| Shortly after noon on January 12, 2014, police Lieutenant Michael McKiernan approached 32-year-old Carlos Alvarez Jr. and Jonathan Gomez, who were in the parking lot next to a grocery store in Worcester, Massachusetts.
McKiernan suspected that Gomez was buying drugs from Alvarez. As he was questioning them, both men fled on foot. McKiernan radioed for assistance. He fell down as he chased Alvarez. Another officer who responded, Joseph Tolson, caught Alvarez and put him in handcuffs. Gomez got away.
McKiernan claimed that as he and Tolson lifted Alvarez into a sitting position, a plastic bag containing white powder fell out of Alvarez’s pocket. Tolson would later assert that he did not see anything fall out of Alvarez’s pants.
McKiernan recovered $130 in cash from Alvarez and seized a Kyocera Boost mobile flip phone. McKiernan said that after Alvarez’s arrest, the phone rang multiple times, and he saw a text message “pop up” on the outer screen of the phone. The message said, “I need some shit.”
In his report of the arrest, McKiernan said that the message was “common language to purchase illegal drugs.” He also said, “I did not access the cell phone and I do not know what the number is.”
Alvarez was charged with possession with intent to distribute drugs, resisting arrest and trespassing.
McKiernan subsequently testified before a Worcester County grand jury about seeing the text message appear on the phone.
On January 26, 2015, Alvarez was indicted on charges of three counts of possession with intent to distribute narcotics, two counts of drug violation near a school zone, trespassing, and resisting arrest.
In January 2016, the prosecution dismissed all the charges except one count of possession with intent to distribute narcotics and trespassing.
Alvarez’s defense lawyer, Sean McGinty, filed a motion to suppress the evidence of the text message obtained from the cell phone, arguing that it was an illegal search and seizure.
In April 2016, following a hearing, the motion was denied by Superior Court Justice Raffi Yessayan. The judge’s ruling was based on McKiernan’s testimony that he “did not flip or answer the phone. Justice Yessayan noted that McKiernan “simply observed information on the screen of the lawfully seized phone.”
Alvarez went to trial in Worcester County Superior Court in January 2017. McKiernan testified that he was filling out his report at the police station after the arrest when the phone rang.
He said he looked at the phone and saw a text message from a woman named “Anna” which said, “I need some shit.”
The message was the crux of the prosecution’s argument that Alvarez was dealing drugs. Worcester police Sgt. Carl Supernor testified as an expert witness on drug transactions. He said the most common way the drug trade was carried out was “through use of cell phones, whether it be an actual phone call and have a conversation with a drug dealer, or to use the phone through text messages and just request what you want, where you're going to meet, and what time this is going to happen. It's usually the buyer that reaches out to the dealer, because the buyer knows when he's ready to use and when he has money to purchase drugs, and then the dealer will dictate typically when and where he'll make the sale.”
Supernor testified that buyers typically use coded language, such as what was used in the text message McKiernan said he saw.
The prosecutor asked, “Now, finally, based on your training and experience as a person in possession of one small rock of cocaine, a cell phone where he’s receiving – he or she is receiving text messages that are slightly coded, and they are in possession of $20 bills consistent with a drug dealer or a personal user?”
“Drug dealer,” Supernor replied. “If I’m looking at items that are more consistent with a person dealing drugs, a cell phone, a cell phone with a text message, a coded text message, monies of denominations, especially $20 bills, and items of that such, it would be more consistent with someone who is dealing drugs than someone who is just a personal user.”
On January 10, 2017, the jury convicted Alvarez of one count of distribution of cocaine and one count of trespassing. He was sentenced to a mandatory minimum of three years and six months in prison.
In August 2018, the Massachusetts Supreme Judicial Court upheld the drug distribution conviction. The Court vacated the trespassing conviction due to insufficient evidence.
In September 2019, Alvarez filed a motion for a new trial. The motion was based on a report by Steven Verronneau, a digital forensic expert. Verronneau said that the phone seized from Alvarez was not capable of displaying text messages on its outer screen. The motion contended that McKiernan had testified falsely before the grand jury, at the suppression hearing, and at trial that he saw the text “pop up” on the outer screen.
On November 4, 2019, the prosecution and the defense filed a joint motion to vacate the conviction based on the new evidence.
On November 19, 2019, Superior Court Justice Daniel Wrenn granted the motion and vacated the conviction. The prosecution then dismissed the case.
In January 2020, Alvarez filed a lawsuit against McKiernan and the Worcester police department. In December 2022, the lawsuit was settled for $272,500. Alvarez separately filed a claim seeking compensation from the state of Massachusetts.
– Maurice Possley
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