Commonwealth v. Dyette

• Decision Date: 24 June 2015
• Docket Number: No. 13–P–1335.,13–P–1335.
• Citation: 87 Mass.App.Ct. 548,32 N.E.3d 906
• Parties: COMMONWEALTH v. Darren DYETTE.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 548
32 N.E.3d 906

COMMONWEALTH
v.
Darren DYETTE.

No. 13–P–1335.

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 5, 2015.
Decided June 24, 2015.

32 N.E.3d 909

Alexei Tymoczko, West Newton, for the defendant.

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

Present: KATZMANN, SULLIVAN, & BLAKE, JJ.

Opinion

SULLIVAN, J.

After a jury trial, the defendant, Darren Dyette, was convicted of possession of a firearm and carrying a 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 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

32 N.E.3d 910

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, 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, 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.

32 N.E.3d 911

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 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 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 firearm. Commonwealth v. Romero, 464 Mass. 648, 652, 984 N.E.2d 853 (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.”

32 N.E.3d 912

Commonwealth v. Forte, 469 Mass. 469, 481, 14 N.E.3d 900 (2014) (quotations omitted). See Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98–99, 920 N.E.2d 45 (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...