People v. Rodriguez

Opinion

KINGSLEY, J.

Defendants Rodriguez and Albillar, together with Delia Chavez, were charged with: (count I) possession of heroin for sale, in violation of section 11351 of the Health and Safety Code; (count II) possession of heroin, in violation of section 11350 of that code; and (count III) transportation of heroin, in violation of section 11352 of that code. Their motions under sections 1538.5 and 995 of the Penal Code were denied. After a trial by jury, Rodriguez was found guilty under counts I and III; Albillar was found guilty under count II. Proceedings were suspended and each defendant was granted probation. They have appealed; we reverse.

Acting on information of narcotic activity at a house occupied by defendant Rodriguez, police officers had the house and a car parked in front of it under surveillance. They observed the three defendants enter the car and proceed to drink wine and beer from bottles, some of which had been brought to the car in a paper sack by defendant Chavez. While the car was parked, defendant Rodriguez’ son was seen to approach it, kneel down and apparently pass some object to defendant Albillar, who was seated in the passenger seat. After the car drove away, it was followed and stopped. The officers asked Chavez, who was seated in the back seat behind Albillar, to give them the bottle of beer she was drinking; she complied. As she gave the bottle to the officer she was observed to have recent “marks” of narcotic injection and to be in a condition indicating her to be then under the influence of some narcotic. The car was searched, resulting in the discovery of several bottles of wine and be.er (some empty). Under the front seat on which Albillar was seated and directly behind which Chavez was seated, two empty

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bottles and a container containing small baggies of narcotics were found.

I

On this appeal, Rodriguez contends (although Albillar does not) that the search of the car was illegal. That contention is without merit. Having seen the occupants drinking liquor, and having received a partly empty bottle from Chavez, the officers were clearly entitled to search the body of the car for additional bottles; the container of narcotics was in plain sight and discovered only as an incident to the lawful search.