concurring.
The affidavit is sufficient upon its face. It alleges that the affiant, a state police officer, saw defendant hand to a third party what appeared to be a baggie of marijuana and receive money in return. From such statements the magistrate could conclude that the defendant was purveying marijuana from Ms veMcle and that it was probable the drug existed in the automobile.
The affidavit being sufficient upon its face, the resultant warrant and search were valid unless the accuracy of the facts therein could be controverted. Despite no formal motion to controvert having been filed under ORS 141.150 and 141.160 and no affidavit having been filed as required by State v. Wright, 266 Or 163, 511 P2d 1223 (1973), the accuracy of the statéments in the affidavit was gone into fully and testi*253mony was taken concerning such, accuracy. The matter was tried as if both parties were treating the defendant’s motion to quash the affidavit and warrant as controverting the affidavit and no objection was made to so proceeding. The matter having been so tried and treated, this court shordd also so treat it, and we do not have to decide whether the motions filed, in the face of objection, were sufficient to test the accuracy of the affidavit.
The evidence at the hearing of the motion to quash showed that what the affiant had actually seen was the defendant passing a plastic bag to a third party and receiving what appeared to be money in return. With no knowledge other than this, there is insufficient information upon which to conclude that drugs were being passed. There is probably nothing that is used more as a receptacle for many things than a plastic bag. For all the affiant knew, defendant could have been passing a sandwich or fish worms to a third party and receiving their cost in return.
However, if the police had reliable information upon which to base a belief that defendant was a purveyor of drugs, the transaction observed by the officer would have had a completely different complexion, because all officers are aware that plastic bags are the containers usually used for marijuana. It, therefore, becomes important whether the statement in the affidavit that defendant was known to affiant to be a trafficker 'in narcotics and dangerous drugs could be considered in determining probable cause. It could not be so considered because the underlying information upon which affiant’s knowledge was based was not disclosed to the magistrate. If the mere statement that the affiant knew the defendant’s reputation to be that *254of a dealer in drugs is sufficient, an affiant is able to raise the legal significance of what he otherwise says without the scrutiny of anyone. He, not the magistrate, determines probable cause. Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969).