In Re Donald R.

In proceedings under Welfare and Institutions Code section 602, defendant, a minor, was found by the juvenile court to have *25 committed a misdemeanor violation of Penal Code section 459 and a felony violation of Penal Code section 496. He appeals from the denial of his section 1538.5 motion to suppress evidence relating to the misdemean- or count.

Sometime between December 31, 1977, and January 2, 1978, the Centro-Mart store in Stockton was burglarized. Food, cigarettes, liquor, and clothing were removed. The police investigator assigned to the case, Detective Kenneth McGuire, was contacted by a confidential reliable informant on January 4, 1978; the informant stated that on the evening of January 3, he had been present at a house party less than a city block from Centro-Mart. There he observed many items of food, liquor, and cigarettes, and was told by the party’s hosts “Sheiyl Sandstrum and Donnie R.” that these had been stolen from the Centro-Mart over the holidays.

McGuire promptly prepared an affidavit for a search warrant which included a request for an indorsement for night service, stating that the stolen items “are primarily perishable items and easily…

I dissent. A search of a person’s home is a drastic intrusion upon the personal rights and security of the homeowner. A nighttime intrusion is of greater magnitude. The statutory and decisional law, therefore, establishes a higher standard of necessity which must be demonstrated for a nighttime search. Thus it is that Penal Code section 1533, permitting a nighttime search, must be strictly construed. And the warrant must conform to the statutory requirement in every material detail. (People v. Mills (1967) 251 Cal.App.2d 420, 422 [ 59 Cal.Rptr. 489 ].)

The standard set forth in People v. Watson (1977) 75 Cal.App.3d 592 [ 142 Cal.Rptr. 245 ], is accepted by the majority as controlling. The court in Watson stated the following (at p. 598): “We conclude that the proper standard for ‘good cause’ as specified in Penal Code section 1533 is as follows: the affidavit furnished the magistrate must set forth specific facts which show a necessity for service of the warrant at night rather than between the hours of 7 a.m. and 10 p.m. This means that the magistrate must be informed of facts from which it reasonably may be concluded that the contraband to be seized will not be in the place to…

In proceedings under Welfare and Institutions Code section 602, defendant, a minor, was found by the juvenile court to have committed a misdemeanor violation of Penal Code section 459 and a felony violation of Penal Code section 496. He appeals from the denial of his section 1538.5 motion to suppress evidence relating to the misdemeanor count.

Sometime between December 31, 1977, and January 2, 1978, the Centro-Mart store in Stockton was burglarized. Food, cigarettes, liquor, and clothing were removed. The police investigator assigned to the case, Detective Kenneth McGuire, was contacted by a confidential reliable informant on January 4, 1978; the informant stated that on the evening of January 3, he had been present at a house party less than a city block from Centro-Mart. There he observed many items of food, liquor, and cigarettes, and was told by the party's hosts "Sheryl Sandstrum and Donnie R." that these had been stolen from the Centro-Mart over the holidays.

McGuire promptly prepared an affidavit for a search warrant which included a request for an indorsement for night service, stating that the stolen items "are primarily perishable items and easily…