dissenting.
Because I disagree with the majority’s conclusion that the information in the affidavit constituted probable cause, I dissent.
Although defendant’s activity was suspicious, the observations recorded in the affidavit were consistent with lawful activity and did not constitute probable cause to issue a search warrant. That a person associates with persons who *603have manufactured drugs in the past could, in some circumstances, constitute probable cause. See 2 LaFave, Search and Seizure, § 3.6(c), 50 (1987). The illustrative cases, however, involve present or immediately prior criminal activity of a defendant’s associates, which raised the level of suspicion to probable cause with regard to the defendant. LaFave, supra, § 3.6(c), 49-58. Similarly, in State v. Christen/Hankins, 79 Or 774, 720 P2d 1303 (1986), the informants’ tip provided information of present criminal activity. Here, one of defendant’s associates had been arrested for manufacturing more than an ounce of marijuana in 1981. Another was “known as a drug abuser” and had been involved in an indoor marijuana growing operation two years before the making of the affidavit. He was not arrested or charged. No inference that defendant was engaged in present criminal activity can be drawn from his associates’ possible past criminal conduct, even taken together with the other facts in this case. There was not a sufficient basis for issuing a warrant to search defendant’s residence.
I would reverse.