dissenting.
The issue is whether, after deleting the acknowledged inaccuracies in the affidavit, the issuing magistrate had “some substantial basis,” Illinois v. Gates, 462 US 213, 103 S Ct 2317, 76 L Ed 2d 527 (1983), for concluding that there was probable cause to believe contraband or evidence of a crime would be found in defendants’ residence, outbuildings and the immediately surrounding area.1 I conclude that he did. Therefore, I would reverse the second suppression order.
The affiant stated that with the aid of binoculars he saw and was able to identify several marijuana plants growing on defendants’ property. In fact, identification was made with a spotting scope. Substitution in the affidavit of the words “spotting scope” for the word “binoculars” would not alter the fact that the affiant saw several marijuana plants growing on defendants’ property. This acknowledged inaccuracy had no bearing on the question of probable cause.
The affiant stated that he observed the marijuana from a “Forest Service” road bordering defendants’ property. The evidence established that defendants’ property is not bordered by a Forest Service road. The trial court concluded that affiant’s statement created the impression that he was closer to defendants’ property than he actually was, thus enabling him to observe more accurately. Still, there was evidence that from a lawful vantage point the affiant saw marijuana growing on defendants’ property. The proximity of defendants’ property to a Forest Service road bears no relevance to the ultimate issue, i.e., the affiant’s ability to see the marijuana. Therefore, it is irrelevant to the question of probable cause.
The trial court also faulted the affiant’s omission from his affidavit of facts about the distance from the marijuana to defendants’ residence, the number of trips he made to the place where he made his observations, the absence of human activity near the marijuana, and the absence of a direct *676path or roadway between the marijuana and defendants’ residence. I do not agree with the trial court’s de novo subjective conclusion that those omissions disrupted the magistrate’s inference-drawing process. See State v. McManus, 267 Or 238, 251, 517 P2d 250 (1973); State v. Hermach, 53 Or App 412, 632 P2d 466 (1981); see also Ramia v. State, 471 A2d 1064, 1066 n 2 (Md App 1984). I would defer to the magistrate.
The area surrounding the marijuana was rural and heavily forested. Defendants’ residence was the sole residence on the property. Even had the magistrate known the actual distance between the marijuana and defendants’ residence, probable cause still existed. Further, that the affiant observed the marijuana plants on more than one occasion would strengthen, rather than weaken, his affidavit. The absence of human activity near several 7- to 8-foot marijuana plants did not preclude a reasonable inference that someone was cultivating them. As Judge Richardson observed in his dissent in State v. Anspach, 68 Or App 164, 682 P2d 786 (1984):
“* * * The existence of growing marijuana plants on a single piece of property containing one residence may not be sufficient to prove beyond a reasonable doubt that the residents knowingly possessed or manufactured the drugs, but it does not defy common sense to conclude that there is a probability that the plants and residents are connected.”
The failure of the affidavit to note the absence of a direct path or roadway between the marijuana and defendants’ residence would not preclude a reasonable inference that defendants had access to all their property. I know of no requirement that an affiant state what he did not see or what did not occur. I suggest that such a requirement would be unrealistic.
The trial court concluded that the affidavit conveyed the impression the residence and the marijuana were in the same general area of defendants’ property, whereas this was known by the affiant to be inaccurate. That is not controlling. Marijuana plants were observed growing on defendants’ property. Defendants’ residence was the only one on the property. That evidence, together with additional evidence in the affidavit, could give the magistrate “some substantial basis” for concluding that implements and items utilized or produced in the cultivation of marijuana would be found in defendants’ residence and its immediate surroundings. The trial court’s conclusion that the affidavit was deficient is little more than a *677repetition of contentions we have already rejected in this case. See State v. Harp, 48 Or App 185, 616 P2d 564, rev den 290 Or 171 (1980).
As in State v. Anspach, supra, the majority misapprehends the standard of review in this case. In United States v. Ventresca, 380 US 102, 109, 85 S Ct 741, 13 L Ed 2d 684 (1965), the Supreme Court said:
«* * * jf teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once enacted under common law pleadings have no proper place in this area.” 380 US at 108. (Emphasis in original.)
In Illinois v. Gates, supra, the Supreme Court explained:
“* * * The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him * * * there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding] ’ that probable cause existed. Jones v. United States, supra, 362 US at 271, 4 L Ed 2d 697, 80 S Ct 725, 78 ALR2d 233. * * *” (Emphasis added.) 462 US at 238.
See Massachusetts v. Upton,_US_, 104 S Ct 2085, 80 L Ed 2d 721 (1984). Examined in the light of Gates, the affidavit here is sufficient. No state constitutional issue is presented. To the extent that the sufficiency of the affidavit is doubtful or marginal, I would defer to the magistrate.2 The majority *678primarily relies on State v. Anspach, supra. In my opinion, that case was wrongly decided and is factually distinguishable.
Finally, I see no compelling reason why the exclusionary rule should be applied here. See State v. Anspach, supra (Van Hoomissen, J., dissenting). Again, as in Anspach, the majority holds that it is the magistrate who has blundered, not the constable. Under such circumstances, the prime purpose of the rule, to deter future unlawful police conduct, is not well served.
Richardson, J., joins in this dissent.The trial court did not suppress evidence of 393 marijuana plants found growing on defendants’ property. Defendants acknowledge that the state may proceed against them with that evidence regardless of the outcome here. See Oliver v. United States, _US_, 104 S Ct 1735, 80 L Ed 2d 214 (1984); Maine v. Thornton,_US _, 104 S Ct 1735, 80 L Ed 2d 214 (1984).
In Massachusetts v. Upton, supra, the United States Supreme Court stated:
“The Supreme Judicial Court also erred in failing to grant any deference to the decision of the magistrate to issue a warrant. Instead of merely deciding whether the evidence viewed as a whole provided a ‘substantial basis’ for the magistrate’s finding of probable cause, the court conducted a de novo probable cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates. 103 S.Ct., at 2331. ‘A grudging or negative attitude by reviewing courts toward warrants,’ United States v. Ventresca, 380 U.S. 102 (1965), is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be *678the case. Gates, supra, at 2331 n. 10. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.”_US at__
In a footnote in Massachusetts v. Upton, supra, the Court stated:
“ ‘If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the warrant clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring “the individual whose property is searched or seized of the unlawful authority of the executing officer, his need to search, and the limits of his power to search.” United States v. Chadwick, 433 U.S. 1, 8 (1977).’ Gates, supra, at 2331.”-US at--