Charges of Drug Smuggling Dismissed for Second Time

An Orange County judge dismissed charges for the second time Monday against three men accused of transporting 5 1/2 tons of marijuana from South America to California, ruling that Newport Beach police discovered the drugs through an illegal search of the men’s boat.

Superior Court Judge Francisco P. Briseno found that the police should not have boarded the 45-foot motor-driven sailboat, the Sea Dolphin, on Jan. 21, 1985, just because the man tending the boat could not show them proper registration.

Under that ruling, the marijuana, valued at $10 million to $13 million, could not be used in a trial. The judge dismissed the charges.

“This was a case of drug smuggling, as plain as the nose on your face,” said Robert K. Weinberg, attorney for one of the three defendants. “But the police officers’ unreasonable intrusion onto someone’s personal property--that is much more offensive and a more important issue.”

Prosecutors told the judge Monday that they would appeal the ruling to the 4th District Court of Appeal.

More than a year ago, Harbor Municipal Court Judge Russel A. Bostrom dismissed the charges against the three Santa Cruz men, Richard W. Nelson, 27; Victor P. Lucini, 37, and David P. Choy, 35, after ruling that the search was illegal.

But prosecutors took the case to the Orange County Grand Jury, which indicted the men on the same charges. This time the case went to a different Municipal Court judge, C. Robert Jameson, who called the police search legal. He ordered the three men to stand trial in Superior Court on charges of conspiracy, possession and transportation of marijuana.

But Briseno not only agreed with Judge Bostrom about the illegality of the boat search, he added that prosecutors had erred in not providing the defense information about an informant before the defendants’ preliminary hearing.

Deputy Public Defender Leonard F. Gumlia, who represents Nelson, called Briseno’s decision “courageous.”

“Judges are reluctant to throw out evidence,” Gumlia said. “He’s likely to get a lot of criticism, particularly from law enforcement people.”

The incident began when Newport Beach Police Officer Charles Freeman noticed that a boat at the public pier near M Street had stayed past the 20-minute mooring limit. When Freeman discovered that Nelson had an outstanding traffic warrant from Massachusetts and could not show him registration for the boat, he arrested him.

Freeman was then joined by Officer Jeff Henig. When Nelson refused them permission to board the boat, they went aboard anyway.

“They only went aboard the boat on a hunch, and that’s just not enough under our system,” said defense attorney Weinberg, who represents Choy.

Choy and Lucini were arrested soon after that.

Court records show that the three men had taken the boat, which belonged to Lucini, from Santa Cruz to Colombia. They loaded the marijuana and headed back to Santa Cruz.

Somewhere near Newport Beach, the men discovered they were low on fuel and would have to come into port. Lucini and Choy were getting more fuel when the police approached Nelson, Weinberg said.

The three have been free on $50,000 bail each since shortly after their arrest and have been driving back and forth from Santa Cruz for their court appearances, their attorneys said.

“It’s certainly not over; it’s likely to be before the Court of Appeal for several months,” said Gumlia. But both Weinberg and Gumlia said they believe prosecutors have only a slim chance of reviving the case.