RHODE ISLAND STATE POLICE

Inspectional Services

311 Danielson Pike

North Scituate, RI 02857

July 28, 2003

To: Col. Steven M. Pare

From: Inspector Gary S. Treml

Re: Internal Review of Narragansett Tribe "Smoke Shop" Incident

This report has been compiled at the request of the Honorable Donald Carcieri, Governor of the State of Rhode Island. Contained within are the events preceding and following the execution of a court-authorized search warrant signed by Judge Gonnella of the Rhode Island District Court. The Rhode Island State Police executed the search warrant on July 14, 2003 at the "Smoke Shop" located on Route 2 in the Town of Charlestown, Rhode Island.

During the month of June 2003, Corporal Donald Devine and Detective Michael Winquist of the Rhode Island State Police Intelligence Unit had been regularly attending meetings with representatives of the Governor's office, Division of Taxation, and the Attorney General's office to discuss the possibility of the Narragansett Indians opening a tax-free tobacco shop. During this same time period, members of the Federal Bureau of Alcohol, Tobacco and Firearms were involved in discussions with the Governor's office concerning this issue. The conclusion arrived at these meetings by members of the Attorney General's office is that it would be criminal for the Narragansett Indians to open a tobacco shop on Tribal lands on Route 2 in the Town of Charlestown, Rhode Island, and sell cigarettes without state tax stamps being affixed to the cigarette packs, per Rhode Island General Laws, Sections 44-19-1, 44-20-2, 44-20-12, 44-20-36, and 44-20-37. (Appendix A)

In the afternoon of Saturday, July 12, 2003, Major John Leyden, Field Operations Officer for the State Police, was advised by Colonel Pare that the Narragansett Indians had opened their smoke shop, and were selling tobacco products to the general public from a trailer on their Tribal land off Route 2 in the Town of Charlestown, Rhode Island. Colonel Pare and Major Leyden discussed the use of an undercover detective to purchase some tobacco products from the shop to confirm the products were missing tax stamps, thus violating State law. Once the purchase was completed and the violation confirmed, an affidavit would be drafted to support a search warrant to seize the illegal tobacco products.

Major Leyden then contacted Captain Steven O'Donnell, Detective Commander, on Saturday afternoon July 12, 2003. The above information was relayed to Captain O'Donnell and Corporal Donald Devine was assigned to make the purchase in an undercover capacity.

On Saturday, July 12, 2003, at approximately 3:00 p.m., Corporal Donald Devine and David J. Thomas from the Rhode Island Division of Taxation responded to the Smoke Shop located on Route 2 in Charlestown in an undercover capacity and made a cigarette purchase.

Upon inspection of the cigarettes purchased, the absence of an official tax stamp affixed to the purchased cigarettes was observed, thus constituting a violation of state criminal law.

Corporal Devine prepared the affidavit to support a Search Warrant, and on the evening of July 12, 2003 presented the document to the Honorable Judge Richard Gonnella of the Rhode Island District Court. After a review, Judge Gonnella signed the warrant authorizing the Rhode Island State Police to search and seize illegal tobacco products. (See Appendix B) After several conversations between Colonel Pare, Major Leyden, and Captain O'DonnellO'Donnell, it was determined that the warrant would not be served Saturday evening, but would be considered Sunday morning.

Preliminary planning discussions for the execution of the search warrant were set up for Sunday morning, July 13, 2003, at approximately 8:30 a.m. at the Hope Valley Barracks. This pre-planning session would expedite the execution of the warrant, should authorization be received.

Captain O'Donnell and Lieutenant Lt. John Leyden III established a plan for the executing the search warrant and determined what personnel would be included in the plan. With an approved plan from Captain O'Donnell in place, a warrant service/risk assessment survey was calculated at twelve (12) points. (See Appendix C) Based on this assessment, Lieutenant John Leyden III, Intelligence Unit Supervisor, would oversee the service of the warrant. (See Appendix

The plan utilized five (5) undercover detectives. Corporal Donald Devine was to enter the Smoke Shop to ascertain whether or not the shop was still stocked with illegal, untaxed cigarettes. While Corporal Devine was inside, a second team consisting of Sergeant James Demers and Detective Michelle Kershaw would enter the shop to observe and assist Corporal Devine in an undercover capacity. Once the second team was inside, a third team consisting of Detectives Kenneth Bell and Staci Shepherd would get in line to observe and assist the three detectives already inside. Upon the undercover detectives announcing their presence inside the shop, the Tactical Team may move in, secure the perimeter of the shop, and offer assistance where needed.

The five (5) undercover detectives were briefed on announcing their presence as members of the Rhode Island State Police, displaying their credentials and/or badges, and announcing the purpose of executing a court-authorized search warrant.

After several conversations between Colonel Pare, Major Leyden, Captain O'Donnell and Captain Miech, it was determined that the warrant would not be served on Sunday, July 13, 2003. All personnel were secured for the day.

Earlier while at the Hope Valley Barracks, Captain O'Donnell had a conversation with Sgt. David Hayden, Assistant Patrol Commander. Sergeant Hayden advised the Captain that he had a confidential source within the Tribe. The sergeant stated he had a good rapport with this subject, and would attempt to get the overall feelings within the Tribe regarding the impending State Police involvement. Sgt. Hayden contacted his confidential source and was advised that the Tribe would resist and not cooperate with any action by the State Police at the smoke shop, but would not use "deadly force." This information was passed on to Major Leyden.

On Monday morning, July 14, 2003 Major Leyden was advised by Colonel Pare that the search warrant would be executed, and to begin planning for its execution. The Colonel emphasized to Major Leyden that GovernorCarcieri did not want anyone injured, and that should the situation become violent and out of control, the state police withdraw and reassess. The Colonel and Major agreed that no one should be hurt over the sale of illegal tobacco products.

At 8:30 a.m. on July 14, 2003, Major John Leyden convened a meeting in his office with Captain Leo Messier, Captain Steven O'Donnell and Lt. James Swanberg, Commander of the Tactical Team. The purpose of this meeting was to re-assess the search warrant execution plan at the Smoke shop. During this meeting, the past history between the State Police and the Narragansett Tribe was discussed. There is a history of John Brown assaulting police officers. (See Appendix E) With the major concern regarding the safety of all Division members foremost, it was suggested by Captain Messier that the State Police utilize the Division's Quick Response Team, (QRT) instead of the Tactical Team. The Quick Response Team is a group of troopers specifically trained in crowd and riot control. The Team was created for the National Governor's Conference that was hosted by the State of Rhode Island in 2001. (See appendix F) The Team would provide additional uniform presence to secure the Smoke Shop and ensure the safety of the undercover detectives inside the shop.

Several other issues were discussed at this meeting. Should there be any resistance and subsequent arrests, the subject(s) would have to be transported from the scene. It was determined that the State Police bus would be utilized for this purpose.

Other crowd control methods were also discussed. As a result of these discussions, it was determined that an effective tool available to the State Police was the use of a patrol canine.

Detective Kevin Barry and his canine would be utilized. Additionally, members of the Tactical Team would be pre-positioned, along with Commercial Enforcement members and their mobile command post, but would not be utilized in the initial response.

Major Leyden instructed Captain Messier, Captain O'Donnell and Lt. Swanberg to notify the appropriate personnel, and a briefing was set for 12:00 noon at a vacant parcel of land in the old Ladd School complex in Exeter.

Attending this briefing were all involved state police members, (See Appendix G) along with Chief Sharkey and members of Charlestown Police Department. Major Leyden addressed the group, stressing that the Governor and Colonel did not want anyone to be injured over the sale of illegal cigarettes. He went on to state that the potential existed for the scene to become unruly and Division members should remain professional and stay safe at all times. The Major based his comment on the scene becoming unruly on information he received from Inspector Michael Iarossi of the Rhode Island State Police Professional Standards Unit. The inspector had received information that Chief Matthew Thomas, while being interviewed an a local talk radio show, stated that the state police would be met with violence should they step on tribal land. At the completion of Major Leyden's briefing, Division members were instructed by Captain Messier regarding their duty assignments and a description of the plan of action.

At approximately 1:00 p.m., Captain O'Donnell advised the five (5) undercover detectives to respond to the smoke shop as planned. The remaining members of the group gathered and responded to the VFW on Route 1 in Charlestown, several miles north of the smoke shop. This VFW lot was used as a staging area, awaiting word from Corporal Devine that the shop was open, and all five (5) undercover detectives were in position inside the shop.

At approximately 1:15 p.m., Corporal Devine advised Captain O'Donnell via cellular telephone that the shop was open and making illegal tobacco sales. Additionally, a shipment of cigarettes was expected at 3:00 p.m. that day and there was a large quantity of cigarettes on the premises.

At approximately 1:20 p.m., Sergeant James Demers and Detective Michelle Kershaw entered the shop and observed the same illegal activity.

At approximately 1:22 p.m., Detectives Ken Bell and Staci Shepherd entered the shop and observed the same illegal activity.

With this information, the initial responders left the VFW Post and responded to the smoke shop, arriving at approximately 1:25 p.m. As established in the search warrant operational plan, when Corporal Devine observed other Division members arriving, he would announce the State Police presence and that they were in possession of a court-authorized search warrant.

The first members of the Division to arrive at the location found the parking lot to be blocked by several vehicles positioned along the edge of the pavement. Tribal police, along with Tribal members, were pre-positioned behind the parked vehicles anticipating the arrival of the State Police. As soon as State Police members entered the parking lot, they were confronted with varying levels of resistance including pushing, shoving, and grabbing. One of the first members to arrive at the scene was Sgt. David Palmer, who encountered Lt. Champlin of the Narragansett Tribal Police. Sgt. Palmer advised Lt. Champlin that the State Police had a search warrant. Lt. Champlin inquired if it was a State or Federal warrant. He was advised it was a State warrant, to which Lt. Champlin replied they were not going to honor the search warrant because it was not a Federal order.

Verbal and physical resistance escalated as the State Police moved toward the smoke shop. As the initial responding troopers passed Mr. John Brown's location, Detective Sanzi observed Mr. Brown physically push a trooper from behind as the trooper passed by. Detective Sanzi took Mr. Brown into custody and was secured along the edge of the parking lot by Detective Russell. During this initial contact, the Tribal Police and tribal members did not know there were State Troopers already inside the smoke shop.

As the above was transpiring, Corporal Devine announced his presence inside the trailer. He stated, "State Police, I Have a Search Warrant." A female subject, later identified as Paula Dove, came from behind the counter. She was advised several more times of the warrant, but replied, "Not in here you don't". She then attempted to push Corporal Devine out the door.

With concerns of the safety of the undercover detectives inside the shop, division members began to move quickly across the parking lot to secure the trailer.

As troopers approached the entrance to the smoke shop, the tribal member's resistance escalated to a level of physical assault. The troopers responded to the assaults by tribal members with the lowest level of force, given the facts and circumstances presented at the time of the engagement. (See Appendix H) As these arrests were being affected, other tribal members attempted to interfere either physically or verbally with the lawful arrests as depicted on the available videotapes.

Simultaneously, Major Leyden and Captain O'Donnell continued to have conversation with Chief Matthew Thomas and Lieutenant Champlin of the Tribal Police. The Chief and Lieutenant were advised of the search warrant and were requested to assist the State Police with bringing the situation to some semblance of order. Their position remained that the State had no jurisdiction and should leave their land. This dialogue broke down as Chief Sachem and Lt. Champlin turned their attention to a confrontation that broke out on the deck at the front entrance to the smoke shop.

Several troopers reached the deck at the front entrance to the smoke shop. They attempted to enter the shop to assist the aforementioned undercover detectives that were involved in a physical confrontation with other tribal members. A struggle broke out on the deck and quickly escalated, where uniformed troopers were physically assaulted by Tribal members Hiawatha Brown and Chief Matthew Thomas. Upon entry to the trailer, Trp. Ann Assumpico was confronted by Hiawatha Brown, who continually slammed her arm in the door of the trailer to prevent entry. Cpl. Ernest Quarry attempted to help Trp. Assumpico and was met by Hiawatha Brown, who proceeded to choke him around the neck. Chief Matthew Thomas held Cpl. Quarry from behind, preventing him from stopping Hiawatha Brown from choking him. Chief Thomas was physically removed from the trooper's back and pushed from the deck. Hiawatha Brown continued to be physically combative, actively resisting arrest. He was handcuffed and placed on the ground just north of the trailer. Chief Thomas was not placed under arrest at this point in time.

While on the ground, Hiawatha Brown continued to resist a trooper who was attempting to control him. He was twisting his body, flailing his legs and not being compliant. Detective Barry and his canine came to the assistance of the trooper. The canine apprehended and released the subject's wrist and upper tricep. Detective Barry pulled the canine back, at which time Detective Barry was apprehended in the lower calf. Detective Barry maintained his position with canine assuring the subject remained compliant. With the canine in a heightened state, the canine attempted to apprehend the subject in the shoulder area. Detective Barry immediately pulled the canine back and the subject's shirt was grasped. Hiawatha Brown was later treated at the Hope Valley Barracks for the apprehensions by the canine. A preliminary review revealed the only apprehension that caused any injury on Hiawatha Brown was in the wrist area. A subpoena has been prepared for the Hope Valley Rescue report to determine any injury due to an upper arm apprehension. However, it appears that only the subject's shirt was apprehended.

With the entrance way cleared, uniformed troopers were able to enter the smoke shop and secure the area. As a tribal member identified as Adam Jennings was asked to leave the trailer he became physically aggressive and combative. He was subdued, placed under arrest, and sat on the ground outside the trailer due to a pre-existing ankle injury. Members of the Charlestown Rescue tended to Mr. Jennings.

Canine:

The canine is a seven (7) year oldmale German Shepherd that has been with the State Police for five (5) years. He is a dual purpose canine classified as a Patrol/Narcotic police working dog.

In March of 1998, canine and his handler, Detective Kevin Barry, attended the Maine Police Canine Academy in Warren, Maine. This was an eighty (80) hour course which was attended by one other handler and canine being trained by three (3) instructors. Upon completion of this school, canine underwent intensive patrol/narcotic in-service training under the direction of Trooper Roger Reardon of the Rhode Island State Police Canine Unit. (See Appendix 1) The training culminated in October, 1998, with an independent certification at the Massachusetts's State Police Academy in Braintree, Mass., during a weeklong canine certification and workshop seminar. Canine received a national certification from the North American Police Working Dog Association in patrol and narcotics. This certification lasts for two (2) years. In November 2000, the canine attended and completed the Rhode Island State Canine Seminar. This was a three (3) day seminar in patrol and narcotics.

Patrol Certification Entails the Following:

1. Tracking

2. Building Searches

3. Area Searches

4. Article searches

5. Obedience

Canine was re-certified to perform patrol functions in January 2002 by master Trainer Sergeant William Nott, of the New London, Conn., Police Department.

Presently, the canine is assigned to the Narcotics Unit and has been involved in more than one hundred (100) search warrants without incident. Members of the State Police Canine Unit, along with their canines, receive six hours of inservice training twice a month.

The canine and his handler, Detective Barry, are also assigned to the Tactical unit and the Quick Response Team.

Primary Objective of a Canine During an execution of a search warrant:

Provide crowd control, assist Troopers with non-compliant subjects, and set-up perimeter security around troopers attempting to arrest subjects to protect them from anyone interfering with the arrest.

Summary of Canine's Actions During this execution of a search warrant:

Canine maintained an extreme level of restraint during this raid. This is the most difficult situation for a canine with a large number of people present, multiple physical struggles, yelling, pushing, shoving, and the handler engaging unruly subjects. It is common for the canine to exhibit more aggression to protect his handler during situations like this. However, in this situation, the canine was under the control of Detective Barry and did not display any abnormal aggression towards the subject being arrested. The canine also apprehended two members of the State Police while there was a struggle under way. In the five (5) years of service with the Division, canine has had two (2) other apprehensions.

At this time, the trailer was secured and a perimeter was set up outside. As John Brown was being escorted from the parking lot a confrontation ensued. Chief Matthew Thomas grasped the arm of Mr. Brown and advised the arresting troopers he was not going to be led away. Sergeant Robert Mackisey advised Chief Thomas that he was interfering with a lawful arrest, and was ordered to let go of Mr. Brown's arm.

Chief Thomas escalated the incident to the point where he became physically combative and actively resistant toward the arresting troopers. At this point, it took several troopers to restrain and effectively control Chief Thomas. Chief Thomas would not comply with several requests to stop resisting. At this point, Chief Thomas was placed under arrest, taken to the ground and handcuffed.

With the perimeter established, all the subjects that were under arrest were transported from the scene while the process of seizing the cigarettes could begin in an orderly fashion. Members of the tribe directly outside the trailer continued to verbally taunt the troopers on the perimeter line.

As the process of seizing the cigarettes continued, a male subject identifying himself as Mr. Jack Killoy, legal counsel for the Narragansett Indians, entered the trailer. Mr. Killoy advised Troopers who he was. Corporal Donald Devine presented a copy of the search warrant to Attorney Killoy. (See Appendix J - Photo of Attorney Killoy with search warrant. He has on a white shirt and striped tie.)

The proceeds in the cash register, totaling approximately eight hundred dollars ($800.00) in U.S. currency and change was left in the register. Troopers seized the cigarettes and some paper documentation. (See Appendix K)

After all the cigarettes had been loaded into a State Police van, a count of the seizure was requested by Tribal Police Officer Edward McQuade. It was felt that this could be accomplished in a safer location at State Police Headquarters. A suggestion was made to have a representative from the Narragansett Indians ride in the van and another tribal member to follow the van to perform the inventory. This suggestion was agreed upon and the State Police gathered to secure from the parking lot.

During the entire seizure process, members of the Narragansett Indians continued to verbally taunt troopers on the perimeter line as depicted on videotapes. (A copy of the video filmed by members of the Rhode Island State Police has been included with this report.)

As the van left and the state police continued out of the parking lot north on Route 2 to their respective vehicles, tribal members followed continually insulting and criticizing the State Police. It should be noted that during the execution of the search warrant and when troopers were departing from the Smoke Shop, several African-American members of the Rhode Island State Police were continually taunted with various racial epithets. All troopers maintained their professional demeanor in not responding to these racial comments.

All of the subjects arrested were transported to the Hope Valley Barracks to be processed and arraigned by a Justice of the Peace. The juvenile subject was seated in the foyer outside the front office and was referred to Family Court.

As a result of the execution of the court ordered search warrant, the following individuals were arrested:

Thawn Harris, Age 33, of 21 Indian Cedar Drive, Charlestown, Rhode Island, charged with (1) Assaulting a uniformed police officer and (2) Resisting arrest.

John Brown, Age 45, of PO Box 607, Wyoming, Rhode Island, charged with (1 ) Disorderly conduct and (2) Resisting arrest.

Hiawatha Brown, Age 50, of 1030 Oaklawn Avenue, Cranston, Rhode Island, charged with (1) Assaulting a uniformed police officer, (2) Disorderly conduct, and (3) Resisting arrest.

Matthew Thomas, Age 42, of PO Box 1640, Charlestown, Rhode Island, charged with (1) Disorderly conduct and (2) Resisting arrest.

Randy R. Noka, Age 45, of 366 Church Street, Richmond, R.I., charged with (1) Disorderly conduct and (2) Resisting arrest.

Bella D. Noka, Age 38, of 366 Church Street, Richmond, Rhode Island, charged with (1) Simple assault, (2) Disorderly conduct and (3) Obstruction.

Adam W. Jennings, Age 39, of 325B Arcadia Road, Hope Valley, Rhode Island, charged with (1) Disorderly conduct and (2) Resisting arrest.

Juvenile Arrest: One juvenile was arrested and referred to Family Court.

The Hope Valley Rescue responded to treat the apprehension wound on Hiawatha Brown's lower arm. A short time later, Attorney Jack Killoy responded to the barracks. He was permitted to meet with his clients, privately in the holding room.

A request was made for the tribe's "Medicine Man" to respond to look at Hiawatha Brown and check on the general health of all tribal members. Dr. Bezile was contacted and responded to the barracks to assist the tribal members. The doctor found the blood pressure of one individual slightly elevated. He inquired if the State Police had blood pressure medication in their first aid kits. He was advised we did not have, nor could we prescribe medication. The doctor was concerned for this subject, so the Hope Valley Rescue was summoned. Upon arrival, they advised the doctor they could only transport and could not prescribe medication. The doctor concluded that the subject would not be transported and acquired medication from another tribal member. The rescue personnel subsequently left the barracks.

Justice of the Peace Joseph Scott responded to the Hope Valley Barracks in Wyoming, R.I., to handle the arraignments. The arraignment process ended at approximately 4:55 p.m. and the tribal members were released.

Based on an internal review of the entire incident, we have concluded:

1. An accurate threat assessment and a detailed search warrant plan were prepared prior to the execution of the search warrant.

2. All personnel were briefed on their duties and responsibilities prior to the execution of the search warrant.

3. The utilization of the Quick Response Team was appropriate as these individuals were specifically trained in handling disorderly/actively resisting individuals.

4. All Rhode Island State Police personnel were easily identifiable by either a Rhode Island State Police uniform or plain clothes personnel wearing a Rhode Island State Police jacket.

5. Numerous Rhode Island State Police personnel continually announced to Tribal leaders and members that their purpose was to execute a court authorized search warrant.

In conclusion, the Rhode Island State Police acted well within their legal authority in executing the search warrant. When faced with tribal members whose conduct was disorderly, escalating an already volatile situation, Troopers acted appropriately in effecting several arrests. Furthermore, the limited amount of force exercised by members of the Rhode Island State Police to defend themselves against violent and physical assaults and to effectuate arrests where individuals were physically resisting was appropriate and legally justified response. The members of the Rhode Island State Police used the least amount of force necessary to protect themselves and bystanders from physical harm while carrying out their responsibilities as law enforcement officers, in effectuating the arrests of the individuals who were obstructing justice and resisting arrest. This is reflected by the fact that no weapons, pepper spray, batons or physical blows were used by members of the Rhode Island State Police during this incident.

Respectfully Submitted,

Inspector Gary S. Treml

Inspectional Services

Injuries sustained by Rhode Island State Police Personnel during the execution of the Search Warrant:

Detective Trooper - Ankle injury during the arrest of John Brown.

Uniformed Trooper- Left shoulder injury.

Uniformed Trooper - Upper neck and back strain from altercation with Hiawatha Brown and Matthew Thomas. Three (3) apprehensions from K-9 / Left thigh and left calf.

Uniformed Trooper - One (1) apprehension from K-9 to lower left calf.

Uniformed Trooper - Injury to right forearm sustained when Hiawatha Brown slammed steel door to Smoke Shop on trooper's arm twice.

Uniformed Trooper - Left ankle sprain.

Detective Trooper - Bruised left bicep and mid back pain.