Chief’s Memo on Drug Sales Challenged : Crime: Legal experts contradict claims that selling of rock cocaine to suspects by Santa Ana police results in stronger cases against offenders.

SANTA ANA — Police Chief Paul M. Walters misinformed the City Council when he explained his secret operation to send undercover officers onto the streets to sell county-made crack cocaine.

In a memo sent to the mayor and council after the operation came to light last week, Walters said the department needed to use real cocaine in order to make felony cases against drug users and send them to prison.

The chief also told the council that even those drug suspects who ended up in drug diversion programs--instead of custody--still would remain under legal scrutiny on probation.

But police and legal experts say both statements are incorrect: The police still could file felonies using cocaine substitutes. And people who complete diversion programs end up with their cases dismissed--and are not on probation.

“There’s no probation, there’s no anything. Your case is over with,” Deputy Public Defender Brian Ducker said. “You’ve been diverted out of the criminal justice system. That’s the purpose.”

Speaking in behalf of the chief, Capt. Bruce R. Carlson said the letter was intended to provide council members with facts about the program so they could answer questions in the community. He said there was no intention to mislead the council members.

“This was not a sales pitch for what we’re doing. This was to try to relate the facts as clearly as we could so (council members) could answer questions,” he said. “This is a program we want to continue using because there’s no other way. We’re not necessarily married to anything, but if it works we feel we should continue on it.”

Carlson also said that the best way to ensure strong felony cases is to use real drugs, and said he needed additional information before commenting on the diversion issue.

He declined to say who drafted the memo, which bears the chief’s signature, but said the information came out of discussions with the district attorney’s office.

For the past 18 months, Santa Ana police officers have obtained court orders to sell rock cocaine on the streets in an effort to bust small-time buyers. More than 350 people have been arrested for buying the rocks, which are processed in the Orange County Sheriff’s Department’s crime lab from powdered cocaine confiscated in other Santa Ana drug raids.

Police and prosecutors say most of the 350 people arrested in Santa Ana were first-time buyers who were allowed to enter diversion programs rather than face jail time. The chief’s memo states that those first-time offenders “are subject to search and seizure and they are on felony probation at the completion of their diversion program.”

But Carl Armbrust, who heads the district attorney’s Narcotics Enforcement Team and helped craft the Santa Ana operation, said that anyone who completes diversion has his case dismissed and is not on probation.

The memo also says that it is essential to use real cocaine to file felony charges. “Using any other substance would result in only a misdemeanor charge of soliciting for a drug purchase,” the memo said.

The Los Angeles County Sheriff’s Department, however, has made 392 felony arrests using fake cocaine in reverse stings since February and 99% have been “successfully prosecuted,” said Capt. Dennis Dahlman, commander of the Sheriff’s Department’s Narcotics Bureau.

“Attempted possession is a felony. We’ve prosecuted a few people under the three strikes law,” said Dahlman, referring to the new state law that calls for 25 years to life in prison for third-time felons.

Armbrust said his office used to charge suspects with felony attempted possession when they purchased fake narcotics in reverse-sting operations, but decided the Santa Ana cases would be stronger if officers sold the real thing.

“We decided that that would be kind of a Mickey Mouse charge,” Armbrust said.

In Florida, hundreds of convictions were overturned after a state court ruled that the Broward County’s manufacture of rock cocaine in a similar operation was illegal and “shocked the conscience.” The technique of using real drugs is controversial because suspects sometimes swallow the rock or throw it away before an officer can recover it.

Several Santa Ana council members said Friday that they were confident the chief’s memo contained accurate information.

“I believe the information was correct and I don’t have any reason not to believe it. I’m comfortable with what was presented to us,” Councilman Thomas E. Lutz said. “If the chief tells me that it’s not correct, then I’ll worry about it then.”

Several said they have heard only positive comments from residents.

“They’re glad that something is being done in an aggressive manner to be able to remove people from the streets, and within the law,” Councilwoman Patricia A. McGuigan said.

Councilwoman Lisa Mills said she was told that the information in the memo came directly from the district attorney’s office.

“I’d like to have a follow-up from the chief,” she said. “If it turns out that any of the information is incorrect, I’m sure he’ll follow up with new information. He’s very good at that.”