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United States v. Diboh

United States District Court, E.D. North Carolina, Western Division

April 24, 2018

United States of America, Plaintiff,
v.
Lafiamma Deonte Diboh, Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge.

         A federal grand jury indicted Defendant Lafiamma Deonte Diboh on a charge of being a felon in possession of a firearm in June 2017.[1] 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.

         Ultimately, 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.

         I. Background

         At 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.

         Lane is 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.

         As Lane 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.

         Lane is 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.

         Lane 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.

         As Lane 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.

         Diboh 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 25:25-26:1-2.

         Even 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.

         Lane 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.

         Based 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.

         Lane 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.

         Toward 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.

         Lane 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.

         II. Analysis

         The 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 ...


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