United States v. Clifford Laihben , 482 F. App'x 827 ( 2012 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4452
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    CLIFFORD LAIHBEN,
    Defendant - Appellant.
    Appeal from the United States District        Court for the Middle
    District of North Carolina, at Durham.         Catherine C. Eagles,
    District Judge. (1:07-cr-00039-CCE-1)
    Argued:    May 15, 2012                       Decided:   June 7, 2012
    Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    ARGUED: James B. Craven, III, Durham, North Carolina, for
    Appellant. Frank Joseph Chut, Jr., OFFICE OF THE UNITED STATES
    ATTORNEY, Greensboro, North Carolina, for Appellee.    ON BRIEF:
    Ripley   Rand,  United   States  Attorney,   Terri-Lei O'Malley,
    Assistant United States Attorney, OFFICE OF THE UNITED STATES
    ATTORNEY, Greensboro, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    A    federal      grand   jury       indicted      Clifford    Laihben     on
    counts    of     conspiracy,       credit        card    and     securities     fraud,
    obstruction      of    justice,    and   witness        tampering.         Following   a
    denial of his motion to suppress evidence seized during a search
    of his car, Laihben conditionally pled guilty to all counts,
    reserving      the    right   to   appeal       the   denial    of   his   suppression
    motion.   For the reasons that follow, we affirm.
    I.
    The search occurred in the early afternoon on August
    15, 2006, in Winston-Salem, North Carolina. 1
    Detective Steven Tollie and Agent Deborah McClearen,
    driving down U.S. Highway 52 in an unmarked police car while on
    motel drug interdiction duty, observed in front of them a Ford
    1
    In the district court and in his appellate brief, Laihben
    also posed a challenge to the court’s refusal to suppress
    evidence seized from his car in an unrelated second search on
    December 9, 2009 in High Bridge, New Jersey.     But, as defense
    counsel properly acknowledged at oral argument, none of the
    crimes charged in the indictment in any way rely on or even
    reference evidence obtained from this search.     Further, it is
    not at all clear that the district court even relied on this
    evidence in sentencing Laihben. In any event, Laihben makes no
    claim that the evidence obtained from the New Jersey search
    could not be considered by the court at sentencing. See United
    States   v.  Lee,   
    540 F.2d 1205
    ,   1207  (4th   Cir.   1976).
    Accordingly, even if the district court did err in denying
    Laihben’s motion to suppress evidence obtained during the New
    Jersey search, any error was harmless and merits no further
    discussion.
    2
    Escape with New York license plates cut across two lanes of
    traffic    to     exit      onto     Interstate          40    (“I-40”),     in     the    same
    direction       the    officers       were      traveling.             The   officers      soon
    noticed    the    same        car    make    another          unsafe    maneuver     when    it
    entered an exit ramp and then abruptly swerved back onto I-40.
    They followed the vehicle to warn the driver that his driving
    was unsafe and to offer directions.
    The Ford Escape left the highway at Stratford Road and
    made several other unsafe moves before turning into the parking
    lot of an abandoned restaurant, next to a Red Lobster.                                      The
    officers pulled up in the parking lot and parked 30 or 40 feet
    away from the Ford Escape.
    Det. Tollie approached the vehicle in plain clothes.
    Laihben,    who       was   driving       the     Ford     Escape,      cracked     open    his
    driver’s    side       door    when    Det.       Tollie       made    contact    with     him.
    After presenting his police badge and credentials, the detective
    told Laihben that he was not going to ticket him (in fact, Det.
    Tollie later testified that he did not even have a ticket book
    with him) but warned Laihben that he was “going to cause a
    wreck” if he wasn’t careful.                    The detective then asked Laihben
    if he was lost and needed directions.                           Laihben stared straight
    ahead and did not respond verbally.                            Instead, Laihben handed
    Det. Tollie his New York driver’s license and a card with the
    contact     information         of    a     New     York       detective     whom    Laihben
    3
    identified      as    his    uncle.        Det.       Tollie    had    not     asked    for
    identification.        From the outset, Laihben appeared very nervous,
    and continued to be so even after Det. Tollie assured Laihben
    that he would not be ticketed.
    Suspecting         something        was     not     right,    Det.    Tollie
    continued to make small talk so that he could “figure out what’s
    going on.”      Det. Tollie asked Laihben what he was doing in town
    and whether he had found a hotel.                       Laihben responded he was
    bringing his sister from New York to “Winston University,” which
    Det.   Tollie     knew      did   not    exist    but     thought      might    refer    to
    Winston-Salem        State    University.          Det.       Tollie   then     asked   if
    Laihben’s car was a rental; Laihben responded by handing Det.
    Tollie the paperwork for the car, which indicated that the car
    was rented to a “Shelly Laihben” at LaGuardia Airport.                                 Det.
    Tollie    asked      Laihben      who    Shelly       Laihben     was,    and    if     the
    passenger of the car was Shelly.                  Laihben responded that Shelly
    was his wife and that the passenger was his cousin, not Shelly.
    With respect to the hotel room, Laihben indicated that they were
    staying at a motel, which his cousin, the car passenger, had
    rented.
    Det.      Tollie      then    directed        his     attention      to     the
    passenger in the car and asked what her name was and where she
    was from.       She did not make eye contact and her voice trailed
    off as she said she was from New York and stated a name.                               Det.
    4
    Tollie became “convinced something was wrong” and thought it was
    possible that the passenger “was being held against her will.”
    Unable to hear the passenger, Det. Tollie told her to speak to
    Agent McClearen, who had been standing by the passenger’s side
    of the car.
    The   passenger      told      Agent     McClearen      her    name    was
    Brandy Green.        While Green had been speaking with Det. Tollie,
    Agent   McClearen        observed     Green      drop   a    card   into     her    purse.
    Agent   McClearen     asked     for    and       received     permission      to    search
    Green’s bag to look for an ID confirming her identity.                             In the
    purse, Agent McClearen found a Maryland driver’s license issued
    to “Zilah Cooper” with Green’s photograph.                     The agent also found
    Traveler’s Checks under the name “Zilah Cooper” and a credit
    card in the name “Simbi Yandezo.”
    In the meantime, Det. Tollie informed Laihben that he
    suspected “something [was] going on,” and asked if Laihben had
    “been     in    trouble     with    law      enforcement        before.”           Laihben
    responded that he had “done time on weapons violations.”                            Based
    on that information, Det. Tollie asked Laihben to step out of
    the car so that he could pat him down for weapons.                                 Laihben
    complied.        After    the   frisk,     Det.     Tollie      also   asked       Laihben
    additional questions about his relationship to Green, including
    whether they were cousins on their mother’s or father’s side.
    Laihben    backtracked      from    his    original         description,     indicating
    5
    that   “we’re   not   actually   cousins,    we’re   just    real    close    and
    sometimes we call each other cousins.”
    After speaking with Laihben, Det. Tollie went over to
    the other side of the car to ask Green similar questions.                    Det.
    Tollie testified that Green also appeared “extremely nervous.”
    When    he   asked    if   Laihben   was    her   cousin,    she    said     yes,
    indicating that their mothers were related.              She also said that
    not she, but Laihben had rented the motel room.              When confronted
    with the IDs with other women’s names found in her purse, Green
    explained that the purse belonged to a cousin in New York.                   When
    Det. Tollie asked if she had any identification with her name on
    it, Green responded that she had identification at the motel and
    consented to taking the officers there.
    At this point, the interaction had taken about 10-15
    minutes.     Det. Tollie informed Laihben of what had been found in
    Green’s purse and that the officers were going to drive Green to
    the    motel.    Laihben     refused   to    accompany      them    and    became
    argumentative.        Det. Tollie informed Laihben that “you don’t
    have to go anywhere with me, but you’re going to wait here while
    she and I go back to the motel.”           Det. Tollie called a uniformed
    police officer to wait with Laihben.
    At the motel, Det. Tollie discovered a receipt from
    the motel, indicating that the room had been rented by “Zilah
    Cooper” and that the room had been paid for with a Traveler’s
    6
    Check.     After confronting Green with the inconsistencies, Det.
    Tollie    ran      the    “Zilah         Cooper”       driver’s      license     through     the
    computer system and discovered that the license was fake.                                Based
    on this information, Det. Tollie suspected Green and Laihben of
    fraud crimes, and thereafter officers searched the vehicle and
    found    uncut          Traveler’s         Checks,          American     Express      hologram
    stickers, two credit cards with different names, along with gift
    cards, merchandise receipts, and retail store information.
    II.
    We       find   it    a    bit    difficult       to     ascertain      Laihben’s
    precise objection to this search.                           At the suppression hearing,
    he contended that Det. Tollie did not have reasonable suspicion
    to   detain     him      at   the       outset,       but   “concede[d]     that      once   the
    interview happened with [Green] about the credit cards and the
    names on the hotel room, that there was perhaps probable cause”
    to   conduct       a    search      of    the   car.         Thus,     Laihben     rested    his
    argument before the district court on his contention that “the
    Fourth Amendment was already run afoul” by the time the officers
    searched Green’s purse and the motel room.                              Laihben reasserted
    this argument in his briefing before this court.                                But, at oral
    argument before us, Laihben contended that while the officers
    may have had reasonable suspicion to detain him, they did not
    have    probable        cause      to    search       his    vehicle    based    on   evidence
    7
    found in Green’s purse and in the motel room.                            In any event, we
    address both contentions.
    In doing so, we review the district court’s factual
    findings for clear error and its legal determinations de novo.
    See United States v. Day, 
    591 F.3d 697
    , 682 (4th Cir. 2010).                                  Of
    course,    we    view    facts     in    the       light    most     favorable          to   the
    government, the prevailing party in the district court.                                      See
    United States v. Matthews, 
    591 F.3d 230
    , 234 (4th Cir. 2009).
    A.
    The    district     court       concluded          that     the     officers’
    consensual encounter with Laihben did not become a detention
    until Det. Tollie decided to go to the motel with Green, told
    Laihben    to    “stay       here,”    and    called       a     uniformed       officer      to
    monitor Laihben.         We agree.
    “A detention occurs where ‘in view of all [of] the
    circumstances         surrounding       the    incident,         a   reasonable         person
    would have believed that he was not free to leave.’”                                     United
    States    v.    Gray,    
    883 F.2d 320
    ,       322    (4th    Cir.    1989)        (quoting
    United    States        v.     Mendenhall,         
    446 U.S. 544
    ,        554     (1980)
    (plurality)).           Circumstances         that        may    suggest     a     detention
    include “the number of police officers present . . . , whether
    they were in uniform or displayed their weapons, whether they
    touched    the       defendant,    whether         they    attempted        to    block      his
    8
    departure      or   restrain          his        movement,    whether       the     officers’
    questioning was non-threatening, and whether they treated the
    defendant as though they suspected him of illegal activity.”
    United States v. Jones, --- F.3d ----, 
    2012 WL 1632566
    , at *5
    (4th Cir. May 10, 2012).
    Here, at the very outset of the encounter, Det. Tollie
    informed Laihben he would not ticket him and was simply trying
    to help if he needed directions.                      Laihben himself acknowledged
    that   “when    [Det.      Tollie]          first     approached         the     vehicle,    he
    approached me very respectfully.”                     See United States v. Drayton,
    
    536 U.S. 194
    , 200 (2002) (noting that law enforcement officers
    do not create a detention “merely by approaching individuals
    . . . and putting questions to them”).                       Det. Tollie’s weapon was
    concealed, and he did not threaten or use physical force.                                   See
    United   States     v.    Analla,       
    975 F.2d 119
    ,    124    (4th    Cir.   1992)
    (holding     that   police      did     not        detain    suspect      where     defendant
    cooperated with police, there was no threat of physical force,
    and    the   officers’         tone         of     voice     was    not     intimidating).
    Moreover, Laihben was not aware of a police car “conspicuously
    following     him,”      and    the    officer        did    not    block      Laihben      from
    moving his vehicle.            Jones, 
    2012 WL 1632566
    , at *5.                     Nor did the
    officers begin the encounter with an immediate show of force by
    asking Laihben to lift up his shirt and submit to a patdown.
    Id. at *7-8.
    9
    Det. Tollie detained Laihben only after he could not
    ascertain Brandy Green’s identity and she offered to take the
    officers     to    the     motel      room      where   she       claimed      to     have
    identification.      By that time, Det. Tollie had amassed “specific
    and articulable facts which, taken together” warranted detention
    of    Laihben.     Terry    v.     Ohio,     
    392 U.S. 1
    ,   21    (1968).        For
    Laihben’s passenger identified herself as Brandy Green but the
    contents of her purse included identification bearing her photo
    but   the   name   Zilah    Cooper,     Traveler’s        Checks       under   the    name
    Zilah Cooper, and a credit card in the name of Simbi Yandezo,
    all   suggesting    identity       theft     and   fraud.         See    e.g.,      United
    States v. Hamie, 
    165 F.3d 80
    , 83 (1st Cir. 1999).                          Laihben and
    Green provided conflicting responses as to whether they were
    cousins and who had rented the motel room.                    See United States v.
    Wallace, 
    429 F.3d 969
    , 976 (10th Cir. 2005).                            Moreover, the
    nervousness of both Laihben and Green, even after the officer
    assured     them   that    he   was    not      going   to   give      them    a    ticket
    provided an additional basis for suspicion.                       See United States
    v. Foreman, 
    369 F.3d 776
    , 785 (4th Cir. 2004).                          These factors,
    taken together, were more than sufficient to warrant detention. 2
    2
    Of course, the police officers and Laihben did differ in
    their account of some of these facts, but the district court
    explicitly refused to credit Laihben’s testimony, noting his
    demeanor, inconsistent testimony, and prior criminal record for
    crimes of fraud and deception.    We, of course, defer to the
    (Continued)
    10
    B.
    Alternatively,   Laihben     contends      that    because      all    of
    the     incriminating        evidence   was    found   on    Green    or     within     her
    control in the motel room, it did not provide probable cause to
    search the car Laihben had driven and controlled.
    Probable cause for a search exists “where the known
    facts       and    circumstances    are   sufficient        to   warrant      a   man   of
    reasonable prudence in the belief that contraband or evidence of
    a crime will be found.”            Ornelas v. United States, 
    517 U.S. 690
    ,
    696 (1996).          We examine the totality of the circumstances “from
    the     standpoint      of   an   objectively    reasonable         police    officer.”
    
    Id.
     3
    Even before arriving at the motel, Det. Tollie had
    discovered in Green’s purse identification bearing her picture
    but the name Zilah Cooper and another credit card in the name of
    Simbi Yandezo.          Laihben and Green had also provided inconsistent
    district court on these credibility determinations. See United
    States v. Murray, 
    65 F.3d 1161
    , 1169 (4th Cir. 1995).
    3
    While “[t]he Fourth Amendment generally requires police to
    secure a warrant before conducting a search,” Maryland v. Dyson,
    
    527 U.S. 465
    , 466 (1999), a warrantless search may nevertheless
    be valid, if the search “falls within one of the narrow and
    well-delineated exceptions to the Fourth Amendment's warrant
    requirement,” United States v. Currence, 
    446 F.3d 554
    , 556 (4th
    Cir. 2006) (internal quotation marks and citation omitted).
    Here, Laihben does not dispute that the automobile search
    exception applies.   See United States v. Kelly, 
    592 F.3d 586
    ,
    589 (4th Cir. 2010).
    11
    answers about how they were related and who had rented the motel
    room.   This evidence was certainly enough to raise the officers’
    suspicions.      Once   the   officers      arrived    at    the   motel,      they
    ascertained that the room was paid for with a Traveler’s Check
    in the name of Zilah Cooper.              When Det. Tollie ran the Zilah
    Cooper driver’s license through the computer, it turned out to
    be fake.   These factors provided substantial evidence that Green
    was engaged in identity theft, see 
    18 U.S.C. §§ 1028
    , 1028A,
    credit card fraud, see 
    18 U.S.C. § 1029
    , and that the motel room
    had been obtained by false pretenses, see N.C.G.S. § 14-100(a);
    State v. Perkins, 
    638 S.E.2d 591
    , 595 (N.C. App. 2007).
    Moreover, this evidence sufficed to justify a search
    of the vehicle, although it had been rented and operated by
    Laihben,   not   Green.       Even   if    Laihben    is    correct     that    the
    evidence found on Green’s person and in the motel room only
    incriminated Green, she was a passenger in Laihben’s car, and
    this evidence provided probable cause to believe that additional
    evidence of her criminal activity might be found in that car.
    See United States v. Ross, 
    456 U.S. 798
    , 806-09, 820-21 (1982);
    United States v. Brown, 
    374 F.3d 1326
    , 1329 (D.C. Cir. 2004).
    Further,     the   evidence     uncovered       prior   to   the    car
    search provided a strong basis to conclude that Laihben himself
    was involved in criminal conduct with Green.                  For Laihben and
    Green were driving together, they were staying in the same motel
    12
    room in which evidence of identity theft was found, and they had
    provided inconsistent answers as to how they were related and
    who had rented the motel room.                 See Pringle v. United States,
    
    540 U.S. 366
    , 372-73 (2003) (“[A] car passenger . . . will often
    be engaged in a common enterprise with the driver, and have the
    same interest in concealing the fruits or the evidence of their
    wrongdoing.”); State v. Moore, 
    360 S.E.2d 293
    , 295-96 (N.C. App.
    1987)    (discussing      the     North     Carolina    crime    of     acting   in
    concert).
    In sum, by the time the officers searched Laihben’s
    car,    they    had   assembled    an     abundance    of   evidence,    providing
    probable cause for the search.
    III.
    For the forgoing reasons, the judgment of the district
    court is
    AFFIRMED.
    13