). See also Commonwealth v. Gomes<\/a>, supra at 795-796, and cases cited.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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