US v. Wayne Gunther, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00099-CCB-1 Copies to all parties and the district court/agency. [998959947].. [11-5205]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5205

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WAYNE BERNARD GUNTHER, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:09-cr-00099-CCB-1)

Submitted:

August 22, 2012

Decided:

October 16, 2012

Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jonathan P. Van Hoven, JONATHAN P. VAN HOVEN, PA, Baltimore,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, John F. Purcell, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Following a jury trial, Wayne Bernard Gunther, Jr. was
convicted of two counts of possession with intent to distribute
500 grams or more of cocaine, 21 U.S.C. § 841(a)(1), in the
United States District Court for the District of Maryland.
was

sentenced

to

concurrent

terms

of

seventy-five

He

months’

imprisonment.
On appeal, Gunther first contends that the district
court erred when it denied his motion to suppress.

“[W]e review

the district court’s factual findings for clear error and its
legal conclusions de novo.”

United States v. Farrior, 535 F.3d

210, 217 (4th Cir. 2008).
The facts surrounding this contention are as follows.
On January 23, 2006, Baltimore City Police Detective Milton Lynn
conducted a traffic stop in Baltimore City on a silver Cadillac
automobile driven by a person who identified himself as Gabriel
Levroney.

Levroney did not have his driver’s license.

While

trying to ascertain the identity of the driver, Detective Lynn
observed that Levroney apparently tried to conceal an envelope
that he pushed down between the front seats.

During the traffic

stop, a drug detection canine that Detective Lynn had called to
the scene scanned the exterior of the Cadillac automobile and
gave a positive alert for the presence of narcotics on all four
of the tires, as well as the driver and passenger side door
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The positive alert by the canine resulted in the search

the

Cadillac

automobile,

during

which

Detective

Lynn

discovered an unopened box of baggies and an unopened box of
baking soda, both of which are associated with the packaging of
narcotics.

Detective Lynn also discovered the above-mentioned

envelope, which was found to be addressed to Levroney at “7905
Valley Manor Road, [Apartment] F[,] . . . Owings Mills, MD.”
(J.A. 126).
A few days after the stop of the Cadillac automobile,
Detective Lynn conveyed the above details of the encounter with
Levroney, as well as his suspicion that Levroney was involved in
drug trafficking, to Detective Jason Sutton of the Baltimore
County Police Department, given that 7905 Valley Manor Road is
located in Baltimore County.
On

January

31,

2006,

Detective

Sutton

conducted

surveillance at 7905 Valley Manor Road during which he observed
that

the

Cadillac

automobile

stopped

January 23 was parked at that address.

by

Detective

Lynn

on

On the evening of March

9, 2006, Detective Sutton conducted further surveillance at 7905
Valley

Manor

individual,

Road
later

in

the

found

to

course
be

of

which

Gunther,

he

exit

carrying a white trash bag and a gold gift bag.

observed
the

an

building

Gunther dropped

the white trash bag in a dumpster and carried the gold gift bag
to a Toyota automobile, which Gunther entered and drove away.
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The

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Toyota

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automobile

was

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found

to

be

registered

to

Miesha

Foreman, 7905 Valley Manor Road, Apartment F, the same address
that Detective Lynn had observed on the envelope in the Cadillac
automobile driven by Levroney.
Toyota automobile.

Detective Sutton followed the

Upon noticing that Gunther appeared not to

be wearing a seat belt, in violation of Maryland law, Detective
Sutton requested that a marked patrol vehicle conduct a traffic
stop.

Anticipating a traffic stop of the Toyota automobile,

Detective Sutton also requested that a drug detection canine be
brought to the scene.
The patrol car that responded to the request that a
traffic stop be made on the Toyota automobile was operated by
Officer Jeffrey Miller.

Although Officer Miller had received

information that the driver of the Toyota automobile was not
wearing

a

seat

violation.

belt,

Thus,

he

Officer

did

not

Miller

personally
did

not

automobile based on a seat belt violation.

observe

stop

the

that
Toyota

Instead, Officer

Miller executed a traffic stop of the Toyota automobile for a
speeding violation after he paced it for over two miles while it
was traveling sixty-two miles per hour in a fifty-five miles per
hour zone on Interstate 695.

The time of the traffic stop of

the Toyota automobile was 9:02 p.m.
Upon
produced

his

being

approached

driver’s

license

by

but
4

Officer
was

unable

Miller,
to

Gunther

locate

the

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vehicle registration after looking for it for a minute or two.
Gunther

was

permitted

to

use

a

cell

phone

girlfriend, the owner of the Toyota automobile.

to

call

his

After a minute

or so, Gunther located the registration card and presented it to
Officer Miller.

Upon receipt of the registration card, Officer

Miller

to

returned

computerized
traffic

record

stop.

his

patrol

checks

According

car
are

that
to

to

routinely

Officer

conduct

Miller,

the

made

it

several
during

took

a

between

approximately one and five minutes to complete each of these
four

checks,

after

which

he

prepared

two

traffic

warning

citations, each of which took about two minutes to complete.
Officer Miller observed a gold gift bag in the front passenger
seat of the Toyota automobile during his encounter with Gunther.
While

Officer

Miller

was

occupied

stop, other officers arrived at the scene.

with

the

traffic

Detective Sutton was

briefly at the scene, but upon the arrival of his colleague,
Detective

Scott

Griffin,

Detective

Sutton

returned

to

7905

Valley Manor Road to search the dumpster into which Gunther had
dropped the white trash bag.

Upon Detective Griffin’s arrival,

he consulted with another officer who was already on the scene.
Detective Griffin was informed that Gunther had consented to the
search

of

his

person

automobile

to

be

Detective

Griffin,

but

had

declined

searched.
Gunther

During

stated
5

that

to

his
he

allow

the

Toyota

conversation
came

from

“up

with
the

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road” and was headed to see family in Salisbury.

(J.A. 283).

During this exchange, Gunther would not provide the address from
which he was traveling.

Detective Griffin testified that when

he inquired about the contents of the gold gift bag, Gunther
stated that the bag contained a shirt for a friend in Salisbury.
However, Gunther would not provide the name of the friend, and
he

became

visibly

nervous

when

Detective

Griffin’s

questions

focused on the gold gift bag.
While

Officer

Miller

was

still

in

his

patrol

car

completing the routine traffic checks associated with the stop,
at approximately 9:31 p.m., Detective Sutton reported to the law
enforcement officers at the scene of the traffic stop that he
had found what was believed to be marijuana and drug residue in
a white trash bag recovered from the dumpster at 7905 Valley
Manor Road, and that the trash bag also contained papers for
7905 Valley Manor Road, Apartment F.
Officer Miller was still in his patrol car conducting
computer checks when the drug detection canine arrived at 9:32
p.m.

Within a couple of minutes, the canine alerted positively

to the passenger door adjacent to the gold gift bag on the front
seat.

Based on that alert, the gift bag was searched.

It was

found to contain a one-kilogram brick of cocaine.
Following his arrest, Gunther was interviewed by law
enforcement agents.

Gunther provided a written statement in
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which he admitted that he paid $24,500.00 for the cocaine; that
he purchased the cocaine in Philadelphia; and that he went to
Philadelphia every three weeks to buy cocaine.

During a search

of 7905 Valley Manor Road, Apartment F the following day, law
enforcement agents recovered a tape-wrapped package of cocaine;
two plastic bags, each containing an additional 7.5 ounces of
cocaine, and a Bersa .380 semi-automatic handgun.
In the district court, Gunther challenged the scope
and duration of the traffic stop.

At the suppression hearing,

Officer Miller testified that he did not present the traffic
warning citations to Gunther as quickly as he might have absent
the

ongoing

investigation.

Consequently,

the

district

court

addressed whether there was sufficient articulable suspicion to
extend the stop to 9:31 p.m., when Detective Sutton completed
the search of the dumpster and relayed his findings to the law
enforcement officers at the scene of the traffic stop.

In the

district court’s view, if the traffic stop was permissible up to
9:31

p.m.,

the

continued

detention

from

that

point

on

was

permitted based on the evidence obtained from the white trash
bag by Detective Sutton at the dumpster, namely, marijuana, drug
residue, and papers for 7905 Valley Manor Road, Apartment F.
Given the district court’s estimate of the period of detention
justified by the traffic stop alone as being between ten and
fifteen minutes, which would have taken until the 9:12 to 9:17
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time

fourteen

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frame,

to

there

nineteen

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was

an

minutes

for

suspicion was necessary.

extension
which

of

approximately

additional

reasonable

According to the district court, the

extension of the traffic stop to 9:31 p.m. was justified under
the circumstances presented to the law enforcement officers.

In

so holding, the district court relied on the evidence observed
by Detective Lynn and Gunther’s evasive behavior/answers at the
traffic stop.
A temporary detention of an automobile, even if only
for a limited time or purpose, constitutes a Fourth Amendment
seizure. Whren v. United States, 517 U.S. 806, 809–10 (1996).
Because

a

routine

investigative

“traffic

detention

stop

than

a

is

.

.

.

custodial

more

like

arrest,”

an
its

limitations must be evaluated under the dual inquiry set out in
Terry v. Ohio, 392 U.S. 1 (1968).

United States v. Guijon–

Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (internal quotation
marks omitted).

Under this analysis, we determine whether the

stop “was justified at its inception” and “whether the continued
stop was sufficiently limited in scope and duration to satisfy
the

conditions

of

an

investigative

seizure.”

Id.

(internal

quotation marks omitted).
Regarding the first Terry inquiry, if an officer has
probable cause or reasonable suspicion to believe a suspect has
violated

a

traffic

law,

the

officer’s
8

decision

to

stop

the

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suspect’s

car

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is

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reasonable

under

the

Fourth

Amendment,

regardless of the officer’s subjective motivation for the stop.
United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993).
evaluating
officer

the

second

“‘diligently

inquiry,

we

pursue[d]

justification for the stop.’”

must

the

consider

whether

investigation

of

In
the
the

Guijon–Ortiz, 660 F.3d at 768

(quoting United States v. Digiovanni, 650 F.3d 498, 509 (4th
Cir. 2011)).
A lawful routine traffic stop justifies detaining the
car’s occupants for the time necessary to request a driver’s
license

and

citation.

registration,

run

a

computer

Digiovanni, 650 F.3d at 507.

check,

and

issue

a

The officer also is

permitted to request passenger identification or inquire into
unrelated

matters,

as

long

as

doing

so

prolong the length of the traffic stop.
at 765.
the

of

course

justification.

the
of

traffic

stop

measurably

Guijon–Ortiz, 660 F.3d

seeks

and

investigation’”

embark[]
absent

on

another

additional

Id. at 766 (quoting United States v. Everett,

601 F.3d 484, 495 (6th Cir. 2010)).
officer

not

However, the officer may not “‘definitively abandon[]

prosecution

sustained

does

to

prolong

a

In other words, if a police

traffic

stop

to

allow

for

investigation into a matter outside the scope of the initial
stop,

he

must

possess

criminal activity.

reasonable

suspicion

Digiovanni, 650 F.3d at 507.
9

of

additional

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While

there

is

no

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“precise

articulation

of

what

constitutes reasonable suspicion,” United States v. Branch, 537
F.3d 328, 336 (4th Cir. 2008) (citation and internal quotation
marks

omitted),

“a

police

officer

must

offer

specific

and

articulable facts that demonstrate at least a minimal level of
objective justification for the belief that criminal activity is
afoot.”

Id.

omitted).

at

337

(citation

and

internal

quotation

marks

identify

Officers may use their “training and expertise” to
sets

of

factors

which

are

“individually

quite

consistent with innocent travel” yet “taken together, produce a
reasonable

suspicion

of

criminal

activity.”

Id.

at

336–37

(citation and internal quotation marks omitted).
The

initial

seriously in dispute.
enforcement

officers

stop

of

the

Toyota

automobile

is

not

But Gunther does contend that the law
unlawfully

prolonged

the

traffic

stop.

This contention is without merit.
As noted above, if a police officer seeks to prolong a
traffic stop to allow for investigation into a matter outside
the

scope

of

the

initial

stop,

he

must

possess

reasonable

suspicion of other criminal activity, Digiovanni, 650 F.3d at
507, a showing of which must include “specific and articulable
facts that demonstrate at least a minimal level of objective
justification for the belief that criminal activity is afoot,”
Branch, 537 F.3d at 337 (citation and internal quotation marks
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omitted).

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Here, the scope and duration of the stop were not

unreasonable because there was reasonable suspicion present to
extend the length of the stop.

Gunther was observed leaving a

location, in a vehicle registered to that location, carrying a
package.

The law enforcement officers had reason to believe

that the location was linked to drug trafficking by factors that
included a positive alert by a drug detection canine on another
vehicle linked to that location, the discovery of drug packaging
materials from that vehicle, the attempt by the driver of that
vehicle

to

location,

conceal

and

location.

the

an

envelope

later

bearing

surveillance

of

the

address

of

the

that

vehicle

at

the

Gunther also was evasive, both in his behavior and

his answers to Detective Griffin’s questions, during the ten to
fifteen minute time frame recognized by the district court as
necessary to conclude the initial stop.

These facts permitted

the short extension of the stop to 9:31 p.m. to dispel the law
enforcement

officers’

suspicions.

Moreover,

once

Detective

Sutton found the evidence in the white trash bag in the dumpster
and relayed his findings to the law enforcement officers at the
scene of the traffic stop, a further detention of Gunther was
permitted.

In

sum,

we

hold

there

was

no

Fourth

Amendment

violation in this case.
Gunther also contends that, by delaying the filing of
the

indictment,

the

government
11

violated

his

Fifth

Amendment

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right to due process of law.

We review this claim de novo.

Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004).
“[T]he Due Process Clause of the Fifth Amendment would
require dismissal of the indictment if it were shown at trial
that the pre-indictment delay in this case caused substantial
prejudice to appellees’ rights to a fair trial and that the
delay was an intentional device to gain tactical advantage over
the

accused.”

United

States

v.

Marion,

404

U.S.

307,

324

(1971). “This is a heavy burden because it requires not only
that

a

defendant

show

actual

prejudice,

as

opposed

to

mere

speculative prejudice, but also that he show that any actual
prejudice was substantial--that he was meaningfully impaired in
his ability to defend against the state’s charges to such an
extent

that

the

disposition

likely affected.”

of

the

criminal

proceeding

was

Jones v. Angelone, 94 F.3d 900, 907 (4th Cir.

1996) (citations omitted).
In this case, Gunther fails to demonstrate any actual
prejudice.

Gunther

claims

that

actual

prejudice

is

present

because he was unable to corroborate his testimony that he was
wearing a seat belt at the time of the traffic stop.

According

to Gunther, due to the delay, he no longer had access to the
Toyota automobile by the time of the suppression hearing and he
was

therefore

unable

to

prove

that,

because

the

Toyota

automobile had an automatic restraint system, he necessarily was
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wearing

a

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seat

belt

at

the

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time

he

was

stopped.

However,

whether the Toyota automobile could have been produced did not
actually prejudice Gunther’s case because he was stopped for
speeding and not a seat belt violation.
Alternatively,
prejudiced

because,

testimony

concerning

Gunther

but

for

claims

the

Gunther’s

that

delay,

travel

he

was

Detective

plans

would

actually
Griffin’s

have

been

contradicted by the testimony of another officer at the scene.
Although it is unclear how Gunther’s defense was meaningfully
impaired

by

this

officer’s

alleged

faded

memory,

Detective

Sutton’s police report plainly memorializes the substance of the
testimony Gunther sought from this officer.

Accordingly, we

conclude that there was no Fifth Amendment violation in this
case.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

AFFIRMED

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