(concurring in part and dissenting in part, with whom Gelinas, J., joins). In my view, the Motorola program box, the “copy cat” box, and the ESN and MIN combination lists, all contraband items found in plain view, were properly seized. Because the other items seized at the same time — the double “E” prong box, the computer equipment, and the cellular telephone found in the defendant’s car — were not contraband items and should have been suppressed, I concur with the majority that the error in admitting these items requires reversal of the fraud, larceny, and unlawful possession of the communications equipment convictions. However, I disagree with the majority’s conclusion that, on retrial, the contraband items may not be introduced in evidence. The three “contraband” items seized from the defendant’s premises that relate to the unlawful cloning operation were properly seized and, with regard to these items, I would affirm the judge’s denial of the defendant’s suppression motion.
These items were seized during the course of the execution of a valid search warrant, a point conceded by the majority. The police here, unlike in Commonwealth v. Lewin, 407 Mass. 617, 623-627 (1990), and in Commonwealth v. Nova, 50 Mass. App. Ct. 633, 635-636 (2000), obtained prior to the search in question a valid warrant to enter the apartment based on probable cause to search for drugs, although not to search for evidence of the cloning operation. When Kennefick returned to execute the search warrant, the same items that had aroused his suspicions during the earlier sweep search remained, and Hogaboom, who accompanied him and had expertise that Kennefick lacked, confirmed without delay that these items were, in fact, utilized *39in an unlawful cloning operation. See and compare United States v. Ewain, 88 F.3d 689, 695 (9th Cir. 1996) (that officer invited along, and not officer to whom warrant was issued, has expertise which makes immediately apparent criminal nature of objects in plain view, does not mean scope of warrant was exceeded). The majority states that this equipment was “mere evidence” of criminal activity and may only be seized without a warrant where “officers recognize it as plausibly related to criminal activity of which they already were aware.” Commonwealth v. D’Amour, 428 Mass. 725, 731 (1999), citing Commonwealth v. Bond, 375 Mass. 201, 206 (1978). They conclude, I submit erroneously, that there is no statute or common law rule forbidding the possession of such equipment. General Laws c. 166, § 42B (as amended through St. 1995, c. 272, § 2), makes unlawful the possession of, with the intent to use, instruments, equipment, or devices designed or adapted to fraudulently obtain telecommunication service. Further, prior to June 19, 1996, which was the date of the seizure of these items, the United States Congress, in 1994, amended 18 U.S.C. § 1029(a) by adding the Wireless Protection Act. See Pub. L. 103-414, § 206, 108 Stat. 429 (1994). Title 18 U.S.C. § 1029(a)(5), (6) (1994) made it unlawful to knowingly possess or control the type of hardware and software seized by the police in this case. Hogaboom’s expertise enabled him to immediately recognize this equipment as illegal, or contraband. See Commonwealth v. Ewain, supra.
The police need not have come across the contraband items inadvertently, see Commonwealth v. Accaputo, 380 Mass. 435, 448 (1980), and Commonwealth v. D Amour, supra, and, at least with respect to those three “contraband” items, it was apparent that they bore a nexus to criminal activity. Commonwealth v. Bond, 375 Mass, at 207. Commonwealth v. D Amour, supra. When items in plain view are seized but are not described in the warrant, the Commonwealth has the burden of showing at the hearing on the motion to suppress that, at the time of the seizure, it was apparent that the items bore a nexus to the crime. Commonwealth v. Rodriguez, 378 Mass. 296, 304 (1979). I agree that seizure of the cellular telephone violated the tenets of the plain view doctrine described in Arizona v. Hicks, *40480 U.S. 321, 325, 326-328 (1987). I further agree that the connection to criminal activity of the two other benign items, the “mere evidence” of criminal activity (the computer and the double “E” prong box), was not immediately apparent, as required by Commonwealth v. Bond, 375 Mass, at 206, and Commonwealth v. Accaputo, 380 Mass, at 447-448. However, the other items were contraband material, plausibly related to the unlawful cloning operation.
While Kennefick’s testimony at the suppression hearing was indeed insufficient to satisfy the Commonwealth’s burden, Hogaboom’s report was properly before the motion judge, as it was attached to the warrant return submitted to the judge by the Commonwealth for the purposes of resolving the issues in the hearing. To disparage Kennefick because he was “not exactly sure” (about the contraband) and to reject Hogaboom’s expertise which informed Kennefick’s decision to seize the contraband items, merely because Hogaboom did not testify at the motion hearing, in my estimation, elevates form over substance.
In the final analysis, since the double “E” prong box, the computer equipment, and the cellular telephone should have been suppressed, I conclude that the error in admitting this evidence was not harmless beyond a reasonable doubt. See Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 602 n.16 (2000). This evidence played a large role in demonstrating the existence, as well as the size, of the alleged cellular telephone cloning operation. These items were not “ ‘merely cumulative’ of evidence properly before the jury,” Commonwealth v. Sinnott, 399 Mass. 863, 872 n.8 (1987), and the cellular telephone found in the defendant’s car assisted the Commonwealth in connecting the defendant to the alleged illegal cloning operation. Without this evidence, it would have been much more difficult to convict the defendant of the cellular telephone cloning counts as well as of the counts charging possession of illegal cloning equipment, larceny, and unlawful possession of communications equipment. Hence, the “error had, or might have had, an effect on the jury and . . . contributed to or might have contributed to the verdicts.” Commonwealth v. Perrot, 407 Mass. 539, 549 (1990).