(dissenting) — Because I believe that search warrant affidavits based on aerial views must inform the magistrate of the altitude from which the marijuana was viewed, I dissent.
The facts of this case involve a 1-time flyover of the Cord property at 3,400 feet above ground level (AGL) following a tip from an anonymous informant. The normal surveillance flyover altitude is 1,000 to 1,500 feet AGL, a fact known by the magistrate who issued the search warrant. The affidavit did not reveal the altitude from which the view was made, *370nor was there any additional information as to the reliability or credibility of the informant. A search warrant was issued.
The problem presented is not with what was disclosed, but rather with what was not disclosed. The issue then is if the information had been disclosed could probable cause have been found, and more specifically, what is necessary in Washington before search warrants will be authorized following aerial views.
This court has recently recognized and approved the use of aerial views in the State of Washington. State v. Myrick, 102 Wn.2d 506, 688 P.2d 151 (1984). In Myrick, we held certain aerial views (those not unreasonably intrusive or not aided by sight enhancing devices) not to be searches. This enables officers to do flyovers without prior court authorization.
A search warrant is required before entering the property to seize the viewed marijuana. Inherent in the determination of probable cause by the neutral and detached magistrate is the analysis of the underlying facts upon which the officer bases his belief. State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980).
The omitted information, which the majority recognizes to be a relevant omission of fact, concerns the altitude from which the officer allegedly identified the marijuana. Altitude plays a very crucial role in aerial views. Generally, the problem relates to officers flying too low, thereby unreasonably intruding into a citizen's privacy. See State v. Cock-rell, 102 Wn.2d 561, 689 P.2d 32 (1984); Comment, Aerial Surveillance: A Plane View of the Fourth Amendment, 18 Gonz. L. Rev. 307, 326-28 (1982-83).
This case presents the unique setting (and the only case found) of the officer flying too high. The Fourth Amendment is implicated not by the flyover itself, but rather by the circumstances of this flyover and the officer's assertion of ability to see and identify from that altitude. The identification in this case is the only basis for a finding of probable cause. The anonymous informant's tip cannot support *371the finding of probable cause because no information was supplied to the magistrate as to the informant's credibility or reliability. See State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984).
I believe that when aerial views are the means utilized to show probable cause for the issuance of a search warrant the affidavit must reveal the altitude from which the identification was made. This will serve two purposes: (1) It will guard against issuance of warrants following unreasonably low intrusive searches. (2) It will insure that officers do not partake in unreasonably high questionable views. Requiring inclusion of this information will insure that the probable cause determination is made by a neutral and detached magistrate and not "by the officer engaged in the often competitive enterprise of ferreting out crime." (Footnote omitted.) Johnson v. United States, 333 U.S. 10, 14, 92 L. Ed. 436, 68 S. Ct. 367 (1948).
The majority does not consider any of the above policy analysis, limiting its determination to finding that the omission was not done intentionally or with reckless disregard, following the Franks v. Delaware, 438 U.S. 154, 171, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978) test for misrepresentations.
The United States Supreme Court has never itself extended the Franks analysis to omissions. As noted by the majority, some lower federal courts and state courts have. See 2 W. LaFave, Search and Seizure § 4.4 n.39.1 (1978 & Supp. 1984). Most of these courts, as does the majority here, announce the Franks language, extend it to omissions, and then find without analysis that in the case presented the omission was not intentional or reckless. Some cases find there was sufficient other information to show probable cause. Unfortunately, these approaches provide no basis for courts holding suppression hearings to determine what is intentional or done with reckless disregard.
Initially, it should be noted that the focus is reasonableness. "Reasonableness is the key ingredient in the test for issuance of a search warrant. That is precisely what the *372federal constitution says and our state constitution necessarily implies." State v. Patterson, 83 Wn.2d 49, 52, 515 P.2d 496 (1973). With misrepresentations, the question is whether enough accurate facts and circumstances give the neutral and detached magistrate good reason to issue the warrant. With omissions the question asked should be different: If all the material facts and circumstances known by the affiant officer had been presented to the magistrate, would there have been a finding of probable cause sufficient to issue a search warrant?
The materiality of the omission to the finding of probable cause is the threshold issue. Nonmaterial, peripheral omitted facts have no effect on the determination of probable cause and are not entitled to review. However, once a fact is determined to be material, it is very difficult to justify its absence. If inclusion would affect the probable cause determination, then it should be included.
As noted in United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980):
[I]t will often be difficult for an accused to prove that an omission was made intentionally or with reckless disregard rather than negligently unless he has somehow gained independent evidence that the affiant had acted from bad motive or recklessly in conducting his investigation and making the affidavit. Nevertheless, it follows from Franks that the accused bears the burden of showing by a preponderance of the evidence that the omission was more than a negligent act. It is possible that when the facts omitted from the affidavit are clearly critical to a finding of probable cause the fact of recklessness may be inferred from proof of the omission itself.
(Italics mine.)
This is such a case. The altitude, when it is three times the norm known to the judge, is clearly critical to his crediting the officer's identification. An officer's testimony "under oath, and his statements of personal knowledge are presumptively reliable.” (Italics mine.) State v. Mannhalt, 33 Wn. App. 696, 700, 658 P.2d 15 (1983) (citing State v. *373Matlock, 27 Wn. App. 152, 155, 616 P.2d 684 (1980); State v. Smith, 93 Wn.2d 329, 352, 610 P.2d 869, cert. denied, 449 U.S. 873, 66 L. Ed. 2d 93, 101 S. Ct. 213 (1980)). The problem here is not with the statements made but rather with the information that was withheld. The officer's alleged identification of marijuana is highly doubtful, if not impossible, when done from an altitude of two-thirds of a mile. While recognizing the need not to review the issuance of search warrants in a "hypertechnical" fashion, State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977); United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965), it is necessary to review them realistically. The officer's qualifications revealed in the affidavit related to microscopic marijuana identification. The officer admitted at the suppression hearing that he and the Stevens County personnel did not go through aerial surveillance school. Their ability to identify was based on flyovers with a United States Drug Enforcement Agency pilot, resulting in the 10 identifications and seizures.
It is proper to give great deference to the issuing magistrate's determination of probable cause. State v. Seagull, 95 Wn.2d 898, 907, 632 P.2d 44 (1981). But the affiant officer must also give proper deference to the role of the neutral and detached magistrate's function of determining the existence of probable cause. When critical information going to the heart of the determination is omitted, then the officer not the magistrate is making the determination.
If the government had unfettered power to pick and choose which facts to present to the magistrate regardless of how misleading the presentations were, the magistrate's review of the affidavit would be rendered meaningless. The magistrate would not be provided with a fair opportunity to review the government's evidence in making the probable cause determination. He would perform his crucial role at the whim, caprice or duplicity of the governmental agents involved in the case.
United States v. Dorfman, 542 F. Supp. 345, 367 (N.D. Ill. *3741982). This problem can be solved by requiring inclusion of the altitude in search warrant affidavits following aerial views. I would so hold.
Pearson, J., concurs with Williams, C.J.
Reconsideration denied March 5, 1985.