Drug Dogs are reminders of similar
Police-State tactics and obsessive Gestapo behavior under the Nat'l Socialist
German Workers Party. http://rexcurry.net/swastika.html
vs.
Case No. _________________
DEFENDANT
___________________________/
MOTION TO DISMISS
COMES NOW the defendant, by and through his undersigned
attorney and asks the Court to dismiss the indictment in this cause pursuant
to Federal Rule of Criminal Procedure 12 and gives as cause therefore the
following:
OUTRAGEOUS GOVERNMENT CONDUCT
That the indictment resulted from outrageous government
conduct constituting a deprivation of due process under the Fifth and Fourteenth
Amendments of the United States Constitution.
That Defendant is charged with one count of possession
with intent to distribute cocaine base. According to the government, an
adult agent of the government purchased the contraband from the defendant
after the government initiated the transaction and under the agent’s own
volition (without being forced or threatened to do so).
Though it is not a per se due process violation to
convict a defendant for a drug offense where it is the government that initiates
the alleged criminal activity and where the government either purchases
or supplies the drug, which party initiates the alleged crime is relevant
and important in assessing the degree of government involvement in setting
up the crime. Hampton v. United States, 425 U.S. at 491, 96 S.Ct.
at 1650 (Powell, J., concurring); United States v. Gonzalez-Benitez,
537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323,
50 L.Ed.2d 291 (1976). Cf. United States v. Rueter, 536 F.2d 296 (9th Cir.
1976).
The extent of a Defendant's prior criminal involvement,
though not dispositive, is relevant to the issue of outrageous conduct
and whether the defendant or the government should ultimately be held accountable
for the instigation of the crime. United States v. Russell, 411 U.S.
423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Wylie, 625
F.2d 1371, 1374 (9th Cir. 1980), cert. denied, ---- U.S. -----, 101 S.Ct.
863, 66 L.Ed.2d 804 (1981).
In United States v. Russell, 411 U.S. 423, 431-32
(1973), Justice Rehnquist, writing for a majority of the Court, noted that
someday the Court might be presented with a situation "in which the conduct
of law enforcement agents is so outrageous that due process principles
would absolutely bar the government from invoking judicial process to obtain
a conviction." This was the first time the Supreme Court officially recognized
what is now commonly known as a due process defense based on governmental
overreaching and outrageous misconduct. Although Justice Rehnquist's
statement in Russell is essentially dicta, after the Court's decision in
Hampton v. United States, 425 U.S. 484 (1976), it was clear that a majority
of the members of the Court believed that the Due Process Clause could be
invoked as a ground for the dismissal of criminal charges where governmental
involvement in the criminal activities being prosecuted reached "a demonstrable
level of outrageousness."
In Sorrells v. United States, 287 U.S. 435 (1932)
and Sherman v. United States, 356 U.S. 369 (1958), the Court recognized
and sought to delineate the contours of the entrapment defense. In Sorrells,
a government prohibition agent appealed to the sentiments of a "comrade
in arms in the World War" (Sorrells) and successfully induced him to sell
illicit whiskey. Sorrells was promptly arrested and convicted of this offense.
Sorrells was the first case in which the Supreme Court upheld the validity
of an entrapment defense. Later in Sherman, the Court set forth what is
now known as the subjective theory of entrapment. After noting that the
Court firmly recognized the defense of entrapment, Chief Justice Warren,
writing for the majority, stated: "The function of law enforcement is the
prevention of crime and the apprehension of criminals. Manifestly,
that function does not include the manufacturing of crime. Criminal activity
is such that stealth and strategy are necessary weapons in the arsenal of
the police officer. However, a different question is presented when the
criminal design originates with the officials of the Government, and they
implant in the mind of an innocent person the disposition to commit the
alleged offense and induce its commission in order that they may prosecute."
Id at 372 (quoting in part Sorrells, 287 U.S. at 442).
The question of whether the involvement of government
agents rises to the level of outrageous governmental conduct is a question
of law for the court to determine. United States v. Citro, 842 F.2d at
1152-3; United States v. Bogart, 783 F.2d at 1431; United States v. Ramirez,
710 F.2nd 535, 539 (9th Cir. 1983); United States v. McQuin, 612 F.2d at
1197; United States v. Prairie, 572 F.2d at 1319. The issue may properly
be raised and decided by a pretrial motion to dismiss the indictment under
Fed. R. Crim. P. 12(b). United States v. Batres-Santolino, 521 F. Supp. 744
(N.D. Cal. 1981); see also United States v. Duncan, 896 F.2d 271, 274 (7th
Cir. 1990) (outrageous government conduct claim must be made by pretrial
motion). In Batres-Santolino, the court conducted an evidentiary hearing
after which it dismissed the indictment on due process grounds. Other courts
have decided to defer ruling on the pretrial motion until after trial.
United States v. Marcello, 537 F. Supp. 402 (C.D. Cal. 1982); Although
there has been some suggestion that the nature of the police conduct could
be submitted to the jury, it appears that the trial court should make the
determination. United States v. Twigg, 588 F.2d at 379 n.8; United States
v. Johnson, 565 F.2d 179,181 (lst Cir. 1977), cert. denied, 434 U.S. 1075
(1978).
On appeal, the issue of whether the government's conduct
violated the defendant's due process rights is reviewed de novo because
the issue presents a question of law. United States v. Emmert, 829 F.2d
at 810; United States v. Stenberg, 803 F.2d at 428 n.6 (citing Bogart, 783
F.2d at 1431). The court will view the evidence in the light most favorable
to the government, and will accept the district court's factual findings
unless they are clearly erroneous. Emmert, 829 F.2d at 810-11 (citing Bagnariol,
665 F.2d at 880).
The targeting of a defendant is sometimes an issue.
In United States v. Luttrell, 923 F.2d 764 (9th Cir. 1991) (en banc), an
en banc panel of the Ninth Circuit vacated that part of a three-judge panel
ruling which had held that the government must have "reasoned grounds" based
on the due process clause to investigate an individual. It joined four sister
circuits which also rejected such a test. Id. at 764 (citing the District
of Columbia Circuit and the Tenth, Third, and Second Circuits). The Eighth
Circuit, in United States v. Jacobson, 893 F.2d 999 (8th Cir. 1990), rev'd
on other grounds, 112 S.Ct. 1535 (1992) held to the contrary, requiring
that the government show reasonable suspicion, based on articulable facts,
to justify targeting an individual for an undercover sting operation.
The government has always argued that it has the right
to lie and commit crimes in order to prosecute honest people engaged in
non-violent intercourse with consenting adults. The courts have generally
agreed. However, cases opposing outrageous government conduct
and/or entrapment may have a new vitality in light of Lawrence v.
Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W.
4574 (2003). According to Lawrence, U.S. adults have a privacy
right to engage in certain consensual nonviolent intercourse. In this
case the allegation involves economic intercourse in the privacy of a motel
room.
According to the U.S. Supreme Court, it would
be unconstitutional for a defendant to be arrested for committing (or agreeing
to commit) sodomy with an undercover law enforcement officer (LEO).
According to Lawrence, it is no business of the U.S. government or any
government whether U.S. citizens do engage in sodomy. How can Lawrence
deny that U.S. citizens also have the right to recreate with drugs?
Perhaps at the same time as having sex. If the officer had performed
a sodomy “sting” operation (similar to a prostitution sting but for the
sake of argument let’s say it was non-commercial) and the officer had gone
to a hotel room and tempted a defendant into engaging in sodomy with the
officer, and at the same time had used drugs, and then before leaving the
officer had purchased some drugs to take, then that scenario showcase the
legal arguments presented here. Before Lawrence, LEO’s probably could
have attempted to make sting arrests for sodomy (and why they didn’t try
it is an odd question itself. Would they have tried a reverse-sting or a
regular sting?). After Lawrence, sodomy with a LEO in the privacy
of a hotel room is no longer prosecutable (whether the act is merely agreed
to or completed). The same argument should apply regarding drug charges
under the same circumstances.
Respectfully submitted,
_____________________________
Rex Curry,
Attorney for Defendant
4th Am. UNREASONABLE SEARCHES - drugs
violate the rights of students in government schools. 4th Am. SEARCHES WITH DOGS - drug laws
encourage the corrupt use of drug dogs in a police state.. DRUG DOGS - these motions stop dogs
used as ruses to violate the constitutional rights of humans.
Legalize drugs and controlled substances image http://rexcurry.net/tagflower2.JPG
>
Florida specialty car tag touts legalizing Florida's state wildflower.
Edward Bellamy, Francis Bellamy, Looking Backward, Pledge of Allegiance
KopBusters is a new reality show produced by NeverGetBusted.com.
In it, Barry and Candi along with their detectives set up stings across
America to catch crooked Kops.
KopBusters rented a house in Odessa, Texas and began growing two small
Christmas trees under a grow light similar to those used for growing marijuana.
When faced with a suspected marijuana grow, the police usually use illegal
FLIR cameras and/or lie on the search warrant affidavit claiming they have
probable cause to raid the house. Instead of conducting a proper investigation
which usually leads to no probable cause, the Kops lie on the affidavit claiming
a confidential informant saw the plants and/or the police could smell marijuana
coming from the suspected house.
The trap was set and less than 24 hours later, the Odessa narcotics unit
raided the house only to find KopBuster's attorney waiting under a system
of complex gadgetry and spy cameras that streamed online to the KopBuster's
secret mobile office nearby.
The attorney was handcuffed and later released when eleven KopBuster detectives
arrived with the media in tow to question the illegal raid. The police refused
to give KopBusters the search warrant affidavit which is suspected to contain
the lies regarding the probable cause.
The team of eleven freedom fighters clashed with the police demanding answers
for the illegal raid and the drug plant. The police would not comment but
later stated they were trying to charge KopBusters with a crime.
It is not illegal to grow plants under a light in your home but it is illegal
to lie on an affidavit and plant drugs on a citizen. This operation was the
first of its kind in the history of America. Police sometimes have other
police investigating their crimes but the American court system has never
dealt with a group of citizens stinging the police. Will the police file
charges on the team who took down the corrupt cops? We will keep you posted.
