Motion to Dismiss

Clive Boustred
In Propria Persona, Sui Juris
210 Suncrest Dr.
Soquel, CA 95073
+1 (408) 889-4351

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CRUZ

 

TROY K. VINLENT/Troy K. Vinlent (#18569) Under the Color of Law “The People of the State of California” and John Does 1-n                                     Plaintiff,             Vs. Clive Frank Boustred,                                                         Cross-Complainant,	CASE NO. M 45132        JUDICIAL NOTICE;       MOTION TO DISMISS;       MEMORANDUM OF POINTS & AUTHORITIES;

 

JUDICIAL NOTICE:

Mr. Boustred has found an attorney who now represents him in this case, Attorney Douglas Palaschak, 888-476-8954.  Mr. Palaschak is preparing pretrial Motions to Dismiss the case and is unable to attend court on Monday, April 06, 2009.

LET IT BE JUDICIALLY NOTICED that this case is the seventh malicious prosecution initiated against Clive Boustred since the Santa Cruz Sheriffs shot at Clive Boustred and his children on March 10, 2003.  As a consequence of the malicious prosecution, Clive Boustred has been unable to afford a lawyer and his life has been thrown into absolute chaos.  The malicious nature of the prosecution has reached the depths of literally ordering Mr. Boustred to not communicate with his children; evict Mr. Boustred from his homestead and office; and order that Mr. Boustred not file any evidence in court.

 

MOTION TO DISMISS:

CASE BACKGROUND / DECLARATION / AFFIDAVIT

On or about March 20, 2006 on Portola Avenue, CHP Officer named as M. Johnson from California Highway Patrol, with a reported Badge number of 17847 did unlawfully stop, harass, search, seize, assault, arrest and imprison Clive Frank Boustred, without probable cause or evidence when evidence in the form of multiple tests did in fact prove that Mr. Boustred was not guilty of any crime or violation including an agility test, eight breath analyzer tests and three blood tests – Santa Cruz County Arrest Case Number 37525 AV.  The case was dismissed.

On or about July 21, 2008 on the same Portola Avenue, CHP Officers stopped the vehicle Mr. Boustred was a passenger in.

Mr. Boustred who was not driving and did not have his drivers license on him identified himself when asked by the officers with his business card which contained his name, address, telephone number, email and company information.  Mr. Boustred politely handed said identification to the officers.  The identity Mr. Boustred provided the officer was more than enough for the officer to conduct and complete an investigation and exceeded Mr. Boustred’s requirements at law. 

The officers who lacked probable cause to detain or investigate Mr. Boustred then turned the stop into a scene by demanding Mr. Boustred announce his age in front of Mr. Boustred’s friends and acquaintances.  Mr. Boustred asked the officers to run his name where the officers would easily have obtained Mr. Boustred’s identification and birth date.  When Mr. Boustred asked the officers the reason for the stop and the Mens Rea, Actus Reus or Corpus Delicti of the alleged crime, the officers indicated that they had no idea what Mens Rea, Actus Reus or Corpus Delicti meant.  Turning the traffic stop into a scene the officers then taunted Mr. Boustred for his age then told Mr. Boustred to get off the truck. 

Mr. Boustred asked if he was being arrested, the officers said he was not being arrested and Mr. Boustred declined to get off the truck.  The officers then made a further scene demanding then ordering Mr. Boustred to get off the truck all while Mr. Boustred was being taunted to announce his age.  Mr. Boustred complied with the officers order to get off the truck and calmly got off the truck.  Once Mr. Boustred was off the truck the officers violently assaulted Mr. Boustred to the extent of knocking down the Mr. Boustred’s video camera that was recording the whole situation.

The video footage of the unlawful arrest is included with this Motion to Dismiss and clearly shows that Mr. Boustred was completely in control of himself, cognizant, polite and clearly far more versed in the law than the officers conducting the ‘investigation’.  The video shows that Mr. Boustred was certainly not intoxicated.  The officers only arrested and charged Mr. Boustred, none of the other passengers were charged.  The Video Evidence clearly shows that the officers perjured their police reports making allegations and claims that were completely untrue, while the Video also shows the officers violently assaulting Mr. Boustred.

 

ARGUMENT:

Santa Cruz District Attorney who lacks jurisdiction as Mr. Boustred is and has prosecuted cases against the Santa Cruz District Attorney for other malicious prosecutions charged Mr. Boustred with

Count One - violation of PENAL CODE § 148(a):

148.  (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other
punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
   (2) Except as provided by subdivision (d) of Section 653t, every person who knowingly and maliciously interrupts, disrupts, impedes, or otherwise interferes with the transmission of a communication over a public safety radio frequency shall be punished by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment. 

and Count Two – violation of PENAL CODE § 647(f)

  647f.  In any accusatory pleading charging a violation of subdivision (b) of Section 647, if the defendant has been previously convicted one or more times of a violation of that subdivision or of any other offense listed in subdivision (d) of Section 1202.1, and in connection with one or more of those convictions a blood test was administered pursuant to Section 1202.1 or 1202.6 with positive test results, of which the defendant was informed, the previous conviction and positive blood test results, of which the defendant was informed, shall be charged in the accusatory pleading.  If the previous conviction and informed test results are found to be true by the trier of fact or are admitted by the defendant, the defendant is guilty of a felony.
  647b.  Every person who loiters about any school in which adults are in attendance at courses established pursuant to Chapter 10 (commencing with Section 52500) of Part 28 of the Education Code, and who annoys or molests any person in attendance therein shall be punished by a fine of not exceeding one thousand dollars ($1,000) or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment. 

CONCLUSION:

The video evidence proves irrefutably that Mr. Boustred politely identified himself with his name and address and telephone number and email address to the officer and more than met the requirements at law despite Mr. Boustred not having to provide any identification according to Kolender, chief of police v Lawson, walking negro (1983).  Video evidence clearly shows Mr. Boustred never violated PC § 148(a).

The video evidence also shows Mr. Boustred being polite, cognizant, well aware of the law and conformant to the officers orders clearly showing that Mr. Boustred was able to exercise care for his own safety and the safety of others and it is blatantly obvious that Mr. Boustred was not obstructing or preventing the free use of the street, sidewalk and or other public way while Mr. Boustred has never been found intoxicated under any charge what so ever (PC § 647(f) requires a previous conviction and positive blood test).

 

The Prosecution has failed to show any cause as to any of the counts even being remotely violated by Mr. Boustred. Video Evidence of the actual arrest clearly proves that Mr. Boustred is NOT GUILTY of any of the charges and the evidence proves the officers Perjured their police reports and furthermore violently assaulted Mr. Boustred when they placed Mr. Boustred under false arrest.

In the interests of justice, this case must be dismissed.

 

 

MEMORANDUM OF POINTS & AUTHORITIES

 

A.      Age Discrimination in Employment Act (ADEA)

 

B.      The Ralph Civil Rights Act (California Civil Code Section 51.7)

forbids acts of violence, because of (for example) your race, color, religion, ancestry, national origin, age, disability, sex, sexual orientation, political party, or your part in a labor dispute.

 

C.      Name and Address

Under section 456AA of the Crimes Act 1958 (Vic) the police can ask for your name and address if they believe that:

you have broken the law,

you are about the break the law, or

you are able to assist them with information about an indictable offence.

If the police demand your name and address they MUST give you reasons for doing so. You should ask for these reasons.

 

D.      MIRANDA RIGHTS:

You have the right to remain silent

     Anything you say can and will be used against you in a court of law

     You have the right to have a lawyer present while you are questioned

     If you cannot afford an attorney, one will be appointed to you

 

E.      United Nations Code of Conduct for Law Enforcement Officials

The United Nations Code of Conduct for Law Enforcement Officials states that “law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons“

 

F.      Kolender, chief of police v Lawson, walking negro (1983)

461 U.S. 352

Appeal from the 9th Circuit, U.S. court of appeals where Lawson won.

This case stands for the proposition that you are free to walk around in this country without providing police with an identification card upon demand.

Case cited by the Supreme Court in this opinion:

  Grayned

  Shuttlesworth

No. 81-1320. Argued November 8, 1982 Decided May 2, 1983

Summary by an anonymous clerk of the Supreme Court.

A California statute requires persons who loiter or wander on the streets to identify themselves and to account for their presence when requested by a peace officer. The California Court of Appeal has construed the statute to require a person to provide "credible and reliable" identification when requested by a police officer who has reasonable suspicion of criminal activity sufficient to justify a stop under the standards of Terry v. Ohio, 392 U.S. 1 . The California court has defined "credible and reliable" identification as "carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself." Appellee, who had been arrested and convicted under the statute, brought an action in Federal District Court challenging the statute's constitutionality. The District Court held the statute unconstitutional and enjoined its enforcement, and the Court of Appeals affirmed.

Held:

The statute, as drafted and as construed by the state court, is unconstitutionally vague on its face within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a "credible and reliable" identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. Pp. 355-361.

658 F.2d 1362, affirmed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 362. WHITE, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 369.

A. Wells Petersen, Deputy Attorney General of California, argued the cause for appellants. With him on the briefs were George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Daniel J. [461 U.S. 352, 353] Kremer, Assistant Attorney General, and Jay M. Bloom, Deputy Attorney General.

Mark D. Rosenbaum, by invitation of the Court, argued the cause as amicus curiae in support of the judgment below. With him on the brief were Dennis M. Perluss, Fred Okrand, Mary Ellen Gale, Robert H. Lynn, and Charles S. Sims. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed by William L. Cahalan, Edward Reilly Wilson, and Timothy A. Baughman for the Wayne County Prosecutor's Office; and by Wayne W. Schmidt, James P. Manak, and Fred E. Inbau for Americans for Effective Law Enforcement, Inc., et al. Briefs of amici curiae urging affirmance were filed by Eugene G. Iredale for the California Attorneys for Criminal Justice; and by Michael Ratner for the Center for Constitutional Rights. Briefs of amici curiae were filed by John K. Van de Kamp, Harry B. Sondheim, and John W. Messer for the Appellate Committee of the California District Attorneys Association; by Dan Stormer, John Huerta, and Peter Schey for the National Lawyers Guild et al.; and by Quin Denvir and William Blum for the State Public Defender of California.

 

Sandra Day O’Connor, Republican from Arizona delivered the opinion of the Court in favor of the walking Negro Lawson as follows:

 

This appeal presents a facial challenge to a criminal statute that requires persons who loiter or wander on the streets to provide a "credible and reliable" identification and to account for their presence when requested by a peace officer under circumstances that would justify a stop under the standards of Terry v. Ohio, 392 U.S. 1 (1968). 1 We conclude that the statute as it has been construed is unconstitutionally vague within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a "credible and reliable" identification. Accordingly, we affirm the judgment of the court below.

It has long been settled that the Fourth Amendment prohibits the seizure and detention or search of an individual's person unless there is probable cause to believe that he has committed a crime, except under certain conditions strictly defined by the legitimate requirements of law enforcement and by the limited extent of the resulting intrusion on individual liberty and privacy. See Davis v. Mississippi, 394 U.S. 721, 726 -727 (1969). The scope of that exception to the probable-cause requirement for seizures of the person has been defined by a series of cases, beginning with Terry v. Ohio, 392 U.S. 1 (1968), holding that a police officer with reasonable suspicion of criminal activity, based on articulable facts, may detain a suspect briefly for purposes of limited questioning and, in so doing, may conduct a brief "frisk" of the suspect to protect himself from concealed weapons. See, e. g., United States v. Brignoni-Ponce, 422 U.S. 873, 880 -884 (1975); Adams v. Williams, 407 U.S. 143, 145 -146 (1972). Where probable cause is lacking, we have expressly declined to allow significantly more intrusive detentions or searches on the Terry rationale, despite the assertion of compelling law enforcement interests. "For all but those narrowly defined intrusions, the requisite `balancing' has been performed in centuries of precedent and is embodied in the principle that seizures are `reasonable' only if supported by probable cause." Dunaway v. New York, 442 U.S. 200, 214 (1979). 2 [461 U.S. 352, 364]

 

 "[T]he person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation." Id., at 34 (WHITE, J., concurring).

Failure to observe these limitations converts a Terry encounter into the sort of detention that can be justified only by probable cause to believe that a crime has been committed. See Florida v. Royer, 460 U.S., at 501 (opinion of WHITE, J.); id., at 509-511 (BRENNAN, J., concurring in result); Dunaway v. New York, supra, at 216.

The power to arrest - or otherwise to prolong a seizure until a suspect had responded to the satisfaction of the police officers - would undoubtedly elicit cooperation from a high percentage of even those very few individuals not sufficiently coerced by a show of authority, brief physical detention, and a frisk. We have never claimed that expansion of the power of police officers to act on reasonable suspicion alone, or even less, would further no law enforcement interests. See, e. g., Brown v. Texas, 443 U.S. 47, 52 (1979). But the balance struck by the Fourth Amendment between the public interest in effective law enforcement and the equally public interest in safeguarding individual freedom and privacy from arbitrary governmental interference forbids such expansion. See Dunaway v. New York, supra; United States v. Brignoni-Ponce, 422 U.S., at 878 . Detention beyond the limits [461 U.S. 352, 366] of Terry without probable cause would improve the effectiveness of legitimate police investigations by only a small margin, but it would expose individual members of the public to exponential increases in both the intrusiveness of the encounter and the risk that police officers would abuse their discretion for improper ends. Furthermore, regular expansion of Terry encounters into more intrusive detentions, without a clear connection to any specific underlying crimes, is likely to exacerbate ongoing tensions, where they exist, between the police and the public. See Report of the National Advisory Commission on Civil Disorders 157-168 (1968).

In sum, under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions. 3 They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest.

California cannot abridge this constitutional rule by making it a crime to refuse to answer police questions during a [461 U.S. 352, 367] Terry encounter, any more than it could abridge the protections of the Fifth and Sixth Amendments by making it a crime to refuse to answer police questions once a suspect has been taken into custody.

 

G.     The Ralph Civil Rights Act (California Civil Code Section 51.7)

forbids acts of violence, because of (for example) your race, color, religion, ancestry, national origin, age, disability, sex, sexual orientation, political party, or your part in a labor dispute.

H.      The Bane Civil Rights Act (California Civil Code Section 52.1)

The Bane Civil Rights Act (California Civil Code Section 52.1) forbids anyone from interfering by force or by threat of violence with your federal or state constitutional or statutory rights. The acts forbidden by these civil laws may also be criminal acts, and can expose violators to criminal penalties.

Dated: April 7, 2009                         ______________________________________________

                                                            Clive Boustred, Sui Juris