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United States v. Stewart

United States District Court, D. Rhode Island

April 9, 2015


For Kiplagatt Stewart, Defendant: Andrew H. Berg, LEAD ATTORNEY, Sammartino & Berg, Providence, RI.

For Allen Prout, Defendant: William C. Dimitri, LEAD ATTORNEY, William C. Dimitri & Associates, Providence, RI.

For USA, Plaintiff: Milind M Shah, LEAD ATTORNEY, U.S. Attorney's Office, Providence, RI.


John J. McConnell, Jr., District Judge.

On September 7, 2012, agents from the Bureau of Alcohol, Tobacco, and Firearms (ATF), along with Providence Police officers and members of the Fugitive Task Force, arrested Defendant Kilplagatt Stewart at 132 Oakland Avenue in Providence, Rhode Island (" the apartment" ). After Mr. Stewart was removed from the apartment, ATF Special Agent Edward Troiano spoke with another individual living in the apartment, Jonas Fernandez, who gave Agent Troiano a tour of the apartment and oral and written consent to search it, including the room where Mr. Stewart was staying. Agent Troiano did not have a search warrant.

Pursuant to the search of that bedroom, Agent Troiano found medical supplies, some documents including Mr. Stewart's state-issued identification, and an unbound roll of bills totaling $6000 in the open pocket of a jacket hanging in the open closet. The $6000 is alleged to be the proceeds of a September 3, 2012 armed home invasion in West Warwick that Mr. Stewart is accused of committing and the medical supplies support the police's information that Mr. Stewart was shot during that robbery. Mr. Stewart moves to suppress that evidence on several grounds. (ECF No. 18). The Court has reviewed extensive briefing and held an evidentiary hearing where Agent Troiano, Mr. Fernandez, and another roommate Lawrence Livingstone testified. Based on the totality of that evidence, the Court denies Mr. Stewart's motion.


The Court makes the following factual findings relevant to its determination of Mr. Stewart's motion.

The West Warwick Police Department obtained an arrest warrant for Mr. Stewart and federal agents obtained a warrant to track his cell phone on September 4, 2012 for his role in the aimed home invasion. Two days later, Agent Troiano tracked Mr. Stewart's phone to an area of Union Avenue in Providence. He went to that location, saw Mr. Stewart get into a car, and followed it. He lost the car in traffic that day, but tracked Mr. Stewart's cell phone to the apartment on Oakland Avenue the next day, September 7, 2012. Agent Troiano observed the car that he had seen Mr. Stewart riding in parked at the apartment. Agent Troiano researched the address on Accurint[1] and learned that an individual named Jose Fernandez was associated with that apartment, but cellular data continued to show that Mr. Stewart's cell phone was located at the apartment. Based on this information and his observations, Agent Troiano believed that Mr. Stewart would be located at the apartment.

Law enforcement officers prepared to execute the arrest warrant at the apartment. The car was still there. They set up a perimeter and, between noon and 12:30, knocked loudly on the doors, identified themselves as police, and demanded entry. No one answered. Law enforcement continued to knock on the door. One of the officers observed an interior curtain move, leading them to conclude that someone was inside, but their knocking still went unanswered. After approximately five minutes, Task Force members used a battering ram to enter the apartment by force. Officers secured the scene and attempted to locate Mr. Stewart. He was found on the second floor in the hallway near a bedroom. The bedroom door was open, and a Task Force member saw the medical supplies on the television stand through the open door. Mr. Stewart had reportedly been shot four days earlier, fleeing the scene of the armed home invasion in West Warwick. Mr. Stewart was patted down, his phone was seized, and he was taken to the Providence Police Department.

The other occupants of the apartment, Mr. Fernandez, Lawrence Livingstone, and Sheila Larbi, were taken to the kitchen during the execution of the arrest warrant. They were all handcuffed.[2] Recognizing Mr. Fernandez's name from the Accurint search, Agent Troiano began to question him about the apartment, asking who was on the lease and about his relationship with Mr. Stewart. It is clear from both Mr. Fernandez's testimony and that of Agent Troiano that Mr. Fernandez was nervous and uncomfortable during the entire encounter, concerned that any association or involvement with the crime Mr. Stewart had been arrested for would affect his employment with Electric Boat. Nevertheless, Mr. Fernandez was cooperative and told Agent Troiano that he was the only person on the lease. Mr. Fernandez told Agent Troiano that he and Mr. Stewart were friends and that Mr. Stewart had been staying in the apartment for three days. He showed Agent Troiano the second floor bedrooms, indicating who lived in each bedroom. When pointed to the bedroom where Mr. Fernandez said Mr. Stewart was staying, Agent Troiano observed the medical supplies on the television stand through the open door of the room.

Agent Troiano asked Mr. Fernandez for permission to search the apartment and he agreed. Agent Troiano presented Mr. Fernandez with a consent form for him to read and sign. After Agent Troiano reviewed the form with him and ascertained that Mr. Fernandez understood what he was signing, Mr. Fernandez affirmed his oral consent and signed the form. At no time did Mr. Fernandez object to the search or express concern or a lack of understanding of what he was signing. The Court finds that Mr. Fernandez freely gave his consent. While other law enforcement searched the rest of the apartment, Agent Troiano searched the bedroom where Mr. Fernandez indicated that Mr. Stewart had been sleeping for the previous three days. He seized the medical supplies that he had observed earlier along with some documents, including Mr. Stewart's state-issued identification card showing residence at an address other than 132 Oakland Avenue, from the television stand. Agent Troiano also searched the open closet and the items hanging therein. He testified that he started at one end of the closet and individually began to scan through the clothing. When he got to a black jacket, he was able to see a roll of money protruding from a bulging jacket pocket. Believing it was evidence of the armed robbery where approximately $15,000 was stolen, Agent Troiano seized the currency.

The apartment search ended, but the investigation of the West Warwick robbery continued. Agent Troiano followed up with Mr. Fernandez a few days later. Mr. Fernandez did not have any new information to add to Agent Troiano's investigation. He was informed, however, that Agent Troiano felt obligated to report to Electric Boat that Mr. Stewart was present at Mr. Fernandez's apartment and the fact that drugs[3] were found there because Mr. Fernandez had a security clearance.[4] Agent Troiano did speak to someone at Electric Boat and testified that he told that person that he did not believe Mr. Fernandez was involved with the criminal activity. Mr. Fernandez testified that he was still employed at Electric Boat as of the hearing on this motion.

Mr. Stewart was ultimately charged with conspiracy to commit a Hobbs Act robbery (18 U.S.C. § 1951(a)) and Use of a Firearm in Furtherance of a Crime of Violence (18 U.S.C. § 924(c)(1)(A)(i)) for his role in the West Warwick armed robbery. He moves to suppress the evidence found pursuant to the ...

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