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