Be Careful If You File This

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,