United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
federal grand jury indicted Defendant Lafiamma Deonte Diboh
on a charge of being a felon in possession of a firearm in
June 2017. But Diboh claims that the Government
obtained the evidence it will use to support that charge in
violation of his Fourth Amendment rights. He argues that
Raleigh Police Officer Wesley Lane found the gun that he
allegedly possessed after stopping him and trying to frisk
him without reasonable suspicion that he had either committed
a crime or that he was armed and dangerous. The Government,
for its part argues that Lane's interaction with Diboh
started out as a consensual encounter and that by the time
Lane seized and tried to frisk Diboh, Lane had reasonable
suspicion to believe that Diboh was trespassing and that he
had a weapon.
the Government has the better argument on the facts here.
When Lane first approached Diboh and questioned him, there
were no circumstances that would have caused a reasonable
person to believe that he was not free to disregard
Lane's inquiry and continue on his way. Based on
Diboh's answers to Lane's questions and Lane's
knowledge of the apartment complex where the encounter
occurred, Lane had reasonable suspicion to temporarily detain
Diboh for trespassing. And Lane's attempt to frisk Diboh
was constitutionally permissible because the totality of the
circumstances - particularly Diboh's decision to put his
hand in his pocket after Lane got out of his vehicle and his
change in behavior when Lane asked if he was armed -
established reasonable suspicion to believe that Diboh was
armed and dangerous. The undersigned thus recommends that the
district court deny Diboh's motion to suppress.
around 2:00 a.m. on a night in early February 2017, Lane was
in uniform and patrolling the South Park community-which he
described as one of Raleigh's most crime-ridden areas-in
his marked police vehicle. Tr. at 8:13-14; 9:6-15; 11:4-18.
Lane, who has been with the Raleigh Police Department for
seven years and patrolled the South Park community for the
past five, noticed a group of five to ten individuals
standing on the corner of Branch and East Streets. Tr. at
4:12-14; 7:16-18; 11:11-12:1. According to Lane, that
particular intersection was the location of an open drug
market, often frequented by members of the Black Presidents
Gang. Tr. at 4:12-14; 9:17-19.
familiar with the Black Presidents Gang through his work as a
gang liaison for his district, a position he has held since
2012. He testified that they are known for drug distribution,
the sale of firearms, and violent crimes, and that many
members are aligned with the United Blood Nation. Tr. at
5:5-8, 16-18; 6:5-7, 19-21. Lane has also personally seized
both weapons and narcotics from areas where members of the
Black Presidents Gang congregate. Tr. at 6:22-25.
drove toward the group, he noticed one person walk away. Tr.
at 12:4-5. Based on his experience, he believed the
individual either saw him or was alerted that a police
officer was coming down the street. Tr. at 76:23-76:5. The
individual walked away at a normal pace, but was heading
toward the Brown Birch Apartment Complex. Tr. at 12:6-8.
also familiar with Brown Birch. Drug trafficking and
prostitution have plagued the complex, which is located
within the South Park neighborhood, for years. Tr. at
14:1-12. Concerned about keeping the complex safe for the
families who reside there, the CEO of the property company
that manages the complex asked Lane to help prevent
trespassing back in 2016. Tr. at 13:17; 14:7-9. Brown Birch
tenants have also requested that Lane address the trespassing
issues. Tr. at 14:23-25. Since receiving these requests, Lane
has issued both verbal warnings and citations to trespassers.
Tr. at 20:8-12.
testified that “No Trespassing” signs have been
located throughout the property since at least 2012. Tr. at
15:8-19. One sign is posted at both of the complex's
official entrances, and there is usually one sign affixed to
each of the four sides of every building. Id. At the
very least, each building contains one sign, id.,
although they may be difficult to see at night, tr. at
61:21-23. Lane also testified that the complex is not a
reasonable shortcut to any location, explaining that there is
a greenway behind the property that is open from dawn to
dusk, but accessing it involves walking down a steep hill.
Tr. at 20:19-21:1; 22:17-18.
continued his patrol down several different streets, he saw
the individual again; this time he was taking a shortcut into
Brown Birch using a worn dirt path. Tr. at 22:23-23:3;
47:11-19. The street was poorly lit, so Lane eventually
turned his spotlight on the individual, who looked back at
him. Tr. at 23:23-25; 24:15-16. Lane immediately recognized
the individual as the defendant, Lafiamma Deonte Diboh,
someone he knew to be a validated member of the Black
Presidents Gang. Tr. at 7:3-7; 24:1. Diboh's name was
specifically mentioned as a gang member at meetings Lane
attended. Tr. at 41:19-21. He had also seen Diboh on previous
patrols. Tr. at 34:4-8.
continued to walk away from Lane, so Lane turned off his
spotlight, parked, and got out of his patrol car. Tr. at
24:1-4, 18-19. As he left his car, he immediately saw Diboh
put his right hand into his right jacket pocket. Tr. at
though Lane knew that Diboh did not reside at Brown Birch, he
asked him if he lived there. Tr. at 25:4-6; 26:6-7. Diboh
stopped walking and replied, “no, Lane, you know I
don't live here, I'm just cutting through.” Tr.
at 54:8-9; 26:17-18.
told Diboh that he was trespassing, and asked if Diboh had
any weapons. Tr. at 26:22; 27:4-8. Diboh paused for three or
four seconds and then, instead of answering orally, shook his
head no. Tr. at 27:10-11; 63:18-21.
on his training and experience, Diboh's pause and shift
to non-verbal communication alerted Lane that Diboh may have
a weapon. Tr. at 27:9-23. Lane then decided to frisk Diboh
for weapons. Tr. at 27:2-3, 13-20; 28:2-9.
asked Diboh to put his hands on his head. Tr. at 28:12. Diboh
began to comply, but as Lane approached, Diboh pushed him
away and took off running. Tr. at 28:14-15. A chase ensued,
during which both Diboh and Lane fell trying to run up the
steep hill. Tr. at 28:16-17, 19- 29:4; 74:16-23.
the end of the chase, Diboh pulled a black item from his
right jacket pocket and threw it away. Tr. at 29:5-6. The
item clattered on the pavement making a “loud metal
noise.” Tr. at 29:6-8.
continued chasing Diboh and eventually apprehended him in a
parking area of the complex. Tr. at 29:16-19. Afterwards,
Lane went back to where he saw the black item land and found
a loaded firearm. Tr. at 29:20-24; 30:4-5.
Fourth Amendment to the Constitution protects “[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures[.]” U.S. Const. amend. IV. Diboh alleges that
Lane violated the Fourth Amendment when he followed Diboh to
the apartment complex and questioned him, detained Diboh on
suspicion of trespassing, and tried to frisk Diboh for
weapons. Diboh's theory is that Lane's actions were
improper because he lacked reasonable suspicion to believe
that Diboh had committed a crime or that he was armed and
dangerous. The analysis ...