Drug Case Dismissal Upheld; Boat Search Ruled Illegal

A state appellate court Thursday upheld an Orange County judge’s decision to dismiss charges against three men accused of transporting five tons of marijuana from South America, ruling that Newport Beach police discovered the drugs by illegally searching the men’s boat.

The 4th District Court of Appeal in Santa Ana ruled that the action of Newport Beach police in the case “makes a mockery of the Fourth Amendment” of the U.S. Constitution, which protects citizens against unlawful searches and seizures.

Prosecutors had asked the appellate court to reinstate the criminal charges that were dismissed last year by Superior Court Judge Francisco P. Briseno. Briseno had ruled that police should not have boarded the men’s sailboat in 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 as evidence in a trial.

“An officer cannot randomly stop citizens and demand boat registration any more than he may stop automobiles without reasonable cause and insist on auto registration,” held the decision by the three-justice panel. “The right to examine a boat registration certificate does not include the right to board and search a vessel.”

Deputy Dist. Atty. Thomas J. Borris said prosecutors will meet next week to decide whether to appeal the case to the California Supreme Court.

“Our office is obviously in disagreement with the interpretation of the law. The Court of Appeal has interpreted it one way. . . . It’s just a healthy disagreement,” Borris said.

“This was a dope boat from Day One. One guy was caught with his personal property on the boat. Another had fingerprints on the boat, the steering wheel and everywhere else, and the other was the money man.”

But Ronald E. Klar, a deputy public defender, said the appeals court decision supports the law, which he said clearly dictates that the officers detained the individuals illegally.

“We are backed up by five different judges during three different hearings . . . who have agreed with our position over the life of this case--that the search was in violation of the Fourth Amendment. We are quite supported in our position,” Klar said.

In 1986, Harbor Municipal Judge Russell A. Bostrom dismissed the charges against the three Santa Cruz men, Richard W. Nelson, Victor P. Lucini and David P. Choy, after ruling that the search was illegal.

Prosecutors took the case to the Orange County Grand Jury, which indicted the men on charges of conspiracy, possession and transportation of marijuana. The case then went to Municipal Judge C. Robert Jameson, who ruled that the police search was legal and ordered the men to stand trial in Superior Court.

Briseno dismissed the charges during pretrial hearings, and the case was never brought to trial.

The incident began about 8:30 p.m. on Jan. 21, 1985, when Newport Beach Police Officer Charles Freeman noticed that a 45-foot motor-driven sailboat, the Sea Dolphin, had been docked at a public pier past the 20-minute mooring limit. Nelson, who was standing on the dock, was arrested after Freeman learned that he had an outstanding traffic warrant and that he could not show registration for the boat.

Freeman later was joined by Newport Beach Police Officer Jeff Henig, and the two of them boarded the boat, despite Nelson’s objections, court documents said. The boat was later seized by authorities and the marijuana was confiscated.

Prosecutors said the men had taken the boat from Santa Cruz to Colombia, where they had loaded the marijuana, and were headed back to Santa Cruz. They were forced to dock at Newport Beach when the boat ran low on fuel.

‘Safekeeping’ Argument

The appeals court agreed with previous rulings that the boat was not overparked since there were no clearly visible signs posted to warn them of the 20-minute mooring limit. The court also rejected arguments by prosecutors that authorities could secure the boat for “safekeeping” once Nelson was arrested. While police may enter a boat to impound it, the judges said, these officers had no authority to impound the vessel.

“We would surely reject such an argument in the context of an automobile. Otherwise, police could enter, thoroughly search and seize a car they mistakenly believe is overparked--when there are no parking limit signs in view--because its pedestrian passenger is arrested on traffic warrants nearby,” the appellate court said.

Newport Beach police spokesman Bob Oakley said that evidence in the case is substantial and that the department would support an appeal to the Supreme Court.

“The technicalities in this case created a situation whereby the court felt it was not able to consider the evidence and hold these dope smugglers accountable for their crimes,” Oakley said. “But on a positive note, we did prevent five tons of marijuana from reaching our streets.”