People v. Kibblewhite

[785]

Opinion

HANING, J.

Defendant/appellant James Anthony Kibblewhite appeals from a judgment of conviction of possession of cocaine for sale (Health & Saf. Code, § 11351), following his plea of nolo contendere. His appeal is pursuant to Penal Code section 1538.5, subdivision (m), his contention being that the trial court erred in denying his motion to suppress evidence. The evidence he seeks to suppress was located in a locked safe which was removed from his residence by police officers executing a valid search warrant. The safe was transported to the police station and forcibly opened by the fire department four days later. We affirm.

Appellant’s primary contention is that the seizure and subsequent search of an attached safe removed from his residence was unlawful. During the course of the search for cocaine, the police looked into a closet and discovered a locked, attached combination safe with a triple-beam balance scale and a box of zip-lock plastic bags on top. Such scales are normally used to weigh cocaine, and it is commonly packaged in zip-lock bags. Also, in the closet was an Uzi submachine gun, two pistols, two brown paper bags containing a white powder, and a bag of marijuana. Appellant argues that the search warrant authorized a search of “containers,” and that a safe is not a container. This argument we reject. A safe, by definition, is a very secure container. A search of the residence authorizes the search of all areas of the residence, including containers therein, which could hold the contraband described in the warrant.

(United States

v.

Ross

(1982) 456 U.S. 798, 820-821 [72 L.Ed.2d 572, 591, 102 S.Ct. 2157];

Skelton

v.

Superior Court

(1969) 1 Cal.3d 144, 158 [81 Cal.Rptr. 613, 460 P.2d 485].)

Appellant further argues that the manner of search and seizure was improper. The police asked appellant for the combination, but he refused to reveal it. They then took the safe to the police department and had the fire department force it open in their presence four days later. The opening and search of the safe itself is not affected by the “staleness” factor that occasionally attenuates warrants which are not timely executed. (See, e.g.,