Rodriguez

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…