NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

13-P-1335 Appeals Court

COMMONWEALTH vs. DARREN DYETTE.

No. 13-P-1335.

Suffolk. January 5, 2015. - June 24, 2015.

Present: Katzmann, Sullivan, & Blake, JJ.

Firearms. Practice, Criminal, Required finding, Motion to 

suppress, Harmless error, Argument by prosecutor, 

Instructions to jury. Cellular Telephone. Constitutional 

Law, Search and seizure, Investigatory stop, Reasonable 

suspicion, Probable cause. Search and Seizure, Reasonable 

suspicion, Probable cause, Search incident to lawful 

arrest, Exigent circumstances. Error, Harmless.

Constitutional Law, Harmless error. Evidence, 

Consciousness of guilt.

Indictments found and returned in the Superior Court 

Department on November 19, 2010. 

A pretrial motion to suppress evidence was heard by D. 

Lloyd Macdonald, J., and the cases were tried before him.

Alexei Tymoczko for the defendant.

David D. McGowan, Assistant District Attorney (Matthew L.

Feeney, Assistant District Attorney, with him) for the 

Commonwealth.

SULLIVAN, J. 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.
25

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, 
28

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.

Conclusion. Accordingly, the judgments are reversed, the 

verdicts are set aside, and the case is remanded for a new 

trial.

So ordered.