                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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