Government's Response in Opposition to the Defendant's Motion to Suppress Evidence — United States v. Diop McKenzie (M.D. Fla.)

Record facts

U.S. District Court, Middle District of Florida (Fort Myers Division) · No. 2:23-cr-00088 · Doc. 51 · 2024-02-23 · Docket on CourtListener

Full text

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES OF AMERICA 
 
 
v. 
 
 
 
 
 
CASE NO. 2:23-cr-88-SPC-KCD 
 
DIOP MCKENZIE 
 
 
GOVERNMENT’S RESPONSE IN OPPOSITION TO 
THE DEFENDANT’S MOTION TO SUPPRESS EVIDENCE 
 
 
COMES NOW, the United States of America, by and through the 
undersigned Assistant United States Attorney, and in response in opposition to the 
defendant’s Motion to Suppress Evidence (Doc. 45), states as follows:   
FACTUAL BACKGROUND 
On September 5, 2020, Cape Coral Police Officers responded to a domestic 
disturbance at the defendant’s residence located in Cape Coral, Florida, involving the 
defendant, Diop McKenzie, and the mother of his children.  During contact at 
McKenzie’s residence, the woman reported to the officer that McKenzie had been 
purchasing individuals’ identities on the dark web for fraudulent activity.  
Furthermore, through routine database checks conducted on McKenzie, the officer 
became aware that the defendant had a suspended license.  
Subsequently, a detective with the Cape Coral Police Department conducted a 
search of SunBiz.org for Diop McKenzie and determined that he was the registered 
agent for three businesses in the State of Florida:  Signature Carpentry and Tile LLC, 
Orlando Carpenters LLC, and McKenzie Acquisitions LLC.   
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In Furtherance of this investigation, the detective inquired with the Small 
Business Association (SBA) about the defendant’s businesses, and the SBA revealed 
that Diop McKenzie’s name, phone number, and known residential addresses in the 
Cape Coral, Florida area were associated with the disbursement of a SBA Covid-19 
Loan in the amount of $99,000. 
On September 8, 2020, and again on September 11, 2020, a victim, D.J., 
called the SBA to advise he did not file a loan application and that he did not own a 
business.  D.J. completed a statement form and had it notarized by a police officer 
with the Kennewick Police Department, in Kennewick, Washington.  D.J.’s 
statement reflected that he never applied for a loan with the Small Business 
Administration, nor did he give anyone permission to use his personal information 
to apply for any loans. 
On September 14, 2020, Officer Gallo from the Cape Coral Police Department 
conducted a traffic stop on McKenzie, after the officer observed the defendant 
driving while his license was suspended.  The defendant’s vehicle was stopped at the 
stop sign at the busy intersection of 9th Terrace and Country Club Blvd. in Cape 
Coral, Florida.   
Officer Gallo, the same officer that had responded to the defendant’s residence 
just days before, approached the defendant’s vehicle along with a police trainee.  As 
the officer in training advised the defendant that he had been stopped for driving on a 
suspended license, and defendant acknowledged that he was aware that his license 
had been suspended.  The defendant handed his suspended license to the officers and 
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he advised that the address on the license was not his current address. 
The defendant is asked to step from the vehicle, as he did not have a valid 
license that would permit him to drive.  As the defendant was the sole occupant in 
the vehicle, there was not another licensed driver at the scene who could drive the 
vehicle. 
The officer advised the defendant that his vehicle would have to be towed.  
The vehicle was impeding traffic and located on a public street.  The officer 
explained that he would not have time to wait for the defendant to try to find a 
licensed driver to arrive at the scene.  The officer did advise the defendant that he 
would not be arrested for the offense as growing Covid concerns at the jail prevented 
the arrest of individuals for the offense of driving while license suspended at that 
time. 
During the routine law enforcement database checks being conducted, the 
police also learned that the vehicle was not registered.  The officer explained to the 
defendant that the records reflected that at one time the vehicle had been registered 
to McKenzie Acquisitions, but the registration of the vehicle was not current.  The 
officer advised the defendant that it was good that he had called the tow company, as 
the vehicle could not be driven on the road since it was not registered. 
In preparation for the tow company, the police conducted an inventory search 
of the vehicle and completed an inventory form.  The police recorded the property 
located in the vehicle to include tools, the defendant’s cell phone, and cash. 
The officer had the officer in training completing the citations, while the 
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officer was either assisting with the inventory search or staying near the defendant.   
When the officer reviewed the citations prepared by the officer in training, he 
alerted the officer in training that he had listed the defendant’s name incorrectly on 
each citation, and the officer advised the officer in training how to correct the 
citations. 
The officer provided the defendant with his cellphone and cash that had been 
located in the vehicle.  The officer told the defendant to call for a ride so the 
defendant would not be left standing around for a while after his vehicle was towed.  
The defendant made a call to locate a ride from the scene. 
The police trainee explained each citation to the defendant, and the defendant 
was asked to sign each citation to acknowledge that he had received the citations and 
been provided with a court date.  The defendant was provided with his copies of each 
citation, and the police asked if he had any questions.  The defendant inquired if he 
could have his license back, and the police officer explained that it was a criminal 
violation to knowingly present a canceled or revoked license to someone.  The officer 
advised that his suspended license could not be returned, but the officer explained to 
the defendant that he could obtain an ID card at the DMV. 
Once the defendant had been provided with the two citations, the officer told 
the defendant that he was free to leave.  After advising the defendant that he was free 
to leave, the officer asked the defendant if he had any issues with the officer checking 
to see if the defendant had anything illegal on him.  The officer told the defendant 
that he was training about consensual searches.  The defendant walked over to the 
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patrol vehicle and put his hands on the hood with his back to the officer.  The officer 
again asked the defendant if he was giving consent.  The officer pulled out the 
defendant’s wallet, and the officer asked if the defendant had anything in his wallet.  
As the defendant stood facing the officer and watching the officer holding his wallet, 
the defendant spoke with the officer about his fishing license and a card for an 
attorney located in his wallet.  When the officer pulled out two debit cards, a BMO 
Harris Bank N.A. and an Acorns – Lincoln Savings Bank, embossed with the name 
M.D., the defendant immediately stated that those cards belonged to his stepdad.   
The police read the defendant his Miranda warnings before asking any 
questions concerning the cards located in the defendant’s wallet.  The defendant 
continued to tell the officers that the cards belonged to his stepdad.  The officer asked 
the defendant if he had his stepdad’s phone number so the officer could contact him 
to inquire whether the defendant could have the cards returned.  Instead, the 
defendant told the officer that if it was a big deal, then the officers could keep the 
cards.  The defendant continued to volunteer that he did not want his stepdad to call 
his mom, so the defendant said that he would tell his stepdad that he had lost his 
cards.  The defendant said that he did not want to call his stepdad.  The officer gave 
the defendant back his wallet and asked if the defendant was telling the police to 
keep the cards.   The officer then completed a Cape Coral Police property form in 
which he listed the two cards.  The officer then showed the form to the defendant 
and explained to him that the form provided that the defendant did not want the 
property, and the defendant signed the form. 
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Subsequently, bank records revealed that on September 14, 2020, Acorns card 
was locked and a new card was requested.  The records revealed that on September 
16, 2020, a new Acorns card was issued in the name M.D., and the new card was 
sent to McKenzie’s residence located in Cape Coral, Florida. 
On September 15, 2020, bank records revealed that a replacement debit card 
was requested for the BMO Harris Bank account, and the new card was mailed to 
McKenzie’s residence in Cape Coral, Florida. 
 
A detective with Cape Coral Police Department contacted the real M.D., who 
was found to be residing in Iowa, and the victim completed a notarized statement 
form reflecting that had no knowledge of McKenzie and that the victim had never 
applied for any cards from the issuing banks:  BMO Harris Bank or Acorns- Lincoln 
Savings Bank.     
 
The United States Secret Service conducted an investigation into fraudulent 
PPP and EIDL loan applications submitted by Diop McKenzie to the SBA that had 
been funded.  The loan applications used fraudulent personal identifying information 
of other individuals, to include D.J. and M.D., without their knowledge, and falsely 
claimed the amount of gross income, and failed to report additional loans.  
Ultimately, McKenzie used those fraudulently obtained funds for his own personal 
expenses. 
 
On August 23, 2023, a federal grand jury indicted the defendant, Diop 
Mckenzie, with two counts of bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, 
two counts of wire fraud, in violation of  18 U.S.C. §§ 1343 and 2, and one count of 
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aggravated identity theft, in violation of 18 U.S.C. §§ 1028A(a)(1) and 2.  Doc. 1. 
On February 9, 2024, the defendant filed a Motion to Suppress Evidence.  
Doc. 45. 
MEMORANDUM OF LAW 
a. Valid stop  
 
The Supreme Court has stated that “as a general matter, the decision to stop 
an automobile is reasonable where the police have probable cause to believe that a 
traffic violation has occurred.”  Whren v. United States, 517 U.S. 806, 810 (1996).  The 
Cape Coral Police Officer had probable cause to believe that a traffic violation had 
occurred at the time that he conducted a traffic stop of the defendant’s vehicle.  The 
defendant was stopped due to driving while his license was suspended.  “A traffic 
stop, which ‘is a seizure within the meaning of the Fourth Amendment,’ United States 
v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001), ‘is constitutional if it is either based 
upon probable cause to believe a traffic violation has occurred or justified by 
reasonable suspicion in accordance with Terry [v. Ohio], 392 U.S. 1, 88 S.CT. 1868, 
20 L.Ed.2d 889[(1968)].’”  United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 
2009) (citing United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008)). 
Further, the Supreme Court has recognized that “States have a ‘vital interest 
in ensuring that only those qualified to do so are permitted to operate motor vehicles 
[and] that licensing, registration, and vehicle inspection requirements are being 
observed.’”  Kansas v. Glover, 140 S.Ct. 1183, 1188 (2020) (citing Delaware v. Prouse, 
440 U.S. 648, 658 (1979)).  Therefore, the initial stop of McKenzie’s vehicle was 
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valid, and McKenzie could have been lawfully arrested for such a criminal driving 
offense.  As the officers walked up to McKenzie’s vehicle, the defendant was advised 
that the reason for his stop was for driving on a suspended license.  The defendant 
agreed that his license was still suspended and advised that he was waiting for a court 
date.  He said he owed approximately $18,000.   
Further, in Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), the Court held 
that the police may order the driver of a vehicle to exit the vehicle when a lawful stop 
has been made, without violating the Fourth Amendment.  Here, the defendant was 
asked to step out of the vehicle because he was driving on a suspended license, and 
he could not have been permitted to drive away.   
During the stop, the officer explained to the defendant that his vehicle would 
be towed due to the location of the vehicle.  Officer explained that he did not have 
time to wait for someone to arrive at the scene to pick up the vehicle.  He advised 
that the tow company could quickly respond to the location and the vehicle would be 
moved.  The officer intended to have McKenzie’s vehicle towed as the vehicle was 
stopped at a busy intersection, and the vehicle was impeding traffic.  Further, 
McKenzie was the sole occupant in the vehicle, so there was not another licensed 
driver present who would be able to drive the defendant’s vehicle.   
In South Dakota v. Opperman, 96 S.Ct. 3092, 3097 (1976), the Supreme Court 
stated that: 
When vehicles are impounded, local police departments generally 
follow a routine practice of securing and inventorying the automobiles’ 
contents.  These procedures developed in response to three distinct 
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needs:  the protection of the owner’s property while it remains in police 
custody. . . ; the protection of the police against claims or disputes over 
lost or stolen property. . .; and the protection of the police from 
potential danger. . . . 
 
South Dakota v. Opperman, 96 S.Ct. 3092, 3097 (1976) (citations omitted); see United 
States v. Cohen, 38 F.4th 1364, 1371 (11th Cir. 2022); see also United States v. Isaac, 987 
F.3d 980, 988-989 (11th Cir. 2021). 
Consequently, the police began an inventory search of the defendant’s vehicle 
while waiting for the arrival of the tow truck.  The police prepared an inventory form 
while observing the property in the defendant’s vehicle. 
All of the actions taken by the Cape Coral Police were in the lawful discharge 
of their duties.  Therefore, despite the defendant’s apparent assertion that the officers 
should have proceeded more quickly during the traffic stop, what contributed in 
prolonging the stop was that the defendant could not lawfully drive the vehicle away 
and arrangements to tow the vehicle had to be made.  See United States v. Vargas, 848 
F.3d 971, 974-975 (11th Cir. 2017).  
In United States v. Braddy, the Eleventh Circuit stated that “[a]s we have 
explained, ‘we measure the reasonableness of a stop’s duration under the totality of 
the circumstances,’ and ‘[r]igid time limitations and bright-line rules are generally 
inappropriate.’”  United States v. Braddy, 11 F.4th 1298, 1310 (11th Cir. 2021) (quoting 
United States v. Holt, 777 F.3d 1234, 1256 (11th Cir. 2015)). 
The police diligently pursued the investigation.  Aside from checking the 
defendant’s driver’s license prior to the stop, the police conducted law enforcement 
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database checks and learned that the defendant’s vehicle was unregistered.  The 
defendant could not legally operate the vehicle since his license was suspended.  In 
addition to the vehicle being stopped in the roadway at a busy intersection, the 
unregistered vehicle could not be on the road; therefore, the police contacted a tow 
company to tow the vehicle from the scene.  Simultaneously, the officer was 
conducting the inventory of the vehicle while another officer in training was 
preparing the two traffic citations.  The defendant’s phone and cash located in his 
vehicle was returned to him.  The defendant used his phone to call for a ride, since 
the officer had previously explained that due to covid concerns regarding the jail that 
the defendant would not be arrested for the offense of driving while license 
suspended.  Once the citations were reviewed and the corrected by the training 
officer, the traffic citations were explained to the defendant, and he was told that he 
was free to leave.   
b. Consent  
The defendant had received his citations and had signed his acknowledgement 
of them.  The police had explained that they could not return his suspended license 
to him.  All of business with the defendant was completed and he was free to leave.  
The officer even told the defendant that he was free to leave.  From the totality of the 
circumstances, at that point the encounter with the police was consensual; therefore, 
the Fourth Amendment was not implicated.  See United States v. Ramirez, 476 F.3d 
1231, 1238 (11th Cir. 2007).  The issuance of the citations and being explicitly told 
that he was free to leave preceded the questioning concerning anything illegal being 
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on the defendant’s person.  In United States v. Ramirez, the Eleventh Circuit found 
that: 
it is appropriate to examine the “totality of the circumstances” in each 
case, [United States v. Lattimore, 87 F.3d 647, 653 (4th Cir. 1996)] 
weighing a range of factors, such as whether there is any coerciveness 
on the part of the police, whether the exchange is cooperative in nature, 
and whether the defendant had everything he reasonably required to 
proceed on his journey. [See United States v. White, 81 F.3d 775, 779 (8th 
Cir. 1996)].  As the Supreme Court has instructed, our ultimate inquiry 
remains whether “a reasonable person would feel free to terminate the 
encounter.” [United States v. Drayton, 536 U.S. 194, 201 (2002)]. 
 
 United States v. Ramirez, 476 F.3d 1231, 1240 (11th Cir. 2007). 
After the defendant was given the citations, the officer advised the defendant 
that he was free to leave.  The officer asked the defendant if he had any questions.  
The officer asked the defendant if he had any issues about him checking to see if the 
defendant had anything illegal on him.  The officer said that he was training about 
consensual searches.  The defendant voluntarily walked to the police vehicle and 
placed his hands on the hood.  The officer asked the defendant again if he was giving 
his consent to the search.  Officer asked the defendant if he had anything in his 
wallet. 
The defendant made no attempt to limit the search of his person or of his 
wallet.  The defendant was present while the officer opened his wallet, and he had 
ample opportunity to limit the scope of the search or to request that the search of his 
wallet be discontinued.  See United States v. Harris, 928 F.2d 1113, 1117-1118 (11th Cir. 
1991).   
In Ohio v. Robinette, the Supreme Court stated: 
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We think that under our recent decision in Whren v. United States, 517 
U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) . . . the subjective 
intentions of the officer did not make the continued detention of 
respondent illegal under the Fourth Amendment.  As we made clear in 
Whren, “ ‘the fact that [an] officer does not have the state or mind which 
is hypothecated by the reasons which provide the legal justification for 
the officer’s action does not invalidate the action taken as long as the 
circumstances, viewed objectively, justify that action.’ …  Subjective 
intentions play no role in ordinary, probable-cause Fourth Amendment 
analysis.”   
 
Ohio v. Robinette, 117 S.Ct. 417, 420-421 (1996) (quoting Whren v. United States, 517 
U.S. 806, 813 (1996)). 
 
The Supreme Court in Ohio v. Robinette has held that “[w]hile knowledge of 
the right to refuse consent is one factor to be taken into account, the government 
need not establish such knowledge as the sine qua non of an effective consent.”  Ohio 
v. Robinette, 117 S.Ct. 417 at 421 (quoting Schneckloth v. Bustomonte, 412 U.S. 218, 231 
(1973)).  “And just as it ‘would be thoroughly impractical to impose on the normal 
consent search the detailed requirements of an effective warning,’” Id. (quoting 
Schneckloth v. Bustomonte, 412 U.S. 218, 231 (1973)).   “so too would it be unrealistic 
to require police officers to always inform detainees that they are free to go before a 
consent to search may be deemed voluntary.” Ohio v. Robinette, 117 S.Ct. 417, 421 
(1996). 
“The Fourth Amendment test for a valid consent to search is that the consent 
be voluntary, and ‘[v]oluntariness is a question of fact to be determined from all the 
circumstances.’”   Ohio v. Robinette, 117 S.Ct. 417, 421 (1996) (quoting Schneckloth v. 
Bustomonte, 412 U.S. 218, 248-249 (1973)). 
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When the officer pulled out the two cards, the defendant immediately said that 
the two cards were his stepdad’s.  Although the defendant was not in custody, since 
the two cards were in the name of another individual, the defendant was read his 
Miranda warnings prior to the officer asking any questions about the cards that had 
been located in the defendant’s wallet. 
The officer asked the defendant if he had is stepdad’s phone number.  The 
defendant said that if it was a big deal then he told the officer that he could keep the 
cards.  The defendant explained that his stepdad would call his mom, so he said that 
he would tell his stepdad that he had lost the cards.  The defendant made it clear that 
he did not want to call his purported stepdad.  The officer gave the defendant back 
his wallet, then he completed a property form for the Cape Coral Police Department.  
The officer then showed the defendant the form and asked him to sign the form if he 
did not want the property.  The defendant signed the form. 
 
In United States v. Spivey, the Eleventh Circuit stated that: 
Consent is about what the suspect knows and does, not what the police 
intend.  “Coercion is determined from the perspective of the suspect.”  
Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 
(1990).  Whether officers “deliberately lied” “does not matter” because 
the “only relevant state of mind” for voluntariness “is that of [the 
suspect] himself.”  United States v. Farley, 607 F.3d 1294, 1330 (11th Cir. 
2010).  And officers are entitled to be silent about their motivations.  
[See United States v. Prudden, 424 F.2d 1021, 1033 (5th Cir. 1970)] (“[T]he 
agents did not have to warn him directly that they were undertaking a 
criminal investigation.”).  The officers’ subjective purpose in 
undertaking their investigation does not affect the voluntariness of 
[defendant’s] consent.   
 
United States v. Spivey, 861 F.3d 1207, 1215 (11th Cir. 2017). 
 
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The defendant understood that he faced a risk that the police would notice the 
two cards that were in another person’s name that he carried in his wallet when he 
consented to the search of his person.  The officer specifically asked if the defendant 
had an issued about the officer checking to see if the defendant had anything illegal 
on him.  The defendant was aware that his wallet was on him at the time that he 
consented to the search.  From consideration of the totality of the circumstances, the 
defendant’s consent was voluntary.  The defendant was not handcuffed or under 
arrest when he gave his consent.  The encounter with the police had been polite and 
cooperative, and the officers had not used any signs of force, physical coercion, or 
threats.  The officer was not required to inform the defendant that he had a right to 
refuse consent to search.   
 
In fact, when the cards were located, the defendant was prepared to explain 
away his reason for having the two cards in someone else’s name.   
c. Independent source 
 
Furthermore, the evidence in this case should be admissible pursuant to the 
independent source doctrine.  In Nix v. Williams, the Supreme Court stated that’ 
The independent source doctrine allows admission of evidence that has 
been discovered by means wholly independent of any constitutional 
violation. . . .  The independent source doctrine teaches us that the 
interest in having juries receive all probative evidence of a crime are 
properly balanced by putting the police in the same, not a worse, 
position that they would have been in if no police error or misconduct 
had occurred. 
 
Nix v. Williams, 104 S.Ct. 2501, 2508 (1984).  The Court explained that “[w]hen the 
challenged evidence has an independent source, exclusion of such evidence would 
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put the police in a worse position than they would have been in absent any error or 
violation.  Id. at 2509. 
 
Here, if the Court were to find an error in the police locating the two cards 
bearing someone else’s name in the defendant’s wallet, after the defendant consented 
to the search of his person, then that cards themselves should be the only items of 
evidence that could possibly be subject to suppression.  However, there are 
independent sources that provide sufficient evidence of the fraud committed by the 
defendant as charged.  The SBA has records of the fraudulent PPP loan and EIDL 
loan applications that contain misrepresentations and false information which can be 
traced back to the defendant.  There are bank records that identify several accounts 
that the defendant accessed that the fraudulently obtained funds were deposited into.   
There are several victims who have reported to law enforcement that they did not 
apply for or authorize the defendant to apply for PPP loans and EIDL loans in their 
names and using their personal identifying information, to include the victims’ name, 
date of birth, and social security numbers.  In fact, one such victim, D.J., had 
become aware of the fraudulent SBA loan obtained in his name and reported the 
criminal activity prior to the defendant being stopped by law enforcement.  The 
investigation into the criminal charges involving the defendant would have 
proceeded.  The trail of fraudulently obtained loan proceeds led to the defendant’s 
residence. 
 
Consequently, there should not be any exclusion of evidence in this case.  The 
defendant’s claims are without merit. 
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CONCLUSION 
 
For all the reasons set forth above, the Government hereby respectfully 
requests that the Court deny the defendant’s motion to suppress. 
 
 
 
 
 
 
 
Respectfully submitted, 
 
 
 
 
 
 
 
ROGER B. HANDBERG 
 
 
 
 
 
 
United States Attorney 
 
 
 
 
 
 
 
 
By: 
s/Yolande G. Viacava                             
 
 
 
 
 
 
Yolande G. Viacava 
 
 
 
 
 
 
Assistant United States Attorney 
 
 
 
 
 
 
Florida Bar Number 0110310 
 
 
 
 
 
 
2110 First Street, Suite 3-137 
 
 
 
 
 
 
Fort Myers, Florida 33901 
 
 
 
 
 
 
Phone:  (239) 461-2200 
 
 
 
 
 
 
Fax:    (239) 461-2219 
 
 
 
 
 
 
E-Mail:  Yolande.viacava@usdoj.gov 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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U.S. v. Diop McKenzie  
           
Case No. 2:23-cr-88-SPC-KCD 
 
 
CERTIFICATE OF SERVICE 
 
 
I hereby certify that on February 23, 2024, I electronically filed the foregoing  
 
with the Clerk of the Court by using the CM/ECF system which will send a notice of  
 
electronic filing to the following:   
 
 
Russell K. Rosenthal 
 
Russ_rosenthal@fd.org 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
s/Yolande G. Viacava                        
 
 
 
 
 
 
Yolande G. Viacava 
 
 
 
 
 
 
Assistant United States Attorney 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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