IN THE STATE OF WISCONSIN CIRCUIT COURT

STATE OF WISCONSIN,                                           Case No.: 2009CF48                                                                

Plaintiff,              

Vs.                                                                                Motion to Suppress           

DRIESSEN, KENNETH LEROY,                                                                                

Defendant.

___________________________________________________________________  

      Notice on September 16th at 9:00 am, or at soonest convenience to the Court and the Plaintiff, Defendant Driessen, by this motion, moves the court, requesting a Franks hearing. The defendant had filed a timely motion to dismiss, prior to the Preliminary hearing. At the Preliminary Hearing Judge Eaton basically, instructed Driessen that alleging a defective complaint and or a complaint based on false probable cause are two different issues and the way he understood the motion to dismiss, those issues would require a "Franks" hearing.  Therefore until a Franks hearing is conducted, this Defendant's right to question the validity of the probable cause of his being the subjected to a traffic stop based on unproven allegations and searched under pretentious reasoning leading to his arrest and the criminal complaint numbered above have not been addressed.  Suppression of evidence being synonymous with the exclusionary rule and doctrine developed to apply the 4th and 14th Amendment rights resulted in the landmark case Franks v. Delaware[i] that case holds: when a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the trut…was included by the affiant… requires that a hearing be held at the defendant's request. A valid sanction for such alleged behavior in a case where the state does not produce a victim ( See: Illinois v. Krull, Leon, supra, at 908[ii]), and the stated probable cause is highly questionable may well be suppression of evidence and dismissal of all charges. The grounds for such sanctions being ordered by the court are based upon the following points of law and fact.

1. Driver's License: The initial complaint, signed and sworn to in front of Judge Norman Yackel on April 6, 2009,  under probable cause states "Complainant states that a check of the defendant's driving record in the State of Wisconsin revealed that the Defendant's  operating privileges were revoked in the State of Wisconsin and had not been reinstated as of March 28, 2009". (Exhibit 1). The Wisconsin State Patrol Offense/Incident Report, of D. J. Lewis, dated March 28, 2009, contains what appears to be a two page document relating to the incident which begins s 03/28/09 13:36:38 From ODIN To DP71. Under additional comments of this page, immediately below Driessen's name and birth date followed by the time and the date of the incident this paper reads:

>>>THIS RECORD DISPLAYS AN ID-CARD<<< (Exhibit 2) .  So although filled with acronyms and police jargon, the time of the entries appear to reflect that through a computer connection in the State Patrol Car, Trooper Lewis, before or during the time of the incident did receive information tending to indicate that Defendant Driessen did not possess a valid driver's license at the time of the incident.

Prior to the Preliminary Hearing, Driessen submitted a document to the Court entitled Answer to Complaint, to which has attached a copy Notice of Intent to Suspend Operating Privilege, dated 3-28-09.  Also attached to the Answer to Complaint is a copy of a check dated 2-9-09, part of which was used to pay for Driessen's Driver's License, which cleared and was deposited the State of Wisconsin Registration Fee Trust account. After the District Attorney received the Answer to Complaint submission of the defendant; as far as the defendant knows, no one further contested the fact that Driessen did posses a valid driver's license before it was taken from him on 3-28-09.

Once the Defendant made the fact that he did possess a valid license on the morning of 3-28-09 known the Assistant District Attorney instead of supplying the source of the information stating that the Defendant's license was revoked, when it was not, he proceeded to amend the complaint in an effort to deny this Defendant his right to present such evidence to the court as it relates to his supposition that the traffic stop was in fact conducted on the basis of the assumption of probable cause that the Defendant's license was revoked. 

The fact that the original complaint contained a statement inferring that Driessen's driver's license was revoked when it was not in itself may not be an appropriate cause to apply the exclusionary rule. The Defendant also requested discovery, which was not provided to this day, and part of the discovery Assistant DA Bruce Poquette did provide from the State Patrol seems to have portions missing.   Add the Assistant DAs willingness to amend the complaint to conceal this 'mistake' from the court in an attempt to deny defendant Driessen the right to present this line of evidence to the court as it pertains to the validity of probable cause for the traffic stop, it can be considered bad faith and a due process violation worthy of the application of the exclusionary rule. See, Brady v. Maryland[iii] and  Mapp v. Ohio[iv] 

2. Speeding:  allegation from Deputy Knapp's Incident Report Narrative: Deputy Knapp observed  that the vehicle appeared to be traveling at a speed in excess of the posted 55 mph speed limit. Deputy Knapp also observed that the vehicle had a very loud exhaust.  Deputy Knapp then pulled out onto the roadway and attempted to catch up to the vehicle. Deputy Knapp followed the vehicle as it turned onto Nelson Lake Road, it appeared to accelerate very quickly.   As Deputy Knapp turned onto Nelson Lake Road, he observed the vehicle was already down the road quite some distance and was passing Minnow Jim's Bait Store.  Deputy Knapp then activated his emergency lights and turned the siren on and off several times in an attempt to gain the driver's attention and execute a traffic stop.  Deputy Knapp by his own words written in his incident report stated that he did not turn on his lights until after he came up with the allegation that defendant Driessen drove in the other lane.  If Driessen had been speeding and that was in fact the probable cause for which Deputy Knapp began to follow Driessen, not knowing that Driessen was in fact going to turn onto Nelson Lake Road; any rational jurist would assume that the Deputy should have turned on his emergency lights as soon as he had even reasonable suspicion to believe that Driessen was speeding. This indicates that speeding was not the reason he followed and eventually stopped Driessen's vehicle. Driessen heard Deputy Knapp state that the distance of the incident was a mile to a "mile and 1/2" under oath at the Preliminary Hearing.  The distance is actually much shorter and the probability that all the antics Deputy Knapp alludes to could have actually happened is highly unlikely.  Defendant Driessen measured and recorded the actual distance of the incident at less than 8/10ths of a mile and only about 780 feet of that distance was traveled on Nelson Lake Road. Also when approaching Nelson Lake Road, via Highway from the north, that intersection is roughly 110 degrees from the direction of travel down 63 and therefore impossible to navigate at high speed and acceleration indicated by the deputy (see: Exhibit 3, an audio/visual recording of the scene at 00:12 to 3:00).  Furthermore, no indication that Driessen was speeding was mentioned in other reports by Deputy Knapp's agency or in the portions of Trooper Lewis's report supplied to the defendant by the Assistant DA. Considering that all State Patrol cruisers have radar devices and Trooper Lewis has offered no such evidence of speeding, it is highly unlikely that Deputy Knapp has any proof or even reasonable suspicion that this defendant was actually speeding. These facts leave little doubt to the notion that the probable cause of speeding is a merely a fabrication designed to further justify Deputy Knapp's unlawful evidence fishing expedition of the morning of March 28, 2009.  The 4th and 14th Amendments of the US constitution and many court cases concerning the exclusionary rule also known as suppression of evidence, support this Defendant's motion to suppress just on the fact that it appears the deputy fabricated speeding in absence of legal truthful factual probable cause for following and stopping Driessen, see: Mallory v. United States[v],  BECK V. OHIO[vi] .

3. Travel in oncoming lane: Attached to and printed on the back of a document with a Wisconsin State Patrol Emblem titled Offense/Incident Report, indicating officer name Lewis D J, dated 3/28/2009, what appears to be the Trooper's words in part, in the 3rd paragraph second sentence states: Deputy Knapp asked if I had seen the truck on the wrong side of the road, which I informed him that I had not. (Exhibit 4) attached. Take further notice that according to the timing of Deputy Knapp's own Incident Report Narrative concerning this case, the last sentence in the first paragraph reads. Deputy Knapp observed that Trooper Deb Lewis had also arrived on the scene and parked behind Deputy Knapp's squad car. Trooper Lewis had to be right behind Deputy Knapp and would certainly have been able to see Driessen's vehicle fully in the oncoming lane if it in fact was so. While "beyond a reasonable doubt" is not written into the US Constitution word for word these words are written into many cases as legal interpretation of the 5th and 6th Amendments.  If one law enforcement agent claims to have seen Driessen's vehicle "in the entire left hand portion of the roadway", and the other agent says Driessen had not, for purposes of criminal proceedings concerning Driessen, the judge is to assume Driessen had not driven on the apposing side of the road.  See: State v. Chambers[vii].

4. Loud muffler: Driessen has submitted an audio-visual recording with sight and sound controls unaltered and on the same levels for all of the length of the recordings of his Truck and other vehicles to compare the sound volume of his truck compared to other vehicles on the road (Exhibit 3, at 3:00 to 8:34).  Also attached to this motion is an affidavit stating that no mechanical changes or modifications were made to the truck between the March 28th, 2009 incident and the date the audio-video recording was made that would change the exhaust noise level.  In the first paragraph of his Incident Narative Report pertaining to the March 28th, 2009 incident the Deputy states, "Deputy Knapp also observed that that the vehicle had a very loud exhaust.".  To become a reason to suspect a crime was being committed cars, motorcycles and trucks with similarly loud exhausts must be regularly ticketed or cited for violating applicable statute or ordinance. Driessen's audio-video recording submission proves that enforcement of such noise violation is not within the regular practice of local law enforcement authorities.    Therefore under the 14th Amendment equal protection clause almost every motorcycle and every semi- truck that went by during the recording of Driessen's audio-video submission would have to be stopped the driver frisked, vehicle searched, driver asked to do a sobriety test; then any crimes discovered under the pretense of a loud muffler would have to be prosecuted and the violator should be not given a citation, warning or any notice concerning the loud muffler.  Even if Deputy Knapp did write Driessen a civil citation for noise nuisance it still does not automatically give him the right to search a person or vehicle let alone use an obviously false notion to justify a traffic stop. Deputy Knapp's actions prove he did not even consider the loudness of Driessen's muffler as valid pretense for the traffic stop, reasonable suspicion, let alone probable cause. He did not even write Driessen a ticket for supposedly violating any law based on noise, see Knowles v. Iowa[viii].

5.  Small Glass Jar: Deputy Knapp observed Driessen place both hands in his pants pockets. For the purposes of officer safety, deputy Knapp asked Driessen to remove his hands from his pockets and walk to the rear of his vehicle. Driessen looked at Deputy Knapp, removed both hands from his pants pockets and took one step forward, at which time Driessen again shoved his right hand in to his right pants pocket and turned slightly away from Deputy Knapp.  Deputy Knapp then instructed Driessen to remove his hands from his pocket, blanketed Driessen's right arm and escorted Driessen several steps forward to the side of his pickup truck and instructed Driessen to place both hands on the side of the trcuk. Driessen did as instructed, at which time Deputy Knapp performed a pat down search of Driessen's Clothing. As Deputy Knapp was patting the right side of Driessen's pants, Driessen then removed his right hand from the pickup truck and again shoved it quickly into his right front pants pocket. Deputy Knapp grabbed Driessen's right wrist, removed his hand from his pocket and placed it on the side of the vehicle and retained his hand in that position. Deputy Knapp asked Driessen what the object was and Driessen did not respond.  Deputy Knapp then attempted to complete the pat-down search of Driessen's pants and while doing so, Driessen again attempted to place his hands in his pants pocket. Deputy Knapp stepped back and instructed Driessen to pull his hands from his pants pockets. Driessen did so and as he did so, produced what appeared to be a small jar from his right front pants pocket and said "look man, it's just a little weed." In the portion of Trooper Lewis's Offense Incident Report disclosed to this defendant by the Assistant District Attorney, Trooper Lewis, while certainly near enough to see Driessen and record his movements, she does not make any mention of Driessen repeatedly placing his hands inside his pockets, doing some sort of pocket pool hand jive dance and then handing the said small glass container to Deputy Knapp.  By all of the other allegations Deputy Knapp makes to attempt to support his probable cause it is all but a certainty that if Driessen had fatuctually act in the manner described by Deputy Knapp, Driessen would have been arrested for resisting arrest and probably assaulting a police officer.  Also in what appears to be within the contents of Trooper Lewis's report it is stated in the fourth sentence of the second paragraph that, "Mr Driessen talked about not being stopped for a criminal offense and would go off on a tangent about his rights."  It would be highly unlikely that Driessen would be aware enough to consider and comment about his rights and then willingly hand contraband to Deputy Knapp. It is more likely that Deputy Knapp did frisk Driessen and feel the lump in his pocket being the small container and after saying " what is this?", Deputy Knapp did push on the outside of his pants with one hand and did reach into Driessen's pocket with the other and pulled out the contraband himself. Judges most often assume all officers always act in "good faith", in this case, with so many obvious inconsistencies, assumptions of good faith do not pass the constitutional muster. See: Beck v. Ohio,  Katz v. United States[ix],  Sibron v. New York[x] ,  Minnesota v. Dickerson[xi] and  Arizona v. Gant[xii]

6. Driessen here states that Deputy Knapp's rendition of Driessen's performance of the field sobriety test on the morning of the March 28, 2009 is inaccurate and prejudice to the point of being a fabrication. Driessen has written Assistant D.A. Bruce Poquette requesting discovery concerning the use of video surveillance cameras during the incident and asked that the Plaintiff answer his question as to whether or not either of the law enforcement vehicles were equipped with video recorders, see State v. Haefer[xiii].  Driessen submits relative and valid evidence with this motion in his defense, being an audiovisual recording of him using a DOT certified breathalyzer to determine his Blood Alcohol Concentration (BAC) and then performing field sobriety tests above the BAC level allegedly recorded during the March 28,2009 incident. In the absence of an audiovisual record of the March 28, 2009 incident, a recording of Driessen's level of impairment and demeanor on another occasion at an equal or higher BAC is the only available method to meaningfully challenge the Deputies Incident Report Narrative.  While the level of one's coordination and senses concerning when an individual is to be considered legally impaired is debatable and one may even consider Driessen legally impaired in the audiovisual recording he submitted under similar a Blood Alcohol Concentration; conversely the video tends to prove that Driessen would not do, say or act the way Deputy Brian Knapp insinuated to support his theory of probable cause to arrest Driessen for suspicion of driving under the influence on March 28, 2009. Again as in points one through five, Deputy Knapp's statements in his Incident Narrative, sworn to be truthful, not by him but by another state agent, are questionable to the point of wanting impeachment regarding probable cause based on field sobriety tests conducted on March 28, 2009, see: U.S. v. Jannotti[xiv].

7.  Horizontal gaze nystagmus test: Driessen has submitted an audio-visual

recording containing both an episode of him following a light with his eyes while he is sober (.00% BAC , Exhibit 3, 12:09 to 12:55) and another episode after he recorded a .137 BAC on a BACTrack S80, DOT certified breathalyzer that uses fuel cell technology, see (Exhibit 3, 12:55 to 14:25 with elevated BAC). During a horizontal gaze nystagmus test at certain angles, near 45 degrees, your eyes are supposed to involuntarily twitch and this twitching is somehow supposed to vary due to impairment related to intoxication.  Once a person understands what a horizontal gaze nystagmus (HGN) test is supposed to achieve and how; it is no surprise that the results of Driessen's experiment illustrates flaws in the test. Because the HGN test kind of baffles and stymies judges and juries with technical police babble it is of no surprise that law enforcement agents through some sort of method of "peer review"[xv], like the test and think it is great. If a judge or any averagely educated jurist were to study the HGN test methods, unless they have a vested interest in law enforcement they would have to find the HGN test inconclusive and unconstitutional as a method of determining probable cause of legal impairment[xvi].       

In conclusion, even in absence of additional discovery lawfully requested by this defendant a preponderance of evidence exists suggesting that the traffic stop and subsequent search of Mr. Driessen was conducted under false pretenses in violation of his rights to privacy and to be secure in his person under the 4th Amendment of the US Constitution. Between the false statements concerning the Defendant's possession of a valid driver's license signed and sworn to in front of a judge, the actions of the deputy compared to his words concerning the allegations of the defendants speeding, the inconsistency between the statements of Trooper Lewis's in comparison to Deputy Knapp's concerning the travel of Driessen's vehicle in the oncoming lane and the search of Driessen's pockets obtaining a small jar under the pretense of a Terry[xvii] stop for officer safety leave serious factual questions as to the validity of the establishment of the probable cause, see United States v. Dumes[xviii].

 The second paragraph of Deputy Knaap's Incident Report Narrative, 2nd paragraph, 4th sentence states: "Deputy Knapp recognized and identified the subject as Kenneth Driessen." At one time Driessen was held in the Sawyer County Jail on a $250,000 bail relating to an out of state warrant that was later proven to be void because a person cannot be a felony fugitive originating from crime where they had already served their time and been released two years earlier, yet Judge Eaton's peers on the Wisconsin Appellate Court determined that such a warrant was probable cause for yet another charge[xix]. Driessen does write newspaper opinions, some advocating regulating marijuana like alcohol and tobacco.  He also believes that 9-11 and the resulting justification for the US to get involved in 2 wars is Pentagon war profiteer driven. He stands on the corner with our local peace group from time to time. Knapp, knowing Driessen prior to stopping and searching him certainly was not of any benefit to Driessen. Driessen was not on probation at the time of the traffic stop and any assumption of criminal activity on the morning of March 28th is purely speculative. Since it is common public knowledge in the community that several members of the Sawyer County Law Enforcement community have smoked marijuana in the past so a prejudice and selective process due to political and maybe even religious discriminatory practice is plausible, see State v. Kramer[xx].  One other issue is related to the balance of individual rights and law enforcement objectives is the danger a "criminal" may be to the community if he is allowed to go free, see Illinois v. Krull under footnote 2. Although any perceived danger and level of impairment Driessen exhibited in his audio-visual submission questionable as he experimented with Field Sobriety Tests at near twice the legal limit; his purchase and use of a breathalyzer can keep him from having to experience the suffering of license loss, jail time and fines while helping to guarantee that the public will be tolerably safe because he will know not to drive if his BAC approached anywhere near the legal limit.  Finally, the legal and factual points brought forth within this motion and the exhibits attached give the Judge the authority to order suppression of the state's evidence necessary to find Driessen guilty and therefore Honorable Judge Robert Eaton may dismiss this complaint in full.

Respectully Submitted:

______________________  Dated: _September 11, 2009__

Kenneth Leroy Driessen  (pro se)

12022 N. Co. Rd. T

Hayward WI 54843

715-634-2801

kendriessen@hotmail.com