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,

(1st Cir. 2015) (quoting United States v. Belton,

(1st Cir. 2008)). Arguments not made to the district

- 6 - court, however, are reviewed only for plain error. See United

States v. St. Pierre,

, 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,

(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,

(1st Cir. 2012) (quoting United States v. Rogers,

, 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,

(1st Cir. 2019) (quoting United

States v. Dixon,

(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,

(1st Cir. 2008) (quoting United States v. Boulanger,

(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,

. 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.

(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,

(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,

(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.,

(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,

(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 -