People v. Barnes

Opinion

DANIELSON, J. The People appeal from an order dated February 7, 1989, setting aside the one-count information filed December 13, 1988, in which Gregory Gerald Barnes (defendant) was charged with a violation of Health and Safety Code section 11352 (transportation of a controlled substance, cocaine).

We reverse the order.

Issues Presented

The principal issue presented by this appeal is:

In the absence of a motion to suppress evidence, does a defendant at a preliminary hearing have the right to question witnesses on search and seizure issues? We hold that a motion to suppress evidence under Penal Code1 section 1538.5 is a prerequisite to the right of a defendant to question witnesses at a preliminary hearing on search and seizure issues.

The remaining issue is whether there was sufficient evidence to support the information. We conclude there was.

[1471]Factual and Procedural Statement

The preliminary hearing was held on November 29, 1988. The testimony of Detective Raymond Martin (Officer Martin) established the following facts:

He was assigned to intercept people smuggling narcotics into and out of Los Angeles via Federal Express. On November 14, 1988, he saw defendant carry a package into a Federal Express office near the Los Angeles International Airport. Defendant appeared nervous. After handing the package over the counter, he obtained an air bill and conversed with the ticket agent. Defendant then made two telephone calls, filled out the air bill and paid cash for the package.

Officer Martin, who was in plain clothes, approached defendant as the latter exited the office and asked him for identification and to see the air bill. The air bill was not in defendant’s name. Defendant volunteered that he was mailing the package to his girlfriend for a friend.

Defendant was then arrested and advised of his Miranda2 rights. Officer Martin did not question defendant since he would not waive his rights. Officer Martin then opened the package. The package contained a jar of facial cream in which 14 bags of cocaine were concealed.