People v. Superior Court (Brown)

In People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, a burglary had been committed, certain items were missing from the burglarized home and the defendant and another man were implicated in the burglary. The court found these facts sufficient to justify a search of the defendant's home even though the missing items had not been seen in the house nor had anyone been observed transporting the items there. The court explained: "'The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.'" ( People v. Superior Court (Brown), supra, 49 Cal.App.3d 160 at p. 167.) The affidavit recited that a particular house was occupied by the defendant, but contained no factual allegations in support of that recitation. The trial court in Brown characterized the statement as "'a recital of a reason for the application'" and not "'a statement under oath as to the fact . . . that defendant . . . in some manner occupied or had control over the subject premises or placed the items therein.'" (Ibid. ) The appellate court disagreed, saying, "Viewed in a common sense rather than a hypertechnical way, the allegation of residence is a direct averment under oath of the fact asserted and therefore was properly considered by the magistrate." ( Id. , at pp. 166-167.)