concurring.
I concur in the decision affirming the judgment. I write separately on the question whether the affiant’s use of binoculars constituted a search that was not authorized by a warrant or by some exception to the warrant requirement. Defendants argued the issue under both the federal and state constitutions.
Both the lead opinion and the dissent focus on the type of “technological enhancement” used as the principal relevant consideration. The inquiry may properly include the *288character of the device used, but the analysis required is whether a privacy interest, i.e., an interest in freedom from particular forms of government scrutiny, has been violated by the conduct of the government official. See State v. Campbell, 306 Or 157, 759 P2d 1040 (1988). If there is no protected privacy interest, then it matters not at all what device the police used to see what a person was doing. For example, if an officer uses a 600 millimeter camera lens from a distance of 500 feet to photograph a man exposing himself on a public street corner, there is no search, because there has been no protected privacy interest violated. See State v. Louis, 296 Or 57, 672 P2d 708 (1983).
Certainly a person has a privacy interest in conduct or things within a home. However, a person may sacrifice the privacy interest otherwise available by his own conduct. In that instance, when the conduct is observed, there is no search and no need to address the need for a warrant. In State v. Louis, supra, the court held that the defendant had “sacrificed” the “expectation of privacy” of his home when he exposed himself in a window open to public view. There was no search, even though the officers used a camera with a telephoto lens to obtain the evidence.
Although State v. Campbell, supra, did not involve the issue of technological enhancement, the court discussed the privacy interest protected by Article I, section 9. It said:
“One explanation for the absence of a constitutionally protected interest against certain forms of government scrutiny may be the absence of any freedom from those forms of scrutiny in society at large. The reason that the observations of a police officer who is standing in a public place infringe no privacy interest may be that there is no generally recognized freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom from scrutiny available to ‘the people.’ ” 306 Or at 170.
Although the court eschewed definitions of the right of privacy based on phrases such as “reasonable expectation of privacy” or on concepts of social or legal norms, the opinion suggests some obeisance to what society would be willing to recognize.
In State v. Dixson/Digby, 307 Or 195, 766 P2d 1015 (1988), the court, in discussing the privacy protection *289accorded the homeowner’s land outside the curtilage by Article I, section 9, concluded that, in order to have that privacy, the person must manifest an intention to exclude the public and thereby the government. Although that principle is not readily transferrable to a claim of privacy within a dwelling, it is a symptom of the analysis that the court appears to follow in such cases. If a person in his dwelling conducts his affairs in such a way that they are exposed to the public, he has not manifested a desire for privacy and cannot expect it.
In this case, the plants that the officer saw with his “naked eye” were in the window. Had that window been located five feet from the officer’s lawful vantage point, there would have been no question that defendant had, by exposing the plants in the window, “sacrificed” the privacy that the confines of his dwelling seemed to manifest. See State v. Louis, supra. In that instance, there would be no generally recognized freedom from scrutiny of the plants in the window by private individuals and, thus, no privacy interest to protect from government view. However, an otherwise unobstructed window may be so far from a public way or other vantage point that the distance can be seen as an objective, if not subjective, manifestation of privacy or, at least, not a forfeiture of it. Conceptually, the person may think that there is no need to hide or screen the activity, because it cannot be seen by the public. There is therefore, in some measure a continuum from obvious view to no view at all.
Applying that analysis, I conclude that defendants, by placing plants in the window so that they could be seen by the officer from his lawful vantage point without binoculars, sacrificed the privacy interest inherent in his dwelling to the extent of what appeared in the window. They may have entertained a hope that no one, especially police officers, would view the window garden, but that is not the same as manifesting a desire for privacy from any or all views. The window was 50 to 75 yards from the property line. The officer, without the aid of binoculars, was able to see the plants and to conclude that their color was consistent with marijuana. The fact that the officer used binoculars to see the stem of the plants and to obtain information to confirm his opinion about the plants does not show that defendants had not forfeited their privacy. The plants were readily visible in the window, and the binoculars enabled the officer to see them in more detail. See Dow *290Chemical Co. v. United States, 476 US 227, 106 S Ct 1819, 90 L Ed 2d 226 (1986). In this context, the use by the officer of binoculars to see more clearly what could be seen with the unaided human eye did not significantly impair defendants’ freedom from scrutiny.