                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1934



MICHAEL WHITE,

                                              Plaintiff - Appellant,

           versus


JAMES STEVEN WRIGHT,

                                              Defendant - Appellee.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-02-3522-AW)


Argued:   May 26, 2005                 Decided:   September 23, 2005


Before TRAXLER and DUNCAN, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Joseph John D’Erasmo, Rockville, Maryland; Martha L.
Handman, Gaithersburg, Maryland, for Appellant.   Roann Nichols,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M.
DiBiagio, United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:


     Michael White appeals the dismissal of his civil rights action

against Lieutenant James Steven Wright ("Lt. Wright") stemming from

the investigation, indictment, prosecution, and ultimate acquittal

of White on mail fraud charges.           For the reasons set forth below,

we affirm.



                                         I.

     White,     formerly     employed     as    a   Maryland    State        Trooper,

conducted vehicle salvage inspections for automobile dealers in

Prince    George’s     County,    Maryland,    from   1992     to    1995.      White

performed a number of vehicle inspections for Clinton Auto Sales

(“Clinton Auto”), a used car dealership owned by Basem Najjar.                     A

portion    of   the    vehicles   sold   by    Clinton   Auto       were   “salvage”

vehicles Najjar purchased at auctions to rebuild and sell.                     Under

Maryland law, salvage vehicles include automobiles that have been

damaged to the point that repair costs exceed fair market value of

the automobile, automobiles that have been obtained by an insurance

company as part of a claim settlement, and automobiles acquired for

rebuilding      or    for   parts.       See    Md.   Code,         Transportation,

§ 11-152(a).         Also included are stolen vehicles that have been

recovered by an insurance company.             See Md. Code, Transportation,

§ 13-507(c)(1).



                                         2
   Maryland law requires anyone who acquires ownership of a salvage

vehicle to apply for a salvage certificate from the Maryland Motor

Vehicle Administration (“MVA”).        See Md. Code, Transportation,

§ 13-506.   Before the holder of a salvage certificate may apply for

a certificate of title, he must obtain a “certificate of inspection

issued by a county police department.”      Md. Code, Transportation,

§ 13-507(a)(2).    The MVA may not issue a certificate of title if

the salvage certificate does not bear a signature indicating the

completion of an “inspection by a police officer in [Maryland] who

is authorized to inspect salvage vehicles.”        Code of Md. Regs.

11.15.14.04.

   After performing the inspection, the officer signs the salvage

certificate under the following printed block:

            CERTIFICATION OF INSPECTION BY POLICE AGENCY

     I, THE UNDERSIGNED AUTHORIZED REPRESENTATIVE OF THE
     POLICE AGENCY NAMED BELOW, HEREBY STATE THAT I HAVE
     INSPECTED THE VEHICLE DESCRIBED ABOVE AND VERIFIED THE
     VEHICLE IDENTIFICATION NUMBER.

J.A. 158.

   Najjar’s operation of Clinton Auto came under investigation and

eventually led to his indictment and conviction on federal mail

fraud, possession, transportation, and money laundering charges.

See United States v. Najjar, 300 F.3d 466 (4th Cir. 2002).         We

described his scheme as follows:

     [Najjar’s] mode of business was to steal expensive, late
     model cars . . . and strip them of parts. The cars would
     then be abandoned for the police to find. The insurance

                                   3
     companies holding the policies on the cars would declare
     them total losses, and sell the recovered vehicles for
     salvage.   Najjar and his agents would then buy the
     salvaged cars at insurance auctions and use them for
     reassembly . . . [S]ometimes stolen parts were used on
     the very same cars from which they were stolen. Najjar
     and his cohorts would sell the reassembled cars at . . .
     Clinton Auto Sales.

Id. at 471.

   After learning that White was doing salvage inspections at

Clinton Auto, Lt. Wright, then head of the Maryland State Police

(“MSP”) auto theft unit, opened an internal investigation file on

White. Lt. Wright eventually took the case to federal prosecutors,

for whom he continued to serve as a primary investigator, having

been specially deputized as a federal agent.

   White was indicted by a federal grand jury as a participant in

Najjar’s scheme.     The government alleged in the indictment that

White performed the inspections Najjar needed in violation of

internal MSP rules for conducting salvage inspection. According to

the government, White signed off on vehicles that were rebuilt with

stolen parts or were not adequately restored or “road worthy” as

required by MSP rules, conducted inspections at improper times and

places, and concealed his activity by failing to follow standard

procedures for disclosing information about the inspections.

   White voluntarily turned himself in after the indictment was

returned.     He had his picture taken, was fingerprinted, and then

was released subject to conditions in a bond.     Prior to White’s



                                  4
trial, MSP suspended his police powers.                         Ultimately, White was

acquitted by a jury on all charges.

   White thereafter initiated this action against Lt. Wright.                           In
                            *
his amended complaint , White alleged that Lt. Wright deliberately

presented      false    information              to      and   concealed      exculpatory

information from prosecutors and the grand jury regarding White’s

involvement with Najjar and Clinton Auto, and that prosecutors and

the grand jury relied on Lt. Wright’s investigation in indicting

and prosecuting White.                 Additionally, White alleged that MSP

authorities     suspended        him    as       a    result   of   the   indictment   and

criminal proceedings brought about by Lt. Wright’s investigation.

   Of the false information that Lt. Wright is alleged to have

intentionally     provided         prosecutors           and    MSP   officials,   White

highlights the following as the most significant: (1) that salvage

inspectors were required to examine salvage vehicles for stolen

parts    and   that,   by       signing      a       salvage   certificate,    White   was

certifying that the vehicle had not been restored with stolen



     *
      Earlier in the proceedings, the district court granted Lt.
Wright’s motion to dismiss White’s original complaint but afforded
White leave to amend his complaint to allege facts that would
support cognizable claims. In so doing, the court noted that “a
significant amount of the allegations involving investigation,
prosecution and testimony appear to fall within the protection of
absolute and qualified immunity.” J.A. 15. The district court
also noted “reservations whether much if any of the allegations .
. . set forth in the Complaint make out a cognizable claim.” J.A.
15.   Nonetheless, the court afforded White the “opportunity to
present his claims with greater details and particulars.” J.A. 15.


                                                 5
parts; (2) that White was ordered in 1993 by his superiors to stop

performing salvage inspections; (3) that White signed a salvage

certificate for an unrestored Nissan 300ZX; (4) that White failed

to comply with MSP salvage inspection procedures regarding off-duty

inspections and the required location for inspections; (5) that

White failed to file required salvage inspection incident reports

in order to conceal his work for Clinton Auto; and (6) that White

signed off on salvage vehicles that were unrestored.                     White also

alleged   that   Lt.     Wright    concealed          from   prosecutors    and    MSP

officials the fact that White first approached Lt. Wright, and not

the other way around, about the possibility that Najjar might be

engaged   in   illegal       activity.        White    asserts    that   Lt.    Wright

purposely destroyed an audio taped interview during which Lt.

Wright acknowledged that fact.

   Based on the foregoing allegations, White contended that Lt.

Wright    violated     his    Fourth     Amendment       rights    by    “caus[ing],

institut[ing],    and    continu[ing]         a   criminal     proceeding      against

[White] without probable cause” and by causing White to be seized

and detained without probable cause.                    J.A. 46.    Second, White

argues that his Fifth Amendment right “not to be deprived of his

liberty or property without due process” was violated by Lt.

Wright’s conduct.       To the extent that Lt. Wright was acting as a

federal agent when he engaged in this alleged conduct, White

asserted these claims under Bivens v. Six Unknown Named Agents of


                                          6
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).             To the

extent Lt. Wright was acting under state law, White asserted the

claims under 42 U.S.C.A. § 1983 (West 2003).

   Lt. Wright moved to dismiss the complaint or, alternatively, for

summary    judgment,   contending   that   White   failed   to   state   a

constitutional claim against him and that he was protected by

qualified immunity.    After oral argument, the district court ruled

from the bench, granting the defendant’s motion to dismiss or for

summary judgment in the alternative.       The district court observed

that

       [nothing in the record] suggest[s] that what [Lt. Wright]
       was doing was deliberate . . . [I]n the absence of any
       warrant [or] any arrest in this case, and the grand jury
       having acted – having found probable cause . . . I think
       there is no seizure. [As for White] being papered and
       fingerprinted and somewhat restricted for hours or
       whatever, that’s, at best, de minimis injury . . . .

          . . . [H]e was never picked up but he turned himself
       in once . . . the grand jury handed down that indictment,
       . . . I don’t believe there is a Fourth Amendment
       violation.

          The Fifth Amendment [claim] . . . is very . . .
       vague. We don’t know whether he’s claiming procedural or
       substantive. . . [W]here there’s been a finding by the
       grand jury that there was . . . probable cause . . .
       [there is no] Fifth Amendment violation.

J.A. 146-48.

   The district court then indicated that it was dismissing the

complaint under a Rule 12(b)(6) standard, but, alternatively,

stated that there was a basis to grant summary judgment as well.

It appears that the district was applying its ruling to the first

                                    7
step in the qualified immunity analysis               –-    a determination of

whether    a   constitutional    violation      had   been    alleged.      White

appeals.



                                     II.

      Our evaluation of Lt. Wright’s qualified immunity claim involves

a two-step process.      The first step requires us to decide whether

Lt. Wright’s alleged conduct violated a constitutional right; if

so, then the second step requires a determination of whether the

constitutional right was clearly established at the time of Lt.

Wright’s actions.      See Saucier v. Katz, 533 U.S. 194, 201 (2001).

       We need only go as far as the first step in considering

White’s Fourth Amendment claim.           In the amended complaint, White

alleges that Lt. Wright violated his rights under the Fourth

Amendment by “caus[ing], initiat[ing], and continu[ing] a criminal

proceeding against [White] without probable cause.”                  J.A. 46.   As

an initial matter, to the extent White contends that Lt. Wright

violated the Fourth Amendment by continuing White’s prosecution in

the    absence   of   probable   cause,    or   by    failing   to    attempt   to

terminate the proceedings, this claim fails.               In Brooks v. City of

Winston-Salem, 85 F.3d 178, 184 (4th Cir. 1996), we rejected a

Fourth Amendment claim that an officer is subject to liability for

not attempting to have a criminal proceeding halted when the

officer knows the accused is innocent. As we observed, “the Fourth


                                      8
Amendment      provides      all     of    the   pretrial     process    that    is

constitutionally due to a criminal defendant in order to detain him

prior to trial.”       Id.

   The heart of White’s Fourth Amendment claim, however, is that

Lt. Wright intentionally submitted to prosecutors false evidence

that, in turn, resulted in White’s seizure.                 White argues that in

the absence of Lt. Wright’s fabricated information, there was no

probable cause and, therefore, his seizure was unconstitutional.

   The district court’s primary basis for rejecting this claim

appears   to    have    been       its    conclusion   that    White    was   never

technically seized.          Although White was not forcibly taken into

custody following the issuance of his indictment, he voluntarily

surrendered      to    authorities         and   was   detained    briefly      for

fingerprinting and processing.             White contends that this sequence

satisfied the seizure requirement of the Fourth Amendment, and we

agree.    See Albright v. Oliver, 510 U.S. 266, 271 (1994) (noting

that “surrender to the State’s show of authority constituted a

seizure for purposes of the Fourth Amendment”); see also Whiting v.

Traylor, 85 F.3d 581, 585 n.6 (11th Cir. 1996) (explaining that a

seizure occurs when the accused “subject[s] himself physically to

the force of the state in response to an arrest warrant”).

   That White successfully alleges a seizure, however, does not end

the matter.     White cannot make out a Fourth Amendment claim unless

he also demonstrates that Lt. Wright’s wrongful acts resulted in


                                            9
his being seized without probable cause.    “It is well-established

that a false or misleading statement in a warrant affidavit does

not constitute a Fourth Amendment violation unless the statement is

necessary to the finding of probable cause.”     Wilkes v. Young, 28

F.3d 1362, 1365 (4th Cir. 1994) (internal quotation marks omitted).

Of course, in this case, the probable cause determination was made

by the grand jury when it returned the indictment, rather than a

magistrate issuing a warrant based upon an affidavit.     See Kalina

v. Fletcher, 522 U.S. 118, 129 (1997).     White cites Lt. Wright’s

grand jury testimony, alleging that Lt. Wright deceived the grand

jury and, by his false testimony, misled the grand jury into

indicting White.    Lt. Wright, however, is not subject to liability

based on his testimony before the grand jury. See Lyles v. Sparks,

79 F.3d 372, 378 (4th Cir. 1996) (extending absolute immunity under

Briscoe v. LaHue, 460 U.S. 325 (1983), to government witnesses in

grand jury proceedings).   Perhaps realizing that Lt. Wright enjoys

immunity for his grand jury testimony, White’s brief includes the

categorical assertion that “Wright’s non-testimonial acts caused

White’s seizure.”   Brief of Appellant at 46.   He does not, however,

support this statement with a citation to the record or any

specific reference to supporting facts.    In short, the record does

not disclose, other than a few snippets of Lt. Wright’s testimony,

what information was presented to the grand jury with respect to

the mail fraud charges against White.       We are thus unable to


                                  10
determine what exactly the grand jury considered in making its

probable cause determination.

   Accordingly, we affirm the district court’s conclusion that

White failed to establish a question of fact as to whether his

Fourth Amendment rights were violated by Lt. Wright.



                                III.

   Turning to White’s due process claim under the Fifth and

Fourteenth Amendments, we must first identify the particular right

that White claims has been violated.     To date, White’s due process

claim remains vague; indeed, the district court indicated that it

was unable to ascertain whether White was asserting a substantive

or procedural due process claim.       White alleges in the complaint

that Lt. Wright “purposely fabricat[ed] evidence [and] presented

[it] to prosecutors and conceal[ed] or destroy[ed] exculpatory and

impeaching evidence” which “deprived [White] of his liberty or

property without due process of law.”       J.A. 47.   White contends

that Lt. Wright’s fabrication and concealment of evidence resulted

in a liberty deprivation–-the suspension of White’s police powers

by the MSP–-and a property deprivation--lost employment benefits,

including salary, during part of the time White was on suspension.

   At a general level, the right at stake here, as alleged by

White, is the right not to be deprived of liberty or property based

on the deliberate use of evidence fabricated by or known to be


                                 11
false to a law enforcement official.        We have recognized that an

officer who violates this right may be subject to civil liability.

See Washington v. Wilmore, 407 F.3d 274, 282 (4th Cir. 2005); see

also   Zahrey   v.   Coffey,   221   F.3d   342,   349    (2d   Cir.   2000)

(recognizing the right “not to be deprived of liberty as a result

of the fabrication of evidence by a government officer acting in an

investigating capacity”).      This claim is rooted in substantive due

process.   See Moran v. Clarke, 296 F.3d 638, 643-45 (8th Cir. 2002)

(en banc) (concluding that “evidence that [the plaintiff] was

investigated,    prosecuted,    suspended   without      pay,   demoted   and

stigmatized by falsely-created evidence” reflected conscience-

shocking behavior prohibited by substantive due process); see also

Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir. 2004) (“[I]f any

concept is fundamental to our American system of justice, it is

that those charged with upholding the law are prohibited from

deliberately    fabricating    evidence   and   framing    individuals    for

crimes they did not commit. . . Actions taken in contravention of

this prohibition necessarily violate due process.”).

   As noted earlier, although the district court granted the motion

to dismiss and actually entered an order dismissing the complaint,

the court alternatively granted the motion pursuant to the summary

judgment standard.     See Fed. R. Civ. P. 56.        Because the parties

submitted, and the district court considered, matters outside of

the complaint, White’s motion should be treated as one for summary


                                     12
judgment.     See Fed. R. Civ. P. 12(b) (“If, on a motion asserting

the defense numbered (6) to dismiss . . ., matters outside the

pleading are presented to and not excluded by the court, the motion

shall be treated as one for summary judgment and disposed of as

provided in Rule 56. . . .”).

      In order for White to survive summary judgment, he must adduce

evidence    showing      that    Lt.    Wright    deliberately      fabricated     or

falsified information in the investigation of White.                    White cannot

support his claim with unsupported allegations and speculation of

fabrication. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.

2001); see also      Myers v. Morris, 810 F.2d 1437, 1460-61 (8th Cir.

1987) (requiring “a specific affirmative showing of dishonesty”).

Moreover,    White      must    adduce    evidence    demonstrating        that   Lt.

Wright’s alleged acts resulted in a deprivation of liberty or

property.    In other words, White must create an issue of fact as to

the    existence   of    a     causal    link    between    the   alleged   conduct

constituting the due process violation and the deprivation of a

liberty or property interest.             See Landrigan v. City of Warwick,

628 F.2d 736, 744 (1st Cir. 1980) (“[W]e do not see how the

existence of a false police report, sitting in a drawer in a police

station, by itself deprives a person of a right secured by the

Constitution and laws.”).               The proper inquiry is whether the

plaintiff’s    loss      of     liberty    or    property    “was   a    reasonably

foreseeable result of [the] initial act of fabrication--the police


                                          13
report.”      Wilmore, 407 F.3d at 283; see also Zahrey, 221 F.3d at

348    (explaining         that     “the   due   process        violation    [was]     the

manufacture         of    false      evidence”    and     the    resulting     “liberty

deprivation [was] the eight months [the plaintiff] was confined,

from his bail revocation (after his arrest) to his acquittal”).

      White   has    not      presented    direct   evidence       of   an    intent   to

fabricate      any       of   the    alleged     false    statements        specifically

identified by White.                White has not even offered evidence of a

motive for Lt. Wright to frame White for a crime he did not commit.

Accordingly, White must rely solely on circumstantial evidence to

raise an inference of intent.              After reviewing the portions of the

record offered by White in support of his claim, we conclude that

he failed to raise a question of fact.                   White’s strongest evidence

of deliberate fabrication, for example, is probably Lt. Wright’s

statements, in his report and during his testimony at trial, that

White’s signature on a salvage certificate was verification that

the vehicle had not been restored with stolen parts.                         Lt. Wright

also misstated MSP regulations regarding the appropriate location

for salvage inspections.               There is nothing to indicate, however,

that these misstatements were anything more than innocent or

careless mistakes.            With respect to the other misrepresentations

alleged by White, Lt. Wright either corrected his own mistake or

had a reasonable basis for his statements.




                                            14
   Furthermore, even if there was evidence suggesting that Lt.

Wright’s misstatements were deliberate fabrications, White failed

to produce evidence establishing a causal link between Wright’s

conduct and the alleged liberty or property deprivations.    White

contends that he was deprived of liberty in that “he was unable to

engage in his profession for over four years” and that he was

deprived of property in that “he lost salary and other employment

benefits to which he was entitled.”   Reply Brief of Appellant.   In

November 1995, Lt. Wright filed a “Complaint Against Personnel

Report,” which initiated an internal MSP investigation of White’s

salvage inspections at Clinton Auto to determine whether White was

involved in illegal conduct.   In March 1997, shortly after search

warrants were executed at Clinton Auto, the MSP suspended White.

His suspension continued through White’s trial.   Apparently, even

after White’s acquittal in 1999, MSP continued the suspension but

reinstated pay.   Finally, in October 2000, the Internal Affairs

Unit (IAU) closed the investigation with a recommendation to the

IAU commander, Captain Lawrence, that White be administratively

charged with misconduct, including violation of criminal mail fraud

laws.   The administrative proceedings were later terminated by a

Maryland Circuit Court, finding that the formal charges were filed

beyond the statute of limitations.

   Even assuming that the liberty or property interest at stake is

entitled to constitutional protection, see Moran, 296 F.3d at 645,


                                15
we find nothing in the record before us linking Lt. Wright’s

specific alleged misstatements or other alleged misconduct to his

administrative suspension.   The only conclusion we can draw from

the scant evidence in the record related to the administrative

proceedings, including a transcript of an MSP hearing during which

White’s police powers were suspended, is that White was suspended

based on his general involvement with Clinton Auto and the fact

that “White had accepted money from the owner of Clinton Auto . . .

for the [salvage] certificate . . . when it was signed.”   J.A. 470.

White does not challenge either fact.     There is simply nothing

showing how or whether the information allegedly manufactured by

Lt. Wright affected the administrative proceedings.

   Finally, White focuses a significant amount of attention on the

alleged destruction of an audio tape recording of Lt. Wright’s

interview of White.   White claims that during the interview, Lt.

Wright acknowledged that White approached him and indicated a

concern that Najjar was involved in illegal activity. Even if this

information was exculpatory, White offers no evidence tending to

show that his alleged liberty deprivations resulted from Lt.

Wright’s alleged deliberate concealment of the information.

   Accordingly, we conclude that White failed to establish a

constitutional violation by Lt. Wright, even if the facts are

viewed in a light most favorable to White for purposes of summary

judgment.


                                16
                               IV.

   For the foregoing reasons, we affirm the district court’s award

of summary judgment to Lt. Wright on each of White’s claims.



                                                         AFFIRMED




                               17
