Com. v. Costa

• Citation: 448 Mass. 510,862 N.E.2d 371
• Parties: COMMONWEALTH v. Nilton COSTA.
• Decision Date: 13 March 2007
• Court: United States State Supreme Judicial Court of Massachusetts

862 N.E.2d 371

448 Mass. 510

COMMONWEALTH v. Nilton COSTA.

Supreme Judicial Court of Massachusetts.

Middlesex.

Argued December 4, 2006.

Decided March 13, 2007.

Karen Logee Swenson, Boston, for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.¹

CORDY, J.

This case requires us to determine whether the police had 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 patfrisk 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, 120 S.Ct. 1375, 146 L.Ed.2d 254 (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, 755 N.E.2d 740 (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, 755 N.E.2d 740. 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 being made. Commonwealth v. Costa, 65 Mass.App.Ct. 640, 644-646, 843 N.E.2d 103 (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 line?" 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 lift 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 corner 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 caller could not identify it and said, "I am not going to get that close,[⁵] it's just that obviously I seen him behind the car and I wanted to let somebody know." Before the operator could get any other information, the caller thanked her and the call ended.⁶ The Cambridge police dispatcher transmitted the information over the police radio.

Cambridge police Officer Michael Regal heard the radio dispatch and arrived at the area within one and one-half minutes of the 911 call. Regal testified that the area surrounding the corner of Columbia and Washington Streets (known as Columbia Park area) had "always been a high crime area" where shootings had occurred and where there was a high volume of drug activity. When he arrived at the scene, Regal saw three black males standing together at the corner of the park. Two of the males appeared to be approximately twenty-five years old, and the third (Costa) looked like he was between seventeen and nineteen years old.⁷ Costa was dressed in clothing that fit the description given by the caller. Regal testified that there was a basketball game in progress and that at least sixty people were in the area, including families with young children. Only Costa wore clothing that matched the caller's description.

Regal stepped out of his vehicle, approached Costa from behind, and told him not to move. He then spread Costa's arms and conducted a patfrisk. Regal first felt a cell phone, and then a hard, rough handle of what he thought might be a gun protruding from the waistband of Costa's pants. Regal removed the object. It was a .22 caliber handgun with one round in the chamber and the hammer cocked. It was quickly determined that Costa did not have a firearm identification card. He was arrested and transported to the police station in a police van. During a subsequent inspection of the van, the police found several packages of what appeared to be crack cocaine and cash near where Costa had been seated.⁸

Costa was indicted for possession of cocaine with intent to distribute, second offense; doing so within one hundred feet of a public park; unlawful possession of a firearm, second offense; and possession of a firearm with a defaced serial number while committing a felony. Costa filed a motion to suppress the gun, the crack cocaine, and his personal effects, on the ground that they were seized in violation of his right to be secure from unreasonable search and seizure as guaranteed by art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution.

2. Discussion. In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error "but conduct an independent review of [her] ultimate findings and conclusions of law." Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Scott, supra, quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

To justify a police investigatory stop under the Fourth Amendment or art. 14, the police must have "reasonable suspicion" that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Lyons, 409 Mass. 16, 18-19, 564 N.E.2d 390 (1990). Reasonable suspicion must be "based on specific, articulable facts and reasonable inferences therefrom." Id. at 19, 564 N.E.2d 390, quoting Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). Information from an anonymous informant may warrant reasonable suspicion if it is shown to be reliable. Commonwealth v. Alvarado, 423 Mass. 266, 271, 667 N.E.2d 856 (1996). If "the police conduct an investigatory stop based on an informant's tip, our evaluation of the tip's indicia of reliability will be focused on the informant's reliability and his or her basis of knowledge. Independent police corroboration may make up for deficiencies in one or both of these factors." Commonwealth v. Lyons, supra.⁹

Costa concedes that the information provided by the caller satisfied the "basis of knowledge" prong of our customary analysis. See Commonwealth v. Alfonso A., 438 Mass. 372, 374, 780 N.E.2d 1244 (2003) (informant's recent firsthand observation satisfies basis of knowledge prong); Commonwealth v. Alvarado, supra at 271, 667 N.E.2d 856 (informant's basis of knowledge properly inferred from statement of recent firsthand observation included in call to police). We therefore turn to the reliability of its source.

When assessing the reliability of citizens who report apparent violations of the law, we accord more weight to the reliability of those who are identified. Commonwealth v. Atchue, 393 Mass. 343, 347, 471 N.E.2d 91 (1984), quoting United States v. Wilson, 479 F.2d 936, 940 (7th Cir.1973) ("A serious charge ... when volunteered by an identified party ... carries with it indicia of reliability of the informant"). See Commonwealth v. Burt, 393 Mass. 703, 710, 473 N.E.2d 683 (1985) (distinction drawn "between the type of anonymous informants involved in [Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ] [i.e., professional informants] and other citizens who supply police officers with information"). Commonwealth v. Grinkley, 44 Mass.App.Ct. 62, 68, 688 N.E.2d 458 (1997) ("a tip from a private citizen is substantially strengthened when the citizen is identified by name and address"). We have...