The Loaded Firearm, the Call Log and the Fourth Amendment

After the Superior Court Department, Suffolk County Massachusetts convicted Darren Dyette of “possession of a firearm and carrying a loaded firearm” in violation of Massachusetts General Laws 269 § 10, he appealed.  Commonwealth v. Dyette, 32 N.E.3d 906 (Massachusetts Appeals Court 2015).  On appeal, he argued that his motion to suppress should have been granted 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. . . .

Commonwealth v. Dyette, supra.

The court began its opinion by explaining that "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 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, Steele saw the defendant, wearing a black tank top and holding a cell phone near his head, running out of the park. 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.’ Steele got out of the car with his gun drawn, ordering the defendant to the ground. The defendant complied, and was pat-frisked and handcuffed. The defendant told Steele he had not been in the park, but had been walking down the street. When asked why he was breathing heavily, the defendant stated that he had been arguing with his girlfriend on his cell phone. 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 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.

Commonwealth v. Dyette, supra.

Dyette was arrested,

charged with possession of the gun found to the right, and given his Miranda rights at the police station. He spoke with the booking sergeant and denied 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 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.

Commonwealth v. Dyette, supra.

The evidence at Dyette’s trial included

evidence that Officer Steele recognized [him]. 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 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 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.

Commonwealth v. Dyette, supra.

The Appeals Court began its analysis of Dyette’s arguments by noting that the

Commonwealth was required to prove beyond a reasonable doubt that the defendant had actual or constructive possession of the firearm. Commonwealth v. Romero, 464 Mass. 648, 984 N.E.2d 853 (Supreme Judicial Court of Massachusetts 2013). `[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, 14 N.E.3d 900 (Supreme Judicial Court of Massachusetts 2014) (quotations omitted). See Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 920 N.E.2d 45 (Supreme Judicial Court of Massachusetts 2010) (sufficiency `is to be measured upon that which was admitted in evidence without regard to the propriety of the admission’).

Commonwealth v. Dyette, supra.   It went on to explain that the evidence presented

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 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.

Commonwealth v. Dyette, supra.   The court then found that when the evidence was

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, 965 N.E.2d 800 (Supreme Judicial Court of Massachusetts 2012). 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 would find during a stop.’ Commonwealth v. Jefferson, supra. 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. Commonwealth v. Jefferson, supra. 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. Commonwealth v. Jefferson, supra.

Commonwealth v. Dyette, supra.

The Appeals Court then took up Dyette’s argument concerning the search of his cell phone.  Commonwealth v. Dyette, supra. It began by explaining that the prosecution argued that the cell phone at the scene and later at the police station were justified as

a search incident to arrest, see Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (Massachusetts Supreme Judicial Court 2012); Commonwealth v. Berry, 463 Mass. 800, 979 N.E.2d 218 (Massachusetts Supreme Judicial Court 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 (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, 25 N.E.3d 875 (Massachusetts Supreme Judicial Court 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 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. Commonwealth v. Phifer, supra.  In Commonwealth v. Berry, supra, 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.’ Commonwealth v. Phifer, supra; Commonwealth v. 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.’  Commonwealth v. Phifer, supra.

The court went on to explain that Riley v. California, the U.S. Supreme Court rejected

application of the Edwards, Robinson, and Chimel rationale to the warrantless search of the call log of a flip phone at booking, requiring 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 v. California, supra. The Court also held that the Chimel factors -- officer safety and prevention of destruction of evidence -- generally have little application in the context of the search of a cell phone incident to arrest. . . .

Commonwealth v. Dyette, supra.

It pointed out that here, as in Riley v. California, the prosecution claimed 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. . . . Encryption may be foiled by placing the telephone in a `Faraday bag,’ a `cheap, lightweight, and easy to use’ aluminum foil bag. . . . With respect to password protection, the Court observed that `officers are very unlikely 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. . . . Finally, the Court expressly rejected the government's argument that `officers should always be able to search a phone's call log.’ . . .  

Commonwealth v. Dyette, supra.

The court went on to apply the principles outlined above to this case, explaining that 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 v. California, supra. The warrantless search at the scene and at the station violated the Fourth Amendment to the United States Constitution. For similar reasons, no exigent circumstances were present. See  Commonwealth v. Ericson, 85 Mass.App.Ct. 326, 10 N.E.3d 127 (Massachusetts Appeals Court 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 v. California, supra. These circumstances are not present here, and for the reasons stated above, the possible degradation of the call is not an exigent circumstance since that degradation is preventable. See U.S. v. Camou, 773 F.3d 932 (U.S. Court of Appeals for the 9^th Circuit 2014) (`volatile nature of call logs’ is not exigent circumstance; Riley `forecloses’ that argument). See generally Commonwealth v. Kaupp, 453 Mass. 102, 899 N.E.2d 809 (2009) (`The exigency necessitating . . . seizure dissipated once the computer had been secured, requiring the police to seek a search warrant’ to examine its contents).

Commonwealth v. Dyette, supra.

The Appeals Court then explained that because the error outlined above was 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, 824 N.E.2d 809 (2005). `Under this standard, the burden shifts to the Commonwealth, see Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 333 N.E.2d 189 (Massachusetts Supreme Judicial Court 1975), to show that the wrongfully admitted evidence did not contribute to the verdicts. See Commonwealth v. Peixoto, 430 Mass. 654, 722 N.E.2d 470 (Massachusetts Supreme Judicial Court 2000).’  `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, 455 Mass. 676, 701, 919 N.E.2d 660 (Massachusetts Supreme Judicial Court 2010), quoting from Commonwealth v. Rios, 412 Mass. 208, 214, 588 N.E.2d 6 (Massachusetts Supreme Judicial Court 1992). . . .

Commonwealth v. Dyette, supra.

The court found that the "`essential question'" here was 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, 25 N.E.3d 273 (Massachusetts Supreme Judicial Court 2015), quoting from Commonwealth v. Perrot, 407 Mass. 539, 549, 554 N.E.2d 1205 (Massachusetts Supreme Judicial Court 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.’ Commonwealth v. Tyree, supra (quotation and citation omitted).

Commonwealth v. Dyette, supra.

In conducting this analysis the court considered such factors 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, 854 N.E.2d 1249 (Massachusetts Supreme Judicial Court 2006). . . . We conclude that the improperly admitted evidence was not harmless beyond a reasonable doubt. Commonwealth v. Tyree, supra. . . . [T]he 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.  . . . 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 summarily rejected by the jury. . . . 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, all to show that the defendant had engaged in an elaborate fabrication which was disproved by concrete, physical evidence.

Commonwealth v. Dyette, supra.

The court went on to explain that, at trial, the prosecution “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.’ Commonwealth v. Tyree, supra. 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. Commonwealth v. Hoyt, 461 Mass. 143, 958 N.E.2d 833 (Massachusetts Supreme Judicial Court 2011) (quoting from Commonwealth v. McNulty, 458 Mass. 305, 937 N.E.2d 16 (2010).) . . .

Commonwealth v. Dyette, supra.

It therefore found that the prosecution’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 Commonwealth v. Hoyt, supra.

Commonwealth v. Dyette, supra.

The court also pointed out that the prosecutor’s closing argument at trial included

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 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. Court 463, 11 N.E.3d 136 (Appeals Court 2014), quoting from United States v. Torres–Galindo, 206 F.3d 136, 142 (U.S. Court of Appeals for the 1^st Circuit 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.

Commonwealth v. Dyette, supra.

Finally, the Appeals Court explained that there were no jury instructions that ameliorated

the prejudice. The judge fully and properly instructed the jury in accordance with Commonwealth v. Toney, 385 Mass. 575, 433 N.E.2d 425 (Massachusetts Supreme Judicial Court 1982). However, because the evidence was deemed properly admitted, the judge (understandably) incorporated the prosecutor's theory into the consciousness of guilt instruction, 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.

Commonwealth v. Dyette, supra.

The Appeals Court therefore reversed the judgments, set aside the verdicts and remanded the case for a new trial.  Commonwealth v. Dyette, supra.