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United States v. Diboh

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

June 4, 2018



          LOUISE W. FLANAGAN United States District Judge

         This 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.


         The 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”), testified.

         In his 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.


         The 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 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 ...

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