Commonwealth v. DeJesus

Graham, J.

(concurring). I concur in the result reached by the court, but I am of the opinion that neither the tip provided by the anonymous caller nor the observations of Officer Nunez at the scene provided a reasonable basis on which to suspect that the defendant was violating the law. We have nothing here to justify a reasonable suspicion of criminal conduct beyond a report of an unknown person seeing a gun in a car. The tip in the instant case failed to provide even a rudimentary description sufficient to help the police correctly identify the person whom the caller meant to describe. Consequently, when the police arrived at the scene, more than one-half hour after the dispatch, they conducted a patfnsk of every Hispanic male in or near the white van. See generally Florida v. J.L., 529 U.S. 266 (2000); Commonwealth v. Alvarado, 423 Mass. 266 (1996) (tip from anonymous telephone caller who reported seeing Hispanic subjects in car in possession of handgun wrapped in towel was not sufficiently reliable to warrant investigatory stop in absence of threat of physical harm or commission of crime other than unlicensed possession). Contrast Commonwealth v. Costa, 448 *122Mass. 510 (2007) (patfrisk justified where unidentified caller placed her anonymity at risk and identified “teenage” defendant as having handgun; police arrived within minutes to area where shootings had previously occurred, and found defendant, recognizable from caller’s detailed description, and appearing younger than legal age at which firearm license could be obtained).