Fly

The People appeal, pursuant to paragraph (7) of subdivision (a) of section 1238 of the Penal Code, from an order made under section 1385 of the Penal Code, dismissing a criminal prosecution after the trial court had granted defendants’ motion under section 1538.5 of the Penal Code to suppress certain evidence. We affirm the order of dismissal.

Acting on a tip, a narcotic agent proceeded to investigate the premises occupied by defendants. With the permission of a neighbor, the agent attempted to look into the backyard of defendants’ residence. Because his view was obstructed by foliage, he was able only to see plants that might be marijuana. By the agent’s own account that viewing was not enough to enable him to say positively that the plants were marijuana. He returned the next day with a telescope and (again with the neighbor’s permission) looked through an opening in the foliage. The enlarged view which his telescope gave him enabled him to be certain that the plants were, in fact, marijuana. The agent then procured a warrant, the execution of which resulted in securing the marijuana and other drugs which form the basis of the present prosecution and which the trial…