United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge
matter is before the court on defendant's motion to
suppress. (DE 35). Pursuant to 28 U.S.C. § 636(b)(1),
United States Magistrate Judge Robert T. Numbers, II, issued
memorandum and recommendation (“M&R”),
wherein it is recommended that the court deny defendant's
motion. (DE 60). Defendant timely filed objections to the
M&R, (DE 61), and the government responded. (DE 63). For
reasons noted, the court adopts the recommendation in the
M&R as its own and denies defendant's motion.
second superceding indictment, returned June 7, 2017, charges
that defendant, having been convicted of a crime punishable
by imprisonment for a term exceeding one year, knowingly
possessed a firearm and ammunition, in violation of 18 U.S.C.
§§ 922(g)(1) and 924. Defendant filed the instant
motion October 5, 2017, seeking to suppress evidence obtained
February 1, 2017, during an encounter with law enforcement
that resulted in defendant's arrest. The magistrate judge
held evidentiary hearing January 19, 2018, at which the
arresting officer, Wesley Lane (“Lane”),
motion, defendant argues that Lane conducted a warrantless
seizure without consent or reasonable suspicion of criminal
activity and conducted a warrantless search without
reasonable suspicion that defendant was armed.
court incorporates herein by reference the statement of facts
in the M&R, (see DE 60 at 2-5), where such
statement accurately reflects the evidence of record. For
ease of reference, the statement of facts is repeated below:
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
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 ...