dissenting.
I think there are two questions in this case: (1) does the affidavit in support of a warrant to search defendant’s residence contain information that is the fruit of a prior illegal search; and (2) if so, does the balance of the affidavit establish probable cause. On this record, I believe both questions must be resolved in defendant’s favor, and therefore would reverse and remand.
(1) Prior illegal search.
As required by a local rule of the Lane County circuit court, defendant’s motion to suppress was supported by affidavit. The motion alleged in part:
“B. That information contained on lines 20 through 24 of Page One of the Affidavit for the Search Warrant and 1 through 3 of Page Two of the Affidavit for the Search Warrant was illegally obtained as has been already adjudicated in Lane County Circuit Court in the case arising out of the fact indicated in said parts of the Affidavit.”
The supporting affidavit alleged in part:
“That the search of the defendant’s vehicle on the 30th day of November, 1973, giving rise to *533another criminal charge against the defendant, has previously been ruled by the Honorable William Wells, to be an illegal search.”
The part of the search-warrant affidavit thereby attacked by defendant read:
“* * * I am familiar with Arthur William Mack and know that he was arrested for possession of marihuana and possession of cocaine on November 30, 1973; that he had made a similar compartment in another vehicle, Oregon license 9J 7102, and had narcotics hidden in that compartment as well as in compartments in a second vehicle, Oregon license H902963, both vehicles being registered to Arthur Mack * *
In other words, what has happened here is that the present search-warrant affidavit, dated February 22, 1974, incorporates information about a prior, November 30, 1973, search of one of defendant’s vehicles, discovery of drugs in a hidden compartment, and arrest of defendant at that time. It is this November 30 information that defendant claims was illegally obtained.
Practice and procedures under the relevant Lane County local court rule are discussed in: State v. Downes, 19 Or App 401, 528 P2d 110 (1974), Sup Ct review denied (1975); State v. Fitzgerald, 19 Or App 860, 530 P2d 553 (1974); State v. Miller, 17 Or App 352, 521 P2d 1330, aff'd 269 Or 328, 524 P2d 1399 (1974). These cases point out that the purpose of the local rule is to narrow the factual disputes.
“* * * If [factual] disputes exist, then a hearing should be held to resolve them. If the facts are not disputed, no hearing is required. There is no valid purpose served in calling, questioning and cross-examining witnesses unless the facts to be proved by those witnesses are in dispute.” State v. Downes, 19 Or App at 406.
These cases also seem to state, or at least strongly *534imply, that allegations in affidavits filed pursiiant to the local rule are assumed to he true unless and until controverted.
“* * * Defendant did not file or seek to file a counter-affidavit denying or explaining any of the facts as set forth in the affidavit filed hy the state * * Downes, 19 Or App at 406.
The facts at bar are: (1) the defendant has, by motion to suppress and supporting affidavit, alleged that part of the contents of the instant search-warrant affidavit was illegally obtained; and (2) the state has not filed any counter-affidavit denying defendant’s allegation. Under the relevant Lane County local rule, as interpreted in Miller, Downes and Fitzgerald, further analysis of the probable-cause question should proceed on the assumption that defendant’s allegation is true.
(2) Probable cause.
The next question is, once the part of the search-warrant affidavit alleged without controversy to be the product of a prior illegal search is disregarded, does the balance of the affidavit establish probable cause to search defendant’s residence. My answer is “no.”
The majority’s analysis to the contrary is that the following facts in the affidavit establish probable cause.
“1. Defendant’s current association at his home with persons with prior illegal drug involvement.”
Actually, the affidavit only connects defendant with two vehicles owned by persons with prior drug involvement, although it is possible to infer association with persons from connection with their vehicles.
“2. Defendant’s own prior arrest within the past four months on a drug charge # *
*535This refers to the part of the search-warrant affidavit describing the November 30 search of defendant’s vehicle and arrest of defendant. However, the November 30 events have been established to have been the product of an illegal search. They have to be disregarded.
“3. Defendant’s prior modus operandi of constructing hidden compartments in vehicles to contain narcotics.”
Knowledge of defendant’s “prior modus operandi” was also a product of the November 30 search, which was illegal, and thus the knowledge gained at that time cannot here be considered.
“4. Information from an unnamed citizen that defendant had constructed a similar compartment in one of his vehicles;
“5. Confirmation of the citizen’s reliability through an independent check of the registration of the defendant’s ownership of the vehicle described by the informant, and of defendant’s Falls City address # * * »
According to the search-warrant affidavit, the informant told the officer: (a) many people visited defendant’s house, staying short periods of time; (b) defendant had “cut out one inside panel of the bed of” his pickup truck; and (c) another of defendant’s vehicles had Oregon license number MGB 504. It was only this last item that the officer confirmed independently; the officer could not “confirm” what the informant said about “defendant’s Falls City address” for the simple reason that the informant said nothing about it — that information came from a different person, defendant’s landlord. With so little confirmation of what the informant had said — only the registration check of one vehicle — it is doubtful that the informant’s reliability was sufficiently established. But in any *536event, the informant’s most significant report — that defendant was constructing a hidden compartment in one of his vehicles — loses its significance when we remember the fact that defendant had done similar things in the past is part of the search-warrant affidavit we cannot consider because of the illegal-search issue.
“6. The observation of defendant in the afternoon apparently loading objects at and from the premises sought to be searched, which was his own home, into the rear of the turquoise panel van, which was later that same day found to contain a large quantity of illegal drugs.”
This adds little or nothing under State v. Fahey, 7 Or App 23, 489 P2d 980 (1971), and State v. Metler, 6 Or App 356, 487 P2d 1377 (1971), in which we held that an allegation that somebody was. seen carrying undescribed items into or out of premises where drugs were later discovered does not amount to probable cause to search all other places the undescribed items were transported to or from.
In summary, once the fruits of a prior illegal search are excised from this search-warrant affidavit, what remains is not sufficient to establish probable cause.
For the foregoing reasons I respectfully dissent.