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Sample Motion To Suppress Evidence
 
 

Phyllis Burfeindt

74 Pancake Hollow Road, Highland NY 12528.

845 691 7985

Fax 845 691 6282

In pro per with assistance of Lawyerdude dlawyerdude@hotmail.com

 This brief is available in pdf format at www.lawyerdude.netfirms.com/5902.pdf but will choke your machine.

This brief is available in html format at www.lawyerdude.netfirms.com/5902.html This is easier for you.

Town of Ulster. Court of Non-Lawyer Paula Leonard.

Town Hall, Route 209, Lake Katrine, New York 12449

Jerry Van Loom, Town of Ulster, and James Kilfoyle, doing business under false color of law as “The People of New York”, Plaintiffs under false color of law

v

Phyllis Burfeindt, Sui Juris,

Innocent Defendant


 

UPD Case# UL-00476-03

Current Trial date:

Document #5902 version 0.96

This is the 1st defense document.

I make no waivers. Any oral waivers are void.

Notice of Defendant’s concurrent Demands as follows:

Demand for effective assistance of counsel, to wit: telephonic appearance by out of state counsel.

Demand for judge who has passed the bar - and not a commissioner.

Demand for copy of Judge’s oath. Demand for court reporter.

Demand for prompt (within a week) written cd rom transcript of every hearing, past, present, and future (as they become available)

Demand for jury trial. Demand for Discovery.

Demand for indictment by grand jury. Demand to suppress the writing.

Demand for full panoply of criminal due process procedures and rights.

Demand for proposed jury instructions a month in advance of trial.

Notice of Concurrent Motions to be filed as follows:

            Demurrer #5899 set for Thursday, August 28, 2003.

            #5904   Discovery Motion including Brady Demand.

            #5905   Demand for Re-arraignment.

            #5906   Dombrowski Motion.

            #5907   Quo Warranto Motion.

            #5908   Overbreadth Motion.

            #5909   Demand to Strike Hearsay statement of James Kilfoyle

            #5910   Gerstein Motion.

            #5911   Motion to Dismiss.

            #5912   Motion to Continue.

Supporting Declarations. Memorandum of Law.

Proof of Service by fax.


Date:    Tuesday, August 26, 2003.

Time:    9 a.m.

Court:   Courtroom of the Presiding Judge

Warning! Motion to Suppress Evidence. Demand to Dismiss within 3 days.

            To my accusers: Be advised: At the venue indicated above or at such other time as the court may designate, I will Demand that the court order the suppression of all evidence in this case as the Supreme Court mandated remedy for your violation of Miranda and 4th, 5th, 6th, 1st, and 14th amendments. You yourselves are more criminal than I could ever be. Your smoking gun lying declaration of mine is fruit of the forbidden tree, the product of an illegal search and seizure as more fully set forth herein. I now demand that you dismiss this bogus case. If I have not received word of dismissal by 4 pm on Thursday 7 August I will file a federal complaint on the following day. I have enlisted legal help from California and other states via the patriot network. You are warned! ________________________ Phyllis Burfeindt.

Table of Contents:

Statement of the Case

Litany of Concurrent and Continuing Demands and Discovery Demands

Cases and other Authorities of Law cited herein:

Cases Cited herein:

Statutes, Regulations, City Ordinances cited herein:

Scholarly Treatises Cited herein:

Constitutions, Magna Charta, and Ancient sources of law cited herein:

Proposed Schedule of Action, Motions, and Hearings

Declaration of Attorney Douglas Palaschak regarding traffic and minor cases.

Points and Authorities Compelling the Suppression of all evidence here.

The lying declaration is the fruit of an illegal seizure of me and must therefore be suppressed.

The smoking gun/ lying declaration is the product of a custodial interrogation without benefit of a Miranda warning and must therefore be suppressed.

The remedy is prophylactic. There is no way around it.

The Exclusionary Rule is sound law here and abroad.

The exclusionary rule of Miranda covers both oral and written statements.
 

Even the most subtle coercion precludes consent - Schneckloth.

Product of custodial interrogation is presumed coerced

You cannot justify an illegal seizure by what you found as a result of the illegal seizure.

The police are now estopped from using Phyllis’s writing against her.

Even if the declaration is admitted, simple perjury is not forgery nor criminal impersonation.
 

The statutes must follow the common law and they do here.

Text of the statutes used to facilitate this malicious prosecution

The Suppression motion, removes all evidence in the case and mandates dismissal.
 

What about the $200 to get my car back? Please order is paid to me immediately.

My demand for a transcript and due process at every stage of the proceeding.

Proof of Service
 


Statement of the Case

            On Monday night 14 July 2003 at about 11:55 pm , I, Phyllis Burfeindt and my new husband Vinnie Ljuljdluraj drove to Hannaford’s Super Market on Ulster Avenue in Kingston. Vinnie drove my car. I waited in my car while Vinnie returned some empty bottles to the night clerk who was alone in the store. Vinnie and the clerk got into an altercation. I first knew about the altercation after we had driven a half mile down the road. Soon a police car pulled us over. Soon 3 other police cars arrived. A police officer came up to the window and asked my husband some questions. The manager then came and identified my husband.

            I was not a party to the altercation and did not witness it.

            At the time I was vested with a privilege not to testify against my spouse.

            At the time I was vested with a 5th amendment right to refuse to testify against myself.

            At the time I was vested with a 1st amendment right to remain silent.

            At the time I was vested with the right to refuse to explain why I declined to testify.

            At the time I was vested with a Miranda right to be informed of my rights.

            At the time I was vested with a 5th amendment right to my car.

            At the time I was vested with a 6th amendment right to effective assistance of counsel.

At the time I was vested with a Griffin right to due process of law at all stages of this prosecution. Authority: Griffin v Illinois (1965) http://www.circuitlawyer.8m.com/griffin.html 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055

            Police Officer Kilfoyle told me to get out of the car. He frisked me - feeling up my breasts lasciviously even though there was no reason to expect me to have a weapon. This was not a robbery and I could not logically have been a suspect. They searched my car. I told Kilfoyle that I did not see what happened. I had no identification card with me. Kilfoyle told me that he would take me to jail if I did not tell them who I was. In so doing, Kilfoyle violated my constitutional rights in a custodial interrogation. All my words and writings from thence forth are fruit of the forbidden tree and must be stricken. Mistakenly fearing that I had a warrant out for me, I told police that my name was Jackie Miller. She is my sister. She is happy to have me use her name. She loves me. She would want me to use her name if it would help me. Still they did not let me go. Then the police towed my car away and took me into custody. Kilfoyle wanted me to come down to the station to sign a statement. I have no obligation to tell them anything. I saw nothing. Even had I seen something I am vested with spousal privilege against testifying. I have a right to remain silent. They lied to me about that and gave me no Miranda warning. They locked me in the back of a police car and drove me to jail against my will.

            The police did not ever advise me of my rights.

            Officer James Kilfoyle and other police with guns conspired to detain me against my will at the police station at the Ulster police station at Lake Katrine from 12:20 midnight until 1 a.m. Police conducted a custodial interrogation which was not much because I knew nothing about what happened in the store; they demanded that I make a written statement under penalty of perjury. They told me that they would not let me leave until I gave a declaration in writing. This statement was coerced during a custodial interrogation. Fraud vitiates the consent and fraud vitiated the penalty of perjury here. I could have left at 1 a.m. but the police said to wait until 2:30 because they might drive me home. Then at 2:30 Kilfoyle and another officer told me that they changed their mind and told me that they would not give me a ride. Kilfoyle offered to let me sleep at the police station; I feared another search and did not care to get felt up by Kilfoyle or his friends again while sleeping at the police station. Kilfoyle wanted me to sleep on two chairs near his office which was isolated from the rest of the police. That made me even more suspicious. They have jail cells at the police station there but Kilfoyle wanted me to sleep near his isolated office.

            Officer Kilfoyle and another officer refused to provide me a ride back to my home at 1076 King’s Highway in Saugerties New York - about 9 miles away. I was forced to walk 9 miles alone in the dark of night back to my to my home.

            On Thursday 17 July my Mom paid $200 to get my car back from the tow yard. Some police person is gonna have to pay for this.

            If we are to believe that the papers are not back dated, then on 22 July Kilfoyle signed 2 complaints against me.

            On Monday 28 July 2003 at 1 pm Saugerties police came to my home . My Mom and I were packing my stuff so that I could go live with Mom and our family home where I grew up at 74 Pancake Hollow Road in Highland NY 12528. These Saugerties police had no warrant with them. They had no arrest warrant. They had a photo of me in their car. Without warrant or probable cause they opened the screen door and startled my Mom and me. They came into my home and arrested me. They falsely accused me of forgery and criminal impersonation based on my written declaration given under duress upon the command of armed Ulster police two weeks earlier on the 15th. They did not read me my rights. My Mom wrote an account contemporaneously. They handcuffed me and took me to the Saugerties police station. They fingerprinted me there. I waited 15 minutes handcuffed to the wall. Ulster police came and took me to the Ulster police station where they fingerprinted me, took my photo, and otherwise booked me.

            At about 1:30 pm I appeared before Justice Paula. Justice Paula read the charges. Then she asked me to wait 15 minutes while she called the prosecutor to inquire as to the bail amount. She came back and said that my bail was $2500 cash or $5000 bond. Ulster police took me to Ulster county jail on route 32 in Kingston, New York.

            On July 30th I came back before Judge Paula. Public Defender Christine Coho offered me a deal and advised me of nothing. Without my informed consent she entered a not guilty plea for me. The court released me to the custody of my Mom and the pre-trial folks.

            My next court appearance is 20 August. I have no idea of what will happen at that time. My public defender has not communicated with me since court. I am informed that this is the way public defenders work. They come to court with you and that is all.

            I have only 2 documents. I never did receive a copy of what I wrote at the police station. I did receive 2 documents: A complaint for each count - but I did not have these documents until the day of my release. Police imprisoned me for two days before giving me a complaint.

            For the purpose of making something out of nothing, Kilfoyle knowingly falsely accused me of the crimes of criminal impersonation and forgery. In so doing, he himself filed a false report - which is a crime. I demand that he be prosecuted.

 

 

Phyllis Burfeindt

Litany of Concurrent and Continuing Demands and Discovery Demands

1.         I demand a withdrawal of my plea; it was given without counsel. My public defender is not counsel; she is representation. I do not need somebody to take my place. I need assistance - effective assistance - just like the 6th amendment promises.

2.         I demand that the court devise a telephone or other means to permit my out of state counsel to speak for me at every hearing.

3.         I demand all discovery before I make a plea.

4.         I demand to see the affidavit in support of the warrant.

5.         I demand a prompt (within 5 working days) transcript of each hearing.

6.         I demand a WordPerfect version of every transcript. If you don’t have WordPerfect then html, WordPerfect, txt, rtf, or editable pdf format is acceptable.

7.         I demand that no business on my case be transacted in chambers.

8.         I demand a copy of all discoverable documents including police reports and all files regarding me immediately.

9.         I demand a copy of the affidavit and application for the warrant.

10.       I demand a certified copy of the warrant.

11.       I waive no rights.

12.       I demand a court reporter whenever I am in court.

13.       I cannot pay the costs of this litigation.

14.       I demand a trial at a fair pace.

Cases and other Authorities of Law cited herein:

Cases Cited herein:

Argersinger v Hamlin (1972) 32 L Ed 2nd 407 US 25, 92 S Ct 2006. Cannot put a guy in jail if you don’t give him a right to a jury trial. Cited in 12 scholarly motor vehicle treatises including:48 ALR 4th 367, 71 ALR 3rd 562, 53 ALR 3rd 1002, 93 ALR 2nd 747, 26 ALR Fed 218, 103 L Ed 2nd 1000, 101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 98 L Ed 2nd 1115, 65 L Ed 2nd 1219, 61 L Ed 2nd 1018, 18 L Ed 2nd 1420. 1

Bell v Burson (1971) 402 US 535, 29 L Ed 2d 90, 91 S Ct 1586, http://www.circuitlawyer.8m.com/Burson.html 1 2

Boyd v. United States, 116 U.S. 616, 635 "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.
1

Brady v. Maryland (1963) 373 U.S. 83. 1

Griffin v Illinois (1965) http://www.circuitlawyer.8m.com/griffin.html 1 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055 holds that everybody is entitled to Due Process at every stage of the proceeding - and a free transcript, too. 2 3

M.L.B. v. S.L.J. (1996) 519 U.S. 102. In important civil cases a state may not block a defendant's right to appeal just because that defendant is poor. The state must provide a transcript at no cost. 1

Miranda v Arizona (1966) http://www.lawyerdude.netfirms.com/miranda.html 1 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3rd 974 and 59 other ALR treatises cited in the 1992 edition of Lawyers’s Edition Quick Case Table regarding Miranda. 2

Olech v Village of Willowbrook (1998) 160 F.3d 386 (7th Cir.1998 1

Overton v Ohio (2001) 151 L. Ed. 2d 317 (2001) 1

Primus, In Re (1978) 56 L Ed 2nd , 436 US 412, 98 S Ct 1893. Ms. Primus violated the state bar’s proscription of her right to free speech. She talked with those pesky people who were injured by a corporation. The Supreme Court backed up the first amendment here! Good. 1

Schneckloth v Bustamonte(1973) 412 US 218, 36 L Ed 2d 854, 93 S Ct 2041. Even the most subtle coercion precludes consent. 1

Weeks v. U. S. (1914) www.lawyerdude.netfirms.com/weeks.html 1 232 US 383, 58 L Ed 652, 34 S Ct 341. The Exclusionary Rule. Invented by the Supreme Court in Weeks v. U. S. (1914), this rule of evidence bans from trial information that directly or indirectly stems from illegal police investigation. Applied to the states during the Due Process Revolution. The Court developed the rule to deter police from violating the Fourth Amendment. In the U. S. neither administrative controls nor civil suits had much impact on police malpractice. While the U. S. has been a pioneer in developing the exclusionary rule, other countries have adopted the reform, particularly when faced with major problems of political legitimacy. In 1982 when Canada made the rule part of its new Charter of Rights and Freedoms. Faced with a series of police abuses of power in confronting the Northern Ireland civil war and recent waves of non-white immigrants, Britain enacted in 1984 the Police and Criminal Evidence Act, which substantially broadened its exclusionary rule. Exigent circumstances Situations that require immediate intervention. The exclusionary rule does not apply when police officers discover evidence while responding to emergencies. For example, if there is a fire in your dorm room or someone yelling "Help! Police!" a police officer may enter and if upon entry any evidence is in plain view it will be admissible without a search warrant. This exception to the exclusionary rule exists to prevent officers from having to choose between responding to emergencies or giving up the possibility of discovering evidence of a crime. 2

 

Statutes, Regulations, City Ordinances cited herein:

New York Penal code section 170.10 Forgery in the second degree:170.10 Forgery in the second degree. A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed: 1. A deed, will, codicil, contract, assignment, commercial instrument, credit card, as that term is defined in subdivision seven of section 155.00, or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or 2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant; or 3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality; or 4. Part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; or 5. A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law. Forgery in the second degree is a class D felony. 1

New York Penal code section 190.25 Criminal impersonation in the second degree. 190.25 Criminal impersonation in the second degree. A person is guilty of criminal impersonation in the second degree when he: 1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or 2. Pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or 3. (a) Pretends to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and (b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense. Criminal impersonation in the second degree is a class A misdemeanor. 1

Scholarly Treatises Cited herein:

32 scholarly treatises regarding the right to counsel. They all cite Gideon v Wainwright (1963) 9 L Ed 2nd 799, 372 US 335, 83 S Ct 792, 93 ALR 2nd 733, subject of 32 scholarly annotations and a major motion picture starring Henry Fonda. The annotations are: 65 ALR 4th 183, 47 ALR 4th 1069, 79 ALR 3rd 1025, 73 ALR 3rd 725, 71 ALR 3rd 562, 64 ALR 3rd 1291, 36 ALR 3rd 751, 36 ALR 3rd 1403, 34 ALR 3rd 470, 34 Alr3rd 1256, 33 ALR 3rd 229, 18 ALR 3rd 1074, 10 ALR 3rd 1371, 5 ALR 3rd 1269, 5 ALR 3rd 1360, 93 ALR 2nd 747, 36 ALR Fed 594, 26 ALR Fed 218, 102 L Ed 1049, 101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 83 L Ed 2nd 1112, 65 L ed 2nd 1219, 33 L Ed end 865, 33 L Ed 2nd 932, 31 L Ed 2nd 921, 25 L Ed 2nd 1025, 18 L Ed 2nd 1388, 18 L Ed 2nd 1420, 14 L ed 2nd 992, 12 L Ed 2nd 1340, 9 L Ed 2nd 1260. 1

ALR 4th 367, 71 ALR 3rd 562, 53 ALR 3rd 1002, 93 ALR 2nd 747, 26 ALR Fed 218, 103 L Ed 2nd 1000, 101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 98 L Ed 2nd 1115, 65 L Ed 2nd 1219, 61 L Ed 2nd 1018, 18 L Ed 2nd 1420. They all cite Argersinger v Hamlin (1972) 32 L Ed 2nd 407 US 25, 92 S Ct 2006. 1

Palaschak, Douglas: Brief #3789: First Amendment Rights of Lawyers. State Bar Acts are unconstitutional. Explains over breadth and lists many 1st amendment cases. Found at
http://www.lawyerdude.8m.com/3789.html 1 2

Constitutions, Magna Charta, and Ancient sources of law cited herein:

1st amendment guarantees the right to associate and petition for redress 1

6th amendment 1

association protected under the 1st amendment 1

Due Process is defined as including notice and meaningful opportunity to be heard. 1

Equal protection which is a concept that is both civil and criminal 1

U.S. Constitution. 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 1

 

Proposed Schedule of Action, Motions, and Hearings

August 4th Monday        Proposed Date of service of this Motion to Suppress.

August 7th 4 pm.           Deadline for Dismissal and Notification to me of dismissal.

August 8th                      Filing of Civil Rights complaint.

August 26th Tuesday     Hearing on the Suppression motion.

August 28th Thursday    Hearing regarding Demurrer

July 7 2004.                   Proposed Week for Jury Trial. 5 day estimate.

 

Declaration of Actor William McNamara of Hollywood

            I, William McNamara, declare the following under penalty of perjury: I am a percipient witness to the following except as indicated herein. I am competent to testify. If called I will testify as follows:

            I am one of the Private People in the New York Republic, one of The united states of America, a Union of republic states.

            I am a student of the law. I have witnessed first hand the corruption of the uneducated police and the educated judges and lawyers. I am aware of the pathetic injustice perpetrated by the low level “justice” courts of mass production. I belong to The Patriot Network. I am backed by a bevy of experienced civil rights lawyers. The internet is exposing the court system to close scrutiny. Please visit my webpage for further information at www.williammcnamara.com . I am engaged with the making of a documentary regarding local and state courts and the justice system in America of today. My film is based on my personal investigation and the freshly released report by the ABA, "Justice in Jeopardy” which is linked to my website.

            I am informed of procedural mistakes and deprivations of Phyllis’s constitutional rights, as set forth in her statement of the case and elsewhere.

            Phyllis and her family, upon advice of counsel, are recording and documenting the events of this case as best they can. Their goal is to end this case. Failing that they have procured the assistance of experienced civil rights lawyers from New York and California to write a civil rights complaint. They have the capability to file in federal court as soon as Friday 8 August.

            So far the police, the prosecutor, the judge and or magistrate have failed, neglected or refused to provide Phyllis Burfeindt with:

            a warrant,

            a record,

            evidence,

            witness list,

            a signed affidavit of a victim,

            timely and effective assistance of counsel.

            Ms Christine Coho, the public defender, appears overworked. At the faux arraignment the public defender relayed a deal form the prosecutor. She had not yet interviewed Phyllis. I am informed that this is standard procedure. The public defenders throughout the country generally meet the client in court - and usually they make a plea then. They thereby preclude effective assistance in a pre-plea motion such as a demurrer by whatever name it is known. 

            We could not analyze the offer due to the prosecution’s failure to provide discovery documents. More specifically there was:

            No file;

            No paperwork (Phyllis’s Mom provided the charging instruments);

            No police report;

            No copy of any warrants.

            It appears that this is a victimless crime, or more specifically, an aggressive malicious act of an uneducated vindictive police officer, James Kilfoyle.

            (Name) __________________ told Phyllis in my presence that the record (police report, witness list, affidavit of the victim, warrant, transcript of either probable cause or application for warrant) at the time of arraignment on July 28th was not available. In retrospect I offer the following conjecture: these items were not available because they did not then exist. Subsequently the complaint signed on 22 July by Kilfoyle was produced. If it was signed on 22 July then it should have been available on 28 July a week later - unless it was back dated. I further speculate that the police will draw up a warrant and pre-date it as they did in the case of Attorney Douglas Palaschak who figured it out - and many other people who have not figure it out.

            I observed that Phyllis could not possibly make an effective plea.

            I know from my discussion with Attorney Douglas Palaschak that as a general rule, a lawyer should review all documents before entering a plea. I know that standard practice is to continue the arraignment to give the lawyer time to evaluate the plea - and collect money from the defendant.

            It is obvious to me that there is no person to be impersonated here. I am informed that this is a basis for a this demurrer.

            I have personally observed numerous due process violations in this case.

            I have been informed that the following items of evidence were obtained illegally and must be suppressed:

1.         The smoking gun, the declaration of Phyllis. The was the product of coercion in a custodial interrogation of somebody who was not even a suspect.

2.         All evidence flowing from this egregious violation of Phyllis’s rights and personal dignity.

            I am informed that Jackie Miller is the sister of the defendant and that Jackie Miller would want her sister to use her name if it would help the cause. Nobody asked Jackie Miller if she wants to prosecute. This is merely vindictive action of the police that has crossed the line and has become a crime.

            My investigation shows that James Kilfoyle committed perjury on the bogus charging instrument by stating that defendant intended to benefit by avoiding arrest on a warrant - while failing to mention that in fact there was no warrant. Defendant could not therefore have benefited. Her intent is irrelevant; Phyllis had a right to remain silent. She attempted to exercise that right as best she could in the face of armed police who had already demonstrated that they could lewdly feel her up with impunity.

            Defendant was deprived of her right to counsel at her bail hearing.

            Her failure was excessive causing her to suffer 3 days incarceration on this bogus and malicious false arrest.

            She was never given a Miranda warning.

            She was never shown an actual warrant on 28 July 2003. Witness ______________ can attest to that. This raises the specter of kidnaping pursuant to 18 USC 1201. See Overton v Ohio (2001) 151 L. Ed. 2nd 317 for definition of warrant.

            There seems to be no record of the court proceedings so far.

            There was an illegal search and seizure on July 15th at 12:15 a.m. alongside and road. They seized Phyllis’s car and her person without probable cause - or even any suspicion that Phyllis had committed any crime. They had no right to even question her; she had spousal privilege.

            There was no warrant directing the officers to detain and interrogate Phyllis Burfeindt . At the time of detainment on July 15, 2003 officers failed to Mirandize Phyllis Burfeindt according to James Kilfoyle’s sworn statement.

            At the time that the police solicited that written statement from defendant they were obligated to inform her that she was the focus of a criminal investigation and that she had a right to remain silent. They should have advised her of her right to counsel who would have advised Phyllis of her spousal privilege. Thereafter in a vindictive effort to “get Phyllis” Kilfoyle, the officer who lewdly felt up Phyllis using the pretext of a pat down for weapons, and who thereafter refused to provide a police escort back home, preferring to have Phyllis sleep on the sofa hear his isolate office, this same Kilfoyle concocted this bogus forgery charge without running it past a lawyer. Police “out to get” somebody triggers damages under section 1983. See Olech v Village of Willowbrook (1998) 160 F.3d 386 (7th Cir.1998) .

            On July 15, 2003 Office Kilfoyle and his conspirators acted outside of his legal jurisdiction and obtained a statement under false color of law. At the time of the illegal search and seizure of Phyllis Burfeindt on July 15, 2003 she was a passenger in her own car which was driven safely and legally. There was no basis for impoundment.

            The situation in this case triggers remedies under Brady v. Maryland (1963) 373 U.S. 83. See http://da.co.la.ca.us/sd02-07.htm for the new 2002 Los Angeles Brady policy. (In California a Brady motion is sometimes called a “Pitchess” motion.) We want to know what kind of guy Kilfoyle is - and whether he has felt up other attractive witnesses and taken their cars.

            Kilfoyle took Phyllis's personal property, dignity, signature, and statement under threat and intimidation under false color of law thereby abusing the power of his office for his own personal lascivious satisfaction.

Signed __________________________ William McNamara. 31 July 2003

Declaration of Attorney Douglas Palaschak regarding traffic and minor cases.

            I, Douglas Palaschak, declare the following under penalty of perjury: I am a lawyer with 18 years of experience. I have never been licensed in Iowa. Most of my work is in the area of bankruptcy and civil liberties. I was a civil libertarian before I went to law school. An innocent criminal defendant needs about a year to adequately defend himself; guilty people require less time for their trial generally. We all know from watching the O.J. Simpson trial that even a trial with priority takes a long time. I know from experience that a traffic case is in many ways more complicated that a felony case because traffic court is so accustomed to making deals and trampling on defendant’s rights. Example: Argersinger v Hamlin

 
 Footnote

Argersinger v Hamlin (1972) 32 L Ed 2nd 407 US 25, 92 S Ct 2006. Cannot put a guy in jail ifyou don’t give him a right to a jury trial. Cited in 12 scholarly motor vehicle treatises including: 48 ALR 4th367, 71 ALR 3rd 562, 53 ALR 3rd 1002, 93 ALR 2nd 747, 26 ALR Fed 218, 103 L Ed 2nd 1000, 101 L Ed 2nd1017, 98 L Ed 2nd 1074, 98 L Ed 2nd 1115, 65 L Ed 2nd 1219, 61 L Ed 2nd 1018, 18 L Ed 2nd 1420.

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Until circa 1972 persons facing less than 6 months in jail were presumed not entitled to appointed counsel. While in jail for lack of $250,000 bail in 1999 after being arrested by the FBI on my farm in Illinois for having written a well-written traffic petition #2871 Footnote

Brief #2871 is at http://www.lawyerdude.8m.com/2871.pdf


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in 1997, I learned that extradition law is undeveloped. I theorize that refinement in law comes with litigation and time.
 
 

  I also know that public defenders and other appointed counsel are only effective for guilty people - because all they have time for is a cursory look at the case. They can make a deal because that takes no time.

            The innocent need more time than the guilty to prepare their case.

            Because people don’t litigate their traffic tickets, the law is unrefined. Furthermore, procedures in justice court are not uniform from state to state. Also, the presiding officer is sometimes not even required to be a lawyer or high school graduate. My point in this paragraph is this: The methods to effectively litigate in traffic court are not well known. The litigant needs time to develop his theories of the case.

            More often than not, the theories include challenging a statute for overbreadth. I used overbreadth theory to win a case recently; it took a year; the case began almost a year to the day before it was dismissed.

            I have emailed at length with Billy McNamara regarding this case. Billy McNamara is a serious young man who works hard at his craft and has enjoyed great success. He spends his spare time studying law. I have examined his writings. We have numerous associates in common. There is a movement in America of people who have strong moralistic beliefs in freedom and the constitution. The internet is uniting these people. We share methods, experiences, cases, theories, and e-books. This is the type of association protected under the 1st amendment as enunciated by the Supreme Court in the case of In Re Primus Footnote

Primus, In Re (1978) 56 L Ed 2nd , 436 US 412, 98 S Ct 1893. State Bar lost again in court.


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and a multitude of other cases cited in my brief #3789 at http://www.lawyerdude.8m.com/3789.html . Billy is interested in justice and he can gather the resources to see that justice is done. The police would be well advised to do the right thing in this case: They should dismiss this case immediately and try to work out a deal to repay Phyllis.

 

            In the past, many criminal rights were won by those in prison - because those not in prison had better things to do with their lives - so the conventional wisdom went. Today word processors permit us to make the written brief that would otherwise take too much time for the non-prisoner.

            My summary is this:

#1 It is reasonable and necessary to give Phyllis adequate time to gather assistance for each motion.

#2 She needs court-appointed effective assistance of counsel - but not somebody to make a deal and sell the deal to her.

#3 Phyllis is a good person trying to survive as best he can in a part of America (New York state) that has lost some economic luster in recent years due to circumstances that are not her doing.

________________________

Douglas Palaschak

Points and Authorities Compelling the Suppression of all evidence here.

The lying declaration is the fruit of an illegal seizure of me and must therefore be suppressed.

The smoking gun/ lying declaration is the product of a custodial interrogation without benefit of a Miranda warning and must therefore be suppressed.

            Authority: Miranda v Arizona (1966) http://www.lawyerdude.netfirms.com/miranda.html 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3rd 974 and 59 other ALR treatises cited in the 1992 edition of Lawyers’s Edition Quick Case Table regarding Miranda.

The remedy is prophylactic. There is no way around it.

            The rule of Miranda was designed to provide a bright line. The remedy is exclusion - just like in Weeks v U.S. 232 US 383, 58 L Ed 652, 34 S Ct 341 www.lawyerdude.netfirms.com/weeks.html .

The Exclusionary Rule is sound law here and abroad.

            The Exclusionary Rule was invented by the Supreme Court in Weeks v. U. S. (1914), this rule of evidence bans from trial information that directly or indirectly stems from illegal police investigation. Applied to the states during the Due Process Revolution. The Court developed the rule to deter police from violating the Fourth Amendment. In the U. S. neither administrative controls nor civil suits had much impact on police malpractice. While the U. S. has been a pioneer in developing the exclusionary rule, other countries have adopted the reform, particularly when faced with major problems of political legitimacy. In 1982 when Canada made the rule part of its new Charter of Rights and Freedoms. Faced with a series of police abuses of power in confronting the Northern Ireland civil war and recent waves of non-white immigrants, Britain enacted in 1984 the Police and Criminal Evidence Act, which substantially broadened its exclusionary rule

            There were no exigent circumstances here. For example, if there is a fire in your dorm room or someone yelling "Help! Police!" a police officer may enter and if upon entry any evidence is in plain view it will be admissible without a search warrant. This exception to the exclusionary rule exists to prevent officers from having to choose between responding to emergencies or giving up the possibility of discovering evidence of a crime.

            James Kilfoyle is experienced at coercing people by use of a gun. He has chosen the path of the gun rather than the path of wisdom. As a direct and foreseeable result of this failure to educate himself he has mistakenly called these facts forgery and impersonation. He thereby placed this town of Ulster at risk of being sued. Kilfoyle knows that Phyllis did not commit the crimes of impersonation and forgery - and that is what makes him guilty of the crimes of malicious prosecution, abuse of process, false arrest, defamation, and filing a false police report.

            More importantly for today’s purposes, he puts Phyllis in the position of falling victim to a court system staffed by people who don’t even realize what is happening here. The prosecutor should have intercepted this complaint.

The exclusionary rule of Miranda covers both oral and written statements.

“In each of these cases the defendant while in police custody was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases the questioning elicited oral admissions, and in three of them signed statements as well, which were admitted at their trials.” Miranda v Arizona (1966)

Even the most subtle coercion precludes consent - Schneckloth.

             In this case Kilfoyle felt me up, took my car and then told me that I would not be released until I made a written statement under oath. Nobody Mirandized me. I am not a lawyer. This coercion taints the evidence. There was no probable cause to seize me and make me write this. I was not a suspect.

“even the most subtle coercion precludes consent” - Schneckloth v Bustamonte(1973) 412 US 218, 36 L Ed 2d 854, 93 S Ct 2041.

Schneckloth v Bustamonte holds (at 412 US 228):

 The 4th and 14th amendments require that a consent not be coerced, by explicit or means, by implied threat or covert force. For no matter how subtly the coercion were applied, the resulting ”content: would be no more than a pretext for the unjustified police intrusion against which the 4th amendment is directed. In the words of the classic admonition: . . . the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635 "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close [412 U.S. 218, 229] and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." - Schneckloth v Bustamonte (1973) 412 US 218, 36 L Ed 3nd 854, 93 S Ct 2041.

Product of custodial interrogation is presumed coerced

         You cannot justify an illegal seizure by what you found as a result of the illegal seizure.    The presumption of coercion is stronger where, as here, there is no Miranda warning and no counsel present.

The police are now estopped from using Phyllis’s writing against her.

            James Kilfoyle manufactured this crime by thwarting Phyllis attempt to get information. They are estopped from using this writing against her. It must be suppressed.

Even if the declaration is admitted, simple perjury is not forgery nor criminal impersonation.

            The following is the subject of my demurrer and motion to dismiss, but I repeat it here briefly to connect the legal points in this case.

The statutes must follow the common law and they do here.

            If the statutes differ from the common law, they must be adjusted to provide Phyllis with the common law defense that I just now used - because statutes are merely codification of the common law which is the distillation of centuries of legal wisdom, but in case you have any doubt, here are the statutes.

Text of the statutes used to facilitate this malicious prosecution

New York Penal code section 190.25 Criminal impersonation in the second degree.

“190.25 Criminal impersonation in the second degree. A person is guilty of criminal impersonation in the second degree when he:

1. Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or

2. Pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or

3.         (a) Pretends to be a public servant, or wears or displays without authority any uniform, badge, insignia or facsimile thereof by which such public servant is lawfully distinguished, or falsely expresses by his words or actions that he is a public servant or is acting with approval or authority of a public agency or department; and

(b) so acts with intent to induce another to submit to such pretended official authority, to solicit funds or to otherwise cause another to act in reliance upon that pretense. Criminal impersonation in the second degree is a class A misdemeanor.”

New York Penal code section 170.10 sub 2 Forgery

“170.10 Forgery in the second degree. A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

1. A deed, will, codicil, contract, assignment, commercial instrument, credit card, as that term is defined in subdivision seven of section 155.00, or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or

2. A public record, or an instrument filed or required or authorized by law to be filed in or with a public office or public servant; or

3. A written instrument officially issued or created by a public office, public servant or governmental instrumentality; or

4. Part of an issue of tokens, public transportation transfers, certificates or other articles manufactured and designed for use as symbols of value usable in place of money for the purchase of property or services; or

5. A prescription of a duly licensed physician or other person authorized to issue the same for any drug or any instrument or device used in the taking or administering of drugs for which a prescription is required by law.

Forgery in the second degree is a class D felony. “

The Suppression motion, removes all evidence in the case and mandates dismissal.

            This is a matter of law. I am entitled to due process at every stage including pre-plea. I was denied it there. The remedy is to dismiss immediately.

Griffin v Illinois (1965) 100 L Ed 891, 351 US 12, 76 S Ct 585, 55 ALR 2nd 1055 holds that everybody is entitled to Due Process at every stage of the proceeding. Due Process is defined as including notice and meaningful opportunity to be heard. This, in turn, means adequate time to prepare. The 6th and 1st amendments guarantee effective assistance of counsel and the right to associate and petition for redress.

            The history of the law in this country has been the increasing awareness and application of the dignity and worth of the individual human. These values are reflected in our decisions of the Supreme Court.

What about the $200 to get my car back? Please order is paid to me immediately.

            Apparently James Kilfoyle and his conspirators are unaware of the decisions of the Supreme Court over 30 years ago that require a hearing before you take away somebody’s car. See Bell v Burson (1971) 402 US 535, 29 L Ed 2d 90, 91 S Ct 1586, http://www.circuitlawyer.8m.com/Burson.html and its progeny and ancestors.

            My demand for effective assistance of counsel is based on Gideon Footnote

Gideon v Wainwright (1963) 9 L Ed 2nd 799, 372 US 335, 83 S Ct 792, 93 ALR 2nd 733, subjectof 32 scholarly annotations and a major motion picture starring Henry Fonda. The annotations are: 65ALR 4th 183, 47 ALR 4th 1069, 79 ALR 3rd 1025, 73 ALR 3rd 725, 71 ALR 3rd 562, 64 ALR 3rd 1291, 36 ALR3rd 751, 36 ALR 3rd 1403, 34 ALR 3rd 470, 34 Alr3rd 1256, 33 ALR 3rd 229, 18 ALR 3rd 1074, 10 ALR 3rd1371, 5 ALR 3rd 1269, 5 ALR 3rd 1360, 93 ALR 2nd 747, 36 ALR Fed 594, 26 ALR Fed 218, 102 L Ed 1049,101 L Ed 2nd 1017, 98 L Ed 2nd 1074, 83 L Ed 2nd 1112, 65 L ed 2nd 1219, 33 L Ed end 865, 33 L Ed 2nd932, 31 L Ed 2nd 921, 25 L Ed 2nd 1025, 18 L Ed 2nd 1388, 18 L Ed 2nd 1420, 14 L ed 2nd 992, 12 L Ed 2nd1340, 9 L Ed 2nd 1260.


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and Argersinger and their progeny and ancestors.

 

My demand for a transcript and due process at every stage of the proceeding.

            My demand for transcript is based on Griffin v Illinois Footnote

Griffin v Illinois (1965) 100 L Ed 891, 351 US 12, 76 S Ct 585, 55 ALR 2nd 1055 holds that everybody is entitled to a transcript on appeal.


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(Criminal case 1965) and its direct and foreseeable progeny, MLB v SLJ Footnote

M.L.B. v. S.L.J. (1996) 519 U.S. 102 The state of Mississippi conditioned a mother's right toappeal the termination of her parental rights on the prepayment of all appellate costs. The Supreme Courtheld that termination of parental rights proceedings should be treated like criminal cases for the purposesof the right to appeal. In criminal cases, a state may not block a defendant's right to appeal just becausethat defendant is poor.


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(Civil case 1996). Both cases are founded on equal protection which is a concept that is both civil and criminal - and in fact, the criminal

            I am entitled to due process at every stage - including arraignment and pre-plea - which is where we are now. If my lawyer pleaded me not guilty then I revoke that plea as the product of a denial of effective assistance.

______________________

Phyllis Burfeindt
 

Proof of Service

            I, ________________, declare the following under penalty of perjury: On (date)______ at (time)_____ I faxed this motion #5902 version __ to the prosecutor’s office at fax number _______________.

____________________________

__________________________