Romo

Defendant was charged with one count of cultivating marijuana (Health & Saf. Code, § 11358), one count of possessing marijuana for sale (Health & Saf. Code, § 11359) and one count of possessing cocaine. (Health & Saf. Code, § 11350.) He pleaded not guilty to each count. At his preliminary hearing he moved to suppress the evidence against him (Pen. Code, § 1538.5) arguing it was the fruit of an illegal aerial overflight. The motion was denied.

Defendant renewed his motion to suppress in the superior court, again raising the issue of the illegal aerial overflight, and further arguing the officers’ subsequent entry into his house violated the “knock-notice” provisions of Penal Code section 1531. The motion was denied.

Defendant then withdrew his not guilty plea and pleaded guilty to the charges involving cultivating marijuana and possession of cocaine. The other count was dismissed. Defendant was granted 3 years probation on conditions which included serving a 180-day jail term in county jail.

On appeal he argues: (1) the police overflight of his home was unconstitutional; and (2) the search warrant obtained subsequent to the overflight was executed in an unlawful manner.…

I concur in the result reached by the majority as to the constitutionality of the aerial surveillance of defendant’s pot garden. This result is compelled by the decision of the United States Supreme Court in California v. Ciraolo (1986) 476 U.S. 207 [ 90 L.Ed.2d 210 , 106 S.Ct. 1809 ], Concluding that there is no reasonable expectation of privacy for views into *590 a back yard from navigable airspace Ciraolo holds that the Fourth Amendment is not transgressed by police observation of an open air marijuana plot from a fixed wing aircraft flying at 1,000 feet. (476 U.S. at pp. 213-214 [ 90 L.Ed.2d at p. 217 ].) Ciraolo draws an analogy between the public thoroughfares and the public airways and notes that “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” (Ibid.)

Navigable airspace 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 , 66 S.Ct. 1062 ]; 49 U.S.C. App. § 1304.) A minimum altitude of 500 feet is required for fixed wing craft over uncongested areas. ( 14 C.F.R. § 91.79…

Defendant was charged with one count of cultivating marijuana (Health & Saf. Code, § 11358), one count of possessing marijuana for sale (Health & Saf. Code, § 11359) and one count of possessing cocaine. (Health & Saf. Code, § 11350.) He pleaded not guilty to each count. At his preliminary hearing he moved to suppress the evidence against him (Pen. Code, § 1538.5) arguing it was the fruit of an illegal aerial overflight. The motion was denied.

Defendant renewed his motion to suppress in the superior court, again raising the issue of the illegal aerial overflight, and further arguing the officers' subsequent entry into his house violated the "knock-notice" provisions of Penal Code section 1531. The motion was denied.

Defendant then withdrew his not guilty plea and pleaded guilty to the charges involving cultivating marijuana and possession of cocaine. The other count was dismissed. Defendant was granted 3 years probation on conditions which included serving a 180-day jail term in county jail.

On appeal he argues: (1) the police overflight of his home was unconstitutional; and (2) the search warrant obtained subsequent to the overflight was executed in an…