Date: 06-24-2015

Case Style: Commonwealth of Massachusetts v. Darren Dyette

Case Number: 13-P-1335

Judge: Sullivan

Court: Supreme Court of Massachusetts

Plaintiff's Attorney: David D. McGowan, Assistant District Attorney (Matthew L.
Feeney, Assistant District Attorney, with him) for the
Commonwealth.

Defendant's Attorney: Alexei Tymoczko for the defendant

Description: After a jury trial, the defendant, Darren
Dyette, was convicted of possession of a firearm and carrying a
2
loaded firearm. See G. L. c. 269, § 10(a), (n).
1 The defendant
contends on appeal that his motion to suppress was wrongly
denied because (1) the police lacked reasonable suspicion to
conduct an investigatory stop, (2) the stop escalated to an
arrest lacking probable cause when the defendant was ordered to
the ground at gunpoint and handcuffed, and (3) the police lacked
a basis under either the exigency exception or the search
incident to arrest exception to the warrant requirement to
conduct a warrantless search of his cellular telephone (cell
phone) at the scene and after booking. The defendant also
contends that there was insufficient evidence that he possessed
the firearm.
We conclude that the evidence was sufficient to support the
convictions. We also conclude that the stop and the arrest were
proper, but that the warrantless search of the cell phone was
unlawful, and that this much of the motion to suppress should
have been allowed. We also conclude that the error was not
harmless beyond a reasonable doubt. Accordingly, we reverse the
convictions and remand for further proceedings.
Background. 1. Motion to suppress. We recite the motion
judge's factual findings supplemented by the uncontroverted

1 The defendant thereafter pleaded guilty to the second and
subsequent offense portion of the count for possession. G. L.
c. 269, § 10(d).
3
evidence at the motion hearing.2 On the night of July 3-4, 2010,
four police officers, all members of the youth violence strike
force, were in plain clothes in an unmarked vehicle patrolling
Martin Luther King Boulevard in the Roxbury neighborhood of
Boston. The officers drove past Washington Park, where a crowd
of people were drinking and shooting off fireworks. The park
was known to the officers as an area of high firearm activity,
including homicides and other shootings. They made a U-turn and
circled back to the park. Although the cruiser was unmarked, it
was a Ford Crown Victoria automobile, a make and model which was
well known in the community as a police vehicle. The group in
the park noted the officers' presence.
When the officers arrived at the park, it was close to
midnight and the park lights were off. This indicated to all
the officers that the park was closed, and that all present were
trespassing. One officer, a former Boston municipal police
officer, knew that the lack of lighting and the late hour meant
that the park was officially closed.
As they pulled to a stop, the officers took note of two men
standing at the far end of a basketball court near a rock wall.
The two men appeared "overly concerned" by the officers'
presence. After "bouncing around looking" at the officers, the

2 The motion judge was also the trial judge.
4
two men began to leave the park at a normal pace. They then
began to run, colliding with each other as they ran.
All but one of the officers got out of the unmarked car and
gave chase on foot. When the officers reached the rock wall
behind the basketball court, they saw that the two men had run
in different directions into the adjoining wooded area of the
park. One of the men, the defendant, wearing a white shirt and
baseball cap, ran to the right and the other man, wearing a blue
shirt, ran to the left. The officers pursued the defendant to
the right, but lost sight of him during the chase for a short
time.
At the same time, Officer Steele, who remained in the
unmarked car, activated his blue lights and drove to the back of
the park to a spot where a person leaving the park on foot would
likely exit, while the other officers gave chase on foot. He
then turned off his blue lights. After hearing a radio
broadcast that one of the two men was headed toward his
location, Officer Steele saw the defendant, wearing a black tank
top and holding a cell phone near his head,
3 running out of the
park. Officer Steele did not recognize the defendant at first,
but as they drew closer to one another he recognized the
defendant from "numerous encounters, one including a firearm
arrest." Officer Steele got out of the car with his gun drawn,

3 The cell phone was described as a "flip phone."
5
ordering the defendant to the ground. The defendant complied,
and was pat-frisked and handcuffed.
The defendant told Steele that he had not been in the park,
but had been walking down the street.4 When asked why he was
breathing heavily, the defendant stated that he had been arguing
with his girlfriend on his cell phone. Officer Steele took the
defendant's cell phone, looked at the call log, and saw that
there was an array of numbers and symbols that did not represent
a telephone number.
The officers, including Officer Steele, canvassed the area
while the defendant was detained by other officers who had
arrived on the scene. In a garbage can near the park entrance
where the officers saw the defendant emerge, they found the
white shirt and white hat that the defendant had been wearing
before the chase. The officers also found two loaded firearms
near the rock formation where the chase had begun, one to the
left, and one located further to the right along the defendant's
flight path.
The defendant was arrested, charged with possession of the
gun found to the right, and given his Miranda5 rights at the
police station. He spoke with the booking sergeant and denied

4 The officers who chased the defendant also said they saw
him run out of the park.
5 Miranda v. Arizona, 384 U.S. 436 (1966).
6
that the gun was his. He continued to claim that he was arguing
with his girlfriend before he saw the officers, and stated that
she was also the person he had called from the booking area.
The defendant's cell phone call log was examined by the booking
sergeant some five hours after the arrest. The booking sergeant
testified that it could take several days to get a warrant, and
that he was concerned that incoming calls (there had been three)
would "push out" previous calls on the call log, which he
believed permitted only a limited number of calls. The log
showed that the defendant was not talking with his girlfriend as
he had claimed, and that she was not the person whom he had
called from the booking area, as he also claimed.
2. Trial testimony. The evidence at trial was
substantially the same as the evidence offered at the
suppression hearing, albeit offered in greater detail. No
reference was made to the failure to obtain a warrant, or to the
defendant's prior firearms offense, but the Commonwealth was
permitted to introduce evidence that Officer Steele recognized
the defendant. The defendant stipulated that the hat and shirt
were his; the Commonwealth introduced deoxyribonucleic acid
(DNA) evidence tying him to the two items. No fingerprints were
found on the gun, and no DNA evidence was extracted from the
gun. Two photographs of the defendant's cell phone call log
were introduced in evidence at trial, and both Officer Steele
7
and the booking sergeant testified to the defendant's statements
that prompted them to check the call log, as well as the
contents of the call log, and the discrepancy between the call
log and the defendant's representations.
The Commonwealth's theory of the case was that the
defendant and his companion fled at the sight of the Crown
Victoria in order to evade the police and get rid of the guns,
and that the defendant's attempts to change his appearance by
discarding his clothes, coupled with lies concerning his
presence in the park and the telephone call with his girlfriend,
showed that he was guilty. The defense claimed that the
defendant was a young man who had had previous experience with
the police, that he was trespassing in the park after midnight,
that he didn't want to be arrested for trespassing, and that he
didn't want to "deal with the cops." The defense maintained
that there was no evidence linking the defendant to the gun, and
that anyone in the park could have tossed the gun into the
defendant's flight path after the officers had already passed
the area.
Discussion. 1. Sufficiency of the evidence. The
Commonwealth was required to prove beyond a reasonable doubt
that the defendant had actual or constructive possession of the
8
firearm. Commonwealth v. Romero, 464 Mass. 648, 652 (2013).
6
"[W]e consider the evidence, together with permissible
inferences from that evidence, in the light most favorable to
the Commonwealth and determine whether any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt." Commonwealth v. Forte, 469 Mass. 469, 481
(2014) (quotations omitted). See Commonwealth v. Farnsworth, 76
Mass. App. Ct. 87, 98-99 (2010) (sufficiency "is to be measured
upon that which was admitted in evidence without regard to the
propriety of the admission").
The evidence at trial was as follows: (1) the defendant
and a companion reacted to the police presence at the park and
fled, bumping into one another as they did, (2) the firearm was
found to the right, in the path of the defendant's flight, (3)
the white hat and shirt officers saw the defendant wearing at
the basketball court were recovered from trash cans in the park
along the defendant's flight path, (4) the defendant stipulated
that the clothes were his and the Commonwealth submitted DNA
evidence linking the defendant to the hat and shirt, (5) the
defendant told Officer Steele that he had not been in the park,
although Steele and other officers saw him run out of the park,
(6) the defendant told Officer Steele and the booking sergeant

6 Although the Commonwealth proceeded on a theory of actual
possession during trial, the judge's charge to the jury included
instructions on both actual and constructive possession.
9
that he was out of breath because he had been arguing with his
girlfriend on his cell phone, when the cell phone call log
revealed this to be untrue, and (7) the defendant told the
booking sergeant that his girlfriend, whom he had called earlier
on his cell phone, was the same person he had called during
booking, when the cell phone call log revealed this to be
untrue.
When viewed in the light most favorable to the
Commonwealth, this evidence is sufficient to support the
verdicts. "While no recoverable fingerprints were found on the
[gun] and no one saw anyone throw the firearm [away] during the
chase, a jury reasonably could have inferred" that its location
in the defendant's flight path was "consistent with where it
would have landed had it been thrown" by the defendant when
running from the police through the park. Commonwealth v.
Jefferson, 461 Mass. 821, 826 (2012).
7 A rational jury could
have also inferred that the defendant began to leave the park
and run from the police for a reason, "and that the reason was
to throw away contraband that [the defendant] feared the police

7 The defendant also contends that his motion to supplement
the record to include measurements of distances in the park was
wrongly denied. The judge did not abuse his discretion in
denying the motion. See Commonwealth v. Bregoli, 431 Mass. 265,
280 n.28 (2000). The measurements were not part of the record
before the jury. The jury took a view, but the distances
witnessed by the jury in the view were not in evidence. See
Commonwealth v. Gomes, 459 Mass. 194, 199 (2011) (view not
strictly evidence).
10
would find during a stop." Ibid. That none of the officers saw
the defendant with the gun or discard the gun, and the "pitch
dark" conditions in the park, go to the weight, not the
sufficiency, of the evidence. See id. at 826-827. The location
of the gun, in conjunction with the other evidence of
consciousness of guilt, would permit a rational fact finder to
conclude beyond a reasonable doubt that the defendant possessed
the firearm. Ibid.
2. Denial of motion to suppress. The defendant contends
that the judge erroneously denied his motion to suppress because
(1) the stop was not based on reasonable suspicion, (2) if the
stop was permitted, ordering the defendant to the ground at
gunpoint impermissibly transformed the stop into an arrest
lacking probable cause, and (3) regardless of the stop or
arrest, the warrantless searches of the defendant's cell phone
in the park and at the station were improper.
The judge credited the officers' testimony in full. The
judge ruled that the officers had reasonable suspicion that the
defendant was trespassing.
8 The judge also found that the

8 The judge also found that there was reasonable suspicion
because (1) the stop occurred in a high crime area, (2) the
defendant and the other man were acting in a manner "markedly
different" from the rest of the crowd in the park, (3) the
defendant ran from the police without prompting, and (4) the
defendant and the other man ran into each other because they
were in a haste to flee. At oral argument the Commonwealth
stated its intention to rely solely on a reasonable suspicion of
11
officer in the vehicle recognized the defendant as someone
previously convicted of a firearm offense, justifying the
further detention and restraint of the defendant. The judge
concluded that the recovery of the gun elevated the officers'
reasonable suspicion to probable cause sufficient to arrest, and
that exigent circumstances provided an exception to the warrant
requirement, permitting the warrantless search of the
defendant's cell phone.
"When reviewing the denial of a motion to suppress, we
accept the judge's findings of fact and will not disturb them
absent clear error. Commonwealth v. Watson, 455 Mass. 246, 250
(2009). We make an independent determination as to the
correctness of the judge's application of constitutional
principles to the facts as found. Id." Commonwealth v. Carr,
464 Mass. 855, 873 (2013).
a. Reasonable suspicion. The judge did not explicitly
find when the stop occurred. The facts are undisputed and we
may make such a finding as a matter of law on the record
presented. See Commonwealth v. Sykes, 449 Mass. 308, 310
(2007), citing Commonwealth v. Barros, 435 Mass. 171, 173 (2001)

trespass. We likewise rest our opinion solely on this ground
and do not address whether flight plus presence in a "high crime
area" late at night are sufficient to support a finding of
reasonable suspicion. See generally Commonwealth v. JonesPannell,
85 Mass. App. Ct. 390, 395-396, further appellate
review granted, 469 Mass. 1106 (2014); Commonwealth v. Warren,
87 Mass. App. Ct. 476, 481-483 (2015).
12
("Determining the precise moment at which a seizure occurs is
critical to resolving the issue of suppression"). The stop
occurred when the three police officers got out of the unmarked
cruiser and began to pursue the defendant on foot while the
remaining officer activated the cruiser's blue lights and drove
to the back of the park. See Commonwealth v. Thibeau, 384 Mass.
762, 764 (1981); Commonwealth v. Williams, 422 Mass. 111, 117
(1996); Commonwealth v. Stoute, 422 Mass. 782, 782-783 (1996);
Commonwealth v. Grandison, 433 Mass. 135, 138 (2001) (blue
lights); Sykes, supra at 314 (chase).9
The police may conduct a stop for a threshold inquiry where
the officer has reasonable suspicion, "based on specific and
articulable facts and the specific reasonable inferences" drawn
therefrom, that criminal activity has taken place, is taking
place, or is about to take place. Commonwealth v. Silva, 366
Mass. 402, 405-406 (1974). The reasonableness of the officer's
suspicion must be assessed based on the factors present before
the pursuit, i.e., the stop, ensued. See Thibeau, supra at 764.
The judge found that the officers had reasonable suspicion
that the defendant was a trespasser based on the testimony of
the three officers, including a former Boston municipal police

9 The Commonwealth acknowledges that the stop occurred at
the time of pursuit. No argument has been made on appeal that
the officers were merely following the suspects. Compare
Commonwealth v. Perry, 62 Mass. App. Ct. 500, 502-503 (2004).
13
officer, that the park was closed to visitors because the park
lights were off.
10 The defendant contends that the officers'
assessment was based on a mistake of fact, because the
Commonwealth failed to show that the park was posted with no
trespassing signs. See G. L. c. 266, § 120 (requiring either
direct admonition or posted notice to prove trespass).
Reasonable suspicion is assessed based on the facts and
circumstances known to a reasonable police officer at the time
the stop is initiated. This determination does not require
perfect knowledge, but an assessment based on objective factors
"sufficient to create a reasonable suspicion in . . . a
reasonable . . . officer." Commonwealth v. Bernard, 84 Mass.
App. Ct. 771, 773 n.2 (2014), quoting from Commonwealth v.
Smigliano, 427 Mass. 490, 493 (1998). The absence of lighting
in the park at midnight formed an objective basis for
determining that the park was closed.
The defendant maintains that the Commonwealth failed to
meet its burden of proof because there was no evidence that the
park was posted, and no crime was actually committed. See
Commonwealth v. Greene, 461 Mass. 1011, 1011-1012 (2012).
Reasonable suspicion is not lacking even if the objective

10 The former municipal police officer's knowledge of
municipal trespass ordinances may be imputed to his fellow
officers. See Commonwealth v. Roland R., 448 Mass. 278, 285
(2007).
14
factual basis for reasonable suspicion is shown after the fact
to be erroneous. See Commonwealth v. Rivas, 77 Mass. App. Ct.
210, 215-216 (2010) ("red rejection sticker" on car provided
objective factual basis for concluding that there is or may be
defect making operation of car unlawful even if operation was
not, in fact, unlawful). Cf. Commonwealth v. Wilkerson, 436
Mass. 137, 140 (2002), quoting from Commonwealth v. Storey, 378
Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980)
("Probable cause to arrest is not vitiated when the basis on
which the police officer acted is shown after the fact to have
been erroneous, because the existence of probable cause is
determined 'at the moment of arrest,' not in light of subsequent
events").
11
For the first time on appeal the defendant cites a Boston
municipal ordinance for the premise that the defendant was
permitted to travel through the park after closing. See Boston
Parks and Recreation Commission Rule 1(f) (2014). The ordinance

11 It is unclear whether the defendant also argues mistake
of law, but in any event the argument is inapplicable. The late
hour and absence of lighting provided an objective factual basis
for concluding that the defendant and others were trespassing.
Greene, supra at 1011-1012, cited by the defendant, is
inapposite, as it deals with the sufficiency of proof of
trespass for conviction. For this reason we need not address
whether a mistake of law vitiates reasonable suspicion under
Massachusetts law. Compare Heien v. North Carolina, 135 S. Ct.
530, 536-540 (2014) (stop based on mistake of law valid under
Fourth Amendment to United States Constitution), with
Commonwealth v. Censullo, 40 Mass. App. Ct. 65, 67-70 (1996)
(invalidating stop based on mistake of law).
15
was not before the judge, and any argument based on the
ordinance is waived. See Commonwealth v. Quint Q., 84 Mass.
App. Ct. 507, 514-515 (2013); Mass.R.Crim.P. 13(a)(2), as
appearing in 442 Mass. 1516 (2004). Nor may this court take
judicial notice of municipal ordinances. See Cerwonka v.
Saugus, 316 Mass. 152, 153 (1944); Commonwealth v. Berney, 353
Mass. 571, 572 (1968); Mass. G. Evid. § 202(c) (2014).
Regardless, the officers' fully-credited testimony was that the
defendant was not passing through the park, but was standing on
the basketball court until the officers parked their unmarked
vehicle outside of the basketball court, at which time the
defendant fled. The judge's conclusion that there was
reasonable suspicion that the defendant was trespassing was not
error.
b. Arrest without probable cause. The defendant contends
that ordering him to the ground at gunpoint impermissibly
elevated the stop to an arrest lacking probable cause. "An
officer is entitled to take reasonable steps to ensure his
safety. Such steps do not automatically turn a stop into an
arrest." Williams, 422 Mass. at 117. The use of handcuffs is
also not dispositive. Id. at 118.
While "[t]he suspicion that the person encountered has an
illegal gun may not of itself justify the use of force absent
'other fear-provoking circumstances,'" Commonwealth v. Willis,
16
415 Mass. 814, 820 (1993), quoting from Commonwealth v. Bottari,
395 Mass. 777, 782 (1985), the history of firearms offenses in
the area, coupled with the officer's knowledge of the
defendant's prior firearm offense, provided the officer with
sufficient safety concerns to justify the officer's approach
with gun drawn. See Williams, supra at 117. Restraining the
defendant in handcuffs during the search of the park was
permissible since he "posed a substantial flight risk given that
he tried to flee" upon seeing the other officers get out of the
unmarked cruiser. Id. at 118.
c. Search of cell phone. The Commonwealth argues on
appeal that the search of the cell phone at the scene and the
later search at the station were justified as a search incident
to arrest, see Commonwealth v. Phifer, 463 Mass. 790 (2012);
Commonwealth v. Berry, 463 Mass. 800 (2012), or alternatively as
a search justified by exigent circumstances. The United States
Supreme Court's recent decision in Riley v. California, 134 S.
Ct. 2473, 2494 (2014) ("search incident to arrest exception does
not apply to cell phones"), decided after the judge's decision
in this case, forecloses both arguments. See Commonwealth v.
Sheridan, 470 Mass. 752, 763 (2015) (same).
In Phifer, the Supreme Judicial Court upheld the search of
the call log of a "flip phone" at the time of booking. The
court held that the highly limited search was a lawful search
17
incident to arrest because there was probable cause to believe
that the telephone would have evidence relevant to the crime
(narcotics trafficking) for which the defendant was arrested.
Phifer, supra at 796-798. In Berry, supra at 807, the Supreme
Judicial Court likewise held that the booking detective's review
of the call log on a flip phone constituted a proper search
incident to arrest because "the police had reasonable grounds to
believe that the recent call list would reveal evidence related
to the drug distribution crime for which the defendant was
arrested." In both cases the Supreme Judicial Court limited the
application of its holding, noting that its "assessment" would
not necessarily "be the same on different facts, or in relation
to a different type of intrusion into a more complex cellular
telephone or other information storage device." Phifer, supra
at 797; Berry, supra. These holdings rested, however, on the
foundational premise "that cellular telephones do not possess
special characteristics that remove them from the general
framework enunciated by the Supreme Court in the Edwards,
Robinson, and Chimel line of cases."12 Phifer, supra at 794 n.5.
In Riley, the Supreme Court rejected the application of the
Edwards, Robinson, and Chimel rationale to the warrantless
search of the call log of a flip phone at booking, requiring

12 See Chimel v. California, 395 U.S. 752, 762-763 (1969);
United States v. Robinson, 414 U.S. 218, 234-235 (1973); United
States v. Edwards, 415 U.S. 800, 802-803 (1974).
18
that a warrant be sought. The Court concluded that the digital
contents of cell phones "place vast quantities of personal
information" in the hands of the police, and that the search of
a cell phone "bears little resemblance to the type of brief
physical search considered in Robinson." Riley, supra at 2485.
The Court also held that the Chimel factors -- officer safety13
and prevention of destruction of evidence - generally have
little application in the context of the search of a cell phone
incident to arrest. Id. at 2485-2487.
Here, as in Riley, the Commonwealth argues that the
warrantless search was justified by the second Chimel rationale
-- preventing the destruction of evidence. Similar arguments
regarding telephone logs, as well as encryption, and even remote
wiping, were considered and rejected in Riley. The Court
reasoned that remote wiping, a form of "destruction unique to
digital data, . . . can be fully prevented" by, among other
things, turning the telephone off or removing its battery. Id.
at 2486-2487. Encryption may be foiled by placing the telephone
in a "Faraday bag," a "cheap, lightweight, and easy to use"
aluminum foil bag. Id. at 2487. With respect to password
protection, the Court observed that "officers are very unlikely

13 An officer may examine the telephone to determine, for
example, if a razor blade has been hidden there, but "[o]nce an
officer has secured a phone and eliminated any potential
physical threats, . . . data on the phone can endanger no one."
Riley, supra at 2485.
19
to come upon such a phone in an unlocked state" and that "if
officers happen to seize a phone in an unlocked state, they may
be able to disable a phone's automatic-lock feature in order to
prevent the phone from locking and encrypting data" while they
seek a warrant. Ibid. Finally, the Court expressly rejected
the government's argument that "officers should always be able
to search a phone's call log." Id. at 2492.
Here, the cell phone was found in an unlocked state. There
was no testimony suggesting that it was in fact password
protected, or that there was any concern of remote wiping.
There was no effort to secure the telephone in any fashion or to
seek a warrant. The rationale for the warrantless search was
that the record of calls would be pushed out of the call log in
the event of other incoming calls. This problem could be
averted either by turning the cell phone off, placing the cell
phone in a Faraday bag, or securing the cell phone and seeking a
warrant for it. Riley, supra. The warrantless search at the
scene and at the station violated the Fourth Amendment to the
United States Constitution.
14

14 Riley did not address the feasibility of obtaining a
warrant for the cell phone service provider's records. No claim
was made by the Commonwealth below that such records were
unavailable. At oral argument, the Commonwealth stated that it
preferred to avoid the delay associated with obtaining records
from a third party. As noted infra, however, no valid claim of
exigency has been made here.
20
For similar reasons, no exigent circumstances were present.
See Commonwealth v. Ericson, 85 Mass. App. Ct. 326, 331 n.8
(2014) ("We recognize that data on a cell phone -- even in
police custody -- may change through the length of time
preceding execution of a search warrant. . . . [I]ncoming text
messages may displace stored messages . . . . However, these
possibilities do not necessarily create an exigency requiring an
immediate search of a cell phone"). Exigent circumstances, such
as "the need to prevent the imminent destruction of evidence in
individual cases, to pursue a fleeing suspect, and to assist
persons who are seriously injured or are threatened with
imminent injury" may justify a warrantless search of a cell
phone. Riley, supra at 2494. These circumstances are not
present here, and for the reasons stated above, the possible
degradation of the call log is not an exigent circumstance since
that degradation is preventable. See United States v. Camou,
773 F.3d 932, 942 (9th Cir. 2014) ("volatile nature of call
logs" is not exigent circumstance; Riley "forecloses" that
argument). See generally Commonwealth v. Kaupp, 453 Mass. 102,
106 n.7 (2009) ("The exigency necessitating . . . seizure
dissipated once the computer had been secured, requiring the
police to seek a search warrant" to examine its contents).
15

15 We note that under Massachusetts law the inevitable
discovery doctrine does not apply in this circumstance. See
21
Because this error is one of constitutional dimension, we
must determine whether the admission of the evidence concerning
the call log was harmless beyond a reasonable doubt.
Commonwealth v. Charros, 443 Mass. 752, 765 (2005).16 "Under
this standard, the burden shifts to the Commonwealth, see
Commonwealth v. MacDonald (No.1), 368 Mass. 395, 399 (1975), to
show that the wrongfully admitted evidence did not contribute to
the verdicts. See Commonwealth v. Peixoto, 430 Mass. 654, 660
(2000)." Ibid. "We have recognized that a constitutional
violation gives rise to presumptive prejudice that can be
overcome only where the Commonwealth makes an 'affirmative
showing' of harmlessness beyond a reasonable doubt."
Commonwealth v. Tyree, 355 Mass. 676, 701 (2010), quoting from
Commonwealth v. Rios, 412 Mass. 208, 214 (1992). See
Commonwealth v. Hoyt, 461 Mass. 143, 154 (2011). "The
Commonwealth's brief makes no argument concerning whether the
error was harmless, and thus it has not made the requisite
showing." Commonwealth v. Murphy, 448 Mass. 452, 471 (2007).
Nonetheless, we consider the relevant factors.

Commonwealth v. Benoit, 382 Mass. 210, 218-219 (1981) (requiring
warrant). An inventory search would have resulted in discovery
of the cell phone, not its contents. Compare Commonwealth v.
O'Connor, 406 Mass. 112, 115-119 (1989).
16 Whether viewed as an old or new rule, the holding in
Riley is applicable to cases pending on direct review.
Commonwealth v. Clarke, 460 Mass. 30, 34-35 (2011), citing
Teague v. Lane, 489 U.S. 288 (1989).
22
"The 'essential question' is whether the error had, or
might have had, an effect on the jury and whether the error
contributed to or might have contributed to the jury's
verdicts." Commonwealth v. Housewright, 470 Mass. 665, 675
(2015), quoting from Commonwealth v. Perrot, 407 Mass. 539, 549
(1990). It is not enough to show that the evidence was
otherwise sufficient, or that the "inadmissible evidence was
consistent with the admissible evidence. Rather, we ask
whether, on the totality of the record before us, weighing the
properly admitted and the improperly admitted evidence together,
we are satisfied beyond a reasonable doubt that the tainted
evidence did not have an effect on the jury and did not
contribute to the jury's verdicts." Tyree, supra (quotation and
citation omitted).
In aid of this task, we look to factors such as "the
importance of the evidence in the prosecution's case; the
relationship between the evidence and the premise of the
defense; who introduced the issue at trial; the frequency of the
reference; whether the erroneously admitted evidence was merely
cumulative of properly admitted evidence; the availability or
effect of curative instructions; and the weight or quantum of
evidence of guilt." Commonwealth v. Dagraca, 447 Mass. 546, 553
(2006). See Commonwealth v. Mahdi, 388 Mass. 679, 697 (1983)
23
(these factors, though "useful," are "not exclusive or
exhaustive").
We conclude that the improperly admitted evidence was not
harmless beyond a reasonable doubt. Tyree, supra at 700-702.
To be sure, the evidence of guilt was sufficient, but it was not
overwhelming. There was no testimony from any of the officers
that they saw a concealed bulge, or that the defendant grabbed
for his waistband, pressed his waist, ran stiff-armed or in an
otherwise awkward manner, or engaged in any sort of furtive
gesture. Compare Commonwealth v. DePeiza, 449 Mass. 367, 371-
372 (2007); Commonwealth v. Jones-Pannell, 85 Mass. App. Ct. 390,
397, further appellate review granted, 469 Mass. 1106 (2014);
Commonwealth v. Colon, 87 Mass. App. Ct. 398, 402 (2015). No one
saw the defendant make a throwing motion. Compare Commonwealth
v. Franklin, 456 Mass. 818, 823 (2010). There was no DNA or
fingerprint evidence to link the defendant to the gun. There
was no percipient witness who saw him with the gun, and the
defendant denied that it was his. The gun was found late at
night along his flight path, but that path was located in a
public park populated by a number of Fourth of July party-goers.
The defense theory was that a party-goer may have tossed
the gun after the police chase began, and that the defendant
attempted to evade and mislead the police because he simply did
not want to be questioned or detained. This theory was not
24
summarily rejected by the jury. After a period of deliberation,
the jury requested reinstruction not only on reasonable doubt,
but specifically on consciousness of guilt. "[T]o overcome
[the] presumption of harm, [the] Commonwealth's admissible
evidence must be truly overwhelming" "in the sense that it was
so powerful as to nullify any effect the [illegally obtained
evidence] might have had on the jury." Tyree, supra at 704 n.44
(quotations omitted).17
Here, the evidence and arguments at trial focused in large
part on the inferences to be drawn from the consciousness of
guilt evidence -- the defendant's flight, his discarding of his
clothing, and his statements to the police regarding his
presence in the park and the call to his girlfriend. The
improperly admitted evidence went to the heart of that aspect of
the case. The call log was indisputable, concrete proof that
the defendant had not been talking on the cell phone with his
girlfriend before his arrest. The Commonwealth offered two
witnesses, Officer Steele and the booking sergeant, to testify
concerning what was found on the cell phone log. The
Commonwealth also introduced two photographs of the call log,

17 In Tyree, supra at 700-704, the court determined that the
admission of evidence which should have been suppressed was not
harmless where the evidence tied the defendant to the crime and
the evidence was a centerpiece of the prosecutor's closing
argument.
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all to show that the defendant had engaged in an elaborate
fabrication which was disproved by concrete, physical evidence.
The Commonwealth then repeatedly relied on the call log in
its closing to portray the defendant as a man who was telling
elaborate lies because he knew he was guilty of possessing the
gun. "[R]epeated emphasis on the improperly admitted evidence
in the prosecutor's closing argument . . . reflects the
centrality of that evidence to the Commonwealth's case." Id. at
703. The evidence "increas[ed] the likelihood that the jury
would view the defendant as a liar," who would make up a story
to avoid responsibility for his crimes. Hoyt, 461 Mass. at 155,
quoting from Commonwealth v. McNulty, 458 Mass. 305, 322 (2010).
The observation has been made in another context that "[w]e
cannot overestimate the effect on the jury of . . . [the]
argument tending to show consciousness of guilt on the part of
the defendant." Commonwealth v. Person, 400 Mass. 136, 142
(1987), quoting from Commonwealth v. Cobb, 374 Mass. 514, 521
(1978). The ongoing emphasis on the defendant's "lies" removes
this case from those in which the improperly admitted evidence
is considered merely cumulative. See Commonwealth v. Galicia,
447 Mass. 737, 747-748 (2006) (improperly admitted inculpatory
statements were cumulative of properly admitted inculpatory
statements); Commonwealth v. Martin, 467 Mass. 291, 309-310
26
(2014) (same; additional factors included flight after issuance
of warrant and use of false name).
The Commonwealth's case was built by carefully assembling
each piece of evidence of consciousness of guilt. The theme of
the closing argument was that of a puzzle. The prosecutor
stated that the case was similar to a child's puzzle because the
pieces of evidence were both big and small and that one could
fill in the whole puzzle without seeing all the pieces. He
described the big pieces as the discovery of the gun, the
flight, and the clothing. He then turned to the defendant's
"lies," and in the final moments of the closing argument,
emphasized the "fake phone conversations," urging the jury to
look at this "lie" in particular to fill in the "puzzle." Given
the emphasis placed by the prosecutor on the improperly admitted
evidence, we can not say that the tainted evidence did not
contribute to the jury's verdicts. See Hoyt, supra at 156.
The prosecutor's closing also contained statements which,
when combined with the puzzle analogy and the emphasis placed on
the improperly admitted evidence, underscore our conclusion that
the admission of the improperly seized evidence was not harmless
beyond a reasonable doubt. The prosecutor stated, "We're not
charging [the defendant] with that second firearm. . . . Maybe
he had it. Maybe he didn't. Maybe it was the person with the
blue shirt. We don't know. Because we don't know, we don't
27
charge. What we do know is that [the defendant] is the only
person who could have dropped that [firearm]." The statement,
"[b]ecause we don't know, we don't charge," followed closely by,
"[w]hat we do know," constituted vouching insofar as the
prosecutor "invite[d] the jury to rely on the prestige of the
government and its agents rather than the jury's own evaluation
of the evidence." Commonwealth v. Caswell, 85 Mass. App. Ct.
463, 475 (2014), quoting from United States v. Torres-Gaindo,
206 F.3d 136, 142 (1st Cir. 2000). The prosecutor's statements
also suggested that the Commonwealth charged the defendant with
possession of the firearm because the Commonwealth had superior
knowledge, inviting the jury to rely on the Commonwealth's
investigatory apparatus and inherent credibility to credit its
version of events and thus fill in the gaps in the "puzzle."
While these statements may or may not constitute reversible
error per se, they weigh heavily when determining whether other
error of constitutional dimension is harmless beyond a
reasonable doubt.
Finally, there were no instructions which ameliorated the
prejudice. The judge fully and properly instructed the jury in
accordance with Commonwealth v. Toney, 385 Mass. 575, 584-585
(1982). However, because the evidence was deemed properly
admitted, the judge (understandably) incorporated the
prosecutor's theory into the consciousness of guilt instruction,
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telling the jury that "the Commonwealth has argued that [the
defendant's] alleged flight after observing the officers . . .
and his false statements, I believe in argument characterized as
lies, after he was stopped by Officer Steele is evidence of his
consciousness of guilt." When the jury requested reinstruction
on consciousness of guilt, they were given a written copy of
this instruction. Because the instruction highlighted the
prosecutor's focus on "lies" that were proven in part by
improperly admitted evidence, the instruction did not
ameliorate, and indeed underscored, the prejudice.

Outcome: Accordingly, the judgments are reversed, the
verdicts are set aside, and the case is remanded for a new
trial.

Plaintiff's Experts:

Defendant's Experts:

Comments: