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 be searched during the hours of 7 a.m. to 10 p.m.” Did the affidavit furnish such specific facts to the magistrate? That is, were facts averred which reasonably could lead the magistrate to the conclusion that contraband would not have been in place at 7 a.m. following the signing of the search warrant? In my view, the facts in this case fall materially short of the rule as enunciated by the Watson court.
The latest that the burglary could have taken place, according to the record, is at 9 a.m. on January 2, 1978. An informant advised the policeman affiant that he had been at a party at night on January 3. That *28is, two nights after the last possible date during which the items could have been removed from the store. That information was passed on to the officer on January 4. The record does not indicate whether that was at 1 a.m. in the morning, late afternoon, or the evening of the 4th. What it does tell us is that between 11 and 11:30 p.m., the officer went to the magistrate’s home to obtain the search warrant, and that the warrant was served at 12:30 a.m. on January 5.
The majority correctly state the perishable nature of the stolen goods is not sufficient to warrant a nighttime search. The majority, however, then engage in speculation, as to what might have been. They suggest that since the informant had seen stolen items at a party two nights after the goods were stolen (and two days before the search); one can infer that the stolen items may have been consumed at that party. There appears to be a further assumption that the items continued to be consumed.
All that may or may not be. What is clear is that nothing appears in the affidavit. No statement regarding consumption appears. Further, and more importantly, there is nothing in the affidavit which would suggest that those items would disappear during the night of January 4 and 5 between the hours of 11 and 11:30 p.m., when the search warrant was signed, and the following morning at 7 a.m.
When we recall, as we must, the public policy against nighttime search and decisional law which strictly construes Penal Code section 1533 the conclusion follows. Good cause was not shown; the nighttime search warrant was defective.
A petition for a rehearing was denied October 17, 1978, and appellant’s petition for a hearing by the Supreme Court was denied November 15, 1978.