UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. 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 
3

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. 
4

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 
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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 
6

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 
8

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 
9

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.
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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 
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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 
12

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 
13

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