Free Web Hosting Provider - Web Hosting - E-commerce - High Speed Internet - Free Web Page

File name: seizure. This draft was revised 2 Feb 94.

Douglas Palaschak

Box 2101 Port Hueneme CA 93044

Message phone: Golden Buddha: 805-986-2868.

October 12, 1995. 4 pm Joel, I was preparing to go to the court of appeal on this but the superior court never did prepare a complete record. Then the DA gave my stuff back - but the computers had been replaced already and checks were not good. The brief is not complete. (As I was driving this to Joel's offfice police stopped me and took my car; Joel never got this message.)

SUPERIOR COURT OF CALIFORNIA

COUNTY OF VENTURA

In Re: Search Warrant for

GOOD NITE INN

Case 93-69

Omnibus Brief #1172 Version 3.3

Declarations of Douglas Palaschak.

Assertion of Work Product Privilege.

Proof of Service

Exhibits: Brosnan letter.

Brief Due: Wed Feb 2

Hearing: Tue 22 Feb 94 @ 4 pm

Judge: Storch Note: Due to the seizure of Palaschak's computers by the District Attorney in this case, Palaschak has been forced to use an old computer in storage. This old computer cannot digest large briefs and therefore the Omnibus Brief has been broken into smaller briefs. Be sure to read the latest version of the following related briefs:

Brief #1250 - The Right to Practice in Federal Court despite state bar suspension;

Brief #1208 - Rebuttal to DA's omnibus brief;

Brief #1200 - Conflict of Interest of Public Defender due to prior representation of Jessica Jobin (and possibly Melissa Schwentner), witnesses against Palaschak.

Brief #1257 - The Constitutional Proscription against using diaries against the author.

Brief #1371 - What happened to this brief? Is it on the portable computer?

CONTENTS AND LIST OF ISSUES PRESENTED HEREIN

4 TABLES OF AUTHORITIES xii

DECLARATION OF PALASCHAK RE: CONVERSATIONS WITH BROSNAN IN JAN 93 1

DECLARATION OF DOUGLAS PALASCHAK RE:THE INVENTORY 3

SCOPE OF THIS ANNOTATION 7

CHRONOLOGICAL LIST OF MOTIONS CURRENTLY PENDING IN THIS CASE 7

ISSUES AND AUTHORITIES 7

Section #1. Overview 7

Issue #1.1 The suspension and the search are ultimately products of the unlawful invasion of Palaschak's privacy at his birthday party on May 9, 1991 7

Issue #1.2 Palaschak was fully licensed to do bankruptcies. See brief #1250 8

Issue #1.4 This case is appropriate for the remedy specified in PC 1540 - return of the property 8

Issue #1.6 Rummaging through Palaschak's photos in his safe. The search warrant did not authorize search for photos. Chimel (1969) 23 L Ed 2d 8

Section #2. Seizure of printing presses. 8

Issue #2.1 The laser printer. The seizure of a laser printer by the asset forfeiture personnel of the sheriff raises 1st amendment issues that transcend the 4th amendment issues 8

Issue #2.2 Seizure of Palaschak's printer is a violation of Palaschak's first amendment rights and a violation of his due process rights to print the papers necessary to litigate this case 9

Issue #2.3 UNLAWFUL PRIOR RESTRAINT OF PUBLISHER. Near v Minnesota (1930) 75 L Ed 1357, 283 US 697 precludes seizure of Palaschak's laser printer. 9

Issue #3 Seizure of Palaschak's computers and computer files is seizure of his work product; this issue transcends the 4th amendment issue because Palaschak's work product cannot be evidence against him. 9

Issue #4 The Lisa D. notation. Fundamental search and seizure law: One cannot justify a search warrant by what one discovered in executing the warrant 10

Issue #5 Remedy for 5th amendment violations: Exclusion 10

Section #6. Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant 10

Issue #6.1 Regardless of whether the affiant himself had bad faith the critical information WAS NOT UNDER OATH 11

Issue #6.2 The bad-faith-of-the-affiant rule is an end run around the 4th amendment anyway; the 4th amendment permits a warrant only upon oath or affirmation - and it is ludicrous for Glen Kitzmann to swear to the truth of the words of Izabell Katapodis 11

Issue #6.3 The most important allegation (that allegation being that Palaschak was unlicensed in federal court on August 7, 1993 when he did the David Hahn bankruptcy) in the affidavit for the search warrant was 1) untrue and 2) based on hearsay; In truth, Palaschak was licensed by the federal court, as proven by the December 1993 letter from Leonard Brosnan 11

Issue #6.4 Regardless of whether the affiant himself had bad faith the critical information WAS NOT UNDER OATH (that being the false information from the federal court that Palaschak was unlicensed on August 7, 1993 when he did the David Hahn bankruptcy) - therefore the warrant issued by Judge Hadden fails to satisfy the criteria specified clearly in the 4th amendment that "NO WARRANTS SHALL ISSUE but upon probable cause SUPPORTED BY OATH OR AFFIRMATION 12

Issue #6.5 The federal procedure for search warrants, FRCrP 41 has for at least 15 years specified with detail the procedure by which testimony may be taken by telephone under oath 12

Issue #6.6 To permit unsworn false statements to be elevated to some higher status by incorporation into Kitzmann's affidavit when he had no first hand knowledge is simply an end run around the 4th amendment requirement of an oath or affidavit. 12

Issue #6.6.1 Some typical cases from ALR3d 10:359 wherein hearsay in the affidavit resulted in suppression 12

Issue #6.7 ALR4th 51:999 The Residual Hearsay Exception 13

Section #7 THE PROCEDURE 13

Issue #7.2 Impact of Prop 8 upon PC 1540 preclusion of the Franks test: None for our limited application 16

Issue #7.5 The ratchet clause of the 14th amendment permitted California to give citizens the increased rights of PC 1540 and 1539 but forbids California from retracting these rights by Proposition 8 18

Issue #7.6 Proposition 8 is not an impediment to Palaschak's requested retesting of the warrant since there are to no charges and hence everything is irrelevant. Prop 8: 19

Issue #7.7 THE PROCEDURE - LIVE TESTIMONY. PC 1539 mandates live testimony in Palaschak's case since Palaschak has moved to return property pursuant to PC 1538.5 AND 1540 20

Issue #7.8 It would be ironic for the prosecution to attempt to justify their false statement (that Palaschak was unlicensed) by Proposition 8 - Truth in Evidence. 20

Issue #7.9 The legislature's purpose in enacting PC 1539 and 1540 was to afford the person from whom property was wrongfully seized AN EXPEDITIOUS REMEDY FOR ITS RECOVERY. People v Butler (1966) 64 C2d 842. 20

Issue #7.10.1 The approach that has evolved in the federal courts is consistent with the Luttenberger approach: Retest; Threshold is mere showing of material misstatement 20

Section 8 Bad faith, reckless, and false statements of Kitzmann and Katapodis 20

Issue #8.1 See exhibits 1, 2, and 3. BAD FAITH OF GLEN KITZMAN 20

Issue #8.2 Kitzmann's sworn misstatement of fact (namely, 1) whether Palaschak was licensed in federal court, and 2) whether Katapodis's hearsay was reliable) was "made with conscious indifference to its truth or falsity" and that is the equivalent, under Penal Code �125, to PERJURY 21

Issue #8.3 Bad faith of Kitzmann 21

Issue #8.7 Palaschak is entitled to question Kitzman to determine if he omitted material facts and thereby materially mislead the court 22

Section #9. The absence of Probable Cause 22

Issue #9.1 The conclusory (and as we now see, erroneous) statement of Izabell Katapodis, cannot provide probable cause. Ramey holds that "probable cause will not be provided by conclusionary information or anonymous informants". Ramey 16 C3d at 269, Headnote #1 22

Issue #10 ALR4th 54:391 Seizure of books and papers not described in warrant 22

Issue #12 Burden of proof is on DA for items seized pursuant to probation search - which includes at least one page of the seizure receipt. 23

Issue #12.1 To meet his own burden of proof, Palaschak is entitled to pre-trial discovery 23

Issue #12.2 Does this preclude seizure by search warrant of the letter to Huntington's 24

Issue #13 Interlocutory relief: diary access: download floppy of January and February 1993 diaries. Defense access to evidence sealed by the court against the prosecution. Palaschak has a right to use his own work product in his computer to prepare THE INSTANT MOTION AND ALL PRE-TRIAL MOTIONS. 24

Issue #13.1 Palaschak seized diaries and computers cannot be totally sealed - the seal is only against the prosecution. 24

Issue #14 Palaschak's arrest was illegal, unconstitutional, without warrant, and without probable cause - and his detention for 5.5 days was similarly illegal. People v Ramey 25

Issue #14.1 It appears that Investigator Danny Miller lied to Palaschak when he told Palaschak that he had an arrest warrant. 25

Issue #14.2 Some of the prosecution's current evidence is the product of a warrantless arrest entitled strangely a "Ramey warrant". 25

Issue #15 The district attorney has no jurisdiction to regulate the practice of law before the bankruptcy court - including consultation and advising bankruptcy clients 25

Issue #15.1 This issue of ___ should be litigated at the earliest time 25

Issue #15.4 Although this case deals with a search warrant, we must nonetheless, in crafting an appropriate remedy, consider what would be the remedy if this were a subpena or a motion to produce 26

Issue #17 Where a statute is new and the case is relatively civil (i.e. malum prohibitum as distinguished from malum in se), it is denial of due process to use the search warrant procedure; the subpena procedure must be used. 27

Premise #17.2 Defendant Palaschak suffers deprivation of equal protection under the law by virtue of the unconstitutionality of 6126 because he is a member of the subject group 27

Premise #17.3 Palaschak submitted an affidavit to the district attorney summarizing his investigation of 5 non-lawyers who do bankruptcies in Ventura and who gave Palaschak legal advice, sometimes patently wrong advice, concerning bankruptcy; the district attorney has not responded to this complaint and it appears that he will not prosecute non-attorneys who do the same acts as Palaschak 28

Issue #18 Regarding the cash P v Holland (1978) 23 C3d 77 (cited in CEB's Search and Seizure treatise at section 2.28) describes a Motion to return seized cash 28

Issue #18.1 Several aspects make this case fundamentally different than the multitude of search and seizure cases: 28

18.1.1 The police found no contraband or stolen items: 28

18.1.2 The police new before they searched that the affidavit contained a fatal flaw; 28

18.1.3 The police here CANNOT POSSIBLY find what they were looking for - evidence of illegal practice in bankruptcy court - because Palaschak's practice was legal - and they know that and they knew it when they took the stuff 28

18.1.4 From the point of view of a student of Remedies, the problem at hand is easy. We can craft and appropriate remedy. From the point of view of a student of Theoretical Law, it is ludicrous to try to twist inapplicable case law into something applicable to this case 28

Issue #19 By ordering the items in a list from least seizable to most seizable we see some issues that otherwise would be glossed over. 29

Issue #19.1 The plastic orange crate Probative value: minimal. 29

Issue #19.2 The postage stamp 29

Issue #19.3 The currency and checks. Not listed on the search warrant. 29

Issue #19.4 The 2 money orders that they did not even inventory - inside my calendar or on the bed. Minor amounts - $12? $20?. 29

Issue #19.5 The 1990 diary in the ring binder in the safe. See ALR4th 54:391 (1987, 130 pages) "Seizure of Books, documents or other papers under search warrants not describing such items. Section 27: Diaries." 29

Issue #19.6 The laser printer 29

Issue #19.7 The pills. No PC! Nobody said Palaschak had drugs. They do not appear to be contraband - just pills. 29

Issue #20 Asserting that suspension was per court - it was not. 29

Issue #21 Defendant provides information fatal to the warrant before the property is take. What remedy? 29

Issue #22 Does the misinformation from the federal clerk constitute a FEDERAL TORT CLAIM ACT (FTCA) tort (28 USC 2671) and does that preclude finding the truth about the license federal cause of action? Tentative Answers: Yes to the 1st. No to the 2nd. 30

Issue #23 Retest for PC - and obtain certification from federal court since we are taking the time. 30

Issue #24 When we have the opportunity to litigate prior to release to DA then different procedures can be used - more like a subpena duces tecum as in US v Nixon. 30

Section #25 Discussion of issue's unique to Joe Villasana's Motion to Quash for lack of jurisdiction. 30

Section #26 Cases cited in Joe Villasana's Quash Motion #2 30

Section #27 Cases cited in Joe Villasana's 1524 Motion. None cited. 31

Issue #28 The DA created this problem by not seeking an expert on suspension - and this negligence is adequate under Chesher standard to justify traversing the search warrant 31

Issue #28.1 What is the full ramification of the illegal search warrant and the appropriate remedy? PC 1540 is one remedy 32

Issue #29 Chats during court-ordered inventory are inadmissible 32

Issue #30 What is the remedy for violation of the "special master" provisions of Penal Code �1524? 32

Issue #31 Glen Kitzman defied a court order and read the diaries outside the presence of Palaschak. 1) He had no right to read them; and 2) he was ordered to inventory in the presence of Palaschak. 32

Issue #32 Does the DA have the right to use Palaschak's laser printer and consumables? Without compensating for the consumables? The $70 cartridge? 32

Issue #32.1 The "Lisa D." entry was not in plain view - or any view; it was not even visible. The "Lisa D." entry was stored electromagnetically on Palaschak's hard drive in an computer file clearly named "90Nov" which Kitzman unequivocally knew (from having quizzed Palaschak about the organization of his files) to be Palaschak's designation for his November 1990 diary - for which there was no demonstration of probable cause since the purported state suspension did not take effect until May 18, 1993 - approximately 3 years after the "Lisa D." entry. 32

Issue #32.1.2 DDA Chuck Roberts has again mislead this court; this time we contend that the misrepresentation is intentional and justifies punishment for contempt of court. 33

Issue #32.2 Kitzman did not "briefly peruse" the files; Kitzman violated a court order and rummaged through the files in the absence of Palaschak. 33

Issue #32.2.1 Kitzmann was ordered to "inventory" - not rummage. 33

Issue #32.2.2 Kitzmann's authority to do anything with the files was predicated on the presence of Palaschak or Palaschak's representative. 33

Issue #32.2.3 Kitzmann knowingly violated Judge Storch's order - and Jack Hughes assisted him and they should both be charged with conspiracy and contempt of court and violation of Palaschak's right to privacy. 33

Issue #32.3 The DA now asks for permission to search for Lisa D's telephone number when in fact they have the number - and they deceive the court in not revealing that fact. 33

Issue #33 Prosecutorial Misconduct. 33

Issue #33.1 The misrepresentations in the pleadings. 33

Issue #33.2 The prosecution failed to disclose exculpatory information from Brosnan. 33

Issue #33.3 Prosecution investigators rummaged through Palaschak's computer files in his absence despite court's order to inventory in his presence. 33

Issue #33.4 Failure to comply with Judge Storch's order to inventory. 33

Exhibit A - Letter from Leonard Brosnan, Chief Clerk of Federal Court corroborating Palaschak's declaration and confirming that Palaschak WAS indeed licensed by the federal court on August 7, 1993 when he did the Hahn bankruptcy 34

Exhibit B - Affidavit of Kitzmann stating that Katapodis said (not under oath) that Palaschak WAS NOT licensed on August 7, 1993 34

Exhibit C - August 17, 1993 letter from state bar to federal court proffered FRAUDULENTLY by Kitzmann to attempt to fool Magistrate Hadden into thinking that the federal court had been notified prior to August 7, 1993 - 10 days prior to when the letter was written 34

4 TABLES OF AUTHORITIES

TABLE #1: CASES AND ATTORNEY GENERAL OPINIONS CITED HEREIN:

*Gouled 28

Boyd v US (1886) 29 L ED 2d 746, 116 US 616, 6 S Ct 524. Search warrants may only take contraband and stolen items - and the like - not testimonial items like papers and "mere evidence" 28

BP Alaska Exploration v Superior Ct (1988) 199 CA3d 1240. The crime-fraud exception is inapplicable to the work product rule. 9

Chimel (1969) 23 L Ed 2d 8

Delaney v Superior Ct. (1990) 50 C3d 785@812. Discovery provisions in civil cases, such as depositions, are not available in criminal cases. 23

Deloach v Bevers 922 F2d 618, 622 (10th 1990) Woman defendant. Murder investigation. Punished for hiring a lawyer. Was she indicted? Bevers ignored the testimony of a doctor who tended to exculpate DeLoach regarding the blow to the baby's head. 31

Entick v Carrington 19 How St Tr 1029, 1067 "...By the time of Charles II [warrants] had burst their original bounds and were used by the STAR CHAMBER to find evidence among the files and papers of political suspects...From this use of papers as evidence there grew up the practice of the STAR CHAMBER empowering a person 'TO SEARCH IN ALL PLACES WHERE BOOKS WERE PRINTING, IN ORDER TO SEE IF THE PRINTER HAD A LICENSE; AND IF UPON SUCH SEARCH BE FOUND ANY BOOKS WHICH HE SUSPECTED TO BE LIBELLOUS AGAINST THE CHURCH OR STATE, HE WAS TO SEIZE THEM, AND CARRY THEM BEFORE THE PROPER MAGISTRATE.'" (As quoted by Douglas in Warden v Hayden (1967) 18 L Ed 2d 782) 9

Franks v Delaware (1978) 438 US 154, 57 L Ed 2d 667, 98 S Ct 2674. Standard: Part 1: From affiant: "A FALSE STATEMENT KNOWINGLY AND INTENTIONALLY, or with reckless regard..."; Part 2:Materiality. Test for common law motion to traverse search warrant - not needed in California because of PC 1540 which requires retesting of the PC under current known facts. Authority: Theodor and 4 ALR4th 24:1266 Section 8 - and withstands prop 8. Authority:

Broome.14, 20

Hale v Fish 899 F 2d 390, 400. Cited by public defender in Motion to Quash #2. Convoluted case involving political corruption in Louisiana. Issue: Reliability of informant. 31

Illinois v Gates (1983) 462 US 213, 76 L Ed 2d 527, 103 S Ct 2317 Anonymous tip letter. Corroboration by aeriel surveillance of drug procurement journey to Florida - hey, Leon was a corroborated drug trip to Florida also. 25

In Re Lance W. (1985) 37 C3d 873 16

In Re Ming (CA 7th 1972) 469 Fed 1352. Suspension prior to hearing is void. Suspension based on facts proven solely by conviction is void while case is still on appeal. District court local rules are void if unconstitutional. Law license is property. See Treadwell and Ricardi, California cases that hold that bar discipline is premature while appeal is pending. 8

In Re Riccardi (1920) 182 Cal 675. Bar may not suspend an attorney for a misdemeanor while it is still on appeal. 8

In Re Treadwell (1885) 67 C 353. Bar may not suspend an attorney for a misdemeanor while it is on appeal. 8

Kaylor V Superior Court (1980) 108 CA3d 451, 45 - Illegible affidavits - implying that Judge Hadden did not read the local rules - a slippery slope. 31

Kurkland 28 C3d 383 footnote 2 Automatic quashing 16

Marbury v Madison (1803) 5 US 137, 2 L Ed 60. A Void act is void ab initio 8

Marron v US (1927) 275 US 192, 72 L Ed 231, 48 S Ct 74 Ledgers and bills were suppressed as not specified in the prohibition era warrant for liquor. 27

Mills v Graves 930 F2d 729 (9th 1991) Construction equipment use to grow marijuana. Distinction: guilty. 31

People v Broome (1988) 201 CA3d 1479@1490 Proposition 8 does not mandate the Franks threshold test. "WE FIND ABSOLUTELY NO BASIS FOR THE PEOPLE'S TELESCOPED ANALYSIS WHICH CONCLUDES THE FRANKS STANDARD OF A "PRELIMINARY SUBSTANTIAL SHOWING" MUST BE GRAFTED ON THE CALIFORNIA LAW OF DISCOVERY...Certainly federal law now governs the level of deception California courts must tolerate before they ultimately may quash a warrant and suppress its fruits. BUT IT DOES NOT FOLLOW THAT OUR COURTS ARE COMPELLED TO ADOPT THE FEDERAL THRESHOLD FOR INVOKING THE STATUTORY TRAVERSAL HEARING. 13, 16

People v Butler (1966) 64 C2d 842. The legislature's purpose in enacting PC 1539 and 1540 was to afford the person from whom property was wrongfully seized AN EXPEDITIOUS REMEDY FOR ITS RECOVERY. 20

People v Cook (1978) 22 C3d 67 Conscious indifference to truth in affidavit is perjury. Also, at page 85, note 7, police perjury is common. 21

People v Crabb (1987) 191 CA3d 390@394. One of 3 cases citing Wilson. Broome at page 1495 discredits the logic of Crabb. 16

People v Gesner (1988) 202 CA3d 585, 248 Cal Rp 324 Research led to this case by 2 paths. Drug case with no material omission and seized contraband. Cites Luevano but in dictum like Luevano. Headnote 5. When material is improperly omitted from affidavit in support of search warrant, proper remedy is to add the omission and retest the facts for probable cause. [which means that we need a statement from the federal court to add to the facts] Cites Wilson. Gesner is distinguishable from Palaschak in that Gesner facts supported a warrant even after excising the misstatements. By comparison, when one inserts the fact of Palaschak's valid federal license, the basis for the warrant evaporates 15, 31

People v Luevano 1985 167 CA3d 1123, 1128. cited by Joe. Distinction: they want to suppress contraband that they expected; by comparison my warrant did not say what they expected - obviously a fishing expedition once you remove the federal cases for which they have no jurisdiction anyway. Undercover hash buy in auto. Cop then makes minor but intentional misstatements on the affidavit for search warrant. The holding is that the remedy of quashing is too severe. The problem with this case is that strictly Franks would require suppression but the immateriality is significant here. They were after drugs and they found drugs - clearly illegal activity everywhere. By comparison in my case they would only find illegal activity possibly by stretching what they find by searching through my diaries. 31

People v Luttenberger (1990) 50 C3d 1@15 California Supreme Court approves Broome and rejects the Franks threshold. 13, 17, 20

People v Mayer (1987) 188 CA3d 1101, 233 Cal Rp 832, 845 - Another drug case. Distinction: 1) Once again: contraband was found - as expected; by comparison Palaschak's search yielded only testimonial evidence without which there is no case and with which there still may be no case - and definitely no federal case; 2) also, they knew BEFORE execution in Palaschak's case that the warrant was no good; 3) but most important is MATERIALITY. In Palaschak's case the license broke the case by precluding the crime they suspected; by comparison, the misstatement in Mayer was IMMATERIAL. Headnote 21 Aha! If there are improper omissions from affidavit . . ., as distinguished from intentional misstatements, remedy is to add omitted information to affidavit and then retest for probable cause; but Headnote 29: Mere negligence resulting in misstatement is not basis to challenge search warrant. Suggested remedy: Retest even though there was no intentional misstatement on the part of the affiant because the end result here is not as serious as LEON or FRANKS and LEON was based on a sliding scale! 31

People v Ramey (1976) 16 C3d 263, 545 P2d 1333 25

People v Rivas (1985) 170 CA3d 312 @318 - Curtailed slightly in Luttenberger, 18

People v Rochen (1988) 203 CA3d 684 Defendant may question witnesses to determine if affiant omitted material facts in order to mislead the magistrate. 22

People v Seibel (1990) 219 CA3d 1279 is a post-Luttenberger case that quickly demonstrates that on ocassion certain evidence is sealed - and the law follows the need. Application: In Palaschak's case, Palaschak needs the diaries to recount information that is his work product relating to telephone conversations with the federal court. In Seibel a guilty plea was reversed on appeal because the trial court kept the affidavit for the warrant sealed to protect the informant. This violated the defendant's rights to properly challenge the veracity of the affidavit - precisely the violation that is happening to Palaschak by sealing his own diaries. 24

People v Superior Court (Aquino) (1988) 201 CA3d 1346 18

People v Wilson (1986) 182 CA3d 742. Effectively overruled by Luttenberg. Furthermore Wilson is distinguishable from Palaschak in that Wilson's authority for disputation of the facts of the affidavit is the constitution via a common law motion to suppress and a common law motion to traverse whereas Palaschak's authority for disputation is PC 1539 and 1540 which were not available to Wilson because Wilson had been charged with a crime whereas Palaschak has not - because the probable cause that would have justified Palaschak's indictment evaporated with the letter from Brosnan admitting that Palaschak was indeed licensed - and that same evaporated probable cause is the basis for the now-defunct search warrant 15, 16

Remers v Superior Ct. 2 C 3d 659 @666, 470 P 2d 11 - Headnote 4: The remedy for an unsworn statement in a bogus arrest is suppression! The information gleaned in the arrest was the fruit of a bogus arrest! "the people must prove that the source of an officer's information is something other than the imagination of an officer who does not become a witness" - like Izabell Katapodis who gave false information to Glen Kitzman - and apparently knew that it was false. She triggered the letter because she just then realized that they had not sent a letter and she probably also knew that Palaschak was indeed not suspended at the time. And like Desk Officer Cindy Turner initiated the bogus rape dispatch in the LSD case and then failed to respond to her subpena. 12

Rivera v US 928 F2d 592 - a civil rights case arising from a bogus drug raid. 25 headnotes. Note 20. Pertinent but dull. but we'll use it in the civil rights or torts claims case 31

Spinelli v US (1969) 393 US 410, 21 L Ed 2d 637, 89 S CT 584 "known" to the affiant as a bookmaker but no indicia of reliability of the informant who, of course, was no under oath 12

Stanley v Georgia (1969) 394 US 557, 569-72. One cannot view the contents of a movie reel even though it may be in plain view, and by analogy one cannot legally inspect the contents of Palaschak's computers absent some probable cause and specificity. 10

Taylor v Illinois 108 S Ct 646 (1988) wherein a defendant was precluded, as a sanction discovery violation, from bringing a witness in his defense - this case being the exception that proves the rule. 10

Theodor v Superior Court (1972) 8 C3d 77 holds that a California statute precludes reliance on Franks and although it is referring to a different statute, that statute has the same wording as 1539/1540. Theodor has been widely cited with approval - 3 columns in Shepards. 15, 16, 18

US v Boyce (D Minn 1985) 601 F Supp 947 Reckless indifference precludes the "good faith" reliance of Leon. Affiant failed to disclose that the confidential informant was suffering from stimulant psychosis from 3 days of cocaine use. The key proof of reckless disregard in Boyce as with Palaschak was a close scrutiny of the chronology of material events. Application: In Palaschak's case a reasonable person would ask why a suspension letter regarding a 1991 offense and 1992 conviction was written August 18, 1993 - just 1 day after Kitzmann talked to the state bar and just 9 days prior to service of the warrant. KITZMANN SURELY KNEW AND HIS WITHHOLDING OF THIS OBSERVATION WAS DECEPTIVE. KITZMANN AND ANY REASONABLE PERSON, INCLUDING MAGISTRATE HADDEN, IF HE HAD SCRUTINIZED THE LETTER (THE NECESSITY OF SCRUTINY, IN ITSELF, IS PROOF OF BAD FAITH OF KITZMANN) WOULD HAVE OBSERVED THAT PALASCHAK WAS OBVIOUSLY LICENSED ON 7 AUGUST 1993 IF THE NOTIFICATION OF SUSPENSION FROM THE STATE BAR TO THE FEDERAL BAR WAS DATED AUGUST 18, 1993. KITZMANN DECEIVED THE COURT BY REFERRING TO A LETTER OF SUSPENSION OF MAY 1992. Penal codes section 125 transforms Kitzmann's indifference into perjury. 22

US v Campino 890 F2d 588 (1989) Cocaine conviction. No cocaine seized, but ledgers seized and spy equipment. Hmm. Boring. Not pertinent. 31

US v Davis (1983) 714 F2d 896 Suppression due to hearsay in warrant. General rule that seems to evolve: If the hearsay is material then there must be means of ascertaining basis included in the affidavit. 13

US v Leon (1984) 468 US 897, 82 L Ed 2d 677, 104 S Ct 3405 Good faith exception to warrant requirement. Drug trip to Florida corroborated. Anonymous tip? Identical to 1988 Gates. 22, 26

US v Martin 615 F 2d 318 - robbery. Reckless disregard is the standard 31

US v Reivich 793 F2d 957 - Whoops. Another drug sting. Omission of material facts did not invalidate search warrant - Yes but was it fatal information - I think not. Ivey is still better. Distinction. Mine was not a sting; could not have been because I was not breaking the law. FUNDAMENTAL DIFFERENCE! 31

Wallace 593 SW2d 545 a drug case. Means of ascertaining facts related by hearsay affiant not under oath must be in affidavit or suppression is the result. 13

Warden v Hayden (1967) 18 L Ed 2d 782 "...there grew up the practice of the STAR CHAMBER empowering a person 'TO SEARCH IN ALL PLACES WHERE BOOKS WERE PRINTING, IN ORDER TO SEE IF THE PRINTER HAD A LICENSE; AND IF UPON SUCH SEARCH BE FOUND ANY BOOKS WHICH HE SUSPECTED TO BE LIBELLOUS AGAINST THE CHURCH OR STATE, HE WAS TO SEIZE THEM, AND CARRY THEM BEFORE THE PROPER MAGISTRATE.'" - Justice Douglas quoting from Entick v Carrington 19 How St Tr 1029, 1067. 9

Woods v Superior Court (1990) 219 CA3d 708@711 Indigent defendant has a right to transcript of prior civil proceedings concerning same events and involving some of same witnesses as criminal action 23

CASES NOT YET CITED HEREIN PENDING FURTHER WRITING:

Mapp v Ohio

US v Wong Quong Wong (DC D. Vermont 1899) (Cited in Silverthorne) (Cites US v Boyd) Wrongfully seized papers could not be used in deportation proceeding.

Leary v US 23 L Ed 2d 57 - irrebuttable presumptions.

Le Fleur v Cleveland Board of Education - irrebuttable presumption.

TABLE #2: STATUTES AND MODEL FEDERAL RULES CITED HEREIN

CCP 2018 "The work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense...ABSOLUTE PROTECTION: ANY WRITING THAT REFLECTS AN ATTORNEY'S IMPRESSIONS, CONCLUSIONS, OPINIONS, OR LEGAL RESEARCH OR THEORIES SHALL NOT BE DISCOVERABLE UNDER ANY CIRCUMSTANCES...The state bar may discover the work product of an attorney against whom disciplinary proceedings are pending WHEN IT IS RELEVANT TO ISSUES OF BREACH OF DUTY BY THE LAWYER [NOTE THAT PALASCHAK IS NOT CHARGED WITH BREACH OF DUTY!] subject to applicable client approval and to a protective order, where requested for good cause, to ensure the confidentiality of work product EXCEPT FOR ITS USE BY THE STATE BAR IN DISCIPLINARY INVESTIGATIONS and its consideration under seal in state bar court proceedings." CCP 2018d as quoted in Witkin Evidence section 1145B(new) 9

Federal Rule of Criminal Procedure 41 Search Warrants - specifies procedure for administering oath over the telephone. 12, 21

Penal Code section 125 Conscious indifference in an affidavit amounts to perjury 21

Penal Code section 836 25

Penal Code section 844 - arrest. Ramey amplifies this section and sets a little higher standard. 25

Penal Code section 859 b Dismissal for untimely preliminary hearing. 17

Penal Code Section 1387 - Prosecution barred after 2 dismissals. 17

Penal Code section 1538.5 provides one - but not the exclusive - statutory entitlement to traversal of search warrant. 1539 provides another right to traverse, and so does 1540. 15, 16

Penal Code section 1539 in pertinent part: "Taking of testimony; Transcripts; Discovery of prior application for search warrant.

(a) If a special hearing be held in the superior court pursuant to section 1538.5, or if the grounds on which the warrant was issued be controverted and a motion to return the property be made (i)[by a defendant]...(iii)by a person who is not a defendant in a criminal action at the time the hearing is held, the judge or magistrate must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing...by a shorthand reporter...(b) The reporter shall forthwith transcribe his shorthand notes pursuant to this section if any party to a special hearing in the superior court files a written request for its preparation with the clerk of the court in which the hearing was held. The reporter shall forthwith file in the superior court an original and as many copies thereof as there are...persons aggrieved...the clerk shall deliver a copy of such transcript to each defendant upon demand to him without cost to him..." 19

Penal Code section 1540 in its entirety: "1540. Property, when to be restored to person from whom it was taken: When it appears that the property taken is not the same as that described in the warrant, or that there IS no probable cause for believing the existence of the grounds on which the warrant was issued, the magistrate must cause it to be restored to the person from whom it was taken." (Emphasis added by Palaschak. Observe that the statute by use of the present tense verb "IS" requires implicitly that the warrant be retested in view of any new facts - and one would generally expect new facts since a search warrant is obtained ex parte. 14, 19

TABLE #3: TREATISES CITED HEREIN

ALR 143:135 Previous illegal search for or seizure of property as affecting validity of subsequent search warrant or seizure thereunder 8

ALR 169:14 Search Incident to one offense as justifying seizure of instruments of or articles connected with another offense. General rule: If a warrant does not specify the stuff, then it cannot be seized 7

ALR Fed 53:679 Sufficiency of description of business records under the 4th amendment requirement of particularity in federal warrant authorizing search and seizure 29

ALR2d 14:605 Sufficiency of affidavit for search warrant based on affiant's belief, based in turn on information, investigation, etc. by one whose name is not disclosed 13

ALR2D 23:919 Admissibility in evidence of unsigned confession. 10

ALR2D 45:1316 Corroboration of extrajudicial confession or admission. Cites Wong Sun. 10

ALR2d 100:525 Search warrant: Sufficiency of showing as to time of occurrence of facts relied on. Be sure to see also the Later Case Book and the pocket part in the later case Book 22

ALR3d 10:359 Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. (Be sure to see 1993 pocket update.) 10, 20

ALR3rd 43:385 Fruit of the poisonous tree doctrine excluding evidence derived from information gained in illegal search 26

ALR4th 24:1266 (1983, 29 pages)(May not reflect full impact of 1982 Proposition 8) Disputation of truth of matters stated in affidavit in support of search warrant - modern cases. Aha! Need not state bad faith of affiant. See Theodor and other cases. This article specifically says that California statute precludes reliance on the constitution. 13, 14

ALR4th 51:999 The Residual Hearsay Exception 13

ALR4th 54:391 (1987, 130 pages) Seizure of books, documents or other papers under search warrant not describing such items. Section 27: Diaries. Very pertinent article. 22, 27-29, 32

ALR4TH 81:259 Right of indigent defendant in state criminal case to assistance of investigators. 10

ALRFed 25:247 "Noncompliance with requirements of rule 41 as grounds for exclusion in federal prosecution of evidence procured under state search warrant." Beware. This article and the 1992 update both contain the wrong text of rule 41. See United States Code for correct text. 12

California Law Review 54:1070@1072 (1966, 26 pages) Challenging Searches and Seizures - Very pertinent article 14

CEB Search and Seizure Practice, April 1993, page 90 Conscious indifference in an affidavit is perjury. 21

Jonakait, Restoring the Confrontation Clause to the 6th amendment. 35 UCLA L Rev 557, April 1988. 10

L Ed 2d 48:884 Supreme Court's views as to application of 4th amendment prohibition against unreasonable searches and seizures to compulsory production of documents 29

L Ed 2d 109:787 When is evidence which is obtained after unconstitutional search or seizure sufficiently remote from such search or seizure so as not to be tainted by, and not to be inadmissible as fruit of, such search or seizure - Supreme Court cases 26

Pacific Law Journal 20:1207 (1989) "The Rivas motion: The creative defense attorney's attempt to circumvent Franks v Delaware and the Informer's Privilege Rule." Malcolm Lucas in Luttenberger curtailed the Rivas motion only slightly 18

Sixth Amendment - Paternalistic override of Waiver of Right to Conflict-free Counsel at Expense of Right to Counsel of One's Choice. 79 J Crim L 7 Criminology 735, Fall 1988. 10

Sixth amendment - Preclusion of Defense Witnesses and the 6th amendment's compulsory process Clause Right to Present a Defense, 79 Crim L & Criminology 835, Fall, 1985 discussing Taylor v Illinois 108 S Ct 646 (1988) wherein a defendant was precluded, as a sanction discovery violation, from bringing a witness in his defense - this case being the exception that proves the rule. 10

Sixth Amendment Exclusionary Rule: Stepchild of the Right to Counsel. 24 Houston Law Review 765, July 1987. 10

Witkin & Epstein, California Criminal Law at �2493-2496 Defendant's right to pretrial discovery. 23

Witkin Cal. Evidence 3d �1422-1678 regarding defense discovery 23

TREATISES NOT YET CITED PENDING FURTHER WRITING

ALR4TH 28:1121 Admissibility of confession or other statement made by defendant as affected by delay in arraignment - modern state cases.

ALR3D 43:385 "Fruit of the poisonous tree" doctrine excluding evidence derived from information gained in illegal search.

ALR3D 33:229 Right to assistance by counsel in administrative proceedings.

ALR4TH 12:318 Adequacy of defense counsel's representation of criminal client regarding search and seizure issues.

L Ed 2d 47:922 Loss of privilege against self-incrimination by individual as result of his action or inaction occurring when he was not accused - Supreme Court cases.

L Ed 2d 43:871 The Supreme Court's views as to the federal legal aspects of the right of privacy.

L Ed 2d 32:970 Requirement under federal constitution that person issuing warrant for arrest or search be neutral and detached magistrate.

L Ed 2d 28:978 What constitutes probable cause of arrest.

Gilroy, Prosecutor's Discretionary Use of the Grand Jury to initiate or to reinstate prosecution. 1984 Am B Found Res J 1, Winter.

Reynolds, Trial and Tactics and Strategy in Adequacy of counsel claims, 11 Am J Crim L 321, November 1983.

The Confrontation clause and the hearsay rule: a problematic relationship in need of practical analysis. 14 Fla St U L Rev 949, Winter,1987.

The Emperor Has No Clothes, distributed by Loomponics and World News.

Klein, The Emperor Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel. 13 Hastings Const L Q 625, Summer 1986.

Hoffman, Promises to Keep: The right to Effective Assistance of Counsel - Anderson v Butler 74 Mass L Rev 28.

Rutland, The trivialization of the bill of rights. 31 William and Mary L Rev 287.

The 6th amendment right to counsel: a criminal defendant's right to counsel of choice v the courts interest in conflict-free representation. Wheat v United STates 108 S Ct 1692, 14 S Ill U L J 657.

Sixth amendment - Witness memory loss and hearsay exceptions:Are the Defendant's constitutional and evidentiary guaranties procedure or substance? 79 J Crim L and Criminology 866, Fall, 1988.

TABLE #4: CONSTITUTIONS AND OTHER SOURCES OF FUNDAMENTAL AUTHORITY

Marbury v Madison 8

Proposition 8 (1982) - subordinate to the ratchet clause of US constitution: "...relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings". 1) There is no relevance since there are no charges; 2)prop 8 applies only to criminal proceedings which this is not. 16, 19, 20

U.S. Constitution. 6th amendment. 10

US Constitution 4th Amendment: The right of the people to be secure in their person, houses, PAPERS, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, SUPPORTED BY OATH OR AFFIRMATION and particularly describing the place to be searched, and the persons or things to be seized. 19

US Constitution 14th Amendment 19

US Constitution, Art 1, section 8, clause 4 - Bankruptcy 30

DECLARATION OF PALASCHAK RE: CONVERSATIONS WITH BROSNAN IN JAN 93

I, Douglas Palaschak, declare the following under penalty of perjury:

On approximately January 13 1994 I reviewed my January and February 1993 diaries which had been seized during the raid and placed in the court's exhibit department. The diaries confirm the following:

On Monday Jan 18, 1993 I spent 3 hours keying the Ming decision into my laser printer so that I could print the decision without driving out to a copy shop. Page 30 reveals that on Jan 19, 1993 I had still not written a "Ming Motion" for federal court.

On Tuesday 26 Jan 1993 at 9:24 I called 213-894-2085 to attempt to communicate with the Standing Committee on Discipline. The clerks would not or could not tell me who was on the committee or how I could reach them. Some clerk asked me why I desired to contact the committee. I explained my suspension situation. I talked to Brenda (probably Brenda Brannon). Brenda called back at 10:18 while I was gone and said that they had received a notice from the state bar on 22 May 1992 regarding my suspension. Brenda told me that I had not yet been suspended by the federal bar. At first she said that they had received no notice of my state suspension. Now she said that since I had reminded them they I would be sending me a notice of suspension shortly. I objected vehemently citing Ming. Brenda did not send a notice.

Later that same day, Tuesday 26 Jan 1993, at 1:42 I called 213 894-2085 to try to reach the Standing Committee on Discipline. We went through a bunch of confusion and the clerk ultimately gave me a different number. I reached Izabell Katapodis, Brenda's supervisor who said Brenda was not there that day. I called again. I reached John McDonough. I eventually reached Leonard Brosnan and spend 11 minutes talking with him at about 1:50. It was a heated conversation. I told him about In Re Ming. I explained that the state bar suspension was unconstitutional because the conviction on which it was based was a misdemeanor and it was still on appeal. I explained that exigency is required to impose interim suspension while a case is on appeal. Brosnan said that he would run it buy the chief judge the next day.

On January 28 1993 I chatted with retired Judge Robert Shaw about the Ming decision and Bell v Burson and he agreed with my view that due process requires a Ming approach in my situation.

On Monday Feb 1, 1993 I called Victoria Molloy at about 1:27 to remind her that she did not respond to my letter last week nor my last telephone call. Later, at 1:50 Molloy tells me to take up the Ming matter with general counsel for the bar. At about 3 pm I call 415-561-8200 and ask for Carol Rossi, general counsel, to call me back. At 3:46 I try several more times to reach Carol Rossi. Finally, when I ask to speak to Rossi's supervisor, Rossi is available. I explained Ming to Rossi. At 4:02 Rossi promised to call me back the next day.

I called Gert Hirschberg, former member (as I recall) of the board of governors of the bar.

On Tuesday Feb 2 1993 at 3:14 I called the federal court to inquire as to the status of my federal license. I asked for Brosnan but could only reach Katapodis. Judge Real has not ruled on the issue yet. I ask specifically if I have been suspended and Katapodis says that I have not been suspended.

On Tuesday Feb 9, 1993 I found a message from Carol Rossi, general counsel to the state bar (415-561-8848) on my answering machine citing 3 cases that were impertinent. The cases are: Margulis v STate Bar 845 F2d 215 (1988); Giannini v State Bar 847 F2d 1434 (1988), DC Ct of appeals v Feldman 75 L Ed 2d 206, 103, S Ct 1303 (1983). I drove to the law library and checked them and found them irrelevant or non-existent as cited.

On Thursday Feb 11, 1993 I wrote to Carol Rossi, general counsel of the state bar. I think this was the day I wrote to Brosnan also.

Tuesday Feb 16 1993 Carol Rossi left a message for me. Her number is 415-561-8848.

Thursday 18 February 1993 I begin working on my LSD brief by scanning the text of Spann into my computer.

Monday 22 February 1993 I meet Victoria Molloy in person at state bar offices.

Tuesday February 23, 1993 I have several conversations and debates with Carol Rossi (in her capacity as counsel for state bar judge Lise Pearlman - who issued the unconstitutional interim suspension) and Victoria Molloy. Carol Rossi says to write her a letter. I remind her that I already wrote to her on February 11.

At this point nothing further was done by anybody on the federal suspension matter until the DA investigation. I HAD NO STANDING TO DO A MING MOTION BECAUSE MY LICENSE HAD NOT BEEN SUSPENDED ALTHOUGH THE FEDERAL BAR HAD BEEN NOTIFIED BY THE STATE BAR AND BY ME - AND THE CHIEF JUDGE HAD BEEN INFORMED - AND I ATTEMPTED TO REACH THE STANDING COMMITTEE ON DISCIPLINE.

______________________________

Douglas Palaschak

DECLARATION OF DOUGLAS PALASCHAK RE:THE INVENTORY

I, Douglas Palaschak, declare the following under penalty of perjury:

Incidentally, on 23 December 1993 the court of appeal reversed my conviction for misdemeanor possession of LSD.

On the 2nd day of our court ordered inventory, I was invited into the DA investigation office only after my computers had been set up and running - which leaves no doubt in my mind that the DA staff knew how to operate my computers. Furthermore, Jack Hughes operated my computers on the day of the raid; I watched him as he did it.

Remember that the agreement prior to the inventory was that the DA would download my computer and then give the computer to me. The DA did not want to download all the files. Therefore we went through the directories so that I could tell him which files contained my data and which files contained only computer code for running programs. Kitzmann and Hughes had already hooked up my laser printer. Hughes printed out the lists of files on my laser printer and I told Kitzmann which files contained my data. I WAS VERY COOPERATIVE. I PRESUMED THAT THE FILES WOULD REMAIN SEALED PENDING LITIGATION AND THAT IN THE MEAN TIME, BY VIRTUE OF OUR HAVING EXTRACTED A COPY OF THE DESIRED INFORMATION, I WOULD RECEIVE MY COMPUTER AND LASER PRINTER. APPARENTLY AFTER I DEPARTED KITZMANN AND HUGHES RUMMAGED THROUGH MY FILES AND PRINTED OUT CERTAIN PAGES ON MY PRINTER. I ONLY FOUND OUT ABOUT THESE PAGES WHEN I MET WITH JOE VILLASANA WHO HAD A COPY OF THEM. I HAD REQUESTED A COPY OF EVERYTHING THAT THE DA PRINTED OUT - JUST TO BE SURE THAT THEY HAD NOT PRINTED OUT MORE THAN THE LISTS OF DIRECTORIES - TO BE SURE THAT THEY HAD NOT CHEATED. WE SEE NOW THAT THEY CHEATED.

REGARDING MY COOPERATION IN GOING THROUGH THE PAPER FILES

Once again, it was only through the malfeasance of the investigators that the inventory was necessary. The DA took much more that he needed or wanted. In order to save litigation in court, I agreed to go through the papers - WITHOUT GIVING UP MY RIGHTS - to find those papers that the DA could return to me. Kitzmann thus shifted the burden to me to tell him which papers he would have no interest in. Conversely, I also told him which papers he would have an interest in - and this does not constitute an admission of guilt. IT WOULD BE MANIFESTLY UNFAIR TO PENALIZE ME FOR DOING WHAT I WAS ORDERED TO DO - ESPECIALLY CONSIDERING THAT THIS INVENTORY AND EVALUATION IS A JOB THAT SHOULD HAVE BEEN DONE BY 1) THE JUDGE; AND 2) THE SPECIAL MASTER.

When I told Kitzmann that he would be interested in certain papers I was only projecting what I presumed would be his view if I were in his situation; I certainly was no waiving my rights to object to the use of the papers. Remember, I was trying to get stuff back - but at the same time, my credibility is important to me and I would not want Kitzmann to say that I lied to him. Therefore when Kitzmann seemed to be glossing over what could be important papers, I jokingly reminded him of the importance of his civic duty and urged him to refresh his vigilance. I pointed out several papers that would be of interest to a person in Kitzmann's position TAKING THE VIEW THAT KITZMANN WAS TAKING ON MY PURPORTED SUSPENSION. I DID NOT AGREE WITH HIS VIEW BUT I WAS NONETHELESS HELPING TO SORT ON THE BASIS OF A SORTING CRITERIA THAT WAS HIS OPTION. BY POINTING OUT PAPERS THAT FIT HIS CRITERIA I WAS NOT APPROVING HIS CRITERIA - I WAS MERELY COOPERATING AS ORDERED (INCORRECTLY OR NOT) BY THE JUDGE. MY 4TH AMENDMENT RIGHTS SHOULD NOT BE JEOPARDIZED BECAUSE WE TRIED TO SAVE TIME FOR THE COURT - OR BECAUSE I AM TRYING TO GET BACK MY LASER PRINTER THAT SHOULD NOT HAVE BEEN TAKEN IN THE FIRST PLACE.

THE ATTITUDE OF JACK HUGHES

Jack Hughes has not been candid regarding the laser printer. In particular I asked him directly one day in the hall if he really thought (as he had told DDA Roberts in my presence) that my laser printer could store some pertinent date (pertinent being something in addition to font sizes and other printer technicalities). Jack Hughes answered my question in the affirmative. Then I asked if he was lying to me. He again answered in the affirmative - indicating that he knows very well that my laser printer does not have the capability to store substantive data. The Office of the District Attorney in the person of DDA Charles Roberts has established a pattern of playing stupid regarding computers in order to attempt to justify keeping my laser printer which is known to the DA to have no probative value in this case - and to justify keeping my computer which has no probative value except for the data that they have downloaded onto floppy disks.

INQUIRIES FROM DANNY MILLER

I have known Investigator Danny Miller since he served a search warrant at my office about 2 ago during my LSD case. He has always been courteous and friendly. However, his inquiries regarding my bankruptcy software cause me to be distressed that he is intruding into my business practices beyond any professional concern. In particular, he asked me twice how much the program cost me. Then I noticed him reading the program manual when I was invited into the investigation office to sort through the papers with Kitzmann. But what really made me suspicious was when that computer manual turned up missing when Kitzmann and I completed our inventory. I suspect that Danny Miller had it. My manuals and programs are in the nature of trade secrets. Danny Miller has no right to rummage through them.

Furthermore, either Danny Miller or Glen Kitzmann commented that the girls in the office thought that my forms printing program was too slow - indicating to me that they must have tried it out. I resent the use or test-driving of my programs.

The orange plastic crate was not with the property that we were to inventory. Glen Kitzmann told me that he put it somewhere after they boxed the papers that were in it.

REGARDING THE LEGAL FICTION OF ASSUMING KITZMANN'S ROLE TO SORT

PAPERS

If we, as judge and litigants are sophisticated enough that we can (for the purpose of convenience and efficiency) 1) indulge in a substantial deviation from the procedure established by the legislature (namely PC 1524 and the return on warrant procedures) for the convenience of the Judge and 2) expect Palaschak to fictionally and temporarily switch roles in order to assist the DA in sorting papers then we are sophisticated enough to craft a sophisticated interim remedy in this situation. I feel that I have cooperated with the court for the convenience of all of us - and I deserve the same attention and consideration for my needs - for my laser printer, application disks, and downloaded computer.

______________________ Date: 11 December 1993.

Douglas Palaschak

SCOPE OF THIS ANNOTATION

This annotation discusses all the pertinent law regarding the seizure of Palaschak's property at Good Nite Inn EXCEPT:

1) This annotation does not rebut the prosecution's list of cases; the rebuttal and discussion of their cases is done in BRIEF #1208.;

2) This annotation does not address problems between Palaschak and the public defender; those issues are addressed in BRIEF #1200.

3) This annotation does not discuss the right to practice in federal court without regard to state court suspension; that subject is discussed in brief #1250.

4) This annotation does not discuss the Constitutional proscription against using diaries against the author; this subject is discussed in brief #1257.

CHRONOLOGICAL LIST OF MOTIONS CURRENTLY PENDING IN THIS CASE

ORIGINAL MOTIONS BY PALASCHAK: Specifically:

1539 Motion

___others

MOTION #1190 Filing thwarted. Received but not filed? We request filing.

Motions by Joe Villasana

Motion to Quash

Motion to traverse

1524 Motion

2nd motion to quash

ISSUES AND AUTHORITIES

Section #1. Overview.

Issue #1.1 The suspension and the search are ultimately products of the unlawful invasion of Palaschak's privacy at his birthday party on May 9, 1991 at which time 46 doses of LSD were seized from Jessica Jobin; therefore the search warrant for the Good Nite Inn fails as the product of an illegal search. Authority: ALR 169:14 Search Incident to one offense as justifying seizure of instruments of or articles connected with another offense. General rule: If a warrant does not specify the stuff, then it cannot be seized There is a synergistic effect when compounded with the negligence of the federal clerk Katapodis in negligently announcing inaccurately that Palaschak was indeed suspended when in fact Palaschak was not at that time suspended. See also: ALR 143:135 Previous illegal search for or seizure of property as affecting validity of subsequent search warrant or seizure thereunder.

Issue #1.2 Palaschak was fully licensed to do bankruptcies. See brief #1250.

Issue #1.3 The state bar court unconstitutionally used Palaschak's now-overturned LSD possession charge to justify interim suspension. No bar association may impose interim suspension on the basis of a misdemeanor conviction while that conviction is still on appeal. See brief #1250. In Re Treadwell (1885) 67 C 353, In Re Riccardi (1920) 182 Cal 675, In Re Ming (CA 7th 1972) 469 Fed 1352. There are a multitude of other authorities in brief #1250.

Issue #1.4 This case is appropriate for the remedy specified in PC 1540 - return of the property. A comparison to the comparable civil remedy - motion to produce - is enlightening.

Issue #1.5 Even though we may not reach that issue, Palaschak contends that under Ming and Marbury v Madison his state bar suspension is unconstitutional and hence void. Marbury v Madison (1803) 5 US 137, 2 L Ed 60. A Void act is void ab initio - whether the act be one of Congress, the state legislature (acting in 1985 at the behest of the state bar) or the committee drafting local federal court rules. Incidentally Palaschak has demanded reinstatement nunc pro nunc (now for then) from state bar court judge Pearlman. Pearlman has reinstated Palaschak but not retroactively effective May 18, 1992.

Issue #1.6 Rummaging through Palaschak's photos in his safe. The search warrant did not authorize search for photos. Chimel (1969) 23 L Ed 2d

Section #2. Seizure of printing presses.

Issue #2.1 The laser printer. The seizure of a laser printer by the asset forfeiture personnel of the sheriff raises 1st amendment issues that transcend the 4th amendment issues. Clearly the laser printer is within scope of list on warrant but because of the absence of probative valuse there can be no probable cause. Furthermore, the practice of seizing printers was condemned in the era of the star chamber. Furthermore "Congress has never authorized the issuance of warrants for the seizure of mere evidence" and the constitution precludes it - this particular SEIZURE IS MOST EGREGIOUS WHEN IT IS OF A PRINTING PRESS!

"...By the time of Charles II [warrants] had burst their original bounds and were used by the STAR CHAMBER to find evidence among the files and papers of political suspects...From this use of papers as evidence there grew up the practice of the STAR CHAMBER empowering a person 'TO SEARCH IN ALL PLACES WHERE BOOKS WERE PRINTING, IN ORDER TO SEE IF THE PRINTER HAD A LICENSE; AND IF UPON SUCH SEARCH BE FOUND ANY BOOKS WHICH HE SUSPECTED TO BE LIBELLOUS AGAINST THE CHURCH OR STATE, HE WAS TO SEIZE THEM, AND CARRY THEM BEFORE THE PROPER MAGISTRATE.' Entick v Carrington 19 How St Tr 1029, 1067 as quoted by Douglas in Warden v Hayden (1967) 18 L Ed 2d 782.

Issue #2.2 Seizure of Palaschak's printer is a violation of Palaschak's first amendment rights and a violation of his due process rights to print the papers necessary to litigate this case.

Issue #2.3 UNLAWFUL PRIOR RESTRAINT OF PUBLISHER. Near v Minnesota (1930) 75 L Ed 1357, 283 US 697 precludes seizure of Palaschak's laser printer.

Issue #3.1 The issue of the laser printer and computer should be resolved prior to the other issues because they constitute property that is both work product and - even more important - the work PRODUCER. The defendant is not required to disclose work product as defined by CCP 2018 discussed in Witkin Evidence �1145b (or, of course, pursuant to federal civil rights case):

The crime-fraud exception is inapplicable to the work product rule. BP Alaska Exploration v Superior Ct (1988) 199 CA3d 1240.

Issue #4 The Lisa D. notation. Fundamental search and seizure law: One cannot justify a search warrant by what one discovered in executing the warrant.

Issue #5 Remedy for 5th amendment violations: Exclusion. Although the exclusionary rule is popularly known to apply to 4th amendment violations - in general the concept applies to all violations of constitutional rights - including violations of 5th and 6th amendment rights⁽¹⁾. See ALR2D 45:1316 Corroboration of extrajudicial confession or admission. Cites Wong Sun. See also ALR2D 23:919 Admissibility in evidence of unsigned confession. See ALR4TH 81:259 Right of indigent defendant in state criminal case to assistance of investigators.

Issue #5.1 One cannot legally view the contents of movies "in plain view" on a reel and by analogy one cannot view the contents of a computer in plain view. Stanley v Georgia (1969) 394 US 557, 569-72. Application: District Attorney may not permissibly rummage through Palaschak's papers diaries nor his computer simply because they were in plain view.

Section #6. Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant.⁽²⁾ As we might expect, we will not find a bright line on this issue. The ALR article lists cases for each side. However, we really need not reach that issue because PC 1539 and 1540 provide the remedy that Palaschak seeks - retesting. Nonetheless, the anecdotes are useful if the case is sufficiently similar. Kitzmann's use of the unsworn and recklessly false hearsay of Katapodis as a basis for a search warrant violates the mandate of the 4th amendment that no warrant shall issue except upon oath or affirmation.

Issue #6.1 Regardless of whether the affiant himself had bad faith the critical information WAS NOT UNDER OATH (the critical information being the false information from the federal court that Palaschak was unlicensed on August 7, 1993 when he did the David Hahn bankruptcy) - therefore the warrant issued by Judge Hadden fails to satisfy the criteria specified clearly in the 4th amendment that "NO WARRANTS SHALL ISSUE but upon probable cause SUPPORTED BY OATH OR AFFIRMATION."⁽³⁾

Issue #6.5 The federal procedure for search warrants, FRCrP 41⁽⁵⁾ has for at least 15 years specified with detail the procedure by which testimony may be taken by telephone under oath. Such a procedure would have alerted Katapodis to the solemnity of Kitzmann's inquiry. In a federal court the recklessness of Kitzmann in failing to 1)alert Katapodis of the solemnity of the conversation and 2) ascertaining the basis for Katapodis's hearsay would result in suppression. Furthermore, the statements of Katapodis as related by Kitzmann would cause a reasonable person to wonder if indeed Katapodis was speculating since she spelled out the rule as distinguished from having cited a roll or list to which she referred.

"When it comes to justifying the total police activity in a court, the people must prove THAT THE SOURCE OF THE INFORMATION IS SOMETHING OTHER THAN THE IMAGINATION OF AN OFFICER WHO DOES NOT BECOME A WITNESS". Remers v Superior Ct. 2 C 3d 659, 470 P 2d 11

Remers at 666 cites a long line of cases for this proposition. See Spinelli v US (1969) 393 US 410, 21 L Ed 2d 637, 89 S CT 584 "known" to the affiant as a bookmaker but no indicia of reliability of the informant who, of course, was not under oath.

Issue #6.6.1 Some typical cases from ALR3d 10:359 wherein hearsay in the affidavit resulted in suppression.

US v Davis (1983) 714 F2d 896 wherein __

US v Chesher (1982 CA9 Cal) 678 F2d 1353. Membership in the Hells Angels was the material fact essential to the issuance of the warrant (similar to Palaschak's membership in the federal bar vitiating the probable cause for practicing law without a license) and defendant Chesher had been expelled from the Hells Angels 3 years prior to the issuance of the warrant. Warrant held invalid. The only bad faith was the failure to adequately ascertain membership - exactly what Kitzmann did to Palaschak.

Kitzmann, and any reasonable person would have asked Katapodis how she arrived at her answer. Did she look in a computer? Did she ask somebody? Did she look on a roll of attorneys? If the hearsay pertains to a critical fact, Palaschak's membership, for example, then the means of ascertaining the fact relayed by the hearsay affiant must be stated in the affidavit. Authority: Wallace 593 SW2d 545 a drug case. In Palaschak's case Kitzmann not only failed to ascertain a method but hints that Katapodis was only speculating that Palaschak was suspended because that was the ordinary course of action. See ALR4th 24:1266 Disputation of truth of matters stated in affidavit in support of search warrant - modern cases. See also threshold requirement where, as here, the misstatement was absolutely critical. One very pertinent case, a case dealing with membership in an organization as a basis for the search warrant (as Palaschak's purported absence of membership was the basis) is at ALR4th 24:1279:

Issue 6.6.2 See also ALR2d 14:605 Sufficiency of affidavit for search warrant based on affiant's belief, based in turn on information, investigation, etc. by one whose name is not disclosed.

Issue #6.7 ALR4th 51:999 The Residual Hearsay Exception.

Section #7 THE PROCEDURE.

Issue #7.1 Use of the Franks test is precluded in California in Palaschak's situation because our Penal Code sections 1539 and 1540 provide the Franks retesting remedy without making us jump through the Franks bad-faith-of-the-affiant hoop. Authority: People v Luttenberger (1990) 50 C3d 1 @ 15 (discussed at section 7.2 of this brief) and Broome discussed at section 7.2. Unequivocally, the California Penal Code provides an opportunity to dispute the facts alleged in the affidavit for a search warrant WITHOUT THE FRANKS V DELAWARE REQUIREMENT OF A SHOWING OF BAD FAITH OF THE AFFIANT. Franks v Delaware is a constitutional standard but the California Penal Code gives the same PROCEDURAL right without the Franks preliminary test. Disputation of the facts in the affidavit for the warrant can in fact be triggered by SOMETHING MUCH LESS THAN bad faith of the affiant⁽⁶⁾ - in fact nothing is required to trigger a disputation of the facts in California - and, apparently, only California. Penal Code sections 1539 and 1540 provide the opportunity for everybody! California Law Review 54:1072 clearly corroborates Palaschak's interpretation of PC 1539 and 1540 - and prop 8 does not impose the Franks threshold test.; in fact, PC 1539 and 1540⁽⁷⁾ provides for retesting of the warrant in court - without the restriction of Franks v Delaware that bad faith of the affiant be demonstrated. In the case of Palaschak, "there IS no probable cause for believing the existence of the grounds on which the warrant was issued" and therefore "the magistrate must cause it to be restored to the person from whom it was taken". Quotations are from PC 1540. That there may have appeared to be probable cause is irrelevant; PC 1540 describes the test in the present tense - not the past tense - and therefore implicitly mandates retesting of the warrant in light of the new, and true, fact that Palaschak was indeed licensed on August 7, 1993 when he performed the Hahn bankruptcy. If the plain language of the statute is not convincing enough, ALR4th 24:1266 @section 8 specifically explains that Theodor v Superior Court (1972) 8 C3d 77 holds that a California statute precludes Franks and although it is referring to a different statute, that statute has the same wording as 1539/1540. Contrary dictum in People v Wilson (1986) 182 CA3d 742 is irrelevant because Wilson is distinguishable from Palaschak in that Wilson's authority for disputation of the facts of the affidavit is the constitution via a common law motion to suppress and a common law motion to traverse whereas Palaschak's authority for disputation is PC 1539 and 1540 which were not available to Wilson because Wilson had been charged with a crime whereas Palaschak has not - because the probable cause that would have justified Palaschak's indictment evaporated with the letter from Brosnan admitting that Palaschak was indeed licensed - and that same evaporated probable cause is the basis for the now-defunct search warrant. California statutes reward a person who is not now charged with a crime as follows: One who is not charged with a crime qualifies under i,ii, or iii of PC 1539(a) to controvert the grounds of the motion. In controverting, one accused of a crime must rely on the wording of 1538.5 which turns on whether there WAS a basis for the search warrant. By comparison 1540 asks whether there IS a basis for the search warrant.

Wilson is cited in only 3 cases. Let's see how the appellate courts have used Wilson. In People v Costello (1988) 204 CA3d 431@442 the court held at 443 that the purpose is remedial - to correct and retest - not punitive. Correct and retest is what Palaschak desires. If we correct and retest we find that Palaschak was licensed and there is absolutely not a shred of reason for the search. In Costello the trial court mistakenly struck the entire paragraph and the court of appeal ordered a proper retest with a CORRECTED paragraph - not a deleted paragraph. Such an approach would suit Palaschak. In Costello the evidence is stolen computers as distinguished from Palaschak's testamentary evidence - but that is another issue.

Wilson is also cited in People v Gesner (1988) 202 CA3d 581@591 which deals with contraband - marijuana for sale - and does not deal with 1540 (seeking return of property). Gesner is distinguishable from Palaschak in that Gesner facts supported a warrant even after excising the misstatements. By comparison, when one inserts the fact of Palaschak's valid federal license, the basis for the warrant evaporates.

The 3rd case citing Wilson is People v Crabb (1987) 191 CA3d 390@394 regarding contraband - cocaine. It does not deal with 1540.

Issue #7.2 Impact of Prop 8 upon PC 1540 preclusion of the Franks test: None for our limited application. People v Broome (1988) 201 CA3d 1479@1490 provides an explanation of the impact of Proposition 8 on the requirements of the Franks test. Broome discusses Theodor (1972), Franks (1978), Proposition 8 (1982) and then concludes:

"Because of this conflict between the procedures and remedies accorded a criminal defendant under the state search and seizure clause and those afforded under the 4th amendment, the California Supreme Court thereafter relied solely on California law in holding that deliberate or reckless misstatements compel automatic quashing of the warrant. (Kurkland 28 C3d 383 footnote 2). All that came to a stop in 1982 when the People passed proposition 8...The effect of this enactment has been to eliminate the judicially created remedy of exclusion of evidence as a penalty for illegal action except where mandated by the federal constitution...In Re Lance W. (1985) 37 C3d 873). Thus, even if affiants run afoul of Kurkland, Cook, and Theodor, there is no remedy for mere negligence, and the remedy for perjury or reckless indifference is to CORRECT THE MISINFORMATION AND RETEST THE WARRANT - the warrant is no longer peremptorily quashed...WE FIND ABSOLUTELY NO BASIS FOR THE PEOPLE'S TELESCOPED ANALYSIS WHICH CONCLUDES THE FRANKS STANDARD OF A "PRELIMINARY SUBSTANTIAL SHOWING" MUST BE GRAFTED ON THE CALIFORNIA LAW OF DISCOVERY. They blithely state the trial court erred by treating 'the production of evidence request as though it had been made in the context of routine discovery and not in the attacking-the-warrant context' without ever presenting the linchpin which would keep the logical wheels on the axles of their argument. The missing pin is the reason why discovery should be treated differently in one context than the other. Certainly federal law now governs the level of deception California courts must tolerate before they ultimately may quash a warrant and suppress its fruits. BUT IT DOES NOT FOLLOW THAT OUR COURTS ARE COMPELLED TO ADOPT THE FEDERAL THRESHOLD FOR INVOKING THE STATUTORY TRAVERSAL HEARING. After all, our hearing is authorized by statute⁽⁸⁾ [whereas] the Franks rule was announced in the context of the 4th amendment...The claimed federal nature of the ultimate hearing at which federal standards are to be imposed does not snake its way upstream vacating every STATE PROCEDURAL PROVISION not present in federal law...Discovery is a collateral term by which a defendant gathers facts. Federal standards no more override a trial court's [statutory] authority to order discovery or to order sanctions for non-compliance - because this might result in the exclusion of evidence which federal law might not exclude - than they override Penal Code sections 859 b or 1387 (which compel dismissals for an untimely preliminary hearing or bar prosecution after 2 dismissals, respectively) even though those sections certainly result, ultimately, in the exclusion of relevant evidence. Proposition 8, it must be recalled, did not adopt the Federal Rules of Criminal Procedure, the United States Codes, or the federal common law. Consequently, our criminal courts did not become federalized by its enactment. With exceptions not pertinent here, Proposition 8 merely mandates that 'relevant evidence shall not be excluded in any criminal⁽⁹⁾ proceeding, including pretrial...hearings. [Proposition 8 deals with the REMEDY not the PROCEDURE...There is nothing in Franks itself which would indicate the holding is to be applied as a threshold to obtaining discovery. The [US Supreme] court indicated [that] its requirement of a substantial preliminary showing would work to prevent new large scale commitments of judicial resources and 'should suffice to prevent the misuse of a veracity hearing for purposes of discovery or obstruction'(Franks 75 L Ed 2d @682)...The showing sufficient to trigger the evidentiary hearing 'must be more than conclusory and must be supported by more than a mere desire to cross-examine'... The court thus was concerned about preventing traversal used for general discovery, not limiting discovery for the purpose of gathering facts for an initial traversal showing. [Without priming the pump at a hearing the defendant might by unable to make more than mere conclusory statements]"

There is more discussion but the holding is clear. The California Supreme Court specifically approves Broome and specifically rejects the Franks threshold in People v Luttenberger (1990) 50 C3d 1@15. Chief Justice Malcolm Lucas writes:

"To justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence CASTING SOME REASONABLE DOUBT ON THE VERACITY OF MATERIAL STATEMENTS MADE BY THE AFFIANT." - C.J. Malcolm Lucas

The standard is therefore NOT bad faith of Kitzman. It is far easier. Furthermore, Palaschak's case is distinguishable from Luttenberger in 3 substantial ways. Luttenberger dealt with 1)a defendant charged with 2)selling drugs was inquiring of a 3) confidential informant. Palaschak is 1) not a defendant; 2) a contemplated defendant for practicing law without a license; and 3) there is no confidential informant (as far as we know). Palaschak just wants his computers, software, laser printer, and diaries returned.

Issue #7.3 Impact of Proposition 8 upon Theodor as applied to Palaschak: none because the search warrant for Palaschak's office will fail upon retest; Palaschak does not require the more drastic former remedy of Theodor which provided for suppression upon bad faith of the affiant which remedy was overruled by proposition 8⁽¹⁰⁾.

Issue #7.4 Although the District Attorney has a right to be a party in this motion⁽¹¹⁾we must remember that return of property, and in turn, discovery are the driving motivators here - not suppression.

Issue #7.5 The ratchet clause⁽¹²⁾ of the 14th amendment permitted California to give citizens the increased rights of PC 1540 and 1539 but forbids California from retracting these rights by Proposition 8. Therefore the implied unconstitutionality of 1540 is invalid. To the extent that Proposition 8 takes rights away, it is unconstitutional as violative of the ratchet clause of the 14th amendment.

"Amendment IV⁽¹³⁾...and no Warrants shall issue, but...supported by oath or affirmation...Amendment XIV...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law..."

Taken together, these 2 clauses define privacy as a right and forbid the California from abridging that right. Proposition 8 abridges that right and to the extent that Proposition 8 abridges PC 1540, Proposition 8 is unconstitutional.

Issue #7.6 Proposition 8 is not an impediment to Palaschak's requested retesting of the warrant since there are to no charges and hence everything is irrelevant. Prop 8: "...relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings". 1) There is no relevance since there are no charges; 2)prop 8 applies only to criminal proceedings which this is not.

Issue #7.7 THE PROCEDURE - LIVE TESTIMONY. PC 1539⁽¹⁴⁾ mandates live testimony in Palaschak's case since Palaschak has moved to return property pursuant to PC 1538.5 AND 1540. See Witkin & Epstein Criminal Law 2nd Sections 2253, 2265, 2438, 2444, 2461.

Issue #7.8 It would be ironic for the prosecution to attempt to justify their false statement (that Palaschak was unlicensed) by Proposition 8 - Truth in Evidence.

Issue #7.10 The public defender was wrong on 17 Dec 1993 when once again Joe Villasana attempted to go forward prematurely - without having thoroughly researched the law regarding disputation of the truth of matters stated in support of the search warrant. Villasana has not yet discovered Chesher which permits a relaxed standard of recklessness.

Issue #7.10.1 The approach that has evolved in the federal courts is consistent with the Luttenberger approach: Retest; Threshold is mere showing of material misstatement. The gist of ALR3d 10:359 is that the Franks threshold is a flexible test. If the contested fact is essential to the validity of the warrant and if it was false in the affidavit, then the bad faith or not of the affiant is not an obstacle to retesting the warrant. This approach is consistent with the statutory approach in California as enunciated by Chief Judge Malcolm Lucas in Luttenberger.

Section 8 Bad faith, reckless, and false statements of Kitzmann and Katapodis.

Issue #8.1 See exhibits 1, 2, and 3. BAD FAITH OF GLEN KITZMAN is shown at the 4th page of his affidavit in the 1st paragraph. The standard of Franks is: "A FALSE STATEMENT KNOWINGLY AND INTENTIONALLY, or with reckless regard..." He says that Katapodis says that she received word from the state bar on 22 MAY 1992 and he says that Katapodis sent Kitzman a copy of the notification letter but the letter that Kitzmann attaches to the affidavit is dated 18 AUGUST 1993 - the day after Kitzmann talked to the state bar - and 10 days after the date that Palaschak did the bankruptcy for which he stands accused in the affidavit of being unlicensed. THIS IS WILLFUL DECEPTION OF THE MAGISTRATE.

Issue #8.3 Bad faith of Kitzmann. There is a real question as to whether there even exists a register of attorneys licensed by the federal bar in Los Angeles. If there is one, then direct reference would and should have been made to it by Glen Kitzman in his affidavit for a search warrant in Palaschak's case - and failure to address such an issue constitutes recklessness at best.Issue #8.4 Is double hearsay permitted along with hearsay? Katapodis was merely speculating on what she thought were the rules and their application to Palaschak. Although she may have been percipient to Palaschak's conversations on January 1993 with Brosnan's office she either 1) forgot that; or 2) purposely deceived Kitzmann.

Issue 8.5 In a federal court the recklessness of Kitzmann in failing to 1)alert Katapodis of the solemnity of the conversation and 2) ascertaining the basis for Katapodis's hearsay would result in suppression. Furthermore, the statements of Katapodis as related by Kitzmann would cause a reasonable person to wonder if indeed Katapodis was speculating since she spelled out the rule as distinguished from having cited a roll or list to which she referred. The federal procedure for search warrants, FRCrP 41 has for at least 15 years specified with detail the procedure by which testimony may be taken by telephone under oath. Such a procedure would have alerted Katapodis to the solemnity of Kitzmann's inquiry.

Issue #8.6 Time was a critical fact and Kitzman cheated in relating the time and may have omitted some exculpatory time matters from the affidavit. From what we know now, Kitzmann more than anyone else, was aware that the state bar may not have notified the federal bar, YET KITZMAN OMITTED THIS FROM HIS AFFIDAVIT. DID KITZMANN TRIGGER THE AUGUST 18 1993 LETTER AND THE FEDERAL SUSPENSION THAT FOLLOWED?⁽¹⁵⁾In fact one could speculate that Kitzmann knew that Palaschak was licensed and that Kitzmann intentionally triggered the letter. The coincidence of the suspension letter arriving on the day of the raid is to glaring to ignore. It appears very likely that Kitzmann's inquiry triggered the suspension letter.

Issue #8.7 Palaschak is entitled to question Kitzman to determine if he omitted material facts and thereby materially mislead the court. Authority:People v Rochen (1988) 203 CA3d 684. Palaschak is entitled to questions others regarding what Kitzman knew.

Section #9. The absence of Probable Cause.

Issue #10 ALR4th 54:391 Seizure of books and papers not described in warrant.

Issue #11 Leon good faith doctrine is inapplicable when the officer serving the warrant (Kitzmann) created the defect by his own negligence and conscious indifference to the falsity of the affidavit - and especially when Palaschak provided exculpatory information prior to its service by telling Kitzmann about Palaschak discussion in January 1993 with Brosnan. Application: Palaschak explained with corroborating names that he was licensed and Kitzmann recognized the names from his own investigation. Authority:

US v Boyce (D Minn 1985) 601 F Supp 947. In Boyce the affiant failed to disclose that the confidential informant was suffering from stimulant psychosis from 3 days of cocaine use. The key proof of reckless disregard in Boyce as with Palaschak was a close scrutiny of the chronology of material events. In Palaschak's case, Magistrate Hadden (incidentally, federal rules preclude federal judges from being magistrates) should have noticed that the letter purporting to suspend Palaschak for a 1991 offense and 1992 conviction was written in August 1993 just days prior to the day that the affidavit was submitted to him - but more pertinently KITZMANN SURELY KNEW AND HIS WITHHOLDING OF THIS OBSERVATION WAS DECEPTIVE. KITZMANN AND ANY REASONABLE PERSON, INCLUDING MAGISTRATE HADDEN, IF HE HAD SCRUTINIZED THE LETTER (THE NECESSITY OF WHICH, IN ITSELF, IS PROOF OF BAD FAITH OF KITZMANN) WOULD HAVE OBSERVED THAT PALASCHAK WAS OBVIOUSLY LICENSED ON 7 AUGUST 1993 IF THE NOTIFICATION OF SUSPENSION FROM THE STATE BAR TO THE FEDERAL BAR WAS DATED AUGUST 18, 1993. KITZMANN DECEIVED THE COURT BY REFERRING TO A LETTER OF SUSPENSION OF MAY 1992. In this case penal code section 125 transforms Kitamznn's indifference into perjury.

Issue #12 Burden of proof is on DA for items seized pursuant to probation search - which includes at least one page of the seizure receipt.

Issue #12.1 To meet his own burden of proof, Palaschak is entitled to pre-trial discovery as explained in Witkin at �2493-2496. However, discovery provisions in civil cases, such as depositions, are not available in criminal cases - which may mandate a federal civil rights suit to obtain discovery? This is the paradox: Criminal defendants would seem to have fewer rights in this regard than civil defendants or plaintiffs - but PC 1539 and 1540 solve this problem. Delaney v Superior Ct. (1990) 50 C3d 785@812. Indigent defendant has a right to transcript of prior civil proceedings concerning same events and involving some of same witnesses as criminal action. Woods v Superior Court (1990) 219 CA3d 708@711. See also Cal. Evidence 3d �1422-1678 regarding defense discovery. In particular see Witkin Evidence �1678b (new) Discovery by Defendant which states that defendant is entitled to all oral statements of witnesses. Prosecutor Roberts has refused to produce the tapes of the pre-search conversation between Palaschak and Investigator Dan Miller in Dan's van. The defendant is not required to disclose work product as defined by CCP 2018 discussed in Witkin Evidence �1145b (or, of course, pursuant to federal civil rights case):

"The work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense...ABSOLUTE PROTECTION: ANY WRITING THAT REFLECTS AN ATTORNEY'S IMPRESSIONS, CONCLUSIONS, OPINIONS, OR LEGAL RESEARCH OR THEORIES SHALL NOT BE DISCOVERABLE UNDER ANY CIRCUMSTANCES...The state bar may discover the work product of an attorney against whom disciplinary proceedings are pending WHEN IT IS RELEVANT TO ISSUES OF BREACH OF DUTY BY THE LAWYER [NOTE THAT PALASCHAK IS NOT CHARGED WITH BREACH OF DUTY!] subject to applicable client approval and to a protective order, where requested for good cause, to ensure the confidentiality of work product EXCEPT FOR ITS USE BY THE STATE BAR IN DISCIPLINARY INVESTIGATIONS and its consideration under seal in state bar court proceedings." CCP 2018d as quoted in Witkin Evidence section 1145B(new)

The crime-fraud exception is inapplicable to the work product rule. BP Alaska Exploration v Superior Ct (1988) 199 CA3d 1240 as cited in Witkin Evidence �1145d (new).

Issue #12.2 Does this preclude seizure by search warrant of the letter to Huntington's?

Issue #13.1 Palaschak seized diaries and computers cannot be totally sealed - the seal is only against the prosecution. People v Seibel (1990) 219 CA3d 1279 is a post-Luttenberger case that quickly demonstrates that on occasion certain evidence is sealed - and the law follows the need. In Seibel a guilty plea was reversed on appeal because the trial court kept the affidavit for the warrant sealed to protect the informant. This violated the defendant's rights to properly challenge the veracity of the affidavit - precisely the violation that is happening to Palaschak by sealing his own diaries. Application: Palaschak needs the diaries to recount information that is his work product relating to telephone conversations with the federal court material to Palaschak's federal license which is THE paramount issue in this case.

Issue #14 Palaschak's arrest was illegal, unconstitutional, without warrant, and without probable cause - and his detention for 5.5 days was similarly illegal. People v Ramey sets an arrest standard that is higher than the standard of PC 836 and PC 844.

Issue #14.1 It appears that Investigator Danny Miller lied to Palaschak when he told Palaschak that he had an arrest warrant. We don't have a copy if there is one.

Issue #14.2 Some of the prosecution's current evidence is the product of a warrantless arrest entitled strangely a "Ramey warrant⁽¹⁶⁾". The information obtained from Palaschak's clients who were interviewed while Palaschak was under arrest and the information from Palaschak are products of this false arrest.

Issue #14.3 The statements of Palaschak upon knock-and-notification of the search warrant - namely, that his federal license was valid - vitiated the justification for his arrest and for the warrant prior to its execution. It is therefore illogical to attempt to justify other information gained as incidental to a valid warrant - because the information was only gained incidental to the most expeditious way of proving that the warrant was NOT valid. Are we to punish Palaschak for speaking up and telling the prosecution ways that they would find out for themselves that his federal license was valid? If the prosecution is so concerned about truth in evidence then they should not based their argument on a good faith non-truth (that being the false statement by Katapodis of the federal court that Palaschak was not licensed - when in fact Palaschak was licensed.

Issue #15 The district attorney has no jurisdiction to regulate the practice of law before the bankruptcy court - including consultation and advising bankruptcy clients.

Issue #15.1 This issue of ___ should be litigated at the earliest time. Illinois v Gates? Indiana Nude Bar case?

Issue #15.2 Although this cannot be a suppression issue yet (since there are no charges pending) the cost to society of suppressing the items seized from Palaschak is not nearly as great as the cost of giving up the contraband (cocaine) seized in LEON. Therefore the LEON sliding scale would favor suppression. The holdings of LEON and FRANKS are inapplicable although the logic from them is applicable. In particular the LEON sliding scale is applicable. Since we now know that they cannot find the crime that prompted the warrant we are at the opposite end of the spectrum - and under LEON (which is an ends-justified test) we can afford to quash the warrant retroactively with no societal cost.

Issue #15.3 Incidentally the search stems directly by 2 paths (illegal state bar suspension and illegal conviction (which was reversed 23 December 1993)) from the 4th amendment violation at Palaschak's prior law office 2 years earlier. Although time would seem to attenuate, BUT FOR this prior illegal search, there would not even be the state suspension - nor the search condition⁽¹⁷⁾.

Issue #15.4 Although this case deals with a search warrant, we must nonetheless, in crafting an appropriate remedy, consider what would be the remedy if this were a subpena or a motion to produce. We must remember that the criminal/civil distinction is an arbitrary classification - a tool to help in analysis. When it fails to help then we seek another tool. Authority: Natural law, science, Leon. There is a continuum, a spectrum, an axis of polarity from civil to criminal and Palaschak's case is truly a civil dispute between Palaschak and the state bar on several constitutional issues. This dispute came to light in a February 1993 letter that Palaschak sent to Carol Rossi, counsel for the state bar in her capacity as counsel for the state bar in the federal case of Palaschak v State Bar (sub nom Palaschak v Gibbons et al) - the files of which were seized during the raid which is the subject of the current motion before this court.

Issue #15.4.1 The reason that a search warrant is used instead of a subpena is that the subpena gives the receiver warning to destroy evidence should he be inclined. THERE IS NO OTHER REASON. AS IN 4TH AMENDMENT INTRUSIONS THE EXIGENCY JUSTIFIES THE INTRUSION BUT NOW WE ARE AT REST AND THERE IS ABSOLUTELY NO JUSTIFICATION FOR GIVING THE STATE ANYTHING MORE THAN THEY COULD OBTAIN BY A SUBPENA. To do otherwise is simply to promote uninformed broad search warrants, but more importantly the 4th amendment protects us at all stages of the proceeding. In this case the DA wants to rummage through all my diaries - even in years for which he had no PC. See ALR4th 54:391 (1987, 130 pages) "Seizure of Books, documents or other papers under search warrants not describing such items. Section 27: Diaries."

Issue #16 General rule: If a warrant does not specify the stuff, then it cannot be seized. Thus the ledgers found in Marron v US (1927) 275 US 192, 72 L Ed 231, 48 S Ct 74 were suppressed as not specified in the prohibition era warrant for liquor. Application: Kitzmann cannot seize diaries as incidental to drug search condition; furthermore the drug conviction was overturned on appeal. .See ALR4th 54:391 (1987, 130 pages) "Seizure of Books, documents or other papers under search warrants not describing such items. Section 27: Diaries."

Premise #17.1 Business and Professions Code �6126 is relatively new and patently unconstitutional in that the crime is a felony only if the defendant is a member of the bar association; non-member commission of the same crime is only a misdemeanor; the statute is unconstitutional under both the California and US constitutions because it is a denial of equal protection under the law.

Premise #17.2 Defendant Palaschak suffers deprivation of equal protection under the law by virtue of the unconstitutionality of 6126 because he is a member of the subject group.

Issue #18 Regarding the cash P v Holland (1978) 23 C3d 77 (cited in CEB's Search and Seizure treatise at section 2.28) describes a Motion to return seized cash.

Issue #18.1 Several aspects make this case fundamentally different than the multitude of search and seizure cases:

18.1.1 The police found no contraband or stolen items:

18.1.2 The police new before they searched that the affidavit contained a fatal flaw;

The remedy is simply to retest the warrant in view of the corrected information from federal court.

Upon reviewing the multitude of cases - mostly dealing with drug stings where the booty was contraband - that distinction is obvious and pertinent here, considering the Gouled and Boyd hold that the 4th and 5th amendments prohibit "mere evidence" and especially diaries. It is ludicrous to permit a bad warrant to have effect when the stuff is sealed and the remedy is available to take back the stuff - as compared to when we would have a trial and the only remedy would be reversal.See ALR4th 54:391 (1987, 130 pages) "Seizure of Books, documents or other papers under search warrants not describing such items. Section 27: Diaries." See Brief #1257 regarding "mere evidence rule".

Issue #19 By ordering the items in a list from least seizable to most seizable we see some issues that otherwise would be glossed over.

Issue #19.1 The plastic orange crate Probative value: minimal. They did not even bring it to the inventory meeting.

Issue #19.2 The postage stamp. See. We prove that they took some stuff that they did not even intend to take.

Issue #19.3 The currency and checks. Not listed on the search warrant.

Issue #19.4 The 2 money orders that they did not even inventory - inside my calendar or on the bed. Minor amounts - $12? $20?.

Issue #19.5 The 1990 diary in the ring binder in the safe. See ALR4th 54:391 (1987, 130 pages) "Seizure of Books, documents or other papers under search warrants not describing such items." Section 27: "Diaries." Issue #19.6 The laser printer. See section ?#

See ALR Fed 53:679 (1987, 130 pages) Sufficiency of description of business records under the 4th amendment requirement of particularity in federal warrant authorizing search and seizure; L Ed 2d 48:884 Supreme Court's views as to application of 4th amendment prohibition against unreasonable searches and seizures to compulsory production of documents.

Issue #19.7 The pills. No PC! Nobody said Palaschak had drugs. They do not appear to be contraband - just pills.

Issue #20 Asserting that suspension was per court - it was not. Malfeasance. Expert was needed.

Issue #21 Defendant provides information fatal to the warrant before the property is take. What remedy? We have the fairly unusual situation where the defendant can disprove the probable cause for the warrant - and does so prior to the seizure - something like the Ivey situation but even a better situation for the defendant. In such a situation, where the seizing officers had notice that there was not PC they should have stopped - but Kevin De Noce says that they were under the gun - in fact, the call to federal court was merely an afterthought - but they should have at least checked again - but they could not - for the same reason that we cannot - and the same reason that the suspension situation has been so crazy - that reason being that the federal court is overworked and negligent - particularly their clerks - who are largely quite ignorant.

Issue #23 Retest for PC - and obtain certification from federal court since we are taking the time. Must we follow impertinent precedent blindly. I think not. The remedy is in dicta in previous case. Retest for PC in light of the previously omitted information And that is why we need information from Brosnan!

Issue #24 When we have the opportunity to litigate prior to release to DA then different procedures can be used - more like a subpena duces tecum as in US v Nixon. Also, unique to this situation, we have still the opportunity to undo most of the damage by simply reviewing the warrant anew. All the property is there. But the procedure now should be more like a subpena duces tecum! Because a warrant is only used where urgency precludes the subpena duces tecum.

Section #25 Discussion of issue's unique to Joe Villasana's Motion to Quash for lack of jurisdiction.

US Constitution, Art 1, section 8, clause 4 - Bankruptcy Marine Harbor Properties (1942) 317 US 78 Cowan, McCue, Sperry Bluestein v STate Bar (1974) 13 C3d 162

Section #26 Cases cited in Joe Villasana's Quash Motion #2 Illinois v Gates (1983) 462 US 213 - totality of circumstances In Re Ruffalo 20 L Ed 2d 1437

Court order is required per local rule.

Harlow v Fitzgerald (1982) 457 US 800, 815-819

People v Camarella (1991) 54 C3d 592 Lucas court rethinks LEON. This case is way unnecessary. Cites People v Maestas (1988) 204 CA3d 1208, 1214 995 motion on possession of cocaine charge. Usable stuff: 4th reason: the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid - and our corollary - where it BECAME facially invalid by before the search. Aha Head note (3) An affidavit for a search warrant relying on hearsay is not to be deemed insufficient simply by virtue of hearsay as long as a substantial basis for crediting the hearsay is presented. The informant's veracity, reliability, and basis of