                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 15-3730
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                             MICHAEL TYRONE WALLER,

                                                                Appellant
                                     ______________

                     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
                                   ______________

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

              BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges

                                (Filed: November 8, 2016)

                                     ______________

                                       OPINION*
                                     ______________

COWEN, Circuit Judge.
____________________

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

                                              2
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).
                                              3
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 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 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




                                             4
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).
                                             5
       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.”
                                              6
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.




                                             7
