Judge allows motion to suppress cellphone seizure in LODD arson case
The judge said police should have obtained a warrant before seizing the cellphone of the man accused of setting the fire that killed Worcester Firefighter Christopher Roy
MassLive.com, Springfield, Mass.
WORCESTER, Mass. — A Worcester Superior Court judge on Monday ruled that a motion to suppress the seizure of a cell phone belonging to Momoh Kamara, who is charged with second-degree murder and arson in connection with a blaze that claimed the life of Worcester Firefighter Christopher Roy, is allowed, writing that police should have obtained a warrant before seizing the phone.
Kamara’s attorney, Blake Rubin, also had argued in a motion that his client did not voluntarily waive his Miranda rights when he was questioned by police, questioning during which Kamara offered his cell phone number. However, the judge denied the motion to suppress the statements made to police.
On Dec. 9, 2018, Roy was killed while battling a fire at 5-7 Lowell St. In the days following the blaze, police began to investigate Kamara, who lived at the address months before the fatal fire and was evicted after disagreements with other tenants.
Prosecutors allege Kamara, who was living in West Boylston at the time of the blaze, set fire to a plastic container in the basement of the building.
Now, the judge has decided that the seizure of the phone was warrantless and evidence taken from the phone must be suppressed. The phone was taken two days before a search warrant for the device was issued, the decision reads.
“Here, the police did not seek a warrant to search the defendant’s phone at the same time it sought the warrant to search his house for other evidence,” Judge David Ricciardone wrote in his decision. “By Dec. 19, the defendant had been a suspect, if not the only suspect, in the arson case for at least three days. The information derived from all sources ... led to the identification of the defendant by Dec. 16.”
As the investigation began, Worcester police asked West Boylston police to help arrange an interview with Kamara, court documents read.
Kamara, 22, was first questioned by police in West Boylston on Dec. 13, 2018, after it was discovered Kamara had an outstanding warrant for a district court case. He was arrested and brought to the station, where officers talked with Kamara before telling him they would bring him to the Worcester Police Department, according to court documents.
West Boylston officers read Kamara his Miranda rights and Kamara had no questions, court documents read. The officers did ask for Kamara’s cell phone number as a part of booking. Ricciardone wrote in his decision that Kamara’s cell phone did not appear to be of particular interest to West Boylston police.
When Kamara was brought to the Worcester police station later that day, he was read his Miranda rights. Kamara acknowledged that he understood his rights but declined to sign the Miranda sheet and said he wanted to speak with his mother before talking to the officers, court documents read.
Kamara was served with a summons to appear before a grand jury in Worcester on Dec. 18, 2018, and officers did not tell Kamara about the nature of the grand jury proceedings, according to the documents. Kamara was brought back to a holding cell and called his mother.
That night, Kamara was held until he could clear the warrant in court the next day. Then, he did not show up before the grand jury. Police picked up Kamara and brought him to court, where his cell phone was left with security officers at the entrance of the Worcester courthouse. Leaving a cell phone with security officers is contrary to normal policy, court documents read.
Kamara left court that day with his cell phone and arranged a ride to court with officers for the next day, which was Dec. 19, 2018.
Investigators used surveillance video and Uber records to help place Kamara at the scene of the fatal fire, officials have said.
On Dec. 19, 2018, police in a search warrant affidavit wrote that the person in the surveillance footage appeared to be Kamara. That day, police had been issued a search warrant for Kamara’s address at 157 Hartwell St. in West Boylston for items including clothing and a backpack observed on the surveillance footage. The search happened while Kamara was at the courthouse for his grand jury appearance, according to court records.
Again, Kamara left his cell phone with security officers at the courthouse. That’s when a Worcester police sergeant ordered courthouse officers to seize Kamara’s cell phone, court records read.
The cell phone was taken and a search warrant for the phone was obtained on Dec. 21, 2018, records read.
In order to seize a cell phone, there must be probable cause and exigent circumstances, Ricciardone wrote in his decision.
“There was no explanation provided as to why the police did not seek the warrant for the defendant’s phone,” Ricciardone wrote. “This may have been a simple oversight on their part. If it was, the police sought to remedy the situation by simply seizing the phone. This is not the same as addressing a true exigency."
Ricciardone added that when police did file the application for the search warrant for the phone, it was essentially the same as the affidavit for the search warrant of Kamara’s residence.
“I cannot conclude, on the record before me, that the search warrant for the phone was diligently sought,” Ricciardone wrote. “Because the court concludes that the police should have obtained a search warrant before seizing the defendant’s phone, any information subsequently taken from the phone itself must be suppressed as fruit of the poisonous tree.”
The judge wrote in his decision that the booking questions officers asked at the West Boylston and Worcester police stations did not constitute questions designed to elicit incriminating information. Therefore, Ricciardone wrote, Kamara’s statements providing his cell phone number should not be suppressed.
Kamara has pleaded not guilty to charges of second-degree murder, arson and burglary.
Last month, the Worcester Fire Department marked the first anniversary of Roy’s death by unveiling a memorial for the fallen firefighter outside the Webster Square Fire Station.
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