STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT 3
__________________________________________________________________
STATE OF WISCONSIN
Plaintiff-Respondent,
Appeal
No. 2010AP001050
Vs.
Circuit Court Case No. 09 CF 48
KENNETH LEROY DRIESSEN
Defendant-Appellant
__________________________________________________________________
ON APPEAL FROM JUDGEMENT OF CONVICTION
AND
DENIAL OF POST-CONVICTION RELIEF
ENTERED BY THE CIRCUIT COURT FOR SAWYER COUNTY
THE
HONORABLE JUDGE ROBERT EATON, PRESIDING
__________________________________________________________________
BRIEF OF APPELLANT KENNETH LEROY DRIESSEN
__________________________________________________________________
Ken Driessen Pro Se
12022 N. Co. Rd. T
Hayward WI 54843
715-634-2801
kendriessen@hotmail.com
TABLE OF CONTENTS:
Table of Legal Authorities - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 2
Statement of the Issues - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 5
Statement Concerning Oral Argument and Publication - - - - - - - - - - - - - 6
Statement of the Case - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 6
Argument - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 16
Unreasonable Search and Seizure, and Due
Process Issues - - - - - - - - 16
Claim of Unconstitutionality of Marijuana
Possession Laws - - - - - - - 26
Conclusion
and relief sought - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 34
Relief Sought - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 34
LEGAL AUTHORITIES:
Cases Cited
2007AP400-CR
State v. Tody 312 Wis. 2d 480, 751 N.W.2d 902 (2009)- - - - - - - - - - - 14, 24, 25
Arizona v. Youngblodd, 488 U.S. 51, 102 L. Ed 2d 281 (1988) - - - - -17
Beck v. Ohio, 379 U.S. 89 (1964) - - - - - 25.
Brady v. Maryland, 373 U.S. 83 (1963). - - - - - - - - -17
Brown v. Illinois, 422 U.S. 590, 610-611 (1975)
- - - - - - - 20
Connally v. General Constr. Co.,269 U.S. 385, 391 (1926) - - - - 34
Cutter v. Wilkinson, 544 U.S. 709, 725 (2005)
- - - - - 28
Forsyth County, Ga. v. Nationalist Movement,U.S 112 S.Ct. 2395, 2403 (1992)-34
Franks v. Delaware, 438 U.S. 154 (1978) - - - - - - - 20
Helling v. McKinney, 509 U.S.25, 125 L. Ed. 2d 22 (1993) - - - - 31
LEARY v. UNITED STATES, 395 U.S. 6 (1969) 395 U.S. 6 - - - - - 33
MDMC & RASTAFARI, INC.; et al.v.ERIC H. HOLDER, Jr., No. 08-16083 - - - - 27
Minnesota v. Dickerson, 508 U.S. 366 (1993) -
- - - - - - 20
Napue v. Illinois, 360 U.S. 264 (1959) - - - - - - - - 19
Noesen v. Department of Regulation and Licensing, 2008 WI App 52, 311 Wis. 2d 237, 751 N.W.2d 385, 06-1110 - - - - - - - 28
P.A.K. v. State, 119 Wis. 2d 871, 888, 350 N.W.2d 677 (1984) - - - -24
Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) - - - - 34
People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) - - - - - -27
People v. Jennings, 54 NY2d 518, 430 NE2d 1282 (1981)
- - - -16
People v. Ramirez (1983) 34 Cal.3d 541 , 194 Cal.Rptr. 454; 668 P.2d 761 - - -16
Randall v. US 1978 (settled out of court) - -
- - - - - - - - - - - - - - - - - - - - 30
Ruiz v. State, 75 Wis. 2nd 230, 249 N. W. 2d 277 (1977) - - - - - - - -17
State v. Baker, 165 Wis. 2d 63, 286 N.W. 2d 6126(Ct. App. 1979) - - - -33
State v. Davis, 2005 WI App 98 698 N.W.2d 823, 281 Wis. 2d 118, 04-1163 - -31
State v. Greenwold, 189 Wis. 2d 59, 525 N.W. 2d 294 (Ct. App. 1994) - - - - -17
State v. Hyndman, 170 Wis. 2nd 198, 488 N.W. 2d 111 (Ct. App. 1992) - - 24, 25
State v. Knudson, 51 Wis. 2d 270, 277 (1971)
- - - - - -24
State v . Mann, 123 Wis. 2d 375, 367 N.W.2d 209 (1985) - - - - - - - 17
State v. Olsen, 99 Wis.2d 572 (Ct. App. 1980)
- - - - - - 30
State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988) - - - - - -26,27
State v. Ritchie, 2000 WI App 136, P8, 237 Wis. 2d 664, 614 N.W.2d 837. - - 19
State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979) - - - - 32, 33
Terry v. Ohio, 392 U.S. 1 (1968) - - - - - -
-5, 20
United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996) - - - - - - -27
United States v. Ceballos, 654 F.2d 177, 185 (2d Cir. 1981) - - - - - 21
United States v. Dumes, 313 F.#d 372, 380-81 (7th Cir. 2002) - - - - - - - - 19
United States v. Edward R. Forchion, No. 04-949-ALL (E.D. Pa., July 22, 2005) - - - -28
U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir.1982)
- - - - - -26
United States v. Mackey, 387 F. Supp. 1121, 1122-25 (D. Nev. 1975) - - - -16
United States v. Meyers, 95 F.3d 1475, 1489 (10th Cir. 1996) - - - - - -27
United States v. Raynard Earl Valrey, No. CR96-549Z (W.D. Wa. 2000) - - - -27
United States v. Randall, Crim. No. 65923-75, (Super. Ct. D.C. 1976) - - - - - 29
United States v. Seeger, 380 U.S. 163, 185 (1965)
- - - - -28
Whiteley v. Warden, 401 US 560, 568, 91 SCt 1031, 1037, 28 LEd2d 306 (1971)
- - - - -17
Wisconsin Statutes Cited
§ 808.05(2) - - - - 35
§ 808.05(3) - - - - 35
§809.30(2)(g)(2) - - - 23
§809.30(2)(e) - - - - 23
§939.47 - - - - - - 30
§ 940.19 - - - - - 15
§ 946.12(4) - - - -15
§961.32 - - - -
6, 33
§961.34 - - - - -
6,31,33
§ 961.41(3g) - - - - - - 6,26,30,32
SCR Chapter 60: 60.02 and 60.04 - - - - -24,25
US Code Cited
Religious Freedom Restoration Act 42 U.S.C. 2000cc-5(7)(A), abbreviated RFRA - -26,27
Wisconsin State Constitution Cited
Article I, §1 Equality - - - - - - - - - 7
Article I, §6 Excessive bail; cruel punishments - - - - 7
Article I, §7 impartial jury - - - - - 32
Article I, §11 Searches and seizures…probable cause - - - -
5
Article I, §12 No bill of attainder, ex post facto law - - - -7,31
Article I, §18 Freedom of worship; liberty of conscience - - - -4
Article I, §19 Religious tests prohibited - - - - - -4
United States Constitution Cited
Article 1,§9 Para. 3: bill of attainder outlawed- - - - - - - - - - - -7, 31
Article the third [Amendment I] religious freedom- - - - - -4,6, 22
Article the sixth [Amendment IV] unreasonable searches and seizures - - -14, 18
Article the eighth [Amendment VI] impartial jury- - - - - - -31
Article the tenth [Amendment VIII] cruel and unusual - - - - - -6, 26
Article XIV [14th Amendment]: equal protection of the laws - - - 4,5,6,7,17,26,33
Other Authorities Cited
United States Patent number 6,630,507 - - - -
- - - - - 29,31
http://www.druglibrary.org/olsen/MEDICAL/YOUNG/young.html - - - - - 29
http://rockjamaica.wordpress.com/2009/11/20/irv-rosenfeld-record/ - - - - -29
http://www.drugpolicy.org/docUploads/randall.pdf -
- - - - - - - - - - - - - 30
http://www.oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect1peTabs1to46.htm#Tab1.1A - - - -32
http://en.wikipedia.org/wiki/Compassionate_Investigational_New_Drug_program - - - 32
STATEMENT OF THE ISSUES:
1.) Probable Cause, unreasonable search and seizure questions in relation
to US Constitution 4th Amendment rights and Wisconsin Constitution Article 1 § 11: including: a. That the Complaint stated that Driessen did not have a valid license the night he was stopped when he
in fact did, b. The fact that the arresting officers did not turn on their emergency lights in response to speeding and loud
muffler allegations. c. Driessen and Trooper statements disagree with Deputy
statements concerning swerving; d. Driessen and Trooper statements conflict with Deputy statements concerning him removing
a small container from Driessen's pocket under the guise of a Terry stop, e. Great variation between separate written
reports of the Deputy and the Trooper.
2.) The question of Due Process discrepancies that seemingly violate the
US constitution 14th Amendment rights and Wisconsin Article 1 Section 1 rights including the state agent's destruction
of exculpatory evidence, judge ignoring relevant facts related to inaccurate and inconsistent reports and allowing sworn testimony
to vary from law enforcement reports amounting to perjury, ignoring and acting oblivious to reports contrary to physics and
reality.
3.) Claim of unconstitutionality of Wisconsin Marijuana Laws because they
violate Driessen's freedom of worship and liberty of conscience guaranteed in the US Constitution 1st Amendment and
Wisconsin Article 1 Section 18 & 19 ..
4.) Claim of unconstitutionality of Wisconsin's Marijuana Laws based on medicinal
use and necessity.
5.) Claim of Unconstitutionality of Wisconsin marijuana laws based on vague
and arbitrary ideological reasoning where the state does not meet its compelling interest or show cause for depriving people
of free and popular choice to control of their minds and bodies through the use of cannabis also known as marijuana when US
government statistics have shown that over 100 million people have tried marijuana.
6.) Claim of Unconstitutionality of the various diverse scheme of Marijuana
laws and penalties in Wisconsin as enforced in Sawyer County concerning possession of small amounts including City Ordinance
§59.54(25) (non-criminal), misdemeanor, felony §961.41(3g), outright plea bargain dismissals, also 961.32
and §961.34 exemptions in statutes; making the applications of such a range of laws vague and arbitrary encouraging
discriminatory enforcement violating Driessen's US Constitution 14th Amendment equal protection clause and due process
clause which extends rights and protections guaranteed to individuals by the Amendments known as the "Bill of Rights" applicable
to state authority.
STATEMENT CONCERNING ORAL
ARGUMENT AND PUBLICATION
This Appellant, Driessen, does not believe an oral argument is necessary at the appellate level. Since this appeal
contains questions of constitutionality of acts and report writings of law enforcement agents and questions of constitutionality
of statutes, Appellant Driessen believes the opinion should be published.
STATEMENT OF THE CASE:
Description of the nature of the case: This
case begins with a roadside stop of Driessen in his vehicle on March 28, 2009. The probable cause and even the reasonable
suspicion necessary for a lawful road stop, as well as the truthfulness of the arresting officer have been in question by
Driessen since the morning he was arrested. Driessen was charged with Felony Marijuana Possession of .36th of a gram, drug
paraphernalia possession and Driving while under the influence. Driessen filed
a claim of unconstitutionality in the Circuit Court concerning the Scheme of Marijuana (THC) possession laws in Wisconsin. Driessen requested an evidentiary hearing concerning probable cause and truthfulness
of the arresting officer. Driessen also filed a request for order of declaratory judgment in the Circuit Court. A jury trail
and a post conviction relief hearing took place; Judge Robert Eaton presiding. Driessen
believes his motions for relief from law enforcement false reports and testimony were not given an unbiased independent hearing
by Judge Eaton. Appellant Driessen intends to prove to this Appeals Court that relief is due to him on 4th Amendment
unreasonable search and seizure grounds and 14th Amendment due process US Constitution grounds. Driessen also intends
to prove to the court that the current variety and scheme of marijuana possession statutes are unconstitutional based on Wisconsin
Article I, §1, Article I, §6, Article I, §12 and US Article 1, §9 Para. 3, Article 6, 1st, 8th and 14th Amendment Constitutional
grounds.
Procedural
status: The
various pleadings filed by Driessen and The Sawyer County District Attorney's Office and proceedings that took place in the
Sawyer County Circuit Court are in the Record. On November 13th, 2009 Driessen
was found guilty on all counts in front of a Jury Trial with Judge Robert Eaton presiding.
In Driessen believed seeking post conviction relief in front of Judge Eaton would be impractical, so Driessen filed
an Appeal 2009AP002988 which was denied on the basis of lack of jurisdiction, being "filed prematurely" then on April 9 2010
his assumption was proven fact and post conviction relief was denied in the Circuit Court, Judge Robert Eaton presiding, leaving
Driessen to file a second notice of appeal from jail.
Disposition: The final disposition in the Circuit Court, being the denial of post
conviction relief hearing took place on April 9th, 2010.
Statement
of the facts:
Facts concerning the validity of Driessen's
driving privileges:
Excerpt from original Criminal Complaint
dated April 3, 2008 or April 6, 2009: Complainant states that a check of the defendant's driving record revealed that the
defendant's operating privileges were revoked and had not been reinstated as of March 28, 2009, (Rec. 3-pg 2, Appx pg. 2)
Excerpt from Motion to Dismiss (Rec. 10-pg.1,
Appx pg 12), dated May 19 2009: To the contrary, the defendant was eligible to apply for his license as of February 9th 2009
and did pay and obtain a driver's license on February 9th 2009. A payment check copy, a temporary driver's pink slip, and
a letter stating his driver's license was revoked as of march 31st 2009 due to this incident; are attached to a document titled
"answer to complaint" (Rec.6-pg. 1-4, Appx pg 8-11)
- - - - - - - - - - - -
Facts concerning speeding and loud muffler
allegations as probable cause:
Excerpt from Deputy Knapp's Incident Report
Narrative (Rec. 3-pg. 3-4, Appx pg 3-4): On March 28, 2009, at approximately 1:40 a.m. Deputy Knapp observed a dark colored
pick-up truck southbound on USH 63, passing the driveway to the Lenroot Town Hall where Deputy Knapp was parked. 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 west onto Nelson Lake
Road. Deputy Knapp observed that as the vehicle turned onto Nelson Lake Road, it appeared to accelerate very quickly. As Deputy Knapp turned onto Nelson Lake Road, he observed that the vehicle was already
down the road quite some distance and was passing Minnow Jim's Bait Shop. Deputy Knapp accelerated quickly in an attempt to
catch up to the vehicle and close the distance between the two vehicles. Deputy Knapp caught up to the vehicle as it was traveling
up hill just past the 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.
Excerpt from Trooper Lewis's, 09-8590 Assist
Other Agency report, received by defendant on sooner than July 24th, 2009 (Rec. 30 pg. 1-3, Appx 21-23): I was assigned Sawyer
County from 6pm to 2pm. I was at the Lenroot Town Hall parking lot speaking with Deputy Knapp. We observed a dark colored
pickup truck southbound on US 63 with a loud exhaust. Deputy Knapp was facing forward toward the road and pursued the vehicle
and I followed. The pickup truck turned onto Nelson Lake Road. I was not in a position to observe any driving behavior, The
vehicle was stopped at approximately 0144.
Excerpts from Motion to Dismiss (Rec. 10
pg. 1, Appx pg 12-14), dated May 19 2009: On page three of the 2009CF48 Complaint, entitled “Incident Report Narrative”:
The arresting officer states, “the vehicle appeared to be traveling at a speed in excess of the posted 55 mph speed
limit”, yet he did not turn on his emergency lights at that time. Such apparent hesitation and uncertainty does not
demonstrate speeding as probable cause for the traffic stop. No speeding ticket with even an estimated speed was issued. Also, the corner of Highway 63 and Nelson Lake Road is only approximately ½ mile from
the Lenroot Town Hall. The corner is approximately 110 degrees when approaching it from the north; it is impossible to negotiate
such a corner at the high speed noted by the officer.
It can be and if necessary will be proven that: when compared to Semi truck and motorcycle exhaust noise decibel levels,
the officer’s description of the defendants truck exhaust as “very loud”, on the first page of the Incident
Report Narrative, is not accurate. If further proceedings are deemed necessary this defendant intends to present sound and
visual recordings with decibel readings to prove the error of the officer’s statement concerning the loudness of the
Defendant’s vehicle. The deceptive nature of the officer’s narrative concerning loudness is also evident in the
fact that no improper equipment warning or citation had been issued at the time of arrest and this fact negates the issue
of loud muffler as probable cause for this traffic stop.
In response to the arresting officer’s statements on the fist page of the Incident Report Narrative concerning
speed, acceleration and maneuvering on Nelson Lake Road: The crest of the hill past the bait shop, as measured by the defendant
with a hand held tape is only about 780 feet from the Hwy 63 center line of the corner of 63 & Nelson Lake Rd. (photos
attached, see Rec. 6 pg. 2-4). It is impossible within the laws of Newtonian
physics for a standard transmission 1971, 4 wheel drive pickup to accelerate and maneuver in the manner the officer describes
in the 780 feet distance and then come to a complete stop on the proper side of the road in a position allowing cars to pass
such as stated by the officer
- - - - - - - - - -
Facts concerning truthfulness of erratic
driving allegations:
Excerpt from Deputy Knapp's Incident Report
Narrative, dated 03/28/2009 01:44:24 or 03/30/09 (Rec. 3 pg. 3, Appx Pg 3): As Deputy Knapp activated the lights, he observed
that the vehicle was in the entire left hand portion of the roadway traveling in the oncoming lane of traffic.
Excerpt from Trooper Lewis's, 09-8590 Assist
Other Agency report, received by defendant on sooner than July 24th, 2009(Rec. 30 pg. 2, Appx pg 23): Deputy Knapp asked if
I had seen the truck on the wrong side of the road, which I informed him that I had not.
Excerpts from Motion to Dismiss, dated May 19 2009(Rec. 10 pg. 2, Appx pg 13): concerning speed, acceleration
and maneuvering on Nelson Lake Road: The crest of the hill past the bait shop, as measured by the defendant with a hand held
tape is only about 780 feet from the Hwy 63 center line of the corner of 63 & Nelson
Lake Rd. (see photos attached). It is impossible within the laws of Newtonian
physics for a standard transmission 1971, 4 wheel drive pickup to accelerate and maneuver in the manner the officer describes
in the 780 feet distance and then come to a complete stop on the proper side of the road in a position allowing cars to pass
such as stated by the officer.
Video of Distance at scene: evidentiary CD
(Rec. 66-1 to 67-1)
- - - - - - - - - - -
Facts concerning search and seizure of small container:
Excerpt from Deputy Knapp's Incident Report Narrative (Rec. 3, pg 4, Appx pg 4): Deputy Knapp observed
Driessen place both hands in his pants pockets. For 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 pockets
and moved one step forward, at which time Driessen again shoved his right hand into his right pants pocket and turned slightly
away from Deputy Knapp. Deputy Knapp then instructed Driessen to remove his hands from his pocket, and instructed Driessen
to place both hands on the side of the truck. Driessen did as instructed, at which time Deputy Knapp performed a pat-down
search of Driessen's clothing. As Deputy Knapp was patting down the right side of Driessen's pants, Driessen then removed
his right hand from the pick-up 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 then patted the outside area of Driessen's right front pocket and felt a small hard, somewhat
round object in his pocket. 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."
Excerpt from Trooper Lewis's, 09-8590 Assist Other Agency report, received by defendant on sooner than
July 24th, 2009(Rec. 30 pg 2, Appx pg 22): Deputy Knapp asked Driessen to exit the vehicle and had patted him down prior to
me being back up by the pickup truck. Deputy Knapp had removed a small glass container from Mr. Driessen's pants pocket.
Excerpts from Motion to Dismiss, dated May 19 2009 (Rec 10 pg 2, Appx pg 13): In reference to officer
statements on the second page of the Incident Report Narrative: “a small somewhat round object in his pocket”
is hardly something that could be considered suspicious of being a dangerous weapon, therefore such a pocket search under
the guise of the officer’s own protection is not legal and evidence gathered in such a dubious manner should be suppressed. The pocket pool, hand jive episode the officer writes of where the defendant then
hands the contraband to the officer voluntarily sounds purely fictional; any prosecutorial or judicial officer that cannot
recognize such Gestapo rhetoric as fallacy may have forsaken their oath to defend the constitution in favor of police state
power. Within the Incident Report Narrative, it is not until some sentences and
paragraphs later that in the officer’s own words he declared that he had reason and probable cause to arrest this defendant.
- - - - - - - - - - - -
Facts concerning truthfulness of Field Soberiety Test:
Excerpts from Deputy Knapp's Incident Narrative (Rec. 3 pg 4, Appx pg 4) and Trooper Lewis's 09-8590
Assist Other Agency report (Rec 30 pg 2-3, Appx pg 21-23) concerning honesty and accuracy of Field Sobriety Test results of
March 28, 2009:
Knapp: While Deputy Knapp was providing the instructions to Driessen, Driessen lost his balance and
took a step to the right.
Lewis: At least one occasion he started the test prior to instructions were complete.
Knapp: Deputy Knapp noticed that during the first sequences of the nine steps, Driessen stumbled and
stepped off line on steps two and five.
Lewis: A vehicle had come near us and Mr. Driessen stated, "don't get run over that guy is probably
as drunk as me". On step three forward his arms came away from his side for balance. On step number 5 he lost his balance
and his feet came apart.
Knapp: Deputy Knapp noted that Driessen did not turn as instructed. Deputy
Knapp observed that Driessen , instead of taking small choppy steps around as instructed, spun completely around in a very
unbalanced manner. Deputy Knapp noticed that Driessen's second series of nine steps were very unbalanced. Deputy Knapp noted that on steps two, five and six Driessen did not step heal to toe and stepped in an
unbalanced side to side manner.
Lewis: He missed heel to toe on return steps one, five and seven. He stopped at the end of nine and said, "you
didn't tell me what to do after".
Knapp: Deputy Knapp then asked Driessen to begin (the one leg stand test), at which point Driessen raised his left
foot; however, did not count out loud as instructed. Deputy Knapp noted that Driessen had his knee bent slightly and also
observed that Driessen was very unbalanced. Deputy Knapp explained to Driessen to straighten his leg and to point his toe
forward and then begin counting out loud. Driessen then counted out loud 1001, 1002, etc. intil the count of 1008. Deputy
Knapp noted that at the end of count 1008 Driessen leaned forward and placed his foot on the pavement. Driessen began counting
as instructed; however, at the count of 13, Deputy Knapp abserved Driessen became very wobbly and unbalances and at the count
of 1022 Driessen placed his foot down on the ground and stated "I'm sorry."
Lewis: He started before instructions were given counted to eight and put his foot down when Deputy
Knapp had instructed him to point his toe. He restarted and counted to 24 and stopped. His arms were twitching away from his
side.
Knapp: While administering the Horizontal Gaze Nystagmus test to Driessen, Deputy Knapp observed very
jerky tracking in both eyes. Deputy Knapp also noticed jerkiness in both eyes prior to the 45-degree onset. Deputy Knapp noted
that Driessen began turning his head instead of following the indicator with his eyes only.
Lewis: He did not have him take his glasses off. He conducted the horizon gaze nystagmus test. I could
not see all that clearly from my vantage point. Mr. Driessen had very blood shot eyes. I observed him move his head contrary
to the instructions and Mr. Driessen even commented that he moved his head.
See Filed sobriety test/breathalyzer experiment audio/video file in the Record at 66-1 to 67-1.
- - - - - - - - - - - - -
Facts concerning discovery request and motion to compel:
Deputy Knapp's Incident Narrative Report (Rec 3 pg 6, Appx pg 6): While in the pre-booking room, Deputy
Knapp began a DVD recording and instructed Driessen to sit on the bench, which he eventually did.
From request for discovery letter attached to Motion to Compel Discovery (Rec 24 pg 2, Appx pg 20):
Also the arresting officer Brian Knapp, who did not sign the incident report, supposedly stated that he did turn on a camera
in the booking room that morning of March 28, 2009, I would also like a copy of that visual recording and any sound recording
that may or may not accompany the visual recording which the officer said he made.
- - - - - - - - - - - - -
Facts concerning Brian Knapp Incident Case
Number 08080802, submitted with Audio Video DVD (Rec. 30-4) on November 13, 2009 and in the Record at document entry number
34 on pg 18:
An audio/video recording was submitted to
the Circuit Court that coincides with a Sawyer County Sheriff's report of an incident related to this case only in the fact
that it proves deputy Knapp has written false reports prior to his report of the Driessen incident. Comparative analysis of
the report and video reveal that Deputy Knapp's report states that he uttered 6 or more orders, not based on law or fact,
when in reality he only verbalized one order while physically grabbing and assaulting a citizen (news reporter). The Reporter,
Paul DeMain, was not on the roadway, which is evident from the perspective of the video that places DeMain behind a road sign
on the side of the road. Also, there is no law against any private citizen photographing or taking audio/video recordings
of an accident or crime scene on a public roadway. There are laws and civil remedies against releasing sensitive, unauthorized
videos to the public in certain places where individuals may have an expectation of privacy. If there was a danger, as written
in Deputy Knapp's report, there were other people on the road and closer than Mr. DeMain. A Deputy, being a public servant,
has no expectation of privacy in a public place while on duty. Deputy Knapp grabbed Mr. Demain's hand and told him to "leave
the scene" simultaneously, then hit DeMain with his flashlight. Deputy Knapp assaulted and battered Mr. DeMain and even admitted
to it when he had no legal authority to even touch him. By Wisconsin § 940.19, battery can be a misdemeanor or felony.
All of Deputy Knapp's statements about danger and clearing the scene in his report are false because you can see other people
standing in the road. FWhen a public officer or employee writes false reports,
it is a class I felony under Wisconsin § 946.12(4).
Audio Video File of 08080802 incident (Rec.
30-4) evidentiary DVD
- - - - - - - - - -
Facts concerning Case Number 2007AP400-CR:
From the Supreme Court of Wisconsin April
30, 2009 Opinion: Robert Eaton not only let his mom stay on a jury when the defense attorney asked that she be excused, he
also said, "I like to consider myself part of law enforcement or I may be disowned.", see 2007AP400-CR page 5 or paragraph 2 here: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=32512
ARGUMENT
Unreasonable
Search and Seizure, and Due Process Issues
Argument
concerning the validity of Driessen's driving privileges:
As noted in the statement of facts section above, in the original complaint, in the probable cause section, it clearly
and inaccurately states that Driessen's driving privileges were revoked before and on March 28th 2009. Regarding a mistake made by the State such as inaccurate or not up to date computer records, as in this
case wherein Driessen's records, available to the Sawyer County Sheriff's Officer's, apparently listed that his license was
revoked when he was stopped. When probable cause of a stop is based on inaccurate law enforcement information a legal defense
based on the 4th Amendment unreasonable search and seizure clause exists, seized property or contraband and information
gathered during that stop can be considered forbidden fruit, so suppression of such evidence under the exclusionary rule in
this case is well within reason, see: People v. Jennings, 54 NY2d 518, 430
NE2d 1282 (1981), United States v. Mackey, 387 F. Supp. 1121, 1122-25 (D. Nev. 1975), People v. Ramirez (1983)
34 Cal.3d 541 , 194 Cal.Rptr. 454; 668 P.2d 761 and Whiteley v. Warden, 401 US 560, 568, 91 SCt 1031, 1037, 28 LEd2d
306 (1971). When the probable cause statement was brought to Assistant District
Attorney Bruce Poquette's attention by Driessen, Mr. Poquette proceeded to edit out the erroneous statement about driver license
revocation and amend the complaint to hide the very real possibility that due to false information Deputy Knapp mistakenly
thought that Driessen's driver's license was revoked. Deputy Knapp's report states
that he "recognized and identified the subject as Kenneth Driessen", before he took Driessen's Driver's license from
him (rec 3 pg 3, appx pg 3). Consodering discrepancies between the Deputy Knapp report and Trooper Lewis's report along with
statements made in Driessen's pleadings before he knew of the Trooper's report, it is highly probable that Deputy Knapp fabricated
his report to justify frisking Driessen prior to Driessen being arrested. Judge Eaton signed an amended complaint filed by
Assistant D.A. Poquette; effectively denying Driessen relevant 4th Amendment protection from unreasonable search and
seizure based on a false assumption that Driessen was driving illegally on a revoked license State v . Mann, 123 Wis. 2d
375, 367 N.W.2d 209 (1985) A criminal complaint may be attacked when there has been an omission of critical material
when inclusion is necessary for an impartial judge to determine probable cause. Withholding such evidence is a violation
of 14th Amendment Due Process Clause as defined by Brady v. Maryland, 373 U.S. 83 (1963). It is Assistant D.A. Poquette's duty and Judge Eaton's duty to disclose and consider such evidence
see: Ruiz v. State, 75 Wis. 2nd 230, 249 N. W. 2d 277 (1977), Arizona v. Youngblodd, 488 U.S. 51, 102 L. Ed 2d 281
(1988), also see: State v. Greenwold, 189 Wis. 2d 59, 525 N.W. 2d 294 (Ct. App. 1994). Beside the Probable Cause statement, a radio dispatch recording at 1:44am, (Rec. 30-4), a time of the stop
most likely before the pat down search and seizure, sounds like, "negative valid", so it appears that false information
did play a significant part in the frisk/search and Deputy Knapp undoubtedly thought he was searching Driessen incident to
arrest and later fabricated his report to adjust for Driessen possessing a valid drivers license.
Argument
concerning speeding and loud muffler allegations as probable cause:
Neither Deputy Knapp's nor Trooper Lewis's reports mention turning on their emergency lights in reaction to the alleged
speeding and muffler violations. Other than the fact that Driessen had to be slowing down, even if he was driving well below
the speed limit, to make the 100 deg plus Nelson Lake Road corner, which is less than 6/10ths of a mile from the Lenroot Town
Hall, where the Deputy and Trooper were parked; they could not know Driessen was going to turn. Their actions prove that the
stop was investigative rather than a result of an alleged violation. When the Radio Dispatch on evidentiary audio/video DVD
(Rec.66-1 to 67-1) is heard the first sound file is 1:42:42 (running plate #) and the time of the second sound file on the
CD 1:44:57 coincides exactly with the time of the stop written on Deputy Knapp's Report. From his report, "Deputy Knapp
recognized and identified the subject as Kenneth Driessen." (Rec 3 pg 3, appx pg 3) So it is within reason that Deputy
Knapp stopped Driessen because he knew Driessen; rather then for alleged sound and speed violations; such tickets, which were
never issued and of no concern to Deputy Knapp. Although the D.A. did not disclose the fact in writing or honor a related
discovery requests by Driessen, it is agreed to by both parties that Deputy Knapp's and Trooper Lewis's patrol cars were equipped
with radar speed detecting equipment they did not use and video recording equipment they did not use. Driessen, knowing he was not speeding at the time of the incident, later made an audio/video recording
from within a newer model car traveling from the Lenroot Town Hall to the peak of the hill, just past the bait store landmarks
mentioned on Deputy Knapp's report that reveals the distance and the angle of the Nelson Lake Road corner (Rec. 66-1 to 67-1,
also 30-4) . Comparing the actual distance with deputy Knapp's Incident Report Narrative make all of the speeding and erratic
driving allegations in his report highly unlikely, to impossible, to have taken place in the distance determined by landmarks
Deputy Knapp mentioned. The whole trip from the Lenroot Town Hall to the peak
of the hill just past the bait shop is less than 8/10ths of a mile. Driessen
also recorded an audio video record of local motorcycle truck and car traffic with his truck intermingled and traveling with
the visually and audio recorded traffic (Rec. 66-1 to 67-1). Although when a person watches the video their attention is on
the truck because it is the visual center of the video, Driessen's black truck does not sound any louder than other trucks
and motorcycles in the video. Driessen also filed a signed notary sealed affidavit
stating that he made no modifications to the muffler or any thing that would affect the sound of his truck between the March
28, 2009 incident and the making of the audio/video recording (Rec 66-1 to 67-1). Again Deputy Knapp's report does not appear
to pass the good faith test, see United States v. Dumes, 313 F.#d 372, 380-81 (7th Cir. 2002) case; to stray from the
truth seems to illustrate vindictiveness and maliciousness. Without using
the radar speed detector or a sound decibel detection instrument the stop was based on mire suspicion, see: State v. Ritchie,
2000 WI App 136, P8, 237 Wis. 2d 664, 614 N.W.2d 837.
Argument
concerning truthfulness of erratic driving allegations:
Trooper Lewis's report and Deputy Knapp's report indicate that she was on the scene at the time of the stop and certainly
would have been able to view the vehicle that she was following just prior to the stop, and she wrote, "Deputy Knapp asked
if I had seen the truck on the wrong side of the road, which I informed him that I had not." Now when Driessen wrote in
his "Answer to Complaint" and his "Motion to Dismiss", indicating that he did not drive in the manner stated by Deputy Knapp,
and the maneuvering allegations recorded in Deputy Knapp's Report are physically impossible to have occurred in the distance
described in the report by landmarks, again, Driessen did not have a copy of or been
able to read Lewis's report when he wrote those pleadings. Therefore Trooper Lewis's report corroborates with Driessen's statements
indicating that he did not drive on the wrong side of the road. In Napue v. Illinois, 360 U.S. 264 (1959) the Supreme
Court held that conviction obtained through the use of false testimony, known to be such by representatives of the state is
a denial of due process.
Argument
concerning search and seizure of small container:
When Driessen wrote the "pocket pool"
(Rec 10 pg 2, appx pg 13) statement in his Motion to Dismiss, it is obvious that he meant that Deputy Knapp reached his hand
into Driessen's pocket and it was deputy Knapp that removed the small jar from Driessen's pants pocket not himself. Again,
Driessen wrote and filed the Motion to Dismiss before he received Trooper Lewis's report that also states, "Deputy Knapp
had removed a small glass container from Mr. Driessen's pants pocket." The weight of a trooper's report and a citizens
words would certainly outweigh the words of a deputy if there was not bias present and included with the arsenal of libel
against Driessen; see Franks v. Delaware, 438 U.S. 154 (1978), and Mapp v. Ohio, 367 U.S. 643 (1961). Also Deputy Knapp never stated any reason why he thought Driessen to be armed and dangerous therefore Terry
v. Ohio, 392 U.S. 1 (1968), does not protect or justify Deputy Knapp's intrusion and perverted act of grabbing a small
glass jar out of Driessen's front pants pocket, see also Minnesota v. Dickerson, 508 U.S. 366 (1993). It would
be ludicrous to think all the hand jive, pocket pool, blanketing of arms and continued resistance actually took place with
out the "professional" Trooper Deb Lewis taking notice and writing something about it in her report. It is all but certain, except it would be more certain if Trooper Lewis did not turn off her video camera
or destroy the video recording; a video that would substantiate the proof as to whether or not Deputy Knapp did remove the
small jar from Driessen's pocket, an act flagrantly abusive of Driessen's 4th Amendment rights, see: Brown v. Illinois,
422 U.S. 590, 610-611 (1975). As far as justification of officer's intrusion
into people's privacy is concerned; an incident report and complaint serve a purpose synonymous with that of a warrant when
4th Amendment issues are a concern. In United States v. Ceballos,
654 F.2d 177, 185 (2d Cir. 1981) "The carrying of a paper bag alone does not provide enough to conclude a narcotics
offense is being committed", just as a small lump in Driessen's pocket does not provide enough evidence to order Driessen
to remove it under the guise of it being a weapon let alone the alternative more likely version which Deputy Knapp reaches
into Driessen's pocket and removes the jar.
Argument concerning field sobriety test (FST) validity in
this case:
The discrepancy between Deputy Knapp and Tropper Lewis's versions of the FST do not match in the instances they claim
Driessen failed. Driessen filed an Audio/video CD where he experiments with a breathalyzer and field sobriety tests. Driessen
does not stumble at the same blood alcohol content as Deputy Knapp accused him of during the March 28,2009 incident, see:
(Rec. 66-1 to 67-1). In this video while some jovial emotional effects of alcohol such as smiling may be visible at the .0137
BAC reading on a DOT and FDA approved tester used according to directions including waiting 20 minutes from the last drink
before testing. Watch the movie and note; Driessen is far from stumbling and loosing his balance as he performs the tests
and dances around. (note: a DOT FDA certified breathalyzer is not to be used as evidence against a defendant but certainly
may be considered admissible to help establish reasonable doubt as to the honesty of two conflicting FST state witness reports.) It was made known to Driessen during the hearings and trials that at least one of
the squad cars had a video camera; the inaccuracy of their reports, as deduced by comparison to one another, illustrates a
motive of depicting Driessen as a dangerous criminal rather than supplying a truthful account of Driessen's awareness and
coordination abilities on the morning of March 28, 2009. Considering the inconsistencies between the FST portions of their
reports, not utilizing or shutting off the camera becomes willful withholding of evidence, see State v. Haefer, 110 Wis.
2d 381, 328 N.W. 2d 894 (Ct. App. 1982). If law students were tested
and their answers were as inconsistent and varied as much as the two state agent's reports do, they certainly would not become
lawyers and judges now would they?
Argument
concerning Deputy Brian Knapp and Incident Report Case No. 08080802 Report Date: 08/08/2008:
The following points of fact are based on information included Appendix pages 23-24 which were filed with the court
on or before November 13th 2009 and may be found in the record (Rec 34(18-19) ) but the judge declined to allow it into evidence,
see: § 809.15(9) Exhibits material to the appeal whether or not received as evidence:
When Deputy Knapp's 08080802 report is read and a comparative analysis is made with the audio video footage (Rec 30-4)
of the same incident it becomes obvious that Deputy Knapp has a tendency to falsify police reports and not be held criminally
accountable for doing so. When a Law enforcement agent allegedly falsifies official
reports in one case and factual evidence is provided based on the written report of an agent of another law enforcement agency
and then the second agent recants her testimony; the door should be open to present evidence that the first agent had written
false statements into reports on previous occasions.
During the 08/08/2008 incident in Deputy Knapp's Report, the Deputy states he warned Paul DeMain 6 times to leave the
seen before Knapp grabbed DeMain when in fact Knapp only warned Demain once simultaneously to grabbing DeMain's camera in
hand with no authority to do so.
Knapp's report states: "Deputy Knapp noted at the time that ambulances were still en route to the scene and that
officers needed to keep the accident scene clear for responding personnel. Deputy Knapp also noted that one of the vehicles
involved in the accident was smoking and at that time there were unknown dangers involved at the scene." is false reasoning
for attacking DeMain because there were other people standing in the road while obviously from the audio/video recording DeMain
was not standing on the road.
Argument concerning audio recording of Trooper Lewis's sworn
Evidentiary Hearing testimony compared to her report of the incident:
There is
no law, statute or constitutional limitation forbidding the Honorable Appeals Court Judges from reading Trooper Lewis's Report
09-8590 (rec. 30 pg. 2) and comparing it to an audio recording
of her October 2, 2009 Evidentiary Hearing sworn testimony available to the public on the Internet here: http://www.blip.tv/file/3986725/
and here: https://www.youtube.com/watch?v=-uIuPqWn26Y Months after the incident,
on the witness stand, Trooper Lewis recanted and denied parts of her official report that did not agree with the fellow law
enforcement officer's report and made statements that agreed exactly with the other officer's report as if 7 months of time
somehow improved her memory of the incident. Also Driessen was determined to
be indigent by the Appeals Court for filing fee purposes. Driessen requested transcripts for some of the hearings from the
court reporter free of charge quoting §809.30(2)(g)(2) and §809.30(2)(e). The Court Reporter denied his request
and send a letter back to him saying he would have to pay $1000 down before she would even start on the transcripts. Now if
the Right and Honorable Judges consider §809.30(2)(d); it is up to the prosecutor to request an indigency redetermination
hearing within 5 days after the notice to pursue post conviction relief is filed if they want to prevent the transcripts being
made available to the indigent defendant free of charge. Driessen was not denied a state public defender, he declined to use
them because after speaking with them, from what they said, in Driessen's opinion, they seemed more interested in defending
the state's agenda than defending him. Therefore denying Driessen the use of transcripts and alternatively an audio recording
of the public hearing on appeal may be a violation of his 1st Amendment right to petition the government, and his 5th
Amendment Due Process clause and 6th Amendment Public Trial clause rights.
Furthermore at the Post Conviction Relief
hearing of April 9, 2010 Driessen pointed out that when police officer reports and their sworn testimony vary it pretty well
proves perjury, false swearing and a lie. If a judge allows that in the courtroom and repeats the contested dialog, what then
does that make him? Driessen was then found in contempt of court by Judge Eaton, see: Circuit Court Criminal Court Record
Appeal item 53 pg 9, "derrogatory remarks" recorded and "lie" being remark. If the Appeals Court in fact uses procedural rules
to conceal a law enforcement agent's recanting of their official report in the Circuit Court, turning a blind eye, knowing
such reports are considered sworn depositions and trustworthy, what then becomes of justice? See: P.A.K. v. State, 119
Wis. 2d 871, 888, 350 N. W. 2d 677 (1984) and State v. Knudson, 51 Wis. 2d 270, 277 (1977) for precedence as to
the weight of trustworthiness of police reports. See also: State v. Munz,
198 Wis. 2d 379, 541 N.W.2d 821(Ct. App. 1995) Perjury consists of a false
statement that the defendant knew was false, was made under oath in a proceeding before a judge, and was material to the proceeding.
Materiality is determined by whether the trial court could have relied on the testimony in making a decision, not on whether
it actually did.
Argument
concerning 2007AP400-CR and Ct. No. 2006CF37 Judge Eaton Presiding:
Judge Robert Eaton, stating in the public hearing of a trial he is presiding over, that, "I like to consider myself
part of law enforcement or I may be disowned", see (http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=32512 ) 2007AP400-CR . His own words spoken in a public hearing express the
fact that he is not free from bias and favoritism toward Law enforcement nor does his statement above express the independence
required of a judge by statute. SCR Chapter 60, Code of Judicial Conduct. SCR
60.02 requires: A judge shall uphold integrity and independence of the
judiciary. SCR 60.04: a judge shall perform the duties of judicial
office impartially and diligently. Judge Eaton's, considering himself part
of law enforcement, comment expresses a tendency that would help an average person understand why a judge would allow a law
enforcement agent to recant and deny parts of their official report that do not agree with a fellow law enforcement officers
report months later on the witness stand and make statements that agree exactly with the other officer's report as if 7 months
of time somehow improved her memory of the incident; therefore State v. Hyndman, 170 Wis. 2nd 198, 488 N.W. 2d 111 (Ct.
App. 1992) provides precedence to the case at hand.
Search
and Seizure and Due process Argument Conclusion:
While Driessen contends the Knapp report to be fallacy; it is obvious by the words of Deputy Knapp's own report, even
if Knapp's words were taken to be truthful, his actions describe proof he had no genuine fear of Driessen possibly possessing
a weapon. "If subjective good faith alone were the test, the protections of
the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,'
only in the discretion of the police." — quoting Beck v. Ohio, 379 U.S. 89 (1964). Deputy Knapp's actions and words do not reflect good faith on his part even if they were to be wrongly
considered truthful when they vary from the report of a State Trooper and the Defendant's words.
Considering the conflicts between the Knapp report and the Lewis report, that Knapp has a history of writing false
statements on police reports (case 08080802, Rec 34 on pg 18 ), that the Sawyer County District Attorney's office has a history
of defending police officers from their own criminal acts and Judge Eaton has a history of making statements that illustrate
that he thinks he is part of law enforcement rather than part of an independent judiciary branch of government (case 2007AP400);
this case mirrors a quote from State v. Hyndman, 170 Wis. 2d 198, 488 N. W. 2d 111 (Ct. App. 1992) being: "The defense
of outrageous governmental conduct arises when the government violates a specific constitutional right and was itself so enmeshed
in the criminal activity that prosecution of the defendant would be repugnant to the criminal justice system."; See also:
U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir.1982). The 4th Amendment
unreasonable search and seizure violations of Driessen's rights by Deputy Knapp become obvious in the facts and arguments
of this brief. The 14th Amendment Due Process violations expressed in
the above facts and arguments that occurred throughout the proceedings are expressed as well. Therefore Appellant Driessen
prays for the proper sanction for the state agent's violations being an acquittal on all counts of the Sawyer County Circuit
Court Complaint numbered 2009CF48.
Claim
of Unconstitutionality of Marijuana Possession Laws
The following
arguments were presented to the Circuit Court as acknowledged in the Record containing documents numbered and page numbers
as follows: Notice of Claim of Unconstitutionality 16 (1-2), and Petition for
Declaratory Judgment 27 (1-19)
Argument
concerning religious use of marijuana:
Considering Driessen's 1st Amendment rights under the establishment clause and the free exercise clause, Judge
Eaton did error when he denied Driessen's petition/motion for Declaratory Relief. The
State v. Peck case, which the State and Judge Eaton relied so heavily upon, was decided in 1988; years before the Religious
Freedom Restoration Act 42 U.S.C. §§ 2000bb-2000bb(4), (RFRA) was passed in 1993. Driessen did quote the RFRA ,42 USC
2000cc-5(7)(A), in his Petition for a Declaratory Judgment (Rec. 27, pg 12) .
Under § 961.41, an annotation clearly states that: "Possession is not a lesser-included
offense of manufacturing". State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988). So Wisconsin Courts
have previously addressed the distinction between possession of a controlled substance and possession with intent to distribute. In other words Peck cited 1st Amendment religious rights in his defense
against charges of growing and manufacturing marijuana, not simple possession for his personal religious use. Peck,
decided before RFRA, is not a valid case precedence concerning religious freedom and possession of marijuana in small personal
amounts. United States v. Meyers, 95 F.3d 1475, 1489 (10th Cir. 1996) is another case where the religious rights are
prayed for against the contrived "compelling" interest of the government based on intent to distribute and distribution of
pounds of marijuana not .36ths of a gram for personal use as in Driessen's case now before the courts. From People of Guam
v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) "In Bauer, we held that the defendant
could use RFRA to defend against his prosecution for simple possession of marijuana, but not against the charges of conspiracy
to distribute and possession with intent to distribute." From United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir.
1996) "As to the three counts on which the appellants were convicted of simple
possession, the exclusion of the religious defense was in error." Rastafari
v. Gonzales, No. C-06-4264 (N.D. Cal. February 2, 2007), "recognizing the plaintiffs could make out a prima facie case
under the RFRA for the religious use of marijuana.", Rastafari et al. v. Eric Holder, Jr., No. 08-16083, was dismissed,
not on statutory, constitutional, common or grounds based on case law precedence but the technicality that Rastafari et al.
are a corporation but did not have a lawyer representing them.
There have been people on probation that are allowed to smoke marijuana as a practice of their religious rights, see,
United States v. Raynard Earl Valrey, No. CR96-549Z (W.D. Wa., February 22, 2000) "The
Court will allow Mr. Valrey's personal use and possession of marijuana exclusively in connection with his practice of his
religion. Mr.Valrey shall (1) self-report his marijuana use (affirming that such use is in the context of his continuing participation
in the Rastifarian religion), (2) undergo regular urine-testing for controlled substances, (3) report monthly, (4) submit
to periodic criminal history checks, and (5) comply with all of the other conditions of supervision."; See also United States v. Edward R. Forchion, No. 04-949-ALL (E.D. Pa., July 22, 2005) . We shall vacate their sentences and remand this case for further
proceedings because the magistrate judge did not consider whether six of the probation conditions that he imposed violate
the Constitution and/or RFRA.
To judge what is religion is not to be on narrow restrained view. 42 U.S.C. 2000cc-5(7)(A) states, "The term
'religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious
belief." The U.S. Supreme Court has interpreted this amendment to the RFRA in Cutter v. Wilkinson, 544 U.S.
709, 725 (2005), to mean the standard in United States v. Seeger, 380 U.S. 163, 185 (1965) ("courts in this
sense are not free to reject beliefs because they consider them 'incomprehensible.' Their task is to decide whether the beliefs
professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.") Case precedence
of these notions of freedom of conscience are also expressed in Noesen v. Department of Regulation and Licensing, 2008
WI App 52, 311 Wis. 2d 237, 751 N.W.2d 385, 06-1110: The Wisconsin Constitution offers more expansive protections for
freedom of conscience than those offered by the 1st amendment. When an individual makes a claim that state law violates his
or her freedom of conscience, courts apply the compelling state interest/least restrictive alternative test, requiring the
challenger to prove that he or she has a sincerely held religious belief that is burdened by application of the state law
at issue. Upon such a showing, the burden shifts to the state to prove that the law is based in a compelling state interest
that cannot be served by a less restrictive alternative. I, Kenneth L. Driessen, here state that I believe cannabis use to be an important part of my religious and
spiritual experiences. Due to the 10,000 word statutory limit of a brief, this statement on it's own should satisfy expression
of my sincerity. If there is any question to this sincerity I would be glad to
attend an oral hearing to express such sincerity in further detail.
Argument
of Medicinal Necessity Defense:
As stated in Driessen's Petition for Declaratory Judgment filed in the Circuit Court, there has not been a Wisconsin
Appeals or Supreme Court case to become precedence concerning the right to use marijuana medicinally since the US government
obtained a patent on Marijuana as a medicine, see United States Patent number 6,630,507, October 7, 2003. The fact
that the US Government itself has a patent on marijuana as a medicine truly and effectively negates the DEA and ONDCP claims
that there is no medicinal use for marijuana. Driessen, in his Petition for Declaratory Judgment (Rec 27 pg 4-5), did mention
depression and anxiety and that in the '90s he was hospitalized for major depression and did receive ECT treatments and conventional
drug therapy, which did not elevate his symptoms. Psychiatrists Lester Grinspoon MD and many others have determined that marijuana/
cannabis can be effective for depression and is safe for medical use, see: http://www.druglibrary.org/olsen/MEDICAL/YOUNG/young.html
There are 4 people left on the USG Compassionate Use Program that get 300 joints a month supplied by the government
for 29 years and one guy smoked his 115000th joint; it takes complete sadistic idiocy to keep this marijuana war going. The 56-year-old Fort Lauderdale stockbroker will put his name among the greats when
he sets a world record tomorrow for weed consumption while lighting up his 115,000th joint, see:
http://rockjamaica.wordpress.com/2009/11/20/irv-rosenfeld-record/ This is a result of a little
known case where a medical necessity case was won by the defendant resulting in dismissal of criminal charges related to growing
and possessing marijuana. The case was not appealed by the government and therefore stands United States v. Randall, Crim.
No. 65923-75, (Super. Ct. D.C. 1976) "Upon the foregoing discussion the Court finds
that the defendant Robert C. Randall(deceased 1948-2001) has established the defense of necessity. Accordingly, it is the
finding of this court that he is not guilty of a violation of D.C. Code §33-402, and the charge against him must be and hereby
is DISMISSED" http://www.drugpolicy.org/docUploads/randall.pdf ; see also Randall v. US, "In 1978, federal agencies, disquieted by Randall's outspoken opposition
to the medical prohibition, sought to silence him by disrupting his legal access to marijuana. In response, Randall, represented
pro bono publico by the law firm of Steptoe & Johnson, brought suit against FDA, DEA, the National Institute on Drug Abuse,
the Department of Justice and the Department of Health, Education & Welfare. Twenty-four hours after the suit was filed,
federal agencies requested an out-of-court settlement. The resulting settlement provided Randall with prescriptive access
to marijuana through a federal pharmacy located near his home."
§ 961.41(3g) in part states: "…unless the person obtains the substance
or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of
his or her professional practice..." While this clause of the statute certainly illustrates the availability of an affirmative
medicinal use defense and exemption to laws criminalizing marijuana possession, law enforcement agents, the state Controlled
Substances Board and the courts continue to ignore and override this legislation as it pertains to medicinal marijuana preventing
Driessen from receiving medication he knows works for him.
§939.47: “Pressure of natural physical forces which causes
the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent
death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution for
any crime based on that act…"
State v. Olsen, 99 Wis.2d 572 (Ct. App.
1980): court identified the four elements which comprise
the necessity defense – In this case: (1) depression and physical pain,
aging and cancer are natural physical forces, (2) depression, cancer and diseases do great bodily harm resulting in premature
death, (3) there is no alternative medicine that acts on depression and does what the US government Patent number 6,630,507
says Cannabinoids do as far as anti-aging and research says about shrinking tumors and preventing cancer etc.(4) these
beliefs are certainly reasonable. Also Wisconsin §961.34: Controlled substances therapeutic research, states in similar
words, that marijuana/cannabis is and should be available by permit to doctors (practitioners), yet even with an Internet
full of information Driessen cannot find one doctor from Wisconsin who has written one prescription for marijuana let alone
find one to write him a prescription. So then for simply seeking relief and using a natural plant medicine known by the government
to be anti-oxidant, anti depressant, pain relieving, cancer shrinking and preventing, being criminally sanctioned and jailed
is crewel and unusual within the meaning of the US 8th Amendment see:
"Exposure to an unreasonable risk of serious damage to future health is a basis for a cause of action for cruel and unusual
punishment..." Helling v. McKinney, 509 U.S.25, 125 L. Ed. 2d 22 (1993), also: State
v. Davis, 2005 WI App 98 698 N.W.2d 823, 281 Wis. 2d 118, 04-1163
Argument
claiming Unconstitutionality due to overwhelming popularity of use:
Judge Eaton did error because anybody with any sense of justice can no longer deny that the popularity of marijuana
has reached and exceeded a threshold where the state and federal governments have lost all credibility concerning any notion
of a compelling interest in protecting people from themselves by forbidding the use of marijuana through criminal sanctions
rather than controlling use through taxation and regulation. Marijuana’s 2500 plus year history of human use proves
criminal sanction laws amount to bias bills of attainder in violation of Wisconsin and US Constitution Articles 1 § 12 and
Article 1, §9 Par.9 respectively, see Record 27, pg. 5-6, last paragraph including endnote authorities referenced (rec. 27
pg 19).
US government statistics, gathered by the National Survey on Drug Use and Health, division of Substance Abuse &
Mental Health Services Administration, division of the US Department of Health and Human Services established as fact that
over 100 million US citizens have used marijuana at least once in there life time, see: http://www.oas.samhsa.gov/NSDUH/2K8NSDUH/tabs/Sect1peTabs1to46.htm#Tab1.1A
Judge Eaton eliminated any person who confessed to ever trying marijuana or even advocating that it should be decriminalized
from the jury. Since the UN WHO data for the United States also coincides with
the USG data and for the years 2002-3 and persons over age 18, once or more life time use of Cannabis/Marijuana is at 42.4%,
see http://en.wikipedia.org/wiki/Adult_lifetime_cannabis_use_by_country, a jury eliminating that many people from the
pool of perspective jurors does not meet the 6th Amendment of the US constitution nor Article 1, §7 of the Wisconsin
Constitution concerning an impartial jury of one's piers. Furthermore outright
criminalization of marijuana use when such a large percentage of the population is involved in such use the State's compelling
interest notion becomes increasingly vague. Criminalization of use also encourages arbitrary and discriminatory enforcement
and amounts a bill of attainder in violation of Article 1,§9 Para. 3 of
the US Constitution, see also: State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979)
Argument of Unconstitutionality of City Ordinance, Misemeanor, Felony marijuana
law, Plea bargain and Exemption scheme of penalties:
Driessen had brought the fact to the Circuit Court's attention that contrary to the actions of the State respondent(s),
and the Circuit Court; through legislation, statute 59.54(25) and §59.54(25m) already exist that decriminalizes
marijuana (THC) and paraphenelia possession in the State of Wisconsin. Sawyer
County has issued such Ordinance Violations. People throughout the state and in Sawyer County were simply fined for marijuana
possession, no loss of license, no incarceration, no probation. Another person received a paraphernalia violation and had
felony possession charges dismissed. The writing of the ordinance statute itself
is vague and can be enforced arbitrarily i.e., an individual who is prosecuted under the City Ordinance does not receive a
criminal record so persons may be repeatedly issued citations for possession of marijuana (THC) and never be convicted under
§961.41(3g), thus never face becoming a felon. Considering the range of statutes and penalties available to the state
and court to punish a person for simple possession of marijuana laws criminalizing such possession appear unconstitutionally
vague and arbitrary. Since a second marijuana conviction involves enhancement,
see: State v. Baker, 165 Wis. 2d 63, 286 N.W. 2d 6126(Ct. App. 1979) "Enhancement for prior convictions used to
enhance a minimum penalty, collateral attack of prior convictions must be allowed."
Furthermore even if it be only 7 people, there is a Federal Compassionate Use Program where the chosen have had 300
marijuana cigarettes sent to them free of charge by the US government every month for 23 years, Driessen wants his 14th
Amendment rights granted by its equal protection clause. In light of the
obvious vague and arbitrary regiment and application of a wide range of marijuana laws, State ex rel. Skinkis v. Treffert,
90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979) serves as precedence to this case, Skinkis states: "Trial courts
do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise
the issue on appeal cannot be waived, regardless of a guilty plea." Under
§961.32 possession authorization and §961.34 thereputic research exemptions, if Driessen can't be exempted his
14th Amendment equal protection clause rights are being violated; see also LEARY v. UNITED STATES, 395 U.S. 6 (1969)
395 U.S. 6 , where a tax stamp scheme for determining marijuana possession a criminal offense was found unconstitutional.
CONCLUSION AND RELIEF SOUGHT
If the law, is the law and deputies are never at fault; there would be
no reason for judges and courts. Changing the law is a matter for the legislature; determining if law enforcement actions
and/or statutes are in violation of citizens constitutionally guaranteed rights is the job of an independent, impartial and
oath abiding judiciary. The facts and arguments within Driessen's Brief and the
official case record now before the District 3 Appeals Court speak out as proof that his constitutional rights have been violated
by state agent's unconstitutional actions and enforcement of unconstitutional statutes discussed within his brief. He can
only hope and pray for the honor of the Justices. "an ordinance(s) may be
void for vagueness if its imprecision is likely to encourage arbitrary and discriminatory enforcement." See: Connally
v. General Constr. Co.,269 U.S. 385, 391 (1926) , Forsyth County, Ga. v. Nationalist Movement,U.S 112 S.Ct. 2395, 2403
(1992) , Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972)
Relief Sought
(1.)
ACQUITAL: A State of Wisconsin Court of Appeals District 3 Order: Overturning,
reversing and overruling of the verdicts of November 13, 2009 finding Kenneth L. Driessen guilty of possessing marijuana (THC)
and drug paraphernalia and Driving while under the influence respectively; and the resulting Circuit Court Judgment of Conviction
and Sentence filed January 11, 2010, due to the stated and explained unreasonable search and seizure, and due process violations
as expressed within this Appellant's Brief which demand Acquittal an all counts.
and/or
(2.)
Declaratory Judgment: An Order from the State of Wisconsin Court of Appeals District 3 declaring findings of fact that
the current State of Wisconsin diverse scheme of marijuana possession laws are unconstitutional or an order forwarding, bypassing
under § 808.05(2) or § 808.05(3), or a Petition by the Court of
Appeals to Certify the Marijuana (THC) statute(s) unconstitutionality claim of this case to the Wisconsin Supreme Court recognizing
it as the court that has final jurisdiction and authority to determine questions of constitutionality of Wisconsin statutes. Resulting in acquittal or amending counts 1 and 4 of this case to ordinance violations
along with counts 1 and 2 of 2006CM300.
_September 15, 2010____
Dated ____________________
Kenneth Leroy Driessen
(pro se)
12022 N. Co. Rd. T
Hayward WI 54843
715-634-2801
wiscokidd@hotmail.com
STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT 3
__________________________________________________________________
STATE OF WISCONSIN
Plaintiff-Respondent,
Appeal No. 2010AP001050
Vs.
Circuit Court Case
No. 09 CF 48
KENNETH LEROY DRIESSEN
Defendant-Appellant
__________________________________________________________________
ON APPEAL FROM A JUDGEMENT OF CONVICTION
AND DENYIAL OF POST-COVICTION RELIEF
ENTERED BY THE CIRCUIT COURT FOR SAWYER COUNTY
THE HONORABLE JUDGE ROBERT EATON, PRESIDING
__________________________________________________________________
Appendix
__________________________________________________________________
Index
Criminal Complaint
2009CF48, Circuit Court Record Date 04-06-2009 - - - -1-7
Answer to Complaint,
Circuit Court Record Date 04-22-2009 - - - - - - - - - - 8-11
Motion to Dismiss, Circuit Court Record Date 05-19-2009- - - - - - - - - - - 12-14
Amended Complaint(cover
pages) Circuit Court Record Date 06-09-2009- -15-16
Notice Claim of Unconsitutionality,
Circuit Court Record Date 60-23-2009 -17-18
Motion to Compel Discovery,
Circuit Court Record Date 09-11-2009 - - - - 19-20
State Patrol Report
Number 09-008590, Rec. 30 (1-3) - - - - - - - - - - - - - - -21-23
Incident Report Narrative
# 08080802, Subm.11-13-2009, Rec. 34 (18-19) -24-25
Affidavit concerning
Audio Video CD, Motion to Supress, Rec. 25(1-14)- - - 26
Initial Statement on
Transcript, Record 59- - - - - - - - - - - - - - - - - - - - - - - - - 27
Letter from Court reporter,
May 11, 2010 - - - - - - - - - - - - - - - - - - - - - - - - - 28
Judgment of Conviction
and Sentence, Rec. 43 (1-2)- - - - - - - - - - - - - - - - 29-30
Post Conviction Relief
Denial - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 31
Contents of exhibit
3(CD) of Motion to Supress, Rec. 66-1 to 67-1 and Rec. 30(4), DVD available to view publicly also: http://www.blip.tv/search?q=wiscokidd
