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Peter Amschel, Esq.

102 E. Stetson Ave.


P.O. Box 380

SUPERIOR COURT OF CALIFORNIA

COUNTY OF RIVERSIDE

People of the State of California;


Plaintiff,
vs.

Randal J. Amschel.

Defendant

Case No.: SWM038537

MOTION TO DISMISS

Date: 12/10/2008

Time: 8:30 A.M.

Department: 204 Judge Vineyard

TO DISTRICT ATTORNEY, COUNTY OF RIVERSIDE:


Take notice that on the date and time above specified or as soon thereafter as the
matter can be heard, wherein the estimated moving party time of argument is 15
minutes, defendant will make its motion to dismiss the above referenced matter on
grounds set forth below. This motion will be based on judicial notice as requested
below and on argument to be submitted at the hearing and upon all the records and
files in this case and such further declarations or documents to be submitted at
the hearing.

REQUEST FOR MANDATORY JUDICIAL NOTICE:


1.Judicial notice that drug prohibition laws have had the effect of increasing the
cost of heroin by over 800 times from the cost at its source of the opium poppy,
and
2.Judicial notice that the tremendous artificial increase in the cost of heroin
brought about by drug prohibition laws has produced a thriving underground market
in heroin which black market is harmful to society and to defendant; and
3.Judicial notice that the 800 percent plus increase in the cost of heroin so
artificially created by drug prohibition laws has led to a vast untaxed economy,
and to extensive corruption of agents of the government and to theft and other
serious crimes against property and persons by addicts who are unable to obtain
the substance medically and who cannot otherwise raise the exorbitant amounts to
pay for the substance; and
4. Judicial notice that consenting to an abortion is a human activity which
creates vastly more potential harm to society and the individual than does the
human activity of ingesting controlled substances, and
5.Judicial notice that consensual sodomy is a human activity which has vastly
greater health and other potential consequences to society and to the individual
than does the human activity of ingesting controlled substances.
Upon the order of the court finding affirmatively as to the above requests,
defendant will move the court to dismiss on the ground that the statute involved
herein deprives the defendant of substantive due process of law.

SUMMARY OF REMAINING MOTIONS TO DISMISS:


Defendant contends that a law purporting to criminalize the status of being under
the influence of heroin is unconstitutional as violating state and federal
individual rights of privacy and liberty, and contends that California
constitutional amendments establish California law and public policy to the effect
that drug use is a medical condition which must be treated medically so that the
constitution has thereby effectively removed jurisdiction of the criminal courts
over matters such as being under the influence of a controlled substance, and, in
the alternative, defendant requests an order dismissing this action under penal
code section 1385, good cause for which is that defendant not only has
accomplished a cure of his long standing heroin addiction on his own volition and
with the help of his doctors and his family which abstinence has lasted now for
over two years, and for the second basis of good cause which is that these charges
are the first significant involvement defendant has had with the criminal justice
system.

1. THE U.S. SUPREME COURT, IN THE CASE OF ROE V. WADE, 410 U.S. 113 (1973),
ENLARGED THE RIGHT OF PRIVACY TO THE EXTENT THAT OTHER PRIVATE HUMAN ACTIVITIES
INVOLVING LESS POTENTIAL HARM THAN THE ACTIVITY INVOLVED IN THAT CASE, SUCH AS THE
INGESTION OF PROHIBITED SUBSTANCES AS ALLEGED IN THIS CASE ARE ALSO NECESSARILY
PROTECTED AGAINST GOVERNMENTAL INTERFERENCE.

The U.S. Supreme Court surprised many citizens and lawyers when it held that
privacy rights are so broad as to cover the termination of a fetus under certain
circumstances. In the decision and in subsequent decisions, the court has
struggled to limit the applicability and effect of this decision by saying that
the privacy right can only apply to fundamental long-standing human activity, and
that the human activity covered should be related to marriage, procreation,
contraception, family relationships and child rearing and education, but the fact
remains that the court has “pushed the envelope” of privacy so far that the right
must necessarily include the private activity alleged in this case of being under
the influence of a controlled substance. No court in America could be heard to
maintain that rights in America are not applicable equally to all citizens, or to
say that a particular right will apply only to certain citizens, as if privileges
and immunities of citizens can be different among American citizens. For example,
the laws of Hindu India provide for caste distinctions in which the rights of
citizens are severely stratified and unequal depending on the parentage of the
citizen, but in America any such laws would violate constitutional rights of equal
protection.
As stated by one commentator about the U.S. Supreme Court, after the court
extended the right of privacy to laws regarding birth control: “The idea that
taking a drug to prevent ovulation is a sacred human right of privacy, while
taking a drug to get high is subject to permission from Congress, is one of the
more impressive feats of mental gymnastics the Court has accomplished.”

2. THE US SUPREME COURT, IN THE CASE OF LAWRENCE V. TEXAS, 539 U.S. 558 (2003) HAS
NOW ENLARGED THE AMERICAN CITIZEN'S RIGHT OF LIBERTY TO THE EXTENT THAT PRIVATE
ACTIVITIES SUCH AS THE DRUG USE ALLEGED IN THIS CASE ARE NECESSARILY PROTECTED
AGAINST GOVERNMENTAL INTERFERENCE AND NOW THE BURDEN IS ON THE GOVERNMENT TO
JUSTIFY ANY SUCH ATTEMPT TO RESTRICT SUCH AUTONOMOUS CONDUCT.
The Supreme Court with the Lawrence case has now clearly upheld a broad definition
of liberty, abandoning any requirement that the activity questioned be family
related, etc. The court stated variously in the opinion that liberty protects a
person from unwarranted government intrusions into a dwelling or other private
places, that the state cannot be omnipresent in the home, that there are other
spheres of our lives and existence, outside the home, where the State should not
be a dominant presence, that freedom extends beyond spatial bounds, and that
liberty presumes an autonomy of self that includes freedom of thought, belief and
expression. The court said that certain intimate conduct such as the sodomy
involved in that case involves liberty of the person both in its spatial and more
transcendent dimensions, and nowhere in the opinion did the court attempt to limit
this new, expansive definition of liberty to only the conduct involved in that
case as it had struggled to do with the conduct involved in the Roe case.

3.JURISDICTION OF THE CRIMINAL COURT OVER CASES OF THIS NATURE HAS BEEN REMOVED BY
THE CALIFORNIA CONSTITUTION BY THE INITIATIVE PROCESS UNDER ARTICLE 2 SECTION 8 OF
THE CALIFORNIA CONSTITUTION.
The state of California, in enacting an exemption from criminal court action for
physician prescribed marijuana has established as the law and public policy of the
State of California that drug use in general is a medical condition to be treated
by licensed physicians and not an area of criminal court jurisdiction .
THE PERTINENT PROVISIONS OF CONSTITUTIONAL INITIATIVE PROPOSITION 36 ENACTED IN
1996 ARE AS FOLLOWS:
SECTION 3. Purpose and Intent
The People of the State of California hereby declare their purpose and intent in
enacting this Act to be as follows:
1.To divert from incarceration into community-based substance abuse treatment
programs non-violent defendants, probationers and parolees charged with simple
drug possession or drug use offenses;
2.To halt the wasteful expenditure of hundreds of millions of dollars each year on
the incarceration – and re-incarceration – of non-violent drug users who would be
better served by community-based treatment; and
3.To enhance public safety by reducing drug-related crime and preserving jails and
prison cells for serious and violent offenders, and to improve public health by
reducing drug abuse and drug dependence through proven and effective drug
treatment strategies.

4. IT IS RESPECTFULLY SUBMITTED THAT THIS CASE SHOULD BE DISMISSED IN THE


INTERESTS OF JUSTICE PERSUANT TO P.C. 1385.

As set forth in defendant's declaration filed herein, the defendant has succeeded
in terminating his heroin addiction. He has been successful in abstaining from
heroin use for a period of about 2 years. Secondly, this charge is defendant's
first involvement with the criminal justice system, and since the date of the
charges, besides overcoming his addiction through private medical care and through
the support of his family, he has married the woman who was instrumental in
helping overcome his heroin addiction and this lady, Jessica Bryant, now known as
Jessica Amschel, is expecting a baby in about Spring, 2009, and the defendant
respectfully submits that it would be in the interests of justice under these
circumstances to have the charges dismissed and to get his driver's license
released to him so that he will be in a more favorable position to be able to
provide for his new family.

Dated: November 25, 2008

Respectfully submitted;
Peter Amschel, Esq.

JUDGE VINEYARD SEEMED VERY INTERESTED, BUT DENIED THE MOTION. WE THINK THE GENS
D'ARMES DON'T LIKE THEIR DRUG PROHIBITION OX TO BE GORED;
ONE MONTH LATER, GUESS WHAT HAPPENED:

Peter Amschel, Esq.


Attorney at Law
27580 Quail Road
Hemet, CA 92544
951-929-2404

SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE

People of the State of California,


Plaintiff,
vs.

Randal J. Amschel,
Defendants.
__________________________/

CASE No. SWF027388

Declaration by Percipient Witness in Support of Motion to Suppress Evidence


I, Peter Amschel, state and declare as follows:

1.That I am the owner of and have been a resident of the property located in
Hemet, California, since about September, 1978; and
2.That my property consists of about 1 acre located about ¼ mile east of the
Ramona Pageant outdoor play property and it is enclosed by a chain link fence on
the east and a steel bar fence and gate at the entrance on the west; and
3.That the front door to my residence is located about 120 feet in distance from
the gate on the property, and it takes about 40 seconds at normal walking speed to
walk from the gate on Quail Road to the front door so that I have effectively
extended the curtilage of my property to the street; and
4.That on about January 10, 2009 at about mid-day, I was sitting in my bedroom at
the Quail Road side of the house when someone began to speak to me through my
bedroom window; and
5.The voice identified herself as a police officer and she said they wanted to
speak to me. I asked if they wanted me to take time to get my identification and
they said that would be ok to do so and to meet them at the front door; and
6.Upon going to the front door, I observed two uniformed police officers, one
woman and one man and I greeted them through the screen door whereupon they said
they wanted to inspect my premises whereupon I asked them if they had a search
warrant; and
7.The two police officers, after I asked them if they had a search warrant to
inspect the premises, looked at one another and one of them made a call to someone
they described as their “watch commander” the contents of which call l did not
overhear; and
8.I assumed that the call the policemen made after I told them I would not permit
entry without a search warrant was to notify their superior officer about my
refusal. In anticipation of a visit by the superior officer, and in wanting to get
all the police officers as far as I could away from the doorway to my residence I
invited the two initial officers to walk to the end of the driveway to my iron
gate on Quail Road at the edge of my curtilage; and
9.As we walked to the gate I explained to the two deputies sheriffs that I have
been a lawyer in private practice and for over 30 years and I explained about how
in America there is a requirement that police agents must present sworn statements
to a judicial officer before a residence can be entered and searched without the
permission of the occupant. The two officers were polite and calm and they seemed
interested to hear this information from a licensed attorney as legal requirements
for police entering a residence.
10.At the gate, when the “watch commander” arrived, he spoke quickly and the
immediate result was that as soon as I confirmed that I would not permit a search
without a warrant he raised both of his arms in front of him in a stiff armed
position as if he were aiming a handgun at my chest and he pointed a device at my
chest. The device he aimed at my center mass looked like a gun but it was very
thin and it had a sky- blue, studded projectile on the front; and
11.As the “watch commander” aimed the device at me he cut off my explanation and
to me in no uncertain terms words to the effect that “we are inspecting your house
and you are going to take 50,000 volts if you want to oppose us” ;and
12.I had seen television pictures about 1 week earlier where a California citizen
in Oakland, California, was shot in the back by a uniformed policeman while the
citizen was being held face down held by other uniformed officers, and this
officer's aggressive threat to shoot me with the device reminded me immediately of
that incident and I quickly told the officer words to the effect that: “I was a
soldier and I know how to do what I am told and I will do as you say.”; and
13.On the way to the house, the officer stated that he was entering my house as a
medical emergency because he said someone had been taken to the hospital from this
location with a drug overdose condition and so he said the police were making a
community services investigation and that they were going to inspect the premises
to see if any other persons were at the property with a drug overdose condition
and that as such he said that only a cursory view of the property would be needed
in order to conclude their activity, and
14.After about 30 to 40 minutes, during which time multiple officers walked freely
about all portions of my property, the same officer who had pointed the electric
gun at me further confirmed with me that I would not allow a search of my room or
of my safe without a warrant, and when I also refused to answer any questions, the
officer handcuffed my hands behind my back because he said I was not cooperating;
and
15.That after several hours of waiting for the search warrant, during which time
multiple officers had gone through my entire house and my detached room in the
back of the main house, and searched all areas of my landscaping, I was spoken to
by senior deputies of the police office who were of higher rank and who were
gentlemanly as compared to the officer who had forced entry, and we discussed
getting the police visit over with and not making a big deal of the matter so that
I finally signed a consent to search my room and safe, a consent which I never
would have given except for the initial threat to shoot me with 50,000 volts which
had been made at the time of the forced entry and after the officers had already
carefully searched the property; and
16. This declaration applies to the above-referenced case and to case # SWF027388.

I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.

Dated: _____________ By: ___________________________


Peter Amschel,