WORCESTER, MA—The lawyer representing Momoh Kamara, the West Boylston man accused of setting a 2018 fire that claimed the life of Firefighter Christopher Roy, is asking the court to bar prosecutors from using any evidence obtained from a search of Kamara's iCloud account.
Kamara, 22, is awaiting trial in Worcester Superior Court on second-degree murder, arson and burglary charges stemming from a Dec. 9, 2018, fire in a three-story apartment building at 5-7 Lowell St., where the suspect once lived. Roy, 36, died from smoke inhalation after he was trapped in the building during efforts to extinguish the blaze.
Kamara's lawyer, Blake J. Rubin, filed a motion Friday seeking the suppression of any evidence police acquired as a result of a search of an iCloud account associated with his client's cellphone.
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On Jan. 6, Judge David Ricciardone allowed a defense motion to suppress evidence from a search of the cellphone after finding it was unlawfully seized by Worcester police without a warrant. Prosecutors later filed a motion asking the judge to reconsider his ruling. The motion for reconsideration was denied Feb. 18.
On Feb. 3, police obtained a warrant out of Worcester Superior Court to search Kamara's iCloud account, the file hosting, storage and sharing service provided by Apple Inc. of California. The warrant authorized access to records and information related to Kamara, his email and cellphone, including where the account was accessed and data storage in connection with location, from midnight through noon on Dec. 9, 2018, the date of the fire.
In Friday's filing, Rubin charged that police and prosecutors "sought an 'end run' around Judge Ricciardone's order suppressing the phone and obtained a search warrant for data contained within an iCloud account associated with the suppressed phone.
"The Defendant submits this search warrant was sought as an attempt to get data associated with the same phone that was ordered suppressed by Judge Ricciardone," Rubin wrote.
As of Friday, he said in a memorandum in support of the motion, any data contained within the iCloud account at issue had not been turned over to the defense.
One of Rubin's arguments in support of his motion is that the affidavit filed in connection with the search warrant for the iCloud account failed to establish probable cause that Kamara possessed an iPhone during the early morning hours of Dec. 9, 2018, when the fire was reported.
"The premise for seeking this iCloud data is that the Defendant possessed and used an iPhone on Dec. 9, 2018. However, there is no evidence set forth by the Affiant in the Affidavit that the defendant possessed an iPhone or used an iPhone on Dec. 9, 2018," Rubin wrote.
While prosecutors say they have evidence that Kamara used Uber and Lyft services to arrange rides during the early morning hours of Dec. 9, 2018, Rubin argues that the affidavit in support of the search warrant failed to establish a connection between the use of ride-sharing services and the possession or use of a phone or iPhone.
The affidavit stated that "based on police interactions with Kamara on Dec. 13, 2018, it appears that the cellphone used by Kamara was an iPhone." Rubin contends that lone statement "is insufficient to show, even by probable cause, that the defendant possessed a phone on December 9, nevertheless an iPhone."
Rubin's memorandum went on to say that the affidavit contained no facts connecting Kamara to an iCloud account or showing he used such an account.
Prosecutors have not yet filed their written opposition to the suppression motion.
Kamara, through Rubin, is also requesting a so-called "Franks" hearing "in order that he may further develop a challenge to the truthfulness of the affidavit submitted" in support of the warrant to search the iCloud account. In connection with that request, Rubin alleged that there were "material misstatements and material omissions" by the affiant.
On Monday, Judge Daniel M. Wrenn gave the prosecution 30 days to file a response to the request for a hearing.
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