United States v. Waller, 110816 FED3, 15-3730

Docket Nº:15-3730
Opinion Judge:COWEN, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA v. MICHAEL TYRONE WALLER, Appellant
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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UNITED STATES OF AMERICA

v.

MICHAEL TYRONE WALLER, Appellant

No. 15-3730

United States Court of Appeals, Third Circuit

November 8, 2016

NOT PRECEDENTIAL

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

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

BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges

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 (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 District Court to reconsider its previous ruling.

Represented by his current attorney (who had previously...

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