F.A.P. v. J.E.S. (Lawyers Weekly No. 11-072-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-758 Appeals Court F.A.P. vs. J.E.S. No. 14-P-758. Middlesex. February 5, 2015. – June 30, 2015. Present: Vuono, Milkey, & Blake, JJ. Civil Harassment. Harassment Prevention. Protective Order. Rape. Minor. Child Abuse. Witness, Cross-examination. Evidence, Hearsay. Practice, Civil, Hearsay. Complaint for protection from harassment filed in the Middlesex County Division of the Juvenile Court Department on March 21, 2013. The case was heard by Gwendolyn R. Tyre, J. Dennis R. Brown for the defendant. Kimberly Ann Parr for the plaintiff. MILKEY, J. At an ex parte hearing, a Juvenile Court judge issued a temporary harassment prevention order against the defendant, an eleven year old boy. See G. L. c. 258E, § 5. The order was issued based on allegations that the defendant had digitally raped the plaintiff, the seven year old girl on whose behalf the harassment complaint was filed. Following an evidentiary hearing, the judge extended the order for one year.[1] On appeal of the order issued after hearing,[2] the defendant argues that the evidence of “harassment” was legally insufficient, and that the judge erred in multiple additional respects: by applying an erroneous interpretation of the statute, by improperly admitting hearsay testimony, and by unduly constraining his ability to cross-examine the plaintiff’s witnesses. Although we are unpersuaded by most of the defendant’s arguments, we agree that the judge applied an incorrect view of the law. We therefore remand this matter for further consideration. 1. Background.[3] The parents of the two children were close family friends, and their families spent a considerable amount of time together. During the afternoon of January 25, 2013, a Friday, the defendant and his mother arrived at the plaintiff’s home where they spent the next several hours. At one point, the defendant and girl were unsupervised together on the second floor.[4] This caused the plaintiff’s mother some concern because the children had, on one occasion in the past, engaged in some inappropriate touching.[5] A few minutes after the plaintiff’s mother called for the children to come downstairs, the plaintiff reported that she was bleeding from her vaginal area. Both mothers examined her in a bathroom and confirmed that she was in fact bleeding. The plaintiff’s mother called a doctor to discuss the matter, and eventually brought the plaintiff in for an appointment the following Monday. The remainder of […]
Commonwealth v. Wallace (and a companion case) (Lawyers Weekly No. 10-105-15)
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 SJC-11705 SJC-11707 COMMONWEALTH vs. NICKOYAN WALLACE (and a companion case[1]). Suffolk. February 4, 2015. – June 30, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Constitutional Law, Speedy trial, Delay in commencement of prosecution. Due Process of Law, Delay in commencement of prosecution. Practice, Criminal, Speedy trial, Delay in commencement of prosecution, Capital case. Indictments found and returned in the Superior Court Department on May 22, 2002. Motions to dismiss, filed on June 18 and 28, 2010, were heard by Charles J. Hely, J. An application for leave to prosecute an interlocutory appeal in the companion case was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were consolidated and reported by him to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Norman S. Zalkind (Ruth O’Meara-Costello with him) for Timi Wallace. Matthew A. Kamholtz for Nickoyan Wallace. Sarah Montgomery Lewis, Assistant District Attorney, for the Commonwealth. J. Anthony Downs, Samuel Sherry, Catherine Curley, Matthew R. Segal, Jessie Rossman, & Chauncey B. Wood for American Civil Liberties Union Foundation of Massachusetts & another, amici curiae, submitted a brief. SPINA, J. In this consolidated interlocutory appeal, we consider whether the Commonwealth’s delay in obtaining custody of the defendants Nickoyan Wallace (Nickoyan) and Timi Wallace (Timi),[2] brothers, from Federal prison authorities impermissibly affected their right to a speedy trial. In considering this question in motions to dismiss due to delays totaling more than nine years,[3] a judge of the Superior Court found that Timi’s right to a speedy trial had not been violated but that of Nickoyan had. A single justice of this court allowed the interlocutory appeals of Timi and the Commonwealth, consolidated the cases, and reported them to the Appeals Court. The Appeals Court held that the Commonwealth had not violated the speedy trial right of either brother, affirming the denial of Timi’s motion and reversing the allowance of Nickoyan’s. Commonwealth v. Wallace, 85 Mass. App. Ct. 123 (2014). This court granted the brothers’ applications for further appellate review. We affirm the decision of the trial court to deny Timi’s motion and to allow Nickoyan’s motion.[4] 1. Background. The essential facts are not in dispute, and […]
Commonwealth v. Martinez (Lawyers Weekly No. 11-070-15)
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 14-P-1087 Appeals Court COMMONWEALTH vs. KEYLA MARTINEZ.[1] No. 14-P-1087. Suffolk. March 3, 2015. – June 29, 2015. Present: Kantrowitz, Blake, & Massing, JJ. Motor Vehicle, Leaving scene of accident. Practice, Criminal, Required finding. Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on March 7, 2013. The case was tried before Robert J. McKenna, Jr., J. Sandra E. Lundy for the defendant. Alison Taylor Holdway, Special Assistant District Attorney, for the Commonwealth. KANTROWITZ, J. In a case containing some rather odd facts, the defendant, Keyla Martinez, was convicted of leaving the scene of an automobile accident without making known her name, address, and vehicle registration number under G. L. c. 90, § 24(2)(a), despite her offer of the information. Providing the required information is necessary under the statute; in this case, the attempt to provide it was not adequate. Background. Around 12:15 A.M. on January 26, 2013, as the defendant was driving a station wagon on Main Street in Charlestown, she “sideswiped” the parked car of Jessica Cordiero, who was seated in the driver’s seat. At the time, Cordiero was speaking to her friend, whom she was dropping off at the friend’s residence.[2] After the crash, Cordiero could not exit her car from the driver’s side because of the damage. She had to move across her car’s interior and exit from the passenger side. The defendant’s station wagon stopped on the sidewalk. Cordiero began walking toward the defendant’s car. The defendant and a passenger both exited the station wagon. The defendant’s sister, who had been following the defendant in a third car, also pulled over. Strangely, the sister then entered the defendant’s station wagon and drove away, leaving the defendant and Cordiero.[3] Cordiero noted the license plate number on the station wagon, and her friend called the police. Cordiero then asked the defendant for her license and registration. The defendant responded that she did not have those materials as they were in her station wagon that had been driven away. The defendant, however, stated that the station wagon would return.[4] The defendant at some point told Cordiero that her children were also inside the station wagon. The defendant asked Cordiero not to call the police, stating, “I think we can take care of this between us.” Cordiero replied that […]
Commonwealth v. Thompson (Lawyers Weekly No. 11-069-15)
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 14-P-191 Appeals Court COMMONWEALTH vs. LLOYD W. THOMPSON. No. 14-P-191. Plymouth. February 4, 2015. – June 26, 2015. Present: Green, Grainger, & Massing, JJ. Motor Vehicle, Operating under the influence. Vessel, Alcoholic liquors. Evidence, Blood alcohol test. Constitutional Law, Blood test. Due Process of Law, Blood alcohol test. Consent. Search and Seizure, Consent. Practice, Criminal, Motion to suppress. Indictment found and returned in the Superior Court Department on December 19, 2011. A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. James J. Cipoletta for the defendant. GRAINGER, J. The defendant was indicted for operating a vessel under the influence of alcohol pursuant to G. L. c. 90B, § 8A. The Commonwealth appeals from a Superior Court judge’s order allowing the defendant’s motion to suppress the results of a blood test administered after his arrest. Background. We recite the facts relevant to the issue on appeal as found by the judge which, in any event, are undisputed. The defendant was operating his boat in Hull harbor when he struck a moored sailboat. His passenger was ejected from the boat, suffered severe blunt force neck trauma and later died as a result of her injuries. The defendant complained of a leg injury and was transported by ambulance to the South Shore hospital after being placed under arrest by police who had arrived on the scene responding to a report of the accident.[1] At the conclusion of the defendant’s medical treatment, the arresting officer asked the defendant for consent to give a blood sample for chemical testing. The officer testified that he read the defendant his rights “word-for-word” from the consent form created for a violation of operating a motor vehicle while intoxicated, G. L. c. 90, § 24. Several hours later the defendant signed a separate consent form required by the hospital and the nurse took the defendant’s blood sample.[2] Before trial the defendant moved to suppress the results of the blood sample, alleging that he did not give effective consent. The judge allowed the motion and […]
Adoption of Odetta (Lawyers Weekly No. 11-068-15)
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 14-P-211 Appeals Court ADOPTION OF ODETTA.[1] No. 14-P-211. Bristol. April 9, 2015. – June 26, 2015. Present: Grainger, Rubin, & Blake, JJ. Adoption, Visitation rights. Parent and Child, Adoption. Minor, Adoption, Visitation rights. Petition filed in the Bristol County Division of the Juvenile Court Department on March 30, 2009. The case was heard by Robert F. Murray, J. Afton M. Templin (Belle Soloway with her) for the father. William Cuttle, Assistant Attorney General, for Department of Children and Families. David Jonathan Cohen for the child. BLAKE, J. In a case of first impression, we determine that under the limited circumstances present in this case, it is in the best interests of the child to enjoy postadoption visitation with a relative who is neither a de facto parent, sibling, or grandparent. The father and the mother were the unmarried parents of Odetta, born in September, 2005. The father and the mother separated when Odetta was an infant. While Odetta lived with her mother, the father and his brother (the paternal uncle) assisted in raising her, including attending doctor appointments. The father and the mother did not have a formal parenting schedule, but Odetta spent time with her father and his wife, as well as with the paternal uncle and his family. Odetta also spent time with the mother’s extended family. In March, 2009, the mother was found strangled to death. Three days later, the father was charged with and ultimately convicted of her murder.[2] The Department of Children and Families (department) placed Odetta with her maternal aunt and uncle. It then sought to terminate the father’s rights and place Odetta for adoption with her maternal aunt and uncle. Initially, the father filed a guardianship petition requesting that the paternal uncle be appointed Odetta’s guardian. Thereafter, the paternal uncle, a Muslim, petitioned for guardianship of Odetta.[3] Following a lengthy trial over multiple days, a judge of the Juvenile Court terminated the father’s parental rights, approved the department’s plan for placement of Odetta, and ordered monthly visitation between the paternal uncle and Odetta. The visitation order was largely based on a determination that Odetta’s best interests will be served by allowing “her to have some contact with her father’s family, the tenets and practices of Islam which are part of her family heritage and […]
Commonwealth v. Libby (Lawyers Weekly No. 10-104-15)
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 SJC-11749 COMMONWEALTH vs. JEREMY LIBBY. Suffolk. February 4, 2015. – June 26, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Admissions and confessions, Waiver of constitutional rights. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Waiver. Waiver. Evidence, Admissions and confessions, Voluntariness of statement. Indictments found and returned in the Superior Court Department on July 31, 2012. A pretrial motion to suppress evidence was heard by Mary-Lou Rup, J. An application for leave to prosecute an interlocutory appeal was allowed by Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her. Jane Davidson Montori, Assistant District Attorney, for the Commonwealth. Marissa Elkins for the defendant. CORDY, J. The Commonwealth appeals from the ruling of a Superior Court judge suppressing statements made to police officers by the defendant during the course of two interviews: the first being prearrest and the second following his arrest. The defendant was advised of the Miranda rights at the commencement of both interviews, but, in various ways, those rights were not accurately explained. Among other things, we are required to consider the effect of the inaccurate explanation of those rights in a noncustodial setting on the voluntariness of statements made thereafter, and on the knowing, voluntary, and intelligent waiver of those rights in a subsequent custodial interrogation. We reverse the judge’s ruling suppressing the prearrest statement, and affirm her ruling suppressing the postarrest statement. Background. On June 27, 2012, members of the Palmer police department received a complaint regarding the sexual abuse of K.C., a six year old girl who resided in the home where the defendant was living. Shortly after police arrived at the home, the defendant voluntarily[1] accompanied them to the Palmer police station to discuss an allegation that he had inappropriately touched K.C. Sergeant Scott Haley was the only officer present during this conversation, and he began the interview by reading the defendant the Miranda rights. Haley then asked the defendant whether, with those rights in mind, the defendant was willing to talk “about these matters of concern.” After a somewhat lengthy colloquy regarding the appointment of counsel and whether the defendant was under arrest, discussed infra, the defendant signed a Miranda […]
Commonwealth v. Centeno (Lawyers Weekly No. 11-067-15)
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-1077 Appeals Court COMMONWEALTH vs. MARCOS CENTENO. No. 13-P-1077. Essex. November 10, 2014. – June 25, 2015. Present: Rubin, Brown, & Maldonado, JJ. Rape. Indecent Assault and Battery. Assault and Battery. Child Abuse. Evidence, Subsequent misconduct, Expert opinion. Witness, Expert. Jury and Jurors. Practice, Criminal, Jury and jurors, Conduct of juror, Voir dire. Indictments found and returned in the Superior Court Department on July 23, 2010. The cases were tried before Timothy Q. Feeley, J. William B. Van Lonkhuyzen for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. BROWN, J. The defendant was convicted by a jury on four indictments charging rape of a child, two indictments charging indecent assault and battery on a child under the age of fourteen, and one indictment charging assault and battery.[1] The defendant now appeals, claiming that (1) the judge abused his discretion when he allowed the admission of the defendant’s subsequent misconduct (subsequent bad acts) in evidence; (2) the judge erred in denying a motion for a required finding of not guilty on the indictment charging penile-vaginal rape, (3) the judge abused his discretion in allowing in evidence certain expert testimony that absence of physical injury is not inconsistent with anal rape; and (4) the judge did not abuse his discretion in declining to conduct a voir dire of a sitting juror who was visibly upset. We affirm. Facts. We briefly summarize the facts taken from the evidence presented at trial and reserve for later discussion such additional facts as are relevant to each issue raised on appeal. In 2004, when the victim was eight years old and entering third grade, the defendant moved into the home she shared with her mother and two younger brothers.[2] The defendant began to sexually assault the victim almost immediately. The incidents continued unabated and escalated until the defendant left the home in February, 2008.[3] The victim’s mother witnessed part of a single incident. Although the defendant left the home in February, 2008, the victim’s mother took the victim and her other children to visit him. In this same period, the victim revealed to her aunt that “[the defendant] used to touch” her.[4] The victim told her aunt not to tell anyone because she “felt embarrassed” and because she thought her mother really liked the defendant and she […]
Commonwealth v. Bastaldo (Lawyers Weekly No. 10-103-15)
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 SJC-11763 COMMONWEALTH vs. ELVIN BASTALDO. Hampden. February 5, 2015. – June 25, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Mayhem. Arrest. Resisting Arrest. Identification. Evidence, Identification, Consciousness of guilt, Flight. Practice, Criminal, Identification of defendant in courtroom, Request for jury instructions, Instructions to jury. Indictments found and returned in the Superior Court Department on March 14, 2013. The cases were tried before Constance M. Sweeney, J. The Supreme Judicial Court granted an application for direct appellate review. Patrick Levin, Committee for Public Counsel Services, for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. Karen A. Newirth, of New York, & Sarah L. Leddy, for The Innocence Project, Inc., amicus curiae, submitted a brief. Jessica LaClair, for Juan Bastaldo, amicus curiae, submitted a brief. GANTS, C.J. In the parking lot of a night club in Springfield, the defendant, Elvin Bastaldo, punched the victim, Juan Benito, several times in the face using brass knuckles, blinding him in one eye, while the victim was standing near a police officer who was arresting the defendant’s brother, Juan Bastaldo (Juan).[1] The defendant was convicted by a Superior Court jury of mayhem, in violation of G. L. c. 265, § 14, and resisting arrest, in violation of G. L. c. 268, § 32B.[2],[3] On appeal, the defendant claims that he is entitled to a new trial because (1) the judge abused her discretion in denying the defendant’s requested cross-racial and cross-ethnic eyewitness identification jury instruction where two of the three eyewitnesses were “Caucasian” and the defendant was a “dark-skinned Hispanic of Dominican descent”; (2) the admission of three in-court eyewitness identifications created a substantial risk of a miscarriage of justice where it was the first time any of them had formally identified the defendant;[4] and (3) the judge committed prejudicial error by giving a consciousness of guilt instruction that suggested to the jury that the defendant was the assailant.[5] We conclude that because this case was tried before our opinion issued in Commonwealth v. Gomes, 470 Mass. 352, 376, 382 (Appendix) (2015), where we prospectively required that a jury instruction on cross-racial eyewitness identification be given in these circumstances, the judge did not abuse her discretion in declining to give the defendant’s requested cross-racial and cross-ethnic instruction. We now revise the […]
Commonwealth v. Dorvil (Lawyers Weekly No. 10-102-15)
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 SJC-11738 COMMONWEALTH vs. JEAN G. DORVIL. Plymouth. February 5, 2015. – June 25, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Assault and Battery. Parent and Child, Discipline. Child Abuse. Complaint received and sworn to in the Brockton Division of the District Court Department on May 16, 2011. The case was heard by Julie J. Bernard, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jacob B. Stone for the defendant. Audrey Anderson, Assistant District Attorney, for the Commonwealth. Rebecca Kiley, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. LENK, J. We are called upon in this case, where the defendant stands convicted of assault and battery for spanking his minor child, to examine the contours of a parental privilege defense. On appeal, the defendant contends that the use of force to control and discipline his child in the circumstances was justified, excusing him from liability for conduct that otherwise would constitute a crime. Although we have on several prior occasions assumed that such a common-law privilege exists, we have neither expressly recognized it nor considered its proper scope. We do so today, deeply mindful of the dual important interests implicated in the defense: the welfare of children requiring protection against abuse, on the one hand, and, on the other, the avoidance of unnecessary State interference in parental autonomy as it concerns child rearing.[1] 1. Background. a. Overview. After a jury-waived trial, the defendant was convicted of assault and battery for spanking his daughter, then almost three years old. He also was convicted of threatening to commit a crime, based on his conduct while he was held at the police station following his arrest. He was acquitted of two other charges stemming from the same series of events. In his appeal to the Appeals Court, the defendant argued, among other things, that the evidence was insufficient to sustain a conviction of assault and battery in light of the parental privilege to use force in disciplining a minor child. The Appeals Court, in an unpublished memorandum and order issued pursuant to its rule 1:28, determined that the defendant’s conduct fell outside of the parental privilege defense and affirmed the […]
Commonwealth v. Dyette (Lawyers Weekly No. 11-066-15)
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 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 […]