Whether a defendant’s conclusory motion to suppress evidence permitted him to challenge the reliability of a 911 call after the close of evidence; whether an anonymous statement that the defendant was waving a gun was sufficiently reliable to justify an investigatory stop.

Police received an anonymous 911 call that a person was loading a firearm and waving it in the air. The suspect was described as a black male wearing a gray shirt and yellow pants near a green Honda. Arriving at the scene 3 minutes later, an officer found the defendant, a black male wearing a gray shirt and green pants, sitting in a green Honda. He asked the defendant to step out of the car, conducted a pat frisk, and then asked the defendant if he had a weapon. The defendant said he had one in the car. He was arrested and charged with possession of an unlicensed firearm.

The judge declined to suppress the firearm, and the defendant was convicted. The Appeals Court ruled that the 911 call was not sufficiently reliable to permit the officer to conduct a pat frisk, and the firearm should be suppressed. 75 Mass. App. Ct. 791. The SJC granted the Commonwealth’s request for further appellate review.

1. Sufficiency of the motion to suppress. Mass. R. Crim. P. 13(a)(2) provides that, in a motion to suppress, “all reasons, defenses, or objections then available … shall be set forth with particularity,” and any grounds not set forth in the motion shall be deemed waived. The defendant’s motion to suppress did not specifically address the reliability of the 911 call (or, indeed, state any specific basis for suppression).
   
   The Appeals Court held that the Commonwealth was sufficiently put on notice that it must defend the sufficiency of the 911 call because (1) the motion made the defendant’s core argument plain — that the search was not justified; (2) the 911 call was the only basis for the search; and (3) defense counsel challenged the reliability of the 911 call in closing argument on the motion. The Commonwealth responds that the defendant’s motion was, if anything, targeted at the lack of Miranda warnings; that it should not be the Commonwealth’s duty to divine the basis of the defendant’s motion; and that arguments made after the close of evidence are insufficient under Commonwealth v. Silva, 440 Mass. 772, 781-783 (2004).
2. Reliability of the 911 Call. Turning to substance, the Appeals Court held that the anonymous 911 call, giving only identifying details about the defendant that would be visible to any observer, was insufficient to justify the officer’s stop and search. The Appeals Court acknowledged that the police were reasonably concerned by the 911 call, but held that in the absence of any corroborated evidence of illegality, the pat frisk was not justified. The Commonwealth argues that, in cases of imminent danger, police are justified in conducting a limited investigation even on the basis of an anonymous tip. See Commonwealth v. Foster, 48 Mass. App. Ct. 671, 675 (2000), and cases cited.

The Commonwealth presents persuasive arguments on both points, although both have interesting implications. The Commonwealth is right that motions to suppress should state all grounds for suppression. However, the cases rarely apply the waiver rule unequivocally, or without considering surrounding circumstances — perhaps because courts value the flexibility to consider issues that emerge during the motion to suppress.

As to the substance of the motion to suppress, the Commonwealth appears to have precedent on its side. The cases draw a fine line: police may not conduct an investigatory stop on the basis of an anonymous tip that a person has a concealed weapon, but may conduct a stop if the anonymous informant states that the person is openly carrying a weapon. In theory, that rule allows anonymous bad actors to inflict police searches on any target, simply by reciting the proper phrase on a 911 call. The courts seems to have decided that such a risk is justified by the need for police to intervene in emergency situations.