US v. Clifford Laihben

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00039-CCE-1. Copies to all parties and the district court/agency. [998870316].. [11-4452]

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UNPUBLISHED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
District of North Carolina, at Durham.
District Judge. (1:07-cr-00039-CCE-1)

Court for the Middle
Catherine C. Eagles,

Argued:

Decided:

May 15, 2012

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
A
counts

of

federal

grand

jury

conspiracy,

obstruction

credit

of

and

indicted

justice,

card

witness

and

Clifford

Laihben

securities

tampering.

on

fraud,

Following

a

denial of his motion to suppress evidence seized during a search
of his car, Laihben conditionally pled guilty to all counts,
reserving
motion.

the

right

to

appeal

the

denial

of

his

suppression

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

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Escape with New York license plates cut across two lanes of
traffic

to

direction
noticed

exit
the

the

onto

Interstate

officers

same

car

were
make

40

(“I-40”),

traveling.
another

unsafe

The

in

the

same

officers

soon

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

driver’s

side

was

driving

door

when

the

Ford

Det.

Escape,

Tollie

made

cracked
contact

open
with

his
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
3

York

detective

whom

Laihben

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identified

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as

his

identification.

uncle.

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Det.

Tollie

had

not

asked

for

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

Winston-Salem

did

State

not

exist

but

University.

Det.

thought
Tollie

might

refer

to

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.
Tollie

asked

Laihben

who

Shelly

passenger of the car was Shelly.

Laihben

was,

and

if

Det.
the

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.
4

Det.

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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
Brandy Green.

passenger

told

Agent

McClearen

her

name

was

While Green had been speaking with Det. Tollie,

Agent

McClearen

observed

Agent

McClearen

asked

Green

for

and

drop

a

card

received

into

her

purse.

to

search

permission

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.

Laihben

After

the

frisk,

Det.

Tollie

also

asked

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
5

description,

indicating

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that

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“we’re

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not

actually

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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,

indicating that their mothers were related.

she

said

yes,

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.

argumentative.

Laihben

refused

to

accompany

them

and

became

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

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Check.
Tollie

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After confronting Green with the inconsistencies, Det.
ran

the

“Zilah

Cooper”

driver’s

license

through

computer system and discovered that the license was fake.

the

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

precise objection to this search.

to

ascertain

Laihben’s

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
7

vehicle

based

on

evidence

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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).
course,

we

view

facts

in

the

light

most

favorable

to

government, the prevailing party in the district court.

Of
the
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

monitor Laihben.

here,”

and

called

a

uniformed

officer

to

We agree.

“A detention occurs where ‘in view of all [of] the
circumstances

surrounding

the

incident,

a

reasonable

would have believed that he was not free to leave.’”
States
United

v.

Gray,

States

(plurality)).

883
v.

F.2d

320,

Mendenhall,

Circumstances

322
446

that

(4th

Cir.

U.S.
may

1989)

544,

suggest

United
(quoting

554
a

person

(1980)

detention

include “the number of police officers present . . . , whether
they were in uniform or displayed their weapons, whether they
touched

the

defendant,

whether
8

they

attempted

to

block

his

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departure

or

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restrain

his

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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

approached

“when

[Det.

Tollie]

first

approached me very respectfully.”

the

vehicle,

he

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.
United

States

(holding

that

v.

Analla,

police

did

975

F.2d

119,

not

detain

124

suspect

(4th

Cir.

where

See
1992)

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

moving his vehicle.

the

officer

did

not

block

Jones, 2012 WL 1632566, at *5.

Laihben

from

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.
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Det. Tollie detained Laihben only after he could not
ascertain Brandy Green’s identity and she offered to take the
officers

to

the

identification.

motel

room

where

she

claimed

to

have

By that time, Det. Tollie had amassed “specific

and articulable facts which, taken together” warranted detention
of

Laihben.

Terry

v.

392

Ohio,

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.,

States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999).

United

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

provided an additional basis for suspicion.

them

a

ticket

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)
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B.
Alternatively,
the

incriminating

Laihben

evidence

was

contends
found

on

that

because

Green

or

all

within

of
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.”
696 (1996).
the

Ornelas v. United States, 517 U.S. 690,

We examine the totality of the circumstances “from

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).
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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
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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.

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