ELKINGTON, Acting P. J. I dissent.
Law enforcement agents of Sonoma County and perhaps elsewhere, in their effort to enforce the state’s law concerning the cultivation of marijuana, are constantly bedeviled by conflicting opinions of reviewing courts. Our majority opinion of today adds to the confusion.
The events leading to the conviction of this case occurred in 1980, before the amendment of California’s Constitution, June 8, 1982, by adding article I, section 28, commonly known as Proposition 8. The majority opinion, as I [484]read it, purports to state existing law and it may reasonably be so accepted by the Sonoma County authorities upon whom it is binding.
But since the adoption of Proposition 8, federal law is now controlling on matters such as that before us. In re Lance W (1985) 37 Cal.3d 873, 896 [210 Cal.Rptr. 631, 694 P.2d 744], states: “[Although section 1538.5 continues to provide the exclusive procedure by which a defendant may seek suppression of evidence obtained in a search or seizure that violates ‘state constitutional standards,’ a court may exclude the evidence on that basis only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.” (Our italics.)
The majority opinion of our court says that the low altitude of the helicopter “at about 300 feet” above the ground, rendered its occupant’s view of growing marijuana constitutionally impermissible. Yet federal authority states that it is not.
The Federal Aviation Administration (formerly Civil Aeronautics Authority) has promulgated a regulation (14 C.F.R., ch. 1, § 91.79(d)) which states: “Helicopters may be operated at less than the mínimums prescribed [for airplanes] in paragraph (b) [1,000 feet] or (c) [500 feet] of this section if the operation is conducted without hazard to persons or property on the surface.”
Here the trial court impliedly found on substantial evidence that the helicopter operation was “conducted without hazard to persons or property on the surface.” (See People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].)* In People v. Sabo (1986) 185 Cal.App.3d 845, 853 [230 Cal.Rptr. 170], the only reasonably factually similar case, where the reviewing court affirmed, the trial court had impliedly found a helicopter operation not to be “conducted without hazard to persons or property on the surface.”
Referring to earlier and similar rules the United States Supreme Court has said: “The navigable airspace which Congress has placed in the public domain is ‘airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’” (United States v. Causby (1946) 328 U.S. 256, 263 [90 L.Ed. 1206, 1211, 66 S.Ct. 1062].)
[485]“ ‘Navigable air space’ is defined as ‘air space above the minimum safe altitude of flight prescribed by [the Civil Aeronautics Authority].’. . . The public has a right to travel in this air space with the same freedom and the same immunity as it has to travel the public highways or navigable waters.” (Aaron v. United States (Ct.Cl. 1963) 311 F.2d 798, 801.)
And Congress has enacted that: “There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.” (49 U.S.C.A. § 1304.)
And: “State legislation [and of course judicial authority] purporting to deny access to navigable air space would therefore constitute a forbidden exertion of the power which the federal government has asserted.” (United States v. City of New Haven (2d Cir. 1974) 496 F.2d 452, 454.)
More recently the United States Supreme Court decided California v. Ciraolo (1986) 476 U.S. 207, 213-214 [90 L.Ed.2d 210, 216-217, 106 S.Ct. 1809, 1812-1813]). “[The court held:] The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible. . . . ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ . . . [H]Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we readily conclude that respondent’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.”
Since California v. Ciraolo dealt with a heavily populated urban area and the case before us concerns sparsely settled rural country, that case seems doubly apposite here.
And, while the United States Supreme Court in California v. Ciraolo has stated (476 U.S. at p. 213 [90 L.Ed.2d at p. 217, 106 S.Ct. at p. 1813]): “[S]uch observation is precisely what a judicial officer needs to provide a basis for a warrant,” my colleagues have told the Sonoma County law enforcement authorities that it is not.
And, adding to the confusion the majority, relying on People v. Mayoff (1986) 42 Cal.3d 1302, 1316-1317 [233 Cal.Rptr. 2, 729 P.2d 166], say:
[486]“[T]he Mayoff court explained that the aerial observation of a home and curtilage is not unlawful if incidental to the search of open fields. The determining factor is whether the focus of the examination was on a particular curtilage or on the open fields.” Yet the utterance was of three justices (Grodin, Mosk and Reynoso), while two others concurred in the result only and the third dissented. Under well-known rules, in case of an equally divided court on appeal, the findings and judgment of the trial court will prevail.
Additionally I, and apparently my colleagues, have found no authority holding that a helicopter overflight, under the facts and circumstances of this case, is unreasonable or an invasion of privacy, and therefore proscribed by the Fourth Amendment. I would defer, to the greater expertise of the Federal Aviation Administration, and to the federal judiciary, and hold that even under California’s Constitution prior to Proposition 8, the officers of this case committed no transgression.
“ ‘A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court sitting as a finder of fact.’... In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.” (Our italics.) (People v. Lawler, supra, 9 Cal.3d 156, 160.)