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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]