LOWELL -- Prosecutors are staying mum on the latest twist in an illegal wiretapping case against a 29-year-old Lowell man accused of secretly recording a Lowell police officer during a traffic stop late last year.

But a motion filed in the case last week alleges that a video file containing the recording was remotely deleted from an iPhone that has been in police custody since late last year.

And if the file was deleted as it was being sought as evidence in a criminal case, whoever deleted it could face even stiffer penalties than those connected to illegal wiretapping.

David Anaya is charged with a single count of illegal wiretapping for allegedly recording audio and video while hiding his iPhone near his leg as he spoke with Detective Nathan Bowler during a traffic stop on Dec. 29.

Bowler asked why Anaya was holding his hand down by his leg, which prompted Anaya to lift his hand and reveal a black iPhone6 that Bowler could see was recording audio and video, according to a police report.

Anaya told Bowler he was recording, which led Bowler to summons Anaya into court to face the criminal charge, according to a police report.

While the federal First Circuit Court of Appeals has ruled there is a constitutional right to openly record police, recording police in secret remains illegal in Massachusetts. The Supreme Judicial Court upheld the illegality of secret recordings in a 2001 decision.

Police seized Anaya's iPhone as evidence, but were unable to access it after getting a search warrant because the phone is password-protected, according to court documents.


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Prosecutors filed a motion in Lowell District Court to force Anaya to reveal the phone's password, but Anaya's attorney, Brian Shea, opposed that motion on the grounds that it was an overly broad "fishing expedition."

A judge still has not ruled on those competing motions, but Assistant District Attorney Anne Marie Gochis filed a new motion last week seeking a court order to have Apple Inc. provide the court with subscriber information, remote access logs and other data connected to the phone.

In the motion, Gochis repeats the allegation that the phone was used to unlawfully record police, but says "that data was subsequently remotely deleted from the phone."

Meghan Kelly, a spokeswoman for the Middlesex District Attorney's Office, declined to answer questions about whether and how police were apparently able to access the phone, and whether additional charges could be filed if the video file was deleted.

"As this directly relates to an ongoing investigation in an open case we are unable to comment further at this time," Kelly wrote in an email.

Anaya could not be reached for comment, and Shea has not returned several messages seeking comment on the case.

Illegal wiretapping is punishable by up to five years in prison, but tampering with a record, document or other object for use in an official criminal proceeding can be punished by up to 10 years in prison and a fine of up to $25,000, according to Massachusetts General Laws Chapter 268, Section 13E.

Judge Daniel Crane approved Gochis' motion on Tuesday, and issued an order for Apple to provide the court with the data sought by Dec. 16, according to court records.

The case against Anaya is unfolding even as the American Civil Liberties Union of Massachusetts has a pending federal lawsuit against authorities in Boston in which the ACLU is seeking to establish that there is a constitutionally-protected right to record police in secret.

A judge declined to dismiss that case earlier this year, and it remains pending in U.S. District Court in Boston.

Follow Robert Mills on Twitter @Robert_Mills