USA v. LAMBERT et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	)
) 2:18-cr-00193-JDL
ABOUBACAR CONGO, 	)
)
Defendant. 	)
ORDER ON DEFENDANT’S MOTION TO SUPPRESS
Aboubacar Congo is charged with possessing a controlled substance with the
intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1) (West 2019), conspiring to
distribute a controlled substance in violation of 21 U.S.C.A. § 846, and maintaining a
drug-involved premises in violation of 21 U.S.C.A. § 856(a)(2). 	Congo seeks to
suppress all physical evidence gathered during a search of his apartment (ECF No.
116), which he argues was conducted pursuant to a warrant that lacked probable
cause. For the reasons that follow, the motion is DENIED.
I. FACTUAL BACKGROUND
On November 8, 2018, Special Agent Ryan Ford, an agent with the United
States Drug Enforcement Administration (“DEA”), submitted an application for a
search warrant of an apartment at 42 Washington Avenue in Old Orchard Beach.
Agent 	Ford’s 	affidavit 	in 	support 	of 	the 	warrant 	application 	described 	an
investigation, which had been conducted in October and early November 2018, into a
suspected conspiracy to traffic illegal drugs by Lisa Lambert and several associates.
During that period, and pursuant to several search warrants, investigators monitored
the text messages sent and received by Lambert’s phone. 	The text messages
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indicated that Lambert was involved in the distribution of controlled substances from
the apartment at 42 Washington Avenue where she resided with Congo, her
boyfriend. 	Investigators were also authorized to install a tracking device on the
vehicle of one of Lambert’s associates. 	The tracking device showed the vehicle
consistently traveling to the vicinity of the apartment and, on at least two occasions,
parking 	across 	the 	street. 	Analyzed 	alongside 	Lambert’s 	text 	messages, 	the
movements of the vehicle indicated that it was used to transport illegal drugs from
Massachusetts to the apartment.
The last text messages cited by Agent Ford’s affidavit were sent or received on
November 5, 2018. A magistrate judge approved the search warrant three days after
that, on November 8. On November 18, Agent Ford and other DEA agents surveilled
42 Washington Avenue while also monitoring the movements of Lambert’s associate’s
vehicle 	with 	the 	tracking 	device. 	They 	tracked 	the 	vehicle 	to 	a 	location 	in
Massachusetts which was known as a frequent area for illegal drug pickups. 	At
approximately 5:45 p.m., the vehicle returned to 42 Washington Avenue and two
males entered the apartment. 	At approximately 6:00 p.m., law enforcement agents
entered the apartment pursuant to the November 8 search warrant. 	The agents
found controlled substances and drug trafficking paraphernalia inside. 	There were
seven people in the apartment when the agents entered, including Congo. The agents
searched Congo but seized no evidence from his person.
II. LEGAL ANALYSIS
The Fourth Amendment provides that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the
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place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
To satisfy the Fourth Amendment, “a search-warrant application must reveal
probable cause to believe two things: 	one, that a crime has occurred—a.k.a., the
‘commission’ element; and two, that specified evidence of the crime will be at the
search location—a.k.a., the ‘nexus’ element.” United States v. Rivera, 825 F.3d 59, 63
(1st Cir. 2016). 	In determining whether probable cause exists, the judicial officer
reviewing a search warrant application must “make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit before him, . . .
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” 	Illinois v. Gates, 462 U.S. 213, 238 (1983). 	A reviewing court
“afford[s] an ample amount of deference to the issuing magistrate’s finding of
probable cause” and “will reverse a finding of probable cause only if [it] see[s] no
substantial basis for concluding that probable cause existed.” United States v. Faust,
853 F.3d 39, 46 (1st Cir. 2017) (internal quotation marks omitted).
Congo argues that Agent Ford’s affidavit failed to support probable cause to
search Congo’s apartment because the information it reported was both insufficient
and stale.1
I am satisfied that Agent Ford’s affidavit was sufficient to support a finding of
probable cause as to both the commission and nexus elements. The affidavit provided
the content, date, and time-stamps of numerous text messages that were purportedly
1 Congo’s Motion to Suppress also argues that Agent Ford’s affidavit failed to provide probable cause to support
the issuance of a warrant authorizing the search of any persons present in the apartment. ECF No. 116 at 1.
Congo therefore contends that the search of his person was unlawful and that any evidence recovered from that
search must be suppressed. 	However, because no evidence was recovered from Congo’s person, the parties
conceded at the suppression hearing that a ruling on this argument would constitute an advisory opinion. I
therefore do not address it further.
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sent and received by Lambert during October and early November 2018. 	The
messages indicated that Lambert and her associates were engaged in the distribution
of illegal drugs. Further, the text messages, analyzed together with the movements
of the tracked vehicle described in the affidavit, indicated that Lambert was
purportedly operating the drug operation out of her apartment at 42 Washington
Avenue in Old Orchard Beach. Thus, there was probable cause that an illegal drug
operation was being conducted at 42 Washington Avenue and that evidence of the
same would be found there.
In 	addition, 	the 	information 	in 	Agent 	Ford’s 	affidavit 	was 	not 	stale.
“Information contained in an affidavit is stale if it established probable cause at some
point in the past but does not support probable cause at the time of the warrant’s
issuance.” 	United States v. McLellan, 792 F.3d 200, 210 (1st Cir. 2015). 	“When
evaluating a claim of staleness,” a court “do[es] not measure the timeliness of
information simply by counting the number of days that have elapsed. Instead, [a
court] must assess the nature of the information, the nature and characteristics of
the suspected criminal activity, and the likely endurance of the information.” United
States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (internal citation
omitted).
Here, the underlying facts contained in the affidavit pointed to an ongoing drug
distribution scheme, and “it is common ground that drug conspiracies tend to be
ongoing operations, rendering timely information that might, in other contexts, be
regarded as stale.” 	United States v. Schaefer, 87 F.3d 562, 568 (1st Cir. 1996); see
also United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988) (noting that “[b]y its very
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nature, drug trafficking, if unchecked, is apt to persist over relatively long periods of
time”). Agent Ford’s affidavit relied on information gathered between just three days
and about a month before the warrant application—and roughly two to six weeks
before the resulting search. 	In the context of a suspected conspiracy to distribute
drugs, this relatively brief period of elapsed time did not render the information stale.
See United States v. Tiem Trinh, 665 F.3d 1, 14-15 (1st Cir. 2011) (holding that
information contained in an affidavit was not stale where one month had elapsed
between the warrant’s issuance and the last date when surveillance had revealed
narcotics-related activity).
III. CONCLUSION
For the foregoing reasons, Congo’s Motion to Suppress Physical Evidence (ECF
No. 116) is DENIED.
SO ORDERED.
Dated this 19th day of June, 2019.
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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