United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
LEVY CHIEF U.S. DISTRICT JUDGE.
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.
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 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.
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.
Fourth Amendment provides that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the 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
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
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 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.
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).
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 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).
foregoing reasons, Congo's Motion to Suppress Physical
Evidence (ECF No. 116) is DENIED.