ORANGE COUNTY VOICES COURTS : Decision on Narcotics Case Is Disturbing : The message the appellate court sends to the trial judges is clear--you must always believe the testimony of government witnesses.

Last week, the U.S. Supreme Court added a Santa Ana drug case to its list of more than 4,000 cases that it refused to hear this year.

That the Supreme Court refused to hear the case should not have raised the concern it did. The focus instead should have been on the state appellate court’s decision this past July.

On Oct. 22, 1986, two Santa Ana police officers were patrolling a parking lot for drug traffickers. They saw the defendant sitting on the hood of a car. With one officer on each side of him, the defendant was asked if it was his car; it wasn’t.

Following additional accusatory questions, he was asked if he had any identification on him. He handed one of the uniformed officers his wallet, which contained a small bindle of cocaine.

Prior to trial, the Superior Court conducted a suppression hearing to determine if the bindle had been produced in violation of the defendant’s right to be free from unreasonable searches and seizures guaranteed to all of us by the U.S. Constitution.

The legal issue at the suppression hearing was relatively simple: Would a reasonable person feel free to leave under the circumstances. If, yes, then the production of the wallet was dumb but not unconstitutional.

After hearing the officers tell their story and observing the defendant in the courtroom, a local Superior Court judge determined that a reasonable person would not have felt free to leave. No kidding.

But the joke comes several months later, when the Court of Appeal decides for itself (without seeing the police officers or the defendant) that their version of a “reasonable person” would feel free to leave.

The appellate court claimed its decision was compelled by past U.S. Supreme Court decisions. I don’t buy it. This court went out of its way to reverse the trial judge and reinstate the drug charges.

It’s not surprising that the federal court refused to hear the case. If the California courts have a problem figuring out what a reasonable person in Santa Ana would do when confronted by two officers who ask accusatory questions, then why should federal justices 3,000 miles away interfere? The issue is best determined by a local trial judge who listened to and observed the witnesses in the courtroom as they reconstructed the Oct. 22 encounter.

Additionally, this case is nothing new for a Santa Ana trial judge. These judges hear dope cases every day. They see cops testify. One of the primary functions of the trial judge is to determine who is stretching the truth. This isn’t done in a vacuum as the appellate court seems to think.

The trial judge here ruled that this defendant on this particular day could reasonably believe he was not free to walk away from these particular police officers. That finding should not have been set aside on appeal by those judges who do not do battle in the trenches. We cannot allow our national “war” on drugs to take such a toll on the judicial system.

I am bothered by the court’s actual holding in this case, i.e., a reasonable person would have believed he was free to walk away from those officers without further ado. But what is more troubling is that the appellate court put aside its own institutional rules to overrule the suppression of drugs.

The message this sends to the trial judges is clear: You must always believe the testimony of government witnesses, for they never stretch the truth.

Anyone who has ever testified in court knows that there is a natural tendency to flavor the testimony to support one side or the other. To believe that police officers are immune from this tendency is to believe in fairy tales. Seasoned trial judges can recognize when testimony begins to lead down the yellow brick road. In the real world, this defendant was not free to leave. The Court of Appeal should rejoin the real world.

Constitutional law is not the sole domain of the appellate courts. Indeed, the vast majority of constitutional decision making is done outside the judicial system. Every government worker has the capability of violating someone’s constitutional rights. This includes local school boards, city councils, firefighters and police officers.

These are the people who must implement court decisions that set constitutional boundaries. That implementation is best reviewed by local trial judges who are familiar with the reality of everyday government-citizen encounters. Appellate courts should not overturn those decisions unless there is no basis in fact for that judge’s conclusions.

Respect for constitutional principles will erode if those principles cannot be applied to our daily involvement with the government. The last place one expects this erosion to occur is the appellate courts.