United States v. Clifford Laihben

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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