United States v. Congo ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-2184
UNITED STATES,
Appellee,
v.
ABOUBACAR CONGO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Mary E. Davis and Davis & Davis on brief for appellant.
Noah Falk, Assistant United States Attorney, and Donald
E. Clark, Acting United States Attorney, on brief for appellee.
December 17, 2021
LYNCH, Circuit Judge. Aboubacar Congo pleaded guilty to
conspiring to distribute, and to possess with intent to distribute,
fentanyl and cocaine base. He did so after the district court
denied his motion to suppress evidence obtained during the
execution of a no-knock search warrant at the apartment where he
and his girlfriend, Lisa Lambert, lived. In pleading guilty, he
reserved the right to appeal the outcome of the suppression motion.
Congo now appeals the denial of his motion to suppress.
On appeal, he contends that the district court made two errors.
He argues that the district court erred in not suppressing evidence
obtained from the search because his backpack, which was found in
the apartment, was not properly subject to search. He then argues
for the first time on appeal that the district court erred in
failing to find that there was insufficient justification for the
no-knock provision of the warrant. We hold there was no error by
the district court in denying the motion to suppress, and the
district court did not plainly err in failing to find the no-knock
provision unjustified. We accordingly affirm.
I. Background
On November 18, 2018 at around 6:00pm, agents from the
United States Drug Enforcement Administration ("DEA") executed a
no-knock search warrant at an apartment at 42 Washington Avenue in
Old Orchard Beach, Maine. The agents entered using a ram to force
the door open and found seven people inside the apartment,
- 2 -
including the defendant Congo. They searched the entire apartment
and recovered more than ten grams of fentanyl and more than 33
grams of cocaine base, as well as drug paraphernalia. While
searching one of the bedrooms, the agents found a backpack on the
floor which was determined to be Congo's based on a search of its
contents. Inside the backpack, they found a storage unit bill and
key, several cell phones, a New York City parking receipt, and a
New York City toll invoice. The agents seized no evidence from
Congo's person. Three of the seven individuals in the apartment
during the search were not charged with crimes relating to it; one
was arrested on an outstanding arrest warrant and two were released
from the scene. The storage unit corresponding to the storage
unit bill and key found in the backpack was subsequently searched,
and a .380 caliber pistol, ammunition, documents bearing Congo's
name, a digital scale, and a small bag containing THC were
recovered.
The search warrant the agents were executing in
searching the 42 Washington Avenue apartment was issued on November
8, ten days earlier. In the affidavit supporting the application
for the warrant, DEA Special Agent Ryan Ford attested to facts
demonstrating probable cause that evidence of a conspiracy to
distribute, and to possess with intent to distribute, controlled
substances would be found on the premises of the 42 Washington
Avenue apartment. The affidavit was based on an extensive
- 3 -
investigation. The investigation uncovered evidence that Lisa
Lambert was a primary conspirator in a fentanyl and cocaine base
trafficking conspiracy run out of the 42 Washington Avenue
apartment. It also established that Congo lived at the apartment
and was dating Lambert.
Special Agent Ford also attested in the affidavit to his
personal experience that drug traffickers frequently conceal
drugs, records pertaining to drug sales, and other contraband at
private places, including their own residences. Attachment B to
the affidavit, entitled "Items To Be Seized," lists the types of
evidence expected to be found. In addition to controlled
substances and drug paraphernalia, it names "[a]ny/all cellular
telephones located in the premises," "[d]ocumentary or other items
of personal property that tend to identify the person(s) in the
residence, occupancy, control or ownership of the respective
locations to be searched," and "records . . . and receipts relating
to the transportation, ordering, purchase, sale or distribution of
controlled substances, and the acquisition, secreting, transfer,
concealment and/or expenditure of proceeds derived from the
distribution of controlled substances."
Special Agent Ford further attested to the need for a
no-knock warrant. He cited a number of factors including: the
proximity of the bedroom where Congo and his girlfriend stayed to
a bathroom, which could lead to destruction of evidence;
- 4 -
information from a cooperating defendant that she1 had seen Congo
carrying what she described as a "pistol," but which she thought
might be a pellet gun, and that Congo had bragged to her about
killing people; an anonymous tip that "[the residents of 42
Washington Avenue] are dangerous and have guns" and that
"Congo . . . has a 9mm pistol and threatened to kill my friend";
that Special Agent Ford was uncertain of the identity of at least
one resident of the apartment and had no ability to determine his
criminal history, access to weapons, or propensity to engage in
violence; and that in his experience, drug dealers frequently
possess weapons in order to protect their drugs or the proceeds of
their drug sales.
On December 17, 2018, Congo was charged with one count
of conspiring to distribute, and to possess with intent to
distribute, cocaine base and fentanyl; one count of possessing
with intent to distribute cocaine base and fentanyl; and one count
of making the residence at 42 Washington Avenue available for use
for the purpose of unlawfully storing, distributing, and using a
controlled substance.
On March 4, 2019, Congo moved to suppress all of the
evidence obtained through the search of his apartment on November
18, 2018. In the motion to dismiss, he argued that the affidavit
1 The gender of the informant is not identified in the
affidavit.
- 5 -
supporting the warrant did not establish probable cause that
evidence of a crime existed within the 42 Washington Avenue
apartment. Congo also contended that there was no nexus "linking
purported criminal activity to either the apartment or to [his]
person or property."
The district court held a hearing on the motion to
suppress on May 13, 2019. At the hearing, Congo argued that the
warrant lacked probable cause because the evidence supporting it
was insufficient and the information it was based on was stale.
The district court rejected these arguments and denied the motion
to suppress.
On September 25, 2019, Congo entered into a conditional
agreement to plead guilty to Count One of the indictment,
conspiracy, reserving the right to appeal the district court's
decision regarding the suppression motion. The court sentenced
Congo to 78 months in prison, three years of supervised release,
and a $100 mandatory special assessment.
II. Analysis
A mixed standard of review applies to denials of motions
to suppress: We "review[] findings of fact for clear error and
conclusions of law, including whether a particular set of facts
constitutes probable cause, de novo." United States v. Graf, 784
F.3d 1, 6 (1st Cir. 2015) (quoting United States v. Belton, 520
F.3d 80, 82 (1st Cir. 2008)). Arguments not made to the district
- 6 -
court, however, are reviewed only for plain error. See United
States v. St. Pierre, 488 F.3d 76, 79 n.2 (1st Cir. 2007). The
plain error standard requires the appellant to demonstrate "(1) an
error, (2) that is clear or obvious, (3) which affects his
substantial rights . . . and which (4) seriously impugns the
fairness, integrity, or public reputation of the proceeding."
United States v. Correa-Osorio, 784 F.3d 11, 18 (1st Cir. 2015).
Congo argues that the district court committed two
errors: it should have suppressed the evidence derived from the
search of his backpack, and it should have found that the affidavit
to the search warrant did not establish a need for a no-knock
provision. We take these arguments in turn.
A. The Search of Congo's Backpack
Congo first argues that because the affidavit to the
search warrant does not establish probable cause that he was a
member of the conspiracy, when the officers realized the backpack
that they found on the floor in the 42 Washington Avenue apartment
was his, they should have ceased searching it immediately. He
argues that because the search of his backpack was improper, all
evidence derived from it, including the evidence recovered from
the storage unit, should have been suppressed. The government
contends that this argument is waived because Congo makes this
argument for the first time on appeal. Congo replies that his
statement in his suppression motion that there was no nexus
- 7 -
"linking purported criminal activity to either the apartment or to
[his] person or property" was sufficient to preserve the argument.
We need not decide whether this argument was waived because even
under de novo review, Congo's argument is plainly incorrect.
It is well established that generally "any container
situated within residential premises which are the subject of a
validly-issued warrant may be searched if it is reasonable to
believe that the container could conceal items of the kind
portrayed in the warrant." United States v. Crooker, 688 F.3d 1,
8 (1st Cir. 2012) (quoting United States v. Rogers, 521 F.3d 5, 9–
10 (1st Cir. 2008)). Congo here does not challenge the validity
of the warrant to search the premises generally. Many of the items
listed in the attachment to the warrant detailing items to be
seized are things that could reasonably be thought to be contained
within a backpack, including, inter alia, controlled substances,
drug paraphernalia, books and records of sales, and documents
identifying the owner of the premises.
Moreover, contrary to Congo's contentions, the items
found in the backpack were the kinds of items the warrant
contemplated finding. Cell phones were specifically listed as
"items to be seized," and the agents found cell phones in the
backpack. The other items, a storage unit bill and key, a New
York City parking receipt, and a New York City toll invoice, fell
under several of the categories of evidence contemplated by the
- 8 -
warrant, including "[d]ocumentary or other items of personal
property that tend to identify the person(s) in the residence,
occupancy, control or ownership of the respective locations to be
searched," and "records . . . and receipts relating to the
transportation, ordering, purchase, sale or distribution of
controlled substances, and the acquisition, secreting, transfer,
concealment and/or expenditure of proceeds derived from the
distribution of controlled substances."
A warrant application "must demonstrate probable cause
to believe that (1) a crime has been committed -- the 'commission'
element, and (2) enumerated evidence of the offense will be found
at the place searched -- the so-called 'nexus' element." United
States v. Roman, 942 F.3d 43, 50 (1st Cir. 2019) (quoting United
States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015)). Congo makes
much of the fact that the affidavit to the 42 Washington Avenue
apartment search warrant application did not identify him as a
member of the conspiracy. He argues further that the information
against him in the warrant came from a cooperating defendant who
had been convicted of crimes of dishonesty and from an anonymous
tip. He points out that law enforcement failed to corroborate the
information provided by either of these sources, though they had
months to do so. He does not contest, however, that the warrant
to search the apartment as a whole was validly granted (except as
to the no-knock provision, discussed below). Nor could he, for
- 9 -
the affidavit to the warrant detailed a lengthy investigation which
uncovered evidence establishing probable cause that Lambert,
Congo's girlfriend and also a resident of 42 Washington Avenue,
was involved in a drug conspiracy taking place at the apartment.
As such, the required "nexus" between the evidence to be seized
and the place to be searched was established. That Congo was not
identified in the warrant as a co-conspirator is simply not
relevant in this case to the question of whether his backpack, a
container in the apartment subject to a valid search warrant, was
properly subject to search.
Congo's argument that the agents had a duty to stop
searching the backpack once they realized it was his is flatly
wrong. The backpack was found on the floor of the 42 Washington
Avenue apartment during a search pursuant to a validly issued
warrant. The backpack could be reasonably expected to, and in
fact did, contain evidence anticipated in the affidavit supporting
the warrant. There was nothing improper about the search, and the
district court did not err in not suppressing the evidence seized
from the backpack or the evidence obtained as a result of the
search of the backpack.
B. The Warrant's No-Knock Provision
Police generally must knock when executing a search
warrant, but "a 'no-knock' entry will be deemed reasonable if the
police 'have a reasonable suspicion that knocking and announcing
- 10 -
their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the
destruction of evidence.'" United States v. Jones, 523 F.3d 31,
36 (1st Cir. 2008) (quoting United States v. Boulanger, 444 F.3d
76, 81 (1st Cir. 2006)).
Congo concedes in his brief that he did not raise the
argument that the issuance of a no-knock warrant was unjustified
to the district court and that our standard of review is for plain
error. He fails to demonstrate that the district court plainly
erred.
Congo has the burden to show not only that the district
court committed an error, but that the error was "clear or
obvious." Correa-Osorio, 784 F.3d at 18. There was no clear or
obvious error here. The affidavit to the search warrant contained
numerous specific facts tending to show there was a reasonable
suspicion that, in the particular circumstances of this case,
knocking and announcing would be dangerous and could lead to the
destruction of evidence. See Jones, 523 F.3d at 36. Two sources
stated that Congo likely had a gun and had behaved violently (or
bragged about doing so) in the past. The agents did not know the
identities of all of the apartment's residents and so could not
know if they had criminal histories or possessed weapons. Special
Agent Ford attested that, based on his training and experience, it
- 11 -
was common for drug dealers to keep weapons in order to protect
their drugs or the proceeds of drug sales. The affidavit
established that the bedroom where Congo and his partner stayed
was in close proximity to the bathroom, making destruction of
evidence a concern.
In United States v. Adams, we upheld the grant of a no-
knock warrant based on information from confidential informants
that the defendant was engaged in drug trafficking and "ke[pt] his
shit" at the hotel room to be searched, in addition to the
affiant's attestation that drug dealers often have firearms to
protect their product. 971 F.3d 22, 36 (1st Cir. 2020) (alteration
in original). Here, there is even more evidence that a no-knock
warrant was justified by serious concerns about officer safety and
destruction of evidence. Congo once again argues that the
information from the cooperating defendant and anonymous tip
should be disregarded as untrustworthy. He ignores that the
affidavit supplies other compelling reasons to be concerned about
officer safety and evidence preservation. In light of the
considerable evidence, and taking into account that there need
only be a reasonable suspicion that a no-knock warrant is
necessary, there was no clear or obvious error by the district
court in not finding that the no-knock provision was unsupported.
Congo also fails to demonstrate that any error would
"affect[] his substantial rights." Correa-Osorio, 784 F.3d at 18.
- 12 -
He acknowledges that the Supreme Court's holding in Hudson v.
Michigan, 547 U.S. 586 (2006) forecloses suppression as a possible
remedy for violations of the knock-and-announce rule. Even if the
district court had found that the warrant should not have been no-
knock, Congo's suppression motion would still have been denied and
the case would have come out the same way. His substantial rights
have not been affected.2
Congo argues that his substantial rights have been
affected because he has been deprived of the ability to bring a
civil suit over the violation of his Fourth Amendment rights. This
argument is so underdeveloped as to be deemed waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."). Even if we were
to consider it, Congo does not explain how the district court not
ruling on this issue is what prevents him from bringing a civil
suit, given that the ruling he asks for would not have changed the
outcome of his suppression motion. While a criminal conviction
can act as a bar to certain civil rights claims, see Heck v.
2 Congo also briefly argues that "the holding in Hudson
should be re-visited." He makes no headway with this undeveloped
and frivolous argument. See Rodriguez de Quijas v. Shearson/Am.
Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this
Court has direct application in a case . . . the Court of Appeals
should follow [it] . . . leaving to this Court the prerogative of
overruling its own decisions.").
- 13 -
Humphrey, 512 U.S. 477, 486-87 (1994), Congo acknowledges that the
ruling he seeks would not lead the court to suppress any evidence
and so, presumably, would not alter his decision to plead guilty.
Finally, Congo does not demonstrate that the "fairness,
integrity, or public reputation of the proceeding" has been
seriously impugned. Correa-Osorio, 784 F.3d at 18. He reiterates
his unsupported argument that he has no avenue for recourse for
the violation of his Fourth Amendment rights, and argues that the
criminal justice system and defendants generally are negatively
impacted by a failure to vindicate constitutional rights. He has
not, however, demonstrated how the overall fairness, integrity, or
public reputation of his proceeding was seriously called into
question, particularly in light of his acknowledgment that the
outcome of his suppression motion would have been the same even if
the trial judge had made the ruling Congo now seeks.
Congo has not shown that the district court committed
plain error by not ruling that the no-knock provision was
unsupported.
III. Conclusion
The judgment of the district court is affirmed.
- 14 -