dissenting.
The police, without a warrant, trained binoculars on the window of defendants’ private home to see what they could not see with the naked eye. In the affidavit supporting the warrant, the police included information that they had obtained by use of the binoculars. The affidavit states that, with his naked eyes, the officer saw a “green reflection” in the window on the southeast side of the residence and a “large amount of green foliage covering the entire window on the south side of the residence * * * the color of which was consistent with marijuana.” 101 Or App at 284. The affidavit, however, states that, with the aid of binoculars, the officer was able to observe a “stem consistent in color and shape with that of a marijuana plant.” 101 Or App at 284.
Only the use of binoculars allowed the officer to see that stem. Use of the binoculars was essential to the issuance of the warrant. It also constituted a search. It was a “determined official effort to see or hear what is not plain to a less determined observer.” State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983). That warrantless search violated Article I, section 9.
The majority asserts that police use of “moderate power” binoculars does not impair “the people’s” freedom from scrutiny. See State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988). It argues that binoculars are in common use and that a citizen is able to detect when he is being observed. Police use of binoculars to peer into private homes, however, is not a common use, nor is it at all plain just how a citizen would be able to detect that he is being observed. Moreover, as we noted in State v. Ainsworth, 95 Or App 240, 247, 770 P2d 58, rev allowed 308 Or 158 (1989), although “the ability to detect [a technological enchancement used for scrutiny] might make the intrusion more obvious, it does not make it any less intrusive.”
The concurrence argues that the propriety of the use *291of the binoculars depends on whether a defendant has manifested an intention to exclude the public. It seems to argue that, by placing foliage in his window accessible to view from a neighbor’s land, defendant manifested an intention not to exclude the public from peering into his windows with binoculars. If that argument were adopted, it would allow the police as a regular practice to use binoculars to peer into anyone’s home from adjacent property if the occupant had a window garden with foliage of a color consistent with that of marijuana.
Although State v. Blacker, 52 Or App 1077, 630 P2d 413 (1981), involves the Fourth Amendment, it is instructive here. A policeman on a public thoroughfare trained a spotting scope on a second story residential window and was able to see a marijuana plant in the defendant’s premises. On the basis of those facts, the police obtained a search warrant. The trial court found that the marijuana plant was not visible from the public highway with the naked eye. This court, holding that the search violated the Fourth Amendment, quoted from U.S. v. Taborda, 635 F2d 131, 138 (2d Cir 1980):
“The vice of telescope viewing into the interior of a home is that it risks observation not only of what the household should realize might be seen by unenhanced viewing, but also of intimate details of a person’s private life which he legitimately expects will not be observed either by naked eye or enhanced vision * * 52 Or App at 1080. (Footnotes omitted.)
We also stated:
“The state argues that because defendant did not close the curtain to the window, he thereby forfeited his expectation of privacy. * * * However, where, as here, only an enhanced eye could penetrate, we do not think defendant’s failure to draw the curtain should be interpreted as a renunciation of his expectation of privacy. See U.S. v. Taborda, supra, 635 F2d at 139; U.S. v. Kim, 415 F Supp 1252 (D Hawaii 1976); People v. Arno, 90 Cal App 3d 505, 153 Cal Rptr 624 (1979); see also, [1] La Fave, [Search and Seizure], § 2.2, 260-61 [1978].
“In sum, we reach the same conclusion as the United States Court of Appeals reached in Taborda:
“ * * [Observation of objects and activities inside a person’s home by unenhanced vision from a location where the observer may properly be does not impair a *292legitimate expectation of privacy. However, any enhanced viewing of the interior of a home does impair legitimate expectation of privacy and encounters the Fourth Amendment’s warrant requirement unless circumstances create a traditional exception to that requirement.’ 635 F2d at 139.” 52 Or App at 1081. (Emphasis supplied).
The magistrate here should not have considered the information that the police obtained through the use of binoculars. See State v. Donahue, 93 Or App 341, 345, 762 P2d 1022 (1988), rev den 307 Or 303 (1989). Without that information, the affidavit does not state probable cause to support the warrant. It only states facts about defendants’ power consumption and a description of what the officer could see with his naked eye. High power consumption alone is not enough to establish probable cause. State v. McBride, 96 Or App 268, 278, 773 P2d 379, rev den 308 Or 184 (1989). A green reflection and visible green foliage do not make up for the deficiency.
I dissent.