Roberts

Defendant was charged with cultivation of marijuana and possession of marijuana for sale. After his motion to suppress was denied, defendant proceeded to trial, but during jury selection he pled guilty. He was sentenced to two years in prison for cultivation. 1 Execution was suspended, and he was placed on probation for three years upon condi *481 tion, inter alia, that he serve one year in the county jail. Defendant now appeals.

Facts

On October 3, 1980, Sergeant Gunderson, Detective Sergeant Phillips, and two other officers from the Sonoma County Sheriff’s Office were flying over a rural area of the county. They were on an unrelated mission, but they decided to fly over defendant’s property to look for marijuana. This decision was made because over the past two months Sergeant Gunderson had observed growing marijuana plants on the property. When first seen, the plants were two or three feet high and planted outside a large greenhouse structure. Over time, the plants had been moved into the greenhouse.

On the afternoon of October 3, the officers flew over defendant’s property in a helicopter. They flew at about three hundred feet above ground and circled the property…

Defendant was charged with cultivation of marijuana and possession of marijuana for sale. After his motion to suppress was denied, defendant proceeded to trial, but during jury selection he pled guilty. He was sentenced to two years in prison for cultivation. [1] Execution was suspended, and he was placed on probation for three years upon condition, inter alia, that he serve one year in the county jail. Defendant now appeals.

On October 3, 1980, Sergeant Gunderson, Detective Sergeant Phillips, and two other officers from the Sonoma County Sheriff's Office were flying over a rural area of the county. They were on an unrelated mission, but they decided to fly over defendant's property to look for marijuana. This decision was made because over the past two months Sergeant Gunderson had observed growing marijuana plants on the property. When first seen, the plants were two or three feet high and planted outside a large greenhouse structure. Over time, the plants had been moved into the greenhouse.

On the afternoon of October 3, the officers flew over defendant's property in a helicopter. They flew at about three hundred feet above ground and circled the…

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…