Filing # 43457908 E-Filed 06/30/2016 04:55:35 PM

IN THE CIRCUIT COURT OF THESEVENTH JUDICIAL CIRCUITIN AND FOR VOLUSIA COUNTY,FLORIDA

STATE OF FLORIDA,

Plaintiff, CASE NO.: 2012 036059 CFAESvs.

MICHAEL JON MORRISON,

Defendant.

MOTION TO DISMISS

COMES NOW the Defendant, MICHAEL JON MORRISON, by and through his

undersigned attorney and pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure,

hereby moves this Honorable Court to dismiss the charge of Aggravated Assault on a Law

Enforcement Officer (Firearm) as alleged in the Information filed in the above styled cause as

there are no material disputed facts and the undisputed facts do not establish a prima facie case

of guilt against the defendant. As grounds for this Motion, Mr. Morrison states as follows:

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. Mr. Morrison is charged by Information with one (1) count of Aggravated Assault

on a Law Enforcement Officer (Firearm) contrary to Section 784.07(2)(c), Florida Statute.

2. On October 21, 2012, Mr. Morrison was engaged in lawful activity at his own

residence located at 805 Flamingo Drive, Holly Hill, Volusia County, Florida. (A copy of the

Arrest Report is attached hereto and incorporated herein as Defendant's Exhibit "A.")

3. Mr. Morrison became a suspect in a misdemeanor Domestic Violence incident

involving his friend, Leah Mays, in front of Ms. Mays' residence located at 408 South

Ridgewood Avenue, Daytona Beach, FL.

4. Officers responded to Ms. Mays' location at 408 South Ridgewood Avenue,

Daytona Beach, FL, at approximately 10:10 p.m. in reference to the alleged Domestic Violence.

5. Sergeant Rod Erdman attempted to make contact with Mr. Morrison at his home,

located at 805 Flamingo Drive, Holly Hill, Volusia County, Florida, at approximately 10:25

p.m., but was unsuccessful.

6. Ms. Mays was picked up from her residence and transported by law enforcement

officers to Mr. Morrison's house at 805 Flamingo Drive, Holly Hill, Volusia County, Florida.

7. Officers Dale Kelley and Matt Armstrong went to Mr. Morrison's residence with a

non-resident of the home, Leah Mays, to allegedly retrieve her belongings and facilitate the

arrest of Mr. Morrison on a single misdemeanor count of Domestic Violence at approximately

1:38 a.m. on October 22, 2012. The officers had no Arrest Warrant, no Search Warrant, and there

were no exigent circumstances.

8. Mr. Morrison was not able to answer the door as he was indisposed and about to

shower. The officers knocked on the front door several times due to the fact they had a reason to

believe Mr. Morrison was home via the personal knowledge of Ms. Mays regarding Mr.

Morrison's usual habits.

9. Other than the false verbal assertion by Ms. Mays that she lived at Mr. Morrison's

house, the law enforcement officers undertook no further investigation to confirm whether Ms.

Mays had any lawful authority to be on Mr. Morrison's property.

10. Ms. Mays was permitted to gain entry into Mr. Michael Morrison's house by

breaking a window in back of the home.

11. Officers Kelley and Armstrong, and Ms. Leah Mays made an illegal entry into the

rear curtilage of Mr. Morrison's property by crossing through a locked four foot chain link

fence/gate. They continued their illegal entry by assisting Ms. Mays over a six foot high wooden

stockade fence so that she could unlock the wood gate and allow officers further into the back

yard. Law enforcement officers sustained their unrelenting assault upon Mr. Morrison's

constitutional rights by proceeding through the wood gate, opening the screened door and

entering Mr. Morrison's house. Mr. Morrison reports that the screen had also been cut.

12. Law enforcement officers furthered their unlawful and egregious conduct by

permitting Ms. Mays to crawl onto a table located within Mr. Morrison's home and allowing her

to kick in Mr. Morrison's glass kitchen window so that Ms. Mays, a non-resident., could

criminally enter Mr. Morrison's home in their presence.

13. Mr. Morrison responded to the disturbance by attempting to protect his person

and property by telling the assembled officers and their agent, Ms. Mays, that he had a legal

firearm.

2

14. At approximately 3:00 a.m. while located within Mr. Morrison's home, Officer

Armstrong shot Mr. Morrison in his back as Mr. Morrison stood within his own residence.

ARGUMENT AND MEMORANDUM OF LAW

A Motion to Dismiss made pursuant to Florida Rule of Criminal Procedure 3.190(c)(4),

must allege and establish that "there are no material disputed facts and the undisputed facts do

not establish a prima facie case of guilt against the defendant." State v. Kalogeropolous, 758 So.

2d 110, 111 (Fla. 2000). When considering a defendant's Florida Rule of Criminal Procedure

Rule 3.190(c)(4) Motion to Dismiss, all questions and inferences from facts must be resolved in

favor of the State. State v. Fuller, 463 So. 2d 1252 (Fla. 5th DCA 1985).

Aggravated Assault on a Law Enforcement Officer requires proof that the officers(s)

were engaged in the performance of a lawful duty. See Section 784.07(2), Florida Statute (2016).

In construing the lawful execution element of Section 784.07(2) and 843.01, courts must apply

the legal standards governing the duty undertaken by a law enforcement officer at the point that

an assault, battery, or act of violent resistance occurs. Likewise, Section 784.07(2), Florida

Statute (2015) reclassifies Aggravated Assault from a felony of the third degree to a felony of the

second degree if the victim is a law enforcement officer "engaged in the lawful performance of

his or her duties." These standards effectuate the legislature's intent in making lawful execution

of a legal duty an element of these crimes. See Tillman v. State, 934 So.2d 1263 (Fla. 2006). A

warrantless non-emergency arrest of a suspect at his or her house is presumed illegal. See Welsh

v. Wisconsin, 466 U.S. 740 (1984). Absent consent, a Search Warrant, or an Arrest Warrant, a

police officer may enter a private home only when there are exigent circumstances for the entry.

See Taylor v. State, 740 So.2d 89 (Fla. 1999).

In Payton, the United States Supreme Court stated that, "the Fourth Amendment has

drawn a fine line at the entrance to the house. Absent exigent circumstances, the threshold may

not reasonably be crossed without a warrant." City of Payton v. New York, 445 U.S. 573 (1980).

See also Brigham City v. Stuart, 126 S.Ct 1943, 1947, 164 L.Ed.2d 650 (2006) (discussing

exigent exception). The zone of protection under the Fourth Amendment extends to the curtilage

of a house, which includes a fenced or enclosed area encompassing the dwelling. See State v.

Rickard, 420 S.2d 303, 306 (Fla. 1982). Noting that Courts will not allow a warrantless search or

seizure in a constitutionally protected area such as a backyard. See also Tillman v. State, 934

So.2d 1263 (Fla. 2006) (quoting Rickard).

3

The circumstances in which the Supreme Court has applied the exigent circumstances

exceptions are "few in numbers and carefully delineated." They include pursuing a fleeing felon,

preventing destruction of evidence, searching incident to a lawful arrest, and fighting fires.

Outside of those established categories, the Supreme Court "has often heard and steadfastly

rejected the invitation to carve out further exceptions to the warrant requirement for searches of

the house." Riggs v. State, 918 So.2nd 274, 279 (Fla. 2005). (citation omitted)( quoting United

States v. US. District Court, 407 U.S. 297, 318 S.Ct. 2125, 32 L.E.D. 2d 752 (1972) and/11,1,100

v. Rodriguez, 497 U.S. 177, 192, 1 10 S.Ct. 2793, Ill L.Ed. 2d 148 (1990).

An important factor to be considered when determining whether any exigency exists for

making a warrantless arrest is the gravity of the underlying offense for which the arrest is being

made. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.ed.2d 732 (1984). The

underlying offense for which Mr. Morrison could have been arrested is only a misdemeanor of

the first degree under Section 741.28, Florida Statute, and there is no authority given to police

officers to enter a suspect's home to effect a warrantless arrest for a misdemeanor. See Johnson v.

State,395, S0.2d 594 (Fla. 2d DCA 1981). See also, MJR. v. State, 715 So. 2d 1103 (Fla. 5th- -

DCA 1998).

CONCLUSION

Mr. Morrison, respectfully asserts Officers Matt Armstrong and Dale Kelley wke not

engaged in the lawful performance of a duty when they 1) illegally entered the backy 2

unlawfully proceeded through two gates; 3) opened the door and entered into Mr. Morrison's

home contrary to Florida law; and 4) allowed Ms. Leah Mays to crawl onto a table and permitted

her to kick in Mr. Morrison's glass kitchen window in their presence. It is important to note that

at the time of the alleged Aggravated Assault on a Law Enforcement Officer (Firearm), Officers

Armstrong and Kelley were located within Mr. Morrison's home, an area in which they had no

legal right to be. These actions are a contravention of Mr. Morrison's constitutional and statutory

rights performed in order to gain entry into Mr. Morrison's home, all without his consent, a

Search Warrant, an Arrest Warrant, and without exigent circumstances, and as such, could not

constitute the lawful performance of any duty at the time of the alleged Aggravated Assault on a

Law Enforcement Officer.

WHEREFORE, the Defendant, MICHAEL JON MORRISON, respectfully requests this

Honorable Court enter an Order pursuant to Rule 3.190(c)(4), Florida Rules of Criminal

4

Procedure, dismissing the charge of Aggravated Assault on a Law Enforcement Officer(firearm) as alleged in the Information filed in the above styled cause.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnishedby e-service to the Office of the State Attorney, this 30th day of June, 2016.

/s/ A. Michael Bross, A. MICHAEL BROSS, ESQ.Attorney for the DefendantBross, Bross, Savy & Duncan, PLLC997 S. Wickham RoadWest Melbourne, Florida 32904(321) 728-4911Florida Bar No. 0599610

DEFENDANT'S CERTIFICATION

Under penalty of perjury, I declare that I have r the regoing document and the factsstated in it are true.

STATE OF FLORIDACOUNTY OF BRE YARD

CHAEL JON ORRISON

SWORN TO AND SUBSCRIBED before me, the undersigned authority, personallyMICHAEL JON MORRISON, awho is p l! ersona 1:41own or produced

as identification this.-..t:Pday of 2016.

a peared

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The undersigned certifies and swears that there is probable cause to believe the above-named defendant

On the 22 day of Occeer 2012 , at approximately 0148 0-4 a.m. • p.m.

at 805 Sout Flamingo Drive HOLLY HILL within Vciusie County, violated the taw and did then and there:

1 On October 21, 2012, at approximately 10:10pm, Officer Dale Kelley of the Daytona Beach Police Department responded to 408 South Ridgewcxxl

2 Avenue, Daytona Beach, Florida, reference a domestic violence. Initially, off-duty policeirodd McBriclit also of the Daytona Beach Police

3 Department witnessed a white male fighting with a white female. Officer McBride then notified central communications and a Daytona Beach police

4 officer was sent to the aforementioned address.58 According to Officer Kelley's report he was contacted by victim Leah Mays who In turn explained that she was beate

n by her live-in boyfri.,r:_'

7 Identified as Michael Morrison. During has investigation, Officer Kelley established probable cause for a domestic violence arrest and learned Morrison

8 was possibly at his home located at 805 South Flamingo Avenue, Holly Hill, Florida.

910 At approximately 10:25pm, Sergeant Rod Erdman, shift supervisor, was notified about the potential of Morrison's a

rrest and attempted to contact him

11 at 805 South Flamingo Avenue, Holly Hill, Florida.

1213 On October 22, 2012, at approximately 1:06am, Officer Kelley than met with Corporal Armstrong of the Holly Hilt Police Departme

nt briefing him of

14 the Investigation and that a probable cause arrest was imminent and that Morrison was possibly at the home.

15

=NOTICI .10 A PPEARMANDATORY. YOU NEED NOT APPEAR IN COURT BUT MUST COMPLY WITH

"INSTRUCTIONS ON THE REVERSE SIDE OF YOUR COPY m FINE, AND COSTS

AMOUNT!

I AGREE TO APPEAR IN COURT HEREIN TO ANSWER THE OFFENSE CHARGED DR TO PAY THE FINE INDICATED. t UNDERSTAND THAT SHOULD I WILLFULLY FAL TO APPEAR

BEFORE THE COURT AS REQUIRED, OR PAY THE LISTED FINE, I MAY BE HELD IN CONTEMPT OF COURT AND A WARRANT FOR MY ARREST WU. BE ISSUED.

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18 At approximately 1:38am, Officer Kelley, Corporal Armstrong and Sergeant Erdman arrived at 805 South Flamingo Avenue. According to an

17 on-scene interview with Officer Kelley, he transported May to the Holly Hill home in order to gather some of her personal belongings and to make the

18 arrest of Morrison. Officers knocked on the front door identifying themselves as police officers. Mays, Officer Kelley and Corporal Armstrong walked

19 to the rear of the home and Mays attempted to gam access through a window. Sergeant Erdman remained in the front of the home. (Mays told law

20 enforcement that she lived at the home and had gained access through the window on a prior occasion.)

2122 At approximately 1:48a-n, a white male, positively identified as Michael Morrison, while standing in the kitchen, pointed a handgun at Office

r Kelley

23 and Corporal Armstrong yelling, 'I'm going kill to you motherfuckersr Both officers retreated taking cover-Corporal Armstrong tic* position at the

24 rear of the home. Officer Kelley secured Mays in the rear of his patrol car.

2526 By this time, several uniformed law enforcement officers arrived on scene. Morrison barricaded himself in the home refusing to come out. Ev

en after

27 Several attempts of verbal negotiations, Morrison refused to come out yelling that he wanted his girlfriend, and his attorney to come to the scene.

2829 At approximately 2:12am, according to Corporal Armstrong's call log comments were made to central communications reflecting Morrison's actions

30 arid verbal dialogue, "MALE STILL YELLING, SAYING HE IS NOT COMING OUT AND HE WILL SHOOT UNITS... MALE IS ON PX STATING HE IS

31 GOING TO DIE TONIGHT."3233 After Mays was secured, Officer Kelley returned to the backyard taking cover with Corporal Armstrong.

3435 According to Officer Keiley's on scene interview, Morrison walked to the rear of the home facing a window. Morrison then raised the handgun

38 pointing it at both officers. Officer Kelly said he was in irnminent fear of being killed by Morrison.

3738 At approximately 3:00am, Corporal Armstrong notified central communications that there were -shots fired."

31340 Corporal Armstrong fired one round and Morrison was struck in the left flank and then surrendered to iaw enforcement by exiting the home.

41 Ultimately, the bullet grazed Morrison's torso and he was treated at Halifax Medical Canter and released.

4243 Sergeant Erdman and Captain Stephen Aldrich conducted a security sweep of the home. According to Sergeant Erdman, he observed a black

44 colored handgun placed on several boxes located in the kitchen. He also observed several rites in an adiacent mom stored in a gun cabinet

45 According to Captain Aldrich, he also observed a black handgun in the kitchen and a holster on the bed in the masker bedroom. There were also

46 signs of possible blood evidence in the kitchen and Living room areas.4748 According to Sergeant Erdman's preliminary investigation, Morrison pointed a handgun at Corporal Armstrong who in return fired one shot In

49 sett-defense.5051 At approximately 0815 hours, I conducted an interview with Officer Maly inside of my unmarked police vehicle. Also present for the Interview was

52 Corporal Shaffer and a special agent with FDLE. During the interview, Officer Kelly confirmed that while on scene at 805 South Flamingo Drive,

53 Morrison did in fact point a bled( in color semi-automatic handgun at both him and Corporal Armstrong. Officer Kelly further stated that he feared of

54 being shot by Morrison (please refer to audio interview).

5558 Mays was also interviewed arid stated that she observed Morrison point a handgun at law enforcement and yell that he "would shoot everyone.' Her

57 interview was digitally recorded and placed into evidence.

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