Commonwealth v. Dyette

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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. Jones-
Pannell, 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.