NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-3730

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UNITED STATES OF AMERICA

v.

MICHAEL TYRONE WALLER,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Crim. No. 2-14-cr-00040-001)

Honorable Nora B. Fischer, District Judge

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Submitted under Third Circuit LAR 34.1(a)

October 7, 2016

BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges

(Filed: November 8, 2016)

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OPINION*

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COWEN, Circuit Judge.

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*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7

does not constitute binding precedent.
2

Michael Tyrone Waller appeals from the criminal judgment entered by the United 

States District Court for the Western District of Pennsylvania. We will affirm.

I.

Waller was indicted on one count of possession of a firearm by a convicted felon 

in violation of 18 U.S.C. § 922(g)(1). Specifically, a pistol (which contained 

ammunition) fell out of his waistband during a struggle with Pittsburgh police officers 

that ensued after they had pulled over a Chevrolet Malibu in which he was a passenger on 

the basis of information provided by a witness, R.N., to a nearby shooting. Acting pro se, 

Waller moved to suppress this evidence, and the District Court conducted an evidentiary 

hearing.

The District Court denied his motion. Specifically, it found that law enforcement

did not “seize” Waller until after the firearm had fallen from his waistband. “Here, 

Waller did not submit to the authority of the officers until after the officers tas[ed] him 

and, therefore, finally were able to physically seize him to place him under arrest.” 

United States v. Waller, Criminal No. 14-40, 2014 WL 4272765, at *6 (W.D. Pa. Aug. 

29, 2014). “Having determined that the police seized Waller at the time they arrested 

him and after the discovery of the firearm, Defendant’s instant Motion to Suppress fails.” 

Id. The District Court then determined that, in any event, there was reasonable suspicion 

for a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968).

Waller filed a pro se motion to dismiss the indictment for miscarriage of justice

and false information, which the District Court construed as a motion for reconsideration. 

“The Motion generally argues that Defendant ‘has direct evidence that officers fabricated
3

the existence of’ ‘R.N.,’ the tipster that police officers claimed provided a description of 

the car in which Mr. Waller was found.” United States v. Waller, Criminal No. 14-40, 

2015 WL 1198109, at *1 (W.D. Pa. Mar. 16, 2015) (quoting A33). Waller was permitted 

to review a redacted copy of R.N.’s grand jury testimony, and the District Court then 

denied his reconsideration motion. It determined, inter alia, that this witness’s grand jury 

testimony did not provide a basis for the District Court to reconsider its previous ruling. 

Represented by his current attorney (who had previously served as stand-by 

counsel), Waller was found guilty by the District Court in a bench trial and sentenced to a 

term of imprisonment of 120 months. 

II.

We agree with the government that, given his failure to submit to the police 

officers’ show of authority, Waller was not seized until the officers physically removed 

him from the Chevrolet Malibu.

1

 “A seizure occurs when there is either (a) ‘a laying on 

of hands or application of physical force to restrain movement, even when it is ultimately 

unsuccessful,’ or (b) submission to ‘a show of authority.’” United States v. Brown, 448 

F.3d 239, 245 (3d Cir. 2006) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)). 

 

1 The District Court had jurisdiction over this criminal proceeding pursuant to 18 

U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.

In reviewing the District Court’s denial of the suppression motion, we exercise 

plenary review with respect to the District Court’s legal determinations as well as its 

application of the law to the facts. See, e.g., United States v. Burnett, 773 F.3d 122, 130 

(3d Cir. 2014); United States v. Thompson, 772 F.3d 752, 758 (3d Cir. 2014). However, 

factual findings are reviewed for clear error. See, e.g., Burnett, 773 F.3d at 130. We 

review an order denying a motion for reconsideration for abuse of discretion. See, e.g., 

United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010).
4

According to Waller, he submitted to governmental authority immediately after the 

vehicle was pulled over. It appears that the police officers made a show of authority 

because a reasonable person in Waller’s position would not feel free to leave, decline the 

officers’ requests, or otherwise terminate the encounter. See, e.g., Brendlin v. California, 

551 U.S. 249, 255 (2007). However, Waller did not submit to this exercise of authority 

through either affirmative acts or passive acquiescence. See, e.g., United States v. Lowe, 

791 F.3d 424, 431 (3d Cir. 2015) (“But different factors must be considered when an 

individual is already stationary, or ‘when an individual’s submission to a show of 

governmental authority takes the form of passive acquiescence.’” (quoting Brendlin, 551 

U.S. at 255)). 

We recently explained that “[a]ction—not passivity—has been the touchstone of 

our analysis.” Id. at 433. In this case, Waller did more than merely refuse to comply 

with the police officers’ orders. He was ordered to exit the vehicle, but refused to do so 

(claiming that the car was pulled over for racial reasons and demanding to speak with a 

supervisor). After Sergeant Charles Henderson arrived on the scene, he remained noncompliant and was forcibly removed from the car. Even before the supervisor arrived, 

Officer Jonathan Craig ordered Waller to keep his hands on the dashboard. But he 

reached his left hand down to touch the left side of his body—where a firearm was 

subsequently discovered. According to Craig, “I would instruct him again to leave his 

hands on the dashboard, and he would put hands back on the dashboard and repeatedly do 
5

that action” (App’x Vol. II at 207). 2 See, e.g., Lowe, 791 F.3d at 434 (“Rather, we hold 

that when a stationary suspect reacts to a show of authority by not fleeing, making no 

threatening movement or gesture, and remaining stationary, he has submitted under the 

Fourth Amendment and a seizure has been effectuated.” (emphasis added)). 

Furthermore, this “seizure was justified by ‘reasonable, articulable facts’” known 

to the police officers at that point in time. United States v. Torres, 534 F.3d 207, 210 (3d 

Cir. 2008) (quoting Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir. 2003)). The 

District Court appropriately began with the detailed information furnished by R.N. See, 

e.g., United States v. Johnson, 592 F.3d 442, 450-51 (3d Cir. 2010) (noting importance of 

specificity). According to Officer Aaron Obsenica, R.N. told him the following shortly 

after the shooting:

1. He was at the bar until 1:50 a.m., at which time he walked to his 

vehicle in the parking lot. [(App’x Vol. II at 177.)]

2. He heard about five gunshots, and observed a red Chevrolet Malibu and 

a black-colored vehicle parked in front of Baker’s Dairy. [(Id.)]

3. He heard the shots and turned to look in the direction where he believed 

they came from, which was toward Baker’s Dairy, where he saw the 

two vehicles. [(App’x Vol. II at 186.)]

 

2

 In Lowe, this Court determined that the defendant submitted to the exercise of 

authority even though he failed to comply with the order to show his hands. Lowe, 791 

F.3d at 432-34. Unlike Waller, Lowe “stayed put” when the officers confronted him. Id.

at 433. “At that point, the record does not reflect that he made any threatening gesture or 

moved his hands or arms in any way, much less that he reached for a weapon or 

otherwise acted to rebuff the officers’ authority.” Id.; see also Brendlin, 551 U.S. at 261-

62 (indicating that passenger submitted once car came to stop and he simply stayed inside 

vehicle). 
6

4. He observed two black males in that area and the two vehicles fled at a 

high rate of speed down Hamilton Avenue, with one turning left and one 

turning right. [(App’x Vol. II at 177.)]

Waller, 2014 WL 4272765, at *1-*2. R.N. provided the police officer with his first and 

last name, address, date of birth, and telephone number. See, e.g., Torres, 534 F.3d at 

211-12 (noting that fact tipster can be held responsible for fabrications indicates 

reliability). Officer Dustin Rummel issued a dispatch indicating that there was a red 

Chevrolet Malibu in the area that had possibly been involved in the shooting and was 

seen fleeing on Frankstown Road toward Washington Boulevard.3 Craig and his partner 

then saw a red (or maroon) Chevrolet Malibu at the intersection of North Homewood and 

Hamilton Avenues, approximately one block away from the shooting. See, e.g., id. at 

212 (“This information was credibly available to the tipster and it accurately predicted 

what would follow (i.e., that an Hispanic man would be driving a silver BMW 745i with 

license plate FVA-7726 near the location provided by the tipster).”). The District Court 

also appropriately took into account the time and place (i.e., approximately 2:00 a.m. in a 

high crime area). See, e.g., United States v. Valentine, 232 F.3d 350, 356-57 (3d Cir. 

2000) (highlighting lateness of hour and location). After the car was pulled over, Waller 

refused to exit the vehicle, made furtive gestures toward his left waistband despite being 

repeatedly ordered to keep his hands on the dashboard, and, even after the supervisor 

arrived, still refused to get out of the car. Even if “[n]obody was observed getting into or 

out of a maroon Chevy Malibu near the scene of the shooting” and “[n]obody was 

[directly] observed shooting from or at the maroon Chevy Malibu” (Appellant’s Brief at

 

3

It appears that Rummel meant to say “Hamilton” instead of “Frankstown.”
7

20), the District Court, given these circumstances, did not commit reversible error by 

finding that the police officers possessed “‘reasonable, articulable suspicion’” of criminal 

activity and thereby conducted a proper investigatory stop under Terry. Torres, 534 F.3d 

at 210 (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). 

According to Waller, R.N.’s own grand jury testimony contradicted Obsenica’s 

testimony at the suppression hearing. Arguing that the District Court gave this grand jury 

testimony “short shrift,” he goes on to claim that R.N. testified under oath that he was by 

himself at the bar (and not with the victim as Obsenica asserted) and that he merely saw a 

red car (as opposed to a red Chevrolet Malibu) as well as three men (not two men). 

(Appellant’s Brief at 20.) However, the critical issue here was what R.N. told the police

at the crime scene. In denying Waller’s reconsideration motion, the District Court 

observed that Obsenica’s account was corroborated by his own (relatively 

contemporaneous) investigative report. “As such, Defendant has presented nothing to the 

Court that causes it to change its mind.” Waller, 2015 WL 1198109, at *7. As the 

District Court also succinctly explained, “‘[m]aroon’ is ‘a dark red.’” Id. (quoting 

Maroon, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2007)).

III.

We will affirm the judgment of the District Court.