United States v. Wayne Gunther, Jr. ( 2012 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. He
was sentenced to concurrent terms of seventy-five 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
2
seams. The positive alert by the canine resulted in the search
of 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 by Detective Lynn on
January 23 was parked at that address. On the evening of March
9, 2006, Detective Sutton conducted further surveillance at 7905
Valley Manor Road in the course of which he observed an
individual, later found to be Gunther, exit the building
carrying a white trash bag and a gold gift bag. 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.
3
The Toyota automobile was 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. Detective Sutton followed the
Toyota automobile. 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 belt, he did not personally observe that
violation. Thus, Officer Miller did not stop the Toyota
automobile based on a seat belt violation. 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 being approached by Officer Miller, Gunther
produced his driver’s license but was unable to locate the
4
vehicle registration after looking for it for a minute or two.
Gunther was permitted to use a cell phone to call his
girlfriend, the owner of the Toyota automobile. After a minute
or so, Gunther located the registration card and presented it to
Officer Miller. Upon receipt of the registration card, Officer
Miller returned to his patrol car to conduct the several
computerized record checks that are routinely made during a
traffic stop. According to Officer Miller, it took 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 with the traffic
stop, other officers arrived at the scene. 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 but had declined to allow the Toyota
automobile to be searched. During his conversation with
Detective Griffin, Gunther stated that he came from “up the
5
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
6
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
7
p.m. time frame, there was an extension of approximately
fourteen to nineteen minutes for which additional reasonable
suspicion was necessary. 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 “traffic stop is . . . more like an
investigative detention than a custodial arrest,” 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 decision to stop the
8
suspect’s car is 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). In
evaluating the second inquiry, we must consider whether the
officer “‘diligently pursue[d] the investigation of the
justification for the stop.’” 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 registration, run a computer check, and issue a
citation. Digiovanni, 650 F.3d at 507. The officer also is
permitted to request passenger identification or inquire into
unrelated matters, as long as doing so does not measurably
prolong the length of the traffic stop. Guijon–Ortiz, 660 F.3d
at 765. However, the officer may not “‘definitively abandon[]
the prosecution of the traffic stop and embark[] on another
sustained course of investigation’” absent additional
justification. Id. at 766 (quoting United States v. Everett,
601 F.3d 484, 495 (6th Cir. 2010)). In other words, 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 additional
criminal activity. Digiovanni, 650 F.3d at 507.
9
While there is no “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. at 337 (citation and internal quotation marks
omitted). Officers may use their “training and expertise” to
identify 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 stop of the Toyota automobile is not
seriously in dispute. But Gunther does contend that the law
enforcement officers 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
10
omitted). 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 conceal an envelope bearing the address of the
location, and the later surveillance of that vehicle at the
location. 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 violated his Fifth Amendment
11
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 of the criminal proceeding was
likely affected.” 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
12
wearing a seat belt at the 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, Gunther claims that he was actually
prejudiced because, but for the delay, Detective Griffin’s
testimony concerning Gunther’s travel plans would 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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
13