Court: If the cops arresting you are worried about your phone call records being wiped, they should turn the phone off

The Massachusetts Appeals Court today ordered a new trial for a man convicted of packing an illegal gun in Malcolm X Park in Roxbury because the officers who arrested him in 2010 looked at his cell phone's call history without a warrant, and Suffolk County prosecutors used the evidence they found against him.

The court agreed prosecutors made a strong case even without the phone information that Darren Dyette was guilty as charged. But it was not an air-tight case and police failed to prove they really had an immediate need to look at the phone history - such as that their lives or those of others might be at imminent risk - to warrant what was essentially a violation of Dyette's Fourth Amendment rights.

Because of that, the court said Dyette deserved a new trial - without the phone evidence.

Police argued they had to look at the phone history both at the scene and in the booking room because they were concerned any incoming calls might erase the evidence from the history on the flip phone that they needed to prove Dyette was lying about being winded after a phone argument with his girlfriend.

The court said officers had a simpler fix at their disposal, one that would not raise any constitutional issues: Turn the phone off until after they convinced a judge to give them a warrant to search the phone. For good measure, the court added that police worried about possible remote destruction of data on a phone could pop it into a "Faraday bag" - basically tin foil.

The court noted the phone evidence - which suggested Dyette was lying - was important to the prosecution case because it relied so heavily on showing jurors that Dyette knew he was doing something wrong:

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.

Innocent, etc.