United States v. Lindsey

• Decision Date: 29 June 2021
• Docket Number: No. 19-2169,19-2169
• Citation: 3 F.4th 32
• Parties: UNITED STATES of America, Appellee, v. Bernard LINDSEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

3 F.4th 32

UNITED STATES of America, Appellee,

v.Bernard LINDSEY, Defendant, Appellant.

No. 19-2169

United States Court of Appeals, First Circuit.

June 29, 2021

Benjamin Brooks, with whom Good Schneider Cormier & Fried was on brief, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

Before Lynch, Lipez, and Kayatta, Circuit Judges.

LYNCH, Circuit Judge.

State probation officers discovered a black case containing a variety of illegal narcotics during a probation compliance check in defendant Bernard Lindsey's apartment. The police department obtained and executed a warrant to search his apartment, including the two cellphones found near Lindsey, for evidence of drug dealing. Based on the evidence found, Lindsey was charged and convicted of possession with intent to distribute both cocaine, fentanyl, and methamphetamines.

In the district court, Lindsey challenged the warrant on the ground that there was no probable cause to search his cellphones. On appeal he adds an argument that any evidence taken from the phones must be suppressed because the warrant did not adequately specify which files on the phones would be searched. We reject these arguments along with Lindsey's other arguments on appeal and affirm.

I. Factual Background

In April 2018, Lindsey was living alone in an apartment in Concord, New Hampshire. On April 16, his parole officer, Jonathan Boisselle, went to Lindsey's apartment with his partner, Benjamin Densmore, and two canine investigators to perform an unannounced home visit. Boisselle approached the apartment quietly and at the closed door heard movement inside. He knocked on the door and announced his presence several times. Boisselle heard a phone go off from inside the apartment but still no one opened the door. After two to three minutes, Lindsey opened the door and asked the officers to come in. Lindsey said he did not open the door immediately because he had been having trouble with his landlord due to bed bugs in the apartment.

Boisselle entered and saw another man, Bryson London, sitting on a couch near the entrance. He smelled marijuana and asked Lindsey if he had any illicit substances in the house. Lindsey denied having marijuana or any other substances. Boisselle next saw that London had a marijuana pipe between his legs and that there was a marijuana grinder on the couch. While taking possession of the grinder and pipe, Boisselle noticed a black case partially obscured by London's arm and other debris. Boisselle, believing the case might be a firearms case, immediately opened it and discovered bags of what appeared to be methamphetamines, cocaine, heroin, and fentanyl, as well as a scale, plastic bags, a metal spoon, tin foil and a plastic knife. The drugs were packaged in Ziploc bags and sandwich bags.

After opening the black case Boisselle and Densmore placed London and Lindsey under arrest. Boisselle patted Lindsey down and found a cellphone as well as approximately $3,400 in cash. Lindsey was employed as a server at the time making about $12 per hour but said that the money came from his tax return and that he had the money on his person because he did not believe in banks. The officers later learned that Lindsey had a bank account. The officers seized both the phone on Lindsey's person and a second cellphone of the same make and model from the table near Lindsey.¹

Boisselle next called the Concord Police Department ("CPD") for assistance. Before the Concord police arrived, New Hampshire Department of Corrections Investigator Christopher Ward searched the apartment. On the dresser in the bedroom he found latex gloves, breathing masks, and a container of what appeared to be Inositol powder, an over-the-counter substance which is sometimes used to cut drugs.

Shortly thereafter the CPD obtained a search warrant for Lindsey's apartment. Officer Brian Womersley's supporting affidavit stated that Lindsey had an "extensive criminal history" including "sales/possession of controlled drugs," that a witness had observed what appeared to be multiple drug sales out of a black Audi registered to Lindsey just five days earlier, and that four days earlier CPD officers, after responding to a report of possible drug activity, saw the black Audi parked in the area where suspected drug activity had been occurring. The affidavit also stated that Officer Boisselle had received reports from the Plymouth Police Department that Lindsey was selling drugs from his residence.

The warrant application went on to describe the various drugs and drug paraphernalia which had already been found in the apartment and that Lindsey had over $3,000 in cash in his pocket. It then stated that "[t]here were numerous cellphones within the apartment, and on Lindsey's person. Through [Womersley's] training and experience drug dealers will utilize several cellphones to conceal their drug business. They often change numbers, use ‘burner phones’ that are prepaid phones that they just keep changing once the minutes are used." Based on all of these facts the warrant application stated that "there [was] probable cause to believe that there [was] evidence of the crime of Sales of a Controlled Drug/Possession of Controlled Drugs ... and that this evidence [was] located [in the places specified in the warrant]."

"Attachment A" to the warrant application stated the search would be for "Illicit Drugs," "Drug Paraphernalia," "Items, Documents, and Records relating to Drug Trafficking," "Items which are Drug Profits or Evidence of Drug Trafficking Proceeds or to be used to obtain Drugs," and "Any and All Electronic Devices" in order to "obtain[ ] any and all evidence ... to corroborate Lindsey's criminal activity." Attachment A also explained that the "Addendum to Attachment A" would specify how the officers would search any seized electronic devices. However, someone mistakenly attached an Addendum which described procedures for searching electronic devices only for investigations into violations of several child pornography statutes.

In executing the warrant, the officers found tin foil, a box of Ziploc bags, and a box of sandwich bags in the kitchen. The Ziploc and sandwich bags were of the same two types in which the drugs in the black case were packaged.

The government also searched the cellphones found on Lindsey's person and on the table in his living room. On one of these phones the government found "selfie" photos of Lindsey, a text message addressing Lindsey by his middle name, and a number of text messages from the preceding months suggesting that Lindsey had been engaged in drug dealing.²

The police also found a series of text messages between Lindsey and "Brysin" -- a misspelling of London's first name -- from the week preceding Lindsey's arrest. On April 9, 2018, Lindsey received a text message from another person with the phone number of someone named "Bryson." Lindsey saved the number under "Brysin." On April 11, Bryson texted Lindsey "Prices bro." Lindsey asked him to call him on another cellphone number. That cellphone number was the number of the other phone seized in Lindsey's apartment. On the day of Lindsey's arrest, Bryson texted Lindsey at 9:33 AM asking if Lindsey could pick him up. Lindsey agreed and Bryson responded "Can you bring the whites with you please?" Officers later testified that "whites" is slang for cocaine.

II. Procedural History

Lindsey was indicted on one count of Possession with Intent to Distribute Cocaine and Fentanyl under 21 U.S.C §§ 841(a)(1) and (b)(1)(C) and one count of Possession with Intent to Distribute Five Grams or More of Methamphetamine under 21 U.S.C. §§ 841(a)(1) and (b)(viii).

On January 2, 2019, Lindsey filed a motion to suppress the evidence seized from the searches of the two cellphones on the grounds that there was not a sufficient "nexus" between the cellphones and the drug trafficking offense to conclude that there was a " ‘fair probability that contraband or evidence of a crime [would] be found’ within the cellphones." The government responded that the facts in the warrant provided a "substantial basis" for finding probable cause.

The district court heard argument on the motion on January 30, 2019.³ The district court denied the motion to suppress "for the reasons set forth by the government."

After a two-day jury trial on April 16 and 17, 2019, the jury found Lindsey guilty on both counts. At trial the government introduced, over Lindsey's objection, a number of text messages taken from one of the cellphones which indicated that Lindsey had been selling drugs in the months before his arrest. Lindsey objected on the grounds that evidence of previous drug dealing was impermissible propensity evidence under Federal Rule of Evidence 404(b). The court overruled these Rule 404(b) objections, stating

I think the cases seem pretty clear to me that in cases such as this where intent is the real focus of the case, that prior similar conduct is particularly relevant, has special relevance, and particular relevance to motive, intent to distribute, knowledge. Secondarily, of course, it provides background, completes the narrative that the government's attempting ... to prove.

The district court gave a limiting instruction to the jury stating that

text messages suggesting that the defendant previously engaged in conduct similar to that charged in this case ... may not be used to prove the defendant's character traits in order to argue or show that on a particular occasion the defendant acted in accordance with that character. ... You may consider that evidence solely for the limited purpose of deciding whether the defendant had the state of mind or intent to distribute necessary to commit the crimes charged in the indictment. (Emphasis added.)

Lindsey also objected, without specifying on what grounds, to the prosecution's asking Officer Boisselle what prompted his visit to Lindsey's apartment and to the...