I respectfully dissent.
The majority, invoking the California Constitution’s proscription against “unreasonable seizures and searches” (art. I, § 13), holds invalid all warrantless aerial surveillance of backyards and similar “curtilage” areas.1 I cannot join in imposing such a broad, absolute prohibition. In my view, the limited, nonintrusive surveillance undertaken here did not constitute an “unreasonable” search.
The majority’s repeated concern for protecting legitimate privacy interests is entirely misplaced in cases such as this, where the officers surveyed defendant’s backyard at a height of 1,600 feet. At such, a height, as the majority appears to acknowledge, “it is virtually impossible to observe legitimate and private human activities on the ground.” (Ante, p. 384.) Indeed, the present “search” was limited to scrutinizing the color of defendant’s plants, and looking for the distinctive bright green hue of growing marijuana plants. The only privacy interest significantly infringed by such overflights is the interest of the marijuana grower in concealing his illegal crop. Contrary to the majority’s repeated references to “garrison states” and “Orwellian notions,” we are not concerned here with the privacy interests of nude sunbathers, religious cultists, political activists, or anyone except marijuana growers. The majority pays lip service to the self-evident principle that no one has a reasonable expectation of privacy in the conduct of his *387criminal affairs (id., at p. 384), but ultimately the majority fails to apply that sound principle here.2
Statistics contained in the Attorney General’s appellate brief suggest that growing and selling marijuana have become a $1 billion business annually in this state. Defendant appears to be an entrepreneur in this budding “growth industry”—execution of the search warrant issued as a result of the aerial surveillance uncovered 26 growing marijuana plants approximately 6 to 7 feet tall, along with 5,000 grams of loose marijuana. Overflights such as conducted here apparently represent the only effective means of policing the growing of marijuana. In my view, today’s decision promotes such unlawful activity without protecting any cognizable or legitimate privacy interest.
Like most other citizens, I certainly would oppose routine, exploratory backyard aerial searches conducted at a height low enough to disturb tranquility or violate privacy. Here, however, the overflight was conducted in direct response to a citizen informant’s tip after other means of verification failed, and occurred at a height which minimized any unwarranted intrusion. Under such circumstances, as prior cases have indicated, no unreasonable search has occurred. (See People v. St. Amour (1980) 104 Cal.App.3d 886, 891-893 [163 Cal.Rptr. 187]; People v. Sneed (1973) 32 Cal.App.3d 535, 542-543 [108 Cal.Rptr. 146].)
I would affirm the judgment.
Respondent’s petition for a rehearing was denied February 14, 1986. Lucas, L, and Panelli, J., were of the opinion that the petition should be granted.
As this is a pre-Proposition 8 case, the majority’s holding presumably will not affect aerial surveillance conducted after that measure was adopted.
Although the majority finds “theoretical appeal” in the idea that a search technique designed to intrude solely upon criminal conduct cannot be deemed unreasonable (ante, p. 384), the majority concludes that the principle is a “fallacy” (ibid.), relying upon United States v. Karo (1984) 468 U.S. 705 [82 L.Ed.2d 530, 104 S.Ct. 3296], Karo proscribed the monitoring of a “beeper” placed in a can of chemicals and transported to a private residence. The case has little relevance to the aerial surveillance of growing marijuana; the high court merely reaffirmed “the general rule that a search of a house should be conducted pursuant to a warrant.” (P. 718 [82 L.Ed.2d at pp. 543-544].) Use of a.beeper to monitor the location of objects in a private home intrudes generally upon one’s privacy and, unlike the present surveillance, is not limited to the discovery of criminal conduct.