Court: Cops can't frisk somebody simply because of an anonymous 911 call

By adamg - 11/20/09 - 11:12 am

The Massachusetts Appeals Court today threw out a New Bedford man's conviction on a charge of illegal gun possession because his similarity to the description of a man holding a gun in the air in an anonymous 911 call was not enough to warrant ordering him out of his car and searching it.

On May 24, 2006, a call came into 911 about "a black male wearing a gray shirt and yellow pants standing outside of a green Honda automobile" with a gun in the air. A responding officer found a black guy wearing a gray shirt and green pants inside a green Honda, ordered him out of the car, pat frisked him and asked if he had any weapons. He said he had a gun in the car. Based on that, he was arrested, charged and convicted.

The appeals court, however, said the prosecutors failed to prove the officer had enough grounds to order the man out of the car in the first place, because they failed to show any effort on the part of police to verify the veracity of the single, anonymous call to 911 first.

[T]he Commonwealth was on fair notice that the unidentified 911 call was the only basis on which the stop and exit order could be justified, because when the police arrived at the defendant's location, they observed the defendant, seated in a motor vehicle, without any suspicious activity taking place. ... Because the Commonwealth failed to establish the reliability of the report underpinning the officer's actions, the evidence must be suppressed. Put differently, the evidence must be suppressed, not because what the officer did was unreasonable based upon what was reported to him, but because the Commonwealth failed to establish the reliability of what was reported anonymously.

The court said this doesn't mean police have to disregard 911 calls, but that they and prosecutors have to take that extra step to try to confirm the information. The court noted an earlier case that hinged on a similar question:

[W]hile the 911 caller was not identified, the Commonwealth introduced evidence that the 911 system operator identified the caller's telephone number and informed the caller that her cellular telephone number had been identified and that the call was being recorded. In addition, the caller reported her location. Here, no such information was available on which to conclude that the caller and his or her information warranted credit.

Complete decision.