Motion To Dismiss – BOLEO
COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Florida Rules of Criminal Procedure, Rule 3.190(c)(4), §784.07(2)(b) and §843.01, Florida Statutes, and respectfully files his Motion to Dismiss, and moves the Court to dismiss the Information filed herein, and in support thereof, states as follows:
A. Introduction – Information
1. The Defendant is charged by information with battery on a law enforcement officer, “contrary to the provisions of Sections 784.03 and 784.07(2)(b), Florida Statutes,” and knowingly resisting, obstructing or opposing Deputy A. and Deputy M., “in the lawful execution of their legal duty,” “contrary to the provisions of Section 843.01, Florida Statutes.”
B. Introduction – Legal
2. The basis for this Motion to Dismiss is that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
3. Specifically, and as more completely set forth below, Deputy A. and Deputy M. were not engaged in: (1) the lawful performance of their duties; or (2) in the lawful execution of any legal duty at the time of the altercation giving rise to all charges in this case. These are essential elements of both offenses.
C. Undisputed Facts
4. As stated in note 2, this Motion relies solely on: (1) sworn testimony of the State’s witnesses (as referenced by transcript page and line, throughout the motion); (2) official records of the State Attorneys Office and the Clay County Sheriffs Office; and (3) record court documents, for all material factual allegations. Any other references to factual matters shall, for purposes of this motion, be considered as explanatory and/or background only – and not the “facts” on which this motion relies. In other words, counsel wishes it to be clearly understood that this motion relies only on the “facts” that are now part of the sworn testimony and official records – as specifically referenced herein. Thus, respectfully, should the State wish to file a traverse, it should be directed solely to that portion of this motion referencing the sworn testimony and official records of the State Attorneys Office, the Clay County Sheriffs Office and the Court.
5. The Defendant resides in Green Cove Springs, Florida.
6. The Defendant’s next door neighbor is D. B., who resides in Green Cove Springs, Florida.
7. On July 7, Deputy E. F. A. was parked in his car, completing a report concerning his response to a dispute between the Defendant and Ms. B. that had just occurred. A. Tr. at 24, lines 16-17. At that time, Deputy A. saw “a light flash off to my right.” He did not “know what exactly it was, but it looked like a sparkler.” He testified that he did not hear any noises accompanying the “light flash.” A. Tr. at 24, lines 22-25; pg. 25, lines 1-3.
8. Deputy A., still sitting in his car was approached by a female witness, who he believes was Mrs. G. The Deputy was told the flash of light came from firecrackers, ignited by The Defendant. A. Tr. at 27, lines 19-25; pg. 28; pg. 29, lines 1-3.
9. The firecrackers were on the Defendant’s property. B. Tr. at 23, lines 17-18; G. Tr. at 26, lines 12-13.
10. Mr. G. and Ms. B. also told Deputy A. that the Defendant, after setting off the firecrackers, had told them that “the next ones will be real.” G. Tr. at 27, line 25; pg. 28, line 1.
11. The Defendant was on his porch, when he said that. G. Tr. at 28, lines 2-4.
12. Deputy A. entered onto the Defendant’s property, to “discuss this incident,” and stated that was what he was investigating. A. Tr. at 38, lines 13-17.
13. The Defendant refused to cooperate, or have any discussion with Deputy A. He told Deputy A. to get off his property, and that if Deputy A. refused, he was going to “kick [Deputy A.’s] ass.” A. Tr. at 39, lines 3-11.
14. Deputy A. refused to comply with The Defendant’s instruction.
15. Deputy A. called for additional officers to respond. When the Defendant heard sirens coming, he walked away from Deputy A., and went back up on his porch. A. Tr. at 39, lines 13-19.
16. Deputy A. followed The Defendant onto his porch. A. Tr. at 39, lines 20-21.
17. The Defendant told Deputy A. to get off his porch, but Deputy A. refused. A. Tr. at 39, lines 22-25. The Defendant turned to go into his house, and went approximately one or two steps inside his front door. G. Tr. at 37, lines 10-12.
18. As the Defendant turned, and entered his house, through the already open front door, Deputy A. reached in and “grabbed him by his shirt.” A. Tr. at 42, lines 4-5.
19. When Deputy Ad. grabbed the Defendant by his shirt, the Defendant grabbed Deputy A.’s arm. A. Tr. at 42, lines 4-5. Deputy A. testified he was trying to keep the Defendant out of his house. A. Tr. at 46, lines 14-16.
20. After grabbing the Defendant, who grabbed him back, Deputy A. “kind of hip-tossed [the Defendant] and they both went down to the ground, on [the Defendant’s] front in porch.” A. Tr. at 46, lines 23-25. Deputy A. admitted that he “used an offensive maneuver to bring [the Defendant] to the ground.” A. Tr. at 47, lines 3-5. At that point, Deputy A. attempted to subdue the Defendant, and two other deputies, Deputy M., and Deputy W., having just arrived on the scene, assisted him.
21. During the scuffle, Deputy A. and Deputy M. testified that, after Deputy A. had grabbed the Defendant, and flipped him onto the ground, the Defendant elbowed Deputy A. in the eye, and kicked Deputy M.
22. All of the officers agreed this occurred after the Defendant had entered his house, after Deputy A. had grabbed the Defendant, after Deputy A. had been grabbed by the Defendant, and after Deputy A. used the offensive maneuver to throw the Defendant to the ground.
23. The Defendant was not informed he was under arrest, until sometime after he was subdued and placed in handcuffs. Throughout the struggle. The Defendant was given “orders, loud verbal commands” to “stop resisting.” M. Tr. at 26, lines 11-12; A. Tr. at 48, lines 8-16.
24. Deputy A. testified that, at no time, prior to, or when the Defendant turned to go into his house, did he have probable cause to arrest him. A. Tr. at 49, lines 6-21.
25. Deputy A. also testified that he only had probable cause to arrest the Defendant after the Defendant laid hands on him. A. Tr. at 49, lines 22-24.
26. Deputy A. testified when the Defendant turned to go into his house, he “thought that he was going for a possible weapon.” He further stated that the Defendant “really turned suddenly,” and he “didn’t know what [the Defendant] was going for.” A. Tr. at 42, lines 2-4.
27. Deputy A. had previously been in the Defendant’s house, less than 30 minutes before the incident, and had entered through the front door. A. Tr. at 21, lines 17-18.
28. When Deputy A. was in the Defendant’s house, earlier that evening, he entered through the front door, walked through an open space, where he could observe the Defendant’s living room, and entered the Defendant’s kitchen. A. Tr. at 21, lines 15-23.
29. Consistent with Deputy A.’s training, when he entered the Defendant’s house earlier that evening, he did a threat assessment, and “didn’t see any visible weapons.” A. Tr. at 22, lines 2-11.
D. Controlling Law
30. This motion is filed pursuant to the provisions of Rule 3.190(c)(4), Fla. R. Crim. P., which provides that a motion to dismiss may be filed on the grounds that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
31. The facts, based on the witnesses depositions, reports, statements and transcripts, are undisputed, for purposes of this motion, and application of the law to the undisputed facts shows that the State has not, and cannot, meet its factual burden of proving a prima facie case. Accordingly, dismissal of the charges is appropriate.
32. This case is controlled by Tillman v. State, 934 So. 2d 1263 (Fla. 2006).
33. Tillman governs the application of the statute under which the Defendant is charged – §§ 784.07(2) and 843.01, Fla. Stat. – under the circumstances at issue in this case, holding “proof that the officer was acting lawfully is necessary in a prosecution for crimes committed under either statute that occurs outside an arrest scenario.” Tillman at 1270. The defendant, in Tillman, was among a group of 20-30 people standing in front of several houses, one of which was the location of a party. Id. at 1266. This group consisted of mostly Hispanic people, but included “five black males standing in the street being loud and boisterous.” Id. They were approached by a police officer, who asked them to return to the party, and, while doing so, “one of the black males uttered loud obscenities and threatened [the officer].” Id. The officer called for backup, and he and 8-10 other officers entered the screened pool enclosure of the house where the party was occurring. The officer who heard the threat pointed out Tillman. as one of the people who had threatened him, to an Officer H. (a back up officer). Id. at 1267. Officer H. asked Tillman for consent for a pat down search. Tillman refused, but was patted down anyway. No weapons were found on Tillman.
34. Following the search,
H. asked Tillman to sit down but Tillman refused …and started to walk away. H. grabbed Tillman’s right shoulder, at which point Tillman suddenly spun around and put H. in a headlock. H. attempted to remove himself from Tillman’s headlock by dropping to the ground. Just then, other deputies jumped on top of Tillman and H. Tillman did not release his hold on H. until he was pepper sprayed.
35. Tillman was found guilty of aggravated battery on a law enforcement officer, pursuant to §784.07(2)(d) and resisting an officer with violence pursuant to §843.01. On appeal, Tillman claimed that the trial court should have granted a judgment of acquittal on both counts, because “the state failed to present prima facie evidence that the officer was engaged in the lawful execution of his duty – a necessary element of both offenses.” Id. The 5th DCA affirmed the conviction, and Tillman appealed to the Florida Supreme Court.
36. The 5th DCA in Tillman, interpreting §784.07 and § 843.0,1 interpreted those statutes in pari materia with §776.051(1), Fla. Stat. §776.051(1), holds that the use of force to resist arrest by a person reasonably known to be a law enforcement officer is unlawful regardless of whether the arrest is technically illegal. The 5th DCA extended this rule to the crimes of battery on a law enforcement officer, and resisting arrest with violence. Id. at 1267-1268.
37. This decision by the 5th DCA directly conflicted with that of the 1st DCA, in Taylor v. State, 740 So. 2d 89 (Fla. 1st DCA 1999), which held the prohibition against the use of force in §776.051(1), Fla. Stat. does not apply outside of an arrest situation, and is not extended to other types of police-citizen encounters. Tillman, supra, at 1266. The 5th DCA expressly declined to follow Taylor, and certified conflict.
38. Rejecting the approach of the 5th DCA, and specifically approving the holding in Taylor, the Tillman court ruled “that the prohibition on the use of force to resist an arrest in section 776.051(1) does not extend beyond arrest scenarios.” Id. at 1274. The Tillman court quashed the 5th DCA’s decision and remanded for reconsideration of the denial of Tillman’s motion for judgment of acquittal.
39. Approving the approach of the 1st DCA in Taylor, supra, the Tillman court focused on the question of whether the police were engaged in the lawful execution of a legal duty. Holding that the legislature “has not expressly precluded the defense of justifiable use of force against an officer in situations other than arrest,” and “because the legislature had placed the element of a lawful execution of a legal duty in both sections 784.07(2) and 843.01, proof that the officer was acting lawfully is necessary in a prosecution for crimes committed under either statute that occur outside an arrest scenario.
40. In “construing the lawful execution element of sections 784.07(2) and 843.01, courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” Tillman at 1271. In the instant case, as in Taylor, the lawful execution element is determined by “applying Fourth Amendment law governing warrantless entry by police into a home.” Tillman, supra, at 1270, citing Taylor, supra, at 90.
41. The defendant in Taylor was convicted for battery on a law enforcement officer and resisting an officer with violence. The 1st DCA, holding that there was no proof the officer was engaged in a lawful duty at the time of the offenses, reversed convictions as to both counts. Taylor, 740 So. 2d at 89.
42. The defendant in Taylor was the subject of a noise complaint, the second one that had been investigated that very night. When the officer arrived at the defendant’s house for the second time, he again heard loud music coming from an open doorway. The officer walked up to the doorway, and motioned for the defendant to turn the music down. The deputy asked why the music had not been turned down earlier, and in response, the defendant cursed him, and said he had. Id. The deputy thereupon asked for identification, and the defendant refused to answer. Id. 89-90.
43. When the defendant refused a request to come out, the officer went in the residence, and walked up to the defendant, touching his arm, to motion him to come out. Id. The defendant pulled away, and the deputy attempted to take him by the arm. Id. In response, the defendant pushed the deputy away, and backed up. When the defendant started toward him, the deputy sprayed the defendant with pepper spray, following which they struggled, while the deputy attempted to handcuff the defendant. A second officer, arriving at the scene, helped the first deputy to take the defendant into custody. Id. At trial, the deputy admitted he was not invited into the house, and he had no probable cause to arrest the defendant for any crime before entering the house. Id. Denying the defense motion for judgment of acquittal on both charges, made on grounds that the State failed to prove the deputy was engaged in a lawful duty, the trial court found the defendant guilty. Id.
44. Reversing, a Judge, writing for the majority, found “the State failed to prove that [the deputy] was engaged in the performance of a legal duty at the time of the alleged offenses.” Id. at 90. Although the investigation of the noise complaint was within the scope of his duty, that “fact alone would not give him the right to enter the defendant’s home.” Id. (emphasis added). Because the deputy had no permission to enter the home, and did not have probable cause to arrest before his entry, the entry into the home was illegal. Id.
45. The burden of proof was on the State to prove a lawful duty, at the time of entry, and the State was unable to do so. The trial court found that while the defendant “was intoxicated and he was most certainly belligerent … there was no indication that he was a danger to himself or others.” Id. at 90. Thus, there were no grounds to justify the entry in the home, and “no exigent circumstance that would justify a warrantless entry into the residence, even if probably cause had existed for an arrest.” Id. at 89, citing Payton v. New York, 445 U.S. 573 (1980).
46. The Taylor court also analyzed the effect of §776.051(1) on the facts in that case, and found it inapplicable. That is because the version of §776.051(1) in effect at the time was found, as in Tillman, to only apply to a situation in which forces is used to resist an “arrest.” Since there was no arrest in Taylor, that statute did not apply. Id. at 91. The Taylor court did hold that, in an arrest case, the “effect of section 776.051(1)…is to eliminate the need for proof that the officer was engaged in the performance of a lawful duty in making the arrest.” Id. The effect of the amendment, making §776.051(1) applicable to cases where a law enforcement officer is “engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith” (note 3, supra) would not have changed the holding in Taylor, as the Taylor court found that the officer was not engaged in the performance of a lawful duty.
E. Controlling Law as Applied to the Instant Undisputed Facts
(1) No Arrest
47. The Defendant was not being arrested prior to the altercation with police. M. Tr. at 26, lines 11-12; Adams Tr. at 48, lines 8-16.
48. No probable cause existed to arrest the Defendant, at the time he turned to go into his house. A. Tr. at 49, lines 6-21.
49. No probable cause existed to arrest the Defendant prior to the altercation. A. Tr. at 49, lines 6-21.
50. The Defendant had not committed any crime prior to the altercation. Deputy A. was unable to articulate a single crime that the Defendant had committed at any time that evening, prior to the altercation. A. Tr. at 12, lines 19-20; 13, lines 5-8; 17, lines 12-13. In fact, the first time the word “arrest” was ever used was long after the Defendant had been handcuffed and after rescue had been summoned and left. W. Tr. at 14, lines 17-25; 15, lines 1-5.
(2) No Execution of a Legal Duty
51. As discussed above, when “construing the lawful execution element of sections 784.07(2) and 843.01, courts must apply the legal standards governing the duty undertaken by the law enforcement officer at the point that an assault, battery, or act of violent resistance occurs.” Tillman at 1271. In the instant case, as in Taylor, the lawful execution element is determined by “applying Fourth Amendment law governing warrantless entry by police into a home.” Tillman, supra, at 1270, citing Taylor, supra, at 90.
52. Rodriguez v. State, 964 So.2d 833 (Fla. 2d DCA 2007) discusses the lawful execution of a legal duty element in a context remarkably similar to the instant case. Rodriguez was convicted of battery on a law enforcement officer and resisting an officer with violence, the identical charges as those in the Defendant’s case. Because the State’s evidence did not prove the deputy in Rodriguez was “engaged in the lawful performance of a legal duty,” her convictions were reversed. Id. at 838.
53. The case began when Rodriguez got into a dispute at a convenience store, with a patron who accused him of bumping her car with a shopping cart. Rodriguez left the scene, at the suggestion of the store manager. A bystander informed a sheriff’s deputy, who had observed the commotion and crossed the street to check on it, that Rodriguez had been involved in a collision with another car, and left the scene. The deputy followed in his patrol car, as Rodriguez drove home, saw Rodriguez’ car drive through the gate into his yard, and saw Rodriguez closing the gate behind him. Id. at 835.
54. The deputy got out of his car, and attempted to talk to Rodriguez, who profanely told the deputy to leave him alone, and walked away, toward his home. The deputy decided to arrest Rodriguez for his obstruction of the investigation of the hit-and-run accident, and tried to enter the yard, as Rodriguez was chaining the gate shut. He grabbed the chain away from her, threw it on the ground, and, pushing through the gate, entered the curtilage of the Rodriguez property. As he did so, “he felt a shove.” Id.
55. The deputy caught up with Rodriguez near the front door of Rodriguez’ house, and grabbed him. Rodriguez struggled to get away, and Rodriguez joined in, and began to strike the deputy. The deputy pepper-sprayed Rodriguez, and went after Rodriguez, who, by this time had gone inside his house. When the deputy entered the house, Rodriguez attacked him with an axe, and the deputy shot him to death. Rodriguez then ran inside, “and began pummeling the deputy. Other law enforcement arrived, and one of them arrested Rodriguez.” Id.
56. The decision reversing Rodriguez’ convictions for battery on a law enforcement officer and resisting an officer with violence was based on the fact that “it was undisputed that Rodriguez committed her violent acts prior to her arrest, not in connection with the arrest.” Id. at 836. The Rodriguez court, based on that fact, stated that, “[a]ccordingly, we must determine whether the State’s evidence against Rodriguez proved that the deputy was lawfully executing a legal duty at the time of their encounter.” Id.
57. In the Defendant’s case, it is also undisputed that the Defendant committed his violent act before his arrest. (In fact, the only basis for his arrest was his violent act, which, unlike that of Rodriguez, occurred after the deputy committed a violent act against him, rather than before.) Similarly, this court must determine whether the State’s evidence against the Defendant proved Deputy A. was lawfully executing a legal duty at the time of their encounter.
58. To make that determination, the Rodriguez court examined the law governing a police officer’s entry into a residence or its curtilage. Id. at 837. “If a law enforcement officer does not have consent, a search warrant, or an arrest warrant, he may not enter a private home or its curtilage except when it is justified by exigent circumstances.” Id. (emphasis added). Such “exigent circumstances are ‘few in number and carefully delineated,’ and they include pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, and fighting fires.” Id., (citation omitted).
59. Holding that “none of these limited exceptions applied,” the court looked at the initial entry into the property, in pursuit of Rodriguez. Id. Rodriguez was not a fleeing felon, the court found, he had, the deputy (incorrectly) believed, merely left the scene of a traffic accident with possible property damage – a misdemeanor. Id. Although the deputy testified he had decided to arrest Rodriguez for obstructing the accident investigation, all he did, at that time, was ask the Rodriguez’s to talk to him. Id. “In response, Rodriguez told the deputy to get off his property and began walking toward the house.” Id. The Rodriguez court found there was no obstruction because the deputy had only “attempted to engage [Rodriguez] in a consensual citizen encounter.” Id. Similarly, the Defendant was not a fleeing felon. He had not committed any crime, at the time Deputy A. engaged him in conversation, in what was also a consensual citizen encounter. Like Rodriguez, the Defendant told the deputy to get off his property, and began walking towards his home.
60. The Rodriguez court found, “Rodriguez was under no obligation to remain and talk unless or until the deputy communicated an intention to detain him. But even if the deputy had done so, the offense of obstructing an officer in the performance of his legal duty is only a misdemeanor.” Id. “[L]aw enforcement has no authority to enter a building to make a warrantless arrest for a misdemeanor, especially when the building to be entered is a person’s home.” Id. Therefore, “even assuming Rodriguez had committed a misdemeanor in the deputy’s presence by refusing to cooperate with his investigation, the deputy could not legally enter his home to arrest him for that crime.” Id.
61. Similarly, the Defendant was under no obligation to remain and talk unless or until the deputy communicated an intention to detain him. It is undisputed Deputy A. never did so. Even if he had done so, or wanted to (illegally, and admittedly without probable cause) arrest the Defendant for obstruction or assault, these, too, would only be misdemeanors. Deputy A., like the deputy in Rodriguez had no authority to enter a building to make a warrantless arrest for a misdemeanor, and especially not in a person’s home. Like the deputy in Rodriguez – even assuming the Defendant had committed a misdemeanor in the deputy’s presence (which Deputy A. candidly admits he had not) – Deputy A. could not legally enter the Defendant’s home to arrest him.
62. Concluding this analysis, the Rodriguez court turned to Rodriguez, and determined the deputy was “unlawfully inside the Rodriguezes’ fenced yard and residence when he scuffled with Rodriguez.” Id. at 838 (emphasis added). Therefore, the court held the State’s evidence did not prove the deputy in Rodriguez was “engaged in the lawful performance of a legal duty.” Id. This Court, too, should determine Deputy A. was unlawfully inside the Defendant’s yard and residence when he grabbed the Defendant, starting the altercation. Thus, as in Rodriguez, the State’s evidence cannot and does not prove Deputy A. was engaged in the lawful performance of a legal duty, and there is no prima facie case.
63. Deputy A. was not performing any legal duty at the time he used physical force to restrain the Defendant from entering his own home. Deputy A. had no right to remain on the Defendant’s property, after being told to leave. Although he had the right to initiate a consensual encounter, this right expired when the Defendant told the deputy he did not want to talk to him, and to get off his property.
64. Deputy A. was not investigating any crime – nor could he claim to be. The Defendant committed no crime by setting off firecrackers on his property.
65. The Defendant did not commit an assault by making the comments accompanying the firecrackers. The so-called threat allegedly made to Mr. G. and Ms. B. (not committed in the deputy’s presence), was neither “coupled with an apparent ability to do so,” nor done in a manner which “creates a well-founded fear…that such violence is imminent.” §784.011(1), Fla. Stat.
66. Mr. G. stated he understood the Defendant, by saying “that the next ones will be real,” to mean that the Defendant had “insinuated” that “the next pops or explosions that we heard will be bullets.” G. Tr. at 27, line 25; 28, lines 1, 17-21 (emphasis added). Mr. G. admitted the Defendant did not have a gun in his hand when he said that. G. Tr. at 28; lines 22-24. He admitted that neither he nor Ms. B. took cover, or acted in any way like they thought they were about to be shot at. G. Tr. at 29, lines 7-16. Ms. B. testified that, when the firecrackers were thrown, she just stood there. B. Tr. at 24, lines 18-21. Mr. G. also testified that he had previously stated that the Defendant was always talking and never did anything. G. Tr. at 16, lines 24-25; 17, lines 1-2.
67. Deputy A. testified that, when he reentered the Defendant’s property, the Defendant told him repeatedly to get off his property. A. Tr. at 38, lines 3-5. Deputy A. testified that he was investigating “verbal threats, [the Defendant’s] trying to get past me, continuing disturbances between [the Defendant] and his neighbors.” A. Tr. at 38, lines 19-21. He testified there was nothing else he was investigating at that time. A. Tr. at 39, lines 1-2.
68. A. further testified that the Defendant “didn’t want to cooperate whatsoever,” in his investigation, and that the Defendant did not want to answer any of his questions. A. Tr. at 39, lines 3-10.
69. Deputy A. testified that, rather than obeying the Defendant’s lawful instructions to leave his property, he followed the Defendant onto his porch. A. Tr. at 39, lines 18-21. At that point, the Defendant again told A. to get off his porch, and leave his property, and Deputy A. again refused. A. Tr. at 39, lines 22-25.
70. The Defendant had made it absolutely clear to Deputy A. that he did not want to continue any consensual encounter.
71. At this point, Deputy A. was no longer engaged in the lawful execution of his legal duties, as the Defendant had terminated the consensual encounter. Yarusso v. State, 942 So.2d 939, 942 (Fla. 2nd DCA 2006). “When a citizen who is engaged in a consensual encounter with a police officer either verbally ends the encounter or takes some action that unequivocally demonstrates an intent to end the encounter, the consensual encounter ceases. Any effort by the officer to continue to detain the citizen after that point falls outside of that officer’s legal duties, absent some founded suspicion that the citizen has committed, is committing, or is about to commit a crime. Id., (emphasis added).
72. There was not, and could not be, any founded suspicion that the Defendant had committed a crime for which Deputy A. could arrest him. As discussed above, the Defendant had committed no crime. Assuming, arguendo, there was an assault, it was committed outside the presence of Deputy A., who therefore had no legal authority to arrest the Defendant for assault.
73. Similarly, the Defendant did not commit any crime by refusing to answer questions, ordering the officer off his property, or turning away to go into his house. Deputy A. admitted as much. A. Tr. at 49, lines 6-24.
74. Deputy A. admitted he detained the Defendant, prior to the Defendant ever beginning to enter his house. The deputy stated that, before the altercation, that he was “trying to attempt to conduct a lawful investigation, that he [the Defendant] was not free to go at that time.” A. Tr. at 55, lines 2-4. Because Deputy A. had no lawful right to detain the Defendant, to tell him he was not free to go, or believe the Defendant was not free to go, Deputy A. was not engaged in the lawful execution of any legal duty.
75. Finally, Deputy A. had no founded suspicion that the Defendant was about to commit a crime. First, Deputy A. was a trespasser on the Defendant’s property, and the Defendant had a right to use force to expel a trespasser. Second, regardless of the Defendant’s right to defend his property, there was no factual basis for Deputy A. to have any suspicion whatsoever that the Defendant was going for a weapon, or had any weapon readily at hand, with which to carry out his alleged threat. Stripped of its emotionalism, Deputy A’s testimony is simply that the Defendant turned suddenly away from him, and “I don’t know what he was trying to do.” A. Tr. at 42, lines 16-20. In fact, Deputy A. was a rookie, with considerably less than a year on the job, at the time of this incident. What happened was he simply got scared. A. Tr. at 46, lines 6-7. In response to the question at deposition, “You got scared and you grabbed him, right?,” Deputy A. answered, “Yes, Sir.” A. Tr. at 46, lines 8-11.
76. Deputy A. testified that he “thought that he [the Defendant] was going for a possible weapon,” adding “[the Defendant] turned suddenly” and he “didn’t know what [the Defendant] was going for.” A. Tr. at 42, lines 2-4 (emphasis added).
77. Deputy A. had previously been in the Defendant’s house, less than 30 minutes before this incident, and had entered through the front door. A. Tr. at 21, lines 17-18. While in the Defendant’s house, earlier that evening, Deputy A., upon entering, walked through an open space, from which he could observe the Defendant’s living room, and entered the Defendant’s kitchen. A. Tr. at 21, lines 15-23. Consistent with his training, Deputy A., upon entering the house, did a threat assessment, and “didn’t see any visible weapons.” A. Tr. at 22, lines 2-11 (emphasis added).
78. There are no facts here that could give a reasonable officer a founded suspicion that the Defendant possessed, or had immediate access to, any weapon, sufficient to justify any detention, let alone the violent assault on the Defendant. A founded suspicion can only exist where the suspicion “has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” Cox v. State, 975 So.2d 1163, 1166 (Fla. 1st DCA 2008). The evaluation of the “legality of an officer’s actions involves an objective examination of the totality of the circumstances.” Cox, id., citing Illinois v. Gates, 462 U.S. 213, 238-39 (1983). This judgment
requires ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intuition.’ For reasonable suspicion justifying a detention to exist ‘the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ An officer making an investigatory stop ‘must be able to articulate something more than an inchoate and unparticularize suspicion or hunch.’
Tillman, supra at 1273, citing Carey v. Ohio, 392 U.S. 1, 21 (1968); United States v. Cortez, 449 U.S. 411, 417-18 (1981); and United States v. Sokolow, 490 U.S. 1, 7 (1889) (emphasis added).
79. Although Deputy A. had been provided with conflicting hearsay statements about the Defendant, some of which said he had made threats before, or possessed weapons, these contrasted starkly with other statements, made to him, by the same individuals, that the Defendant was all talk and no action, and had never actually done anything to hurt anyone. More significantly, however, Deputy A. had his own knowledge, experience, and personal observations, all which told him that there were no weapons readily available to the Defendant. He did not (and could not) articulate a single fact giving rise any belief that the Defendant was about to commit a crime. Deputy A. testified, “I don’t know what [the Defendant] was trying to do,” that the Defendant “turned suddenly” and he “didn’t know what [the Defendant] was going for.” A. Tr. at 42, lines 16-20 and 2-4. Thus, Deputy A. could have, nor had, no reasonable, founded suspicion, based on any articulable, objective facts, that the Defendant was about to commit a crime. Accordingly he was not justified in detaining the Defendant, anytime, anywhere, under these facts.
80. Although Deputy A. clearly could have no justification for any detention, anywhere, based on the facts and information available to him, he absolutely could not meet the even higher legal protections given to the Defendant, as a man on his own property, or in his own home. The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.
Kyllo v. United States, 533 U.S. 27, 31 (2001), citations omitted, (emphasis added).
81. The State cannot justify, or provide any facts, sufficient to prove, that Deputy A. was executing any legal duty, when he made the decision to enter the Defendant’s home without a warrant, and seize his person. “To do so, it must demonstrate a ‘grave emergency’ that ‘makes a warrantless search imperative to the safety of the police and of the community.’” Riggs v. State, 918 So.2d 274, 278 (Fla. 2005), citing Illinois v. Rodriguez, 497 U.S. 177, 191 (1990). “An entry is considered ‘imperative’ when the government can show a ‘compelling need for official action and no time to secure a warrant.’” Riggs, supra, at 279, citing Michigan v. Tyler, 436 U.S. 499, 509 (1978). This is known as the exigent circumstances exception, which, as discussed above, are “few in number and carefully delineated.” Riggs, supra, at 279 (citation omitted). These include “pursuing a fleeing felon, preventing the destruction of evidence, searching incident to a lawful arrest, and fighting fires. Outside of these established categories, the Supreme Court ‘has often heard, and steadfastly rejected, the invitation to carve out further exceptions.’” Riggs, supra, at 279 (citations omitted).
82. In this case, there was no immediate threat to Deputy A.’s safety. Deputy A. was not pursuing a fleeing felon. He was not preventing the destruction of evidence, nor was he searching incident to a lawful arrest, or fighting a fire. He was simply improperly and illegally continuing a terminated consensual encounter, without founded suspicion, and without probable cause. Had he really believed that there was some question about the Defendant arming himself, he could have secured the property, with backup there, and gone for a warrant. However, this option was not tenable, because there were no grounds to seek a warrant. The Defendant had not committed any crime, there was no founded suspicion of any crime, and the possession of any hypothetical, or real weapons, including firearms, is not a crime, or evidence of a crime.
83. Deputy A. should have walked away. Instead, he acted improperly, by refusing to discontinue his advances, and improper questioning, when the consensual encounter was terminated; instead insisting that the Defendant obey his (nonexistent) authority, and not go into his home (leaving aside the fact that two witnesses testified that, rather than ordering the Defendant not to go into his home, Deputy A. in fact, ordered the Defendant to go into his home); and, finally, by continuing to trespass, by entering the Defendant’s home, and laying hands on him. It is clear that Deputy A. was not executing any lawful duty at the point at which he initiated this altercation.
(3) No Good Faith
84. As stated above, to sustain the charge in the Information, to wit, violations of the provisions of §784.07(2)(b), and §843.01, Fla. Stat., both the battery, and the obstruction must occur during the lawful execution of a legal duty. As discussed above, Deputy A. was, at no time, executing a legal duty. These statutes are also read in pari materia with §776.051(1), as amended effective July 1. This statute, which is discussed in detail above, in Tillman, supra, and Taylor, supra, was amended subsequent to those cases. It now reads
A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
§776.051(1), Fla. Stat., (emphasis added).
85. As discussed above, the facts clearly show that Deputy A. was not effecting an arrest, at the time of the altercation. Similarly, there are no facts showing Deputy A. was engaged in the execution of a legal duty at the time of the altercation. The statute, as amended, requires proof of three elements. The first is in the alternative, proof of either arrest, or execution of a legal duty. Once one of those is established, the additional requirements are that the State must prove that the “law enforcement officer was acting in good faith,” and “he or she is known, or reasonably appears, to be a law enforcement officer.” Id. It is undisputed here that Deputy A. and Deputy M. were in uniform, and were known, or reasonably appeared to be, law enforcement officers, to the Defendant.
86. As for the element of good faith, the statute places an additional burden on the State, to not only prove the execution of a legal duty, in this case, but good faith on the part of the law enforcement officer. Law enforcement officers are presumed to have knowledge of the law. See, e.g., State v. Young, 974 So.2d 601, 610 (Fla. 1st DCA 2008). The law is clear that Deputy A. was not executing a lawful duty at the time he initiated the altercation, and, given the presumption that he is supposed to know the law, the State cannot claim otherwise.
(4) No Prima Facie Case as to Deputy M.
87. As to the two charges relating to Deputy M., the State cannot prove a prima facie case, based on the undisputed facts, as it cannot meet its burden of showing Deputy M. was engaged in the execution of a legal duty. He was not, he was assisting in an unlawful detention. His standing, and his probable cause could never be better than that of Deputy A., and Deputy A. had none.
88. Deputy M. was summoned to a disturbance in progress. M. Tr. at 10, lines 12-21. The call Deputy A. made was a “35,” which means, “send another officer.” M. Tr. at 14, lines 2-4. Deputy A. never radioed in that he was making an arrest.
89. The analysis above concluding Deputy A. was not engaged in the execution of a lawful duty controls factually with regard to Deputy M. This case, like all cases in the State of Florida, is governed by the “Fellow Officer Rule.” Under this rule, the collective knowledge of officers investigating a crime is imputed to each officer. See Whiteley v. Warden Wyo. State Penitentiary, 401 U.S. 560, 568 (1971); see also, State v. Maynard, 783 So.2d 226, 229 (Fla. 2001). “The collective knowledge of police investigating a crime is imputed to each member.” Johnson v. State, 660 So.2d 648, 657 (Fla. 1995).
90. Thus, in the Defendant’s case, the knowledge possessed by Deputy A. is imputed to Deputy M. Thus, Deputy M. was not engaged in the execution of a legal duty at the time he intervened in the altercation.
91. In fact, Deputy M. had no reason to believe Deputy A. was engaged in the lawful execution of a duty. Deputy M. testified, “when I arrived, I seen the defendant up on his porch and I seen A. walking on the porch, as well. And the defendant looked like he was trying to get into the house, and A. obviously didn’t want him to go in the house for some reason … therefore A. grabbed him…” M. Tr. at 16, lines 15-23 (emphasis added).
92. When Deputy M. intervened in the altercation, he never told the Defendant he was under arrest. M. Tr. at 21, lines 20-25. All that Deputy M. spoke to the Defendant, during the altercation, were “orders, loud verbal commands,” to stop resisting. M. Tr. at 26, lines 11-12.
93. This case turns entirely upon the question of whether Deputy A., a rookie with less than a year on the job at the time of the altercation in question, was engaged in the lawful execution of a legal duty, at the time he initiated the altercation. He was not, and the altercation occurred following an illegally prolonged consensual encounter between Deputy A. and the Defendant. This consensual encounter, arose from an incident involving firecrackers. The firecracker incident never rose to the level of a crime or violation of any ordinance. Although Deputy A. had a right to approach the Defendant, and attempt to engage him in conversation, this right ended when the Defendant not only refused to discuss the incident with the deputy, but ordered Deputy A. off his property, at the threat of force.
94. The Defendant clearly and unequivocally stated his desire not to cooperate, and to terminate the consensual encounter. Instead of leaving the Defendant alone, as the law required, Deputy A. persisted, chased the Defendant up on his porch, and when the Defendant tried to enter his own home – which he was entirely and lawfully allowed to do – Deputy A. seized him, illegally detained him, and initiated a physical encounter which resulted in the Defendant being beaten severely by the police, though he had broken no law.
WHEREFORE, the Defendant respectfully requests this Honorable Court grant his Motion and enter an order dismissing the above-referenced Information.