665 Fed.Appx. 150 (3rd Cir. 2016), 15-3730, United States v. Waller

Docket Nº:15-3730
Citation:665 Fed.Appx. 150
Opinion Judge:COWEN, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. MICHAEL TYRONE WALLER, Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Rebecca R. Haywood, Esq., Laura S. Irwin, Esq., Office of United States Attorney, Pittsburgh, PA. For MICHAEL TYRONE WALLER, Defendant - Appellant: Martin A. Dietz, Esq., Pittsburgh, PA.
Judge Panel:BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges.
Case Date:November 08, 2016
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 150

665 Fed.Appx. 150 (3rd Cir. 2016)

UNITED STATES OF AMERICA

v.

MICHAEL TYRONE WALLER, Appellant

No. 15-3730

United States Court of Appeals, Third Circuit

November 8, 2016

Submitted October 7, 2016, Under Third Circuit LAR 34.1(a)

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

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.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Rebecca R. Haywood, Esq., Laura S. Irwin, Esq., Office of United States Attorney, Pittsburgh, PA.

For MICHAEL TYRONE WALLER, Defendant - Appellant: Martin A. Dietz, Esq., Pittsburgh, PA.

BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges.

Page 151

OPINION [*]

COWEN, Circuit Judge.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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 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

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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, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). 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, 127 S.Ct. 2400, 168 L.Ed.2d 132 (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 non-compliant 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...

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