Commonwealth v. Costa

862 N.E.2d 371, 448 Mass. 510, 2007 Mass. LEXIS 173
CourtMassachusetts Supreme Judicial Court
DecidedMarch 13, 2007
StatusPublished
Cited by49 cases

This text of 862 N.E.2d 371 (Commonwealth v. Costa) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Costa, 862 N.E.2d 371, 448 Mass. 510, 2007 Mass. LEXIS 173 (Mass. 2007).

Opinion

Cordy, J.

This case requires us to determine whether the police [511]*511had reasonable suspicion to stop and pat frisk a suspect, Nilton Costa, based on information provided in a telephone call placed to a 911 emergency operator. The telephone call was made with a cellular telephone (cell phone). The caller did not identify herself, but was aware that her call was being recorded and that the police had identified the telephone number from which she was calling, before she provided the information. The caller gave a location and full description of the clothes worn by a “teenage” suspect, reported seeing him with a handgun in his waistband in a public area where a basketball game was ongoing, and advised that she was close enough to him to be concerned that he might know that she had placed the call if she were still talking on the cell phone when the police arrived.

Following two suppression hearings,2 a judge in the Superior Court determined that the police did not have the requisite reasonable suspicion to stop and pat frisk Costa, and allowed his motion to suppress a handgun, crack cocaine, and other items found as a result of the patfri.sk and his arrest. While the judge found the caller’s information sufficiently detailed for purposes of identifying the suspect, the judge relied on Florida v. J.L., 529 U.S. 266 (2000), in concluding that this information alone “does not show that the tipster has knowledge of concealed criminal activity.” Id. at 272. The judge also relied on language in Commonwealth v. Barros, 435 Mass. 171 (2001), that “[a]n anonymous tip that someone is carrying a gun does not, without more, constitute reasonable suspicion to conduct a stop and frisk of that individual.” Id. at 177. On interlocutory appeal, the Appeals Court reversed, concluding that there were sufficient indicia of the caller’s reliability with regard to the reported criminal activity where she had placed her anonymity at risk by providing to police the pertinent information after knowing that her call was being recorded and that the police were aware of the telephone number from which the call was [512]*512being made. Commonwealth v. Costa, 65 Mass. App. Ct. 640, 644-646 (2006). We granted Costa’s application for further appellate review. We reverse the ruling of the motion judge.

1. Background.3 Shortly before 7:30 p.m. on August 1, 2002, a State police emergency operator received a telephone call from a cell phone placed by an unidentified female. The State police system identified the number from which the call was placed, but not the exact location or name of the caller. The operator informed the caller that the conversation would be recorded, and the caller stated that she was at a park at Columbia and Washington Streets in Cambridge and had “just seen a kid with a gun underneath his [T]-shirt.” The operator connected the caller to the 911 emergency operator for the city of Cambridge, and remained on the line. The Cambridge operator also told the caller that the call was being recorded, and the State police operator then stated, “I have a cell phone number of [telephone number], Ma’am are you still on the Une?” The caller responded that she was still there and the Cambridge operator then asked her to describe the emergency. The caller gave her location and said that she was at a basketball game and had “just seen one of the teenagers Uft his shirt and seen a pistol in his pants.” The caller described the teenager as wearing a black shirt, dungarees with red trim, and a blue baseball hat with red trim. She informed the operator that the teenager was on the comer of Columbia and Washington Streets at that moment and said, “I just don’t want to be the only one on the phone so when you all roll up there he’ll know that I’m the one that called okay?”4 When the Cambridge operator asked what type of gun she saw, the caHer could not identify it and said, “I am not going to get that close,

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Cite This Page — Counsel Stack

Bluebook (online)
862 N.E.2d 371, 448 Mass. 510, 2007 Mass. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-costa-mass-2007.