dissenting.
The majority holds that the trial court erred in denying defendants’ motion to suppress. It concludes that the warrant in this case was constitutionally defective because it failed to describe with sufficient particularity the place to be searched. For the reasons I will explain, I believe that the trial court acted properly in denying defendants’ motion to suppress.
*213The majority is right that the purpose of the particularity requirement is to minimize the risk of intrusion into premises other than those as to which a magistrate has found probable cause to search. State v. Devine, 307 Or 341, 343, 768 P2d 913 (1989). As the Supreme Court explained in State v. Blackburn / Barber, 266 Or 28, 34, 511 P2d 381 (1973):
“If the search warrant describes premises in such a way that it makes possible the invasion of this interest in privacy without the foundation of probable cause for the search, the warrant is too broad and therefore constitutionally defective.”
My disagreement with the majority begins with its conclusion that there was not a foundation of probable cause to support the issuance of a warrant for the search of the entire structure at 111 Cary Street and its three occupants; Craig and Lisa Trax and Kathleen Brown. The majority begins its analysis by assessing the information in the affidavit supporting the search warrant and reaching the conclusion that the information concerning Brown was not sufficient to provide probable cause to support a search of her residence. The majority concludes that “the only information about Brown in the affidavit was either entirely innocuous * * * or too stale to provide probable cause for a search.” 179 Or App at 200. The problem with the majority’s holding on this point, however, is that the issuing magistrate found that there was probable cause to search the entire structure at 111 Cary Street and its three occupants. The trial court characterized the issues before it as “the failure to adequately describe a multi-unit dwelling to be searched * * * [and] whether the unnamed informant’s reliability was sufficiently established.” Accordingly, it did not address this specific issue. On appeal, except for the contentions that they make in this assignment of error related to the trial court’s denial of their motion to controvert, defendants do not challenge the magistrate’s finding of probable cause. Defendants’ argument on appeal is limited to the legal argument that, “when police search any separate residence in a structure that is not specifically described in a warrant, the search is unsupported by a warrant and, therefore, is unreasonable per se.” In other words, defendants argue that there is a per se rule that, if a warrant describes a structure and it turns out that there are *214separate residences within the structure, regardless of the particular circumstances, the warrant is automatically constitutionally defective because of a lack of particularity.1
The majority essentially adopts defendants’ per se rule, concluding that, under our case law, if a warrant describes premises that turn out to include multiple residences, unless there is a “tie breaker” in the warrant itself, allowing the executing officer to ascertain which residence may be searched, the warrant is automatically invalid for a lack of particularity. I do not believe that our case law compels the adoption of such a rigid rule. As I will discuss, there are circumstances where, even though an unanticipated separate living area is discovered during the execution of a search, there is sufficient information in the warrant and the supporting affidavit to provide probable cause to search that additional living area in the structure.
In reaching its conclusion, the majority relies strongly on the Supreme Court’s decision in Devine. The majority draws the rule from Devine that, if a warrant describes one residence then, under all circumstances, only one residence may be searched pursuant to the warrant. Viewed in its context, I do not believe that Devine supports that broad a proposition. The warrant in Devine authorized entry into the premises at 442 W. Centennial. The disputed area searched was a separate structure behind the house. It had a different address, 442 ½ W. Centennial, and was a different color than the structure described in the warrant. Significantly, in Devine, the area that was discovered and searched during the execution of the warrant was not an area that was included in the description in the warrant. No one disputed that the area searched was in a completely different *215structure from the premises described in the warrant. Further, there was no information in the warrant or supporting affidavit that provided probable cause to support a search of that separate structure.
I would agree that Devine holds that, if a warrant authorizes a search of a structure and it turns out that there is more than one premises within that structure, the warrant may not be sufficiently particular. However, if there is information in the warrant that allows the executing officer to determine with reasonable certainty which area the warrant authorizes to be searched, the warrant does not lack sufficient particularity. Further, if there is information in the warrant and supporting affidavit providing probable cause to search all areas of the premises, even separate living units, the warrant does not suffer from a lack of particularity. In such circumstances, the executing officers can ascertain with reasonable certainty the areas to be searched. Most importantly, there is no risk of intrusion into an area for which there is not probable cause to search and, consequently, no lack of particularity.
In our decision in State v. Wood, 114 Or App 601, 836 P2d 176, rev den 314 Or 574 (1992), we applied Devine in exactly that manner. In that case:
“The police executed a warrant that authorized the search of premises that included a garage at 4339 Aster Street. During the search, the officers discovered an area above the garage in which defendant Palanuk lived. At the suppression hearing, Palanuk testified that the area was his ‘separate residence,’ even though the garage living area did not have a separate house number or telephone service, he received mail at a mailbox that he shared with Wood and her husband, who lived in the house, and used the Woods’ bathroom, because there was no bathroom in the garage. He said that it had a hot plate, a refrigerator and a portable toilet and that a door separated the upstairs area from the rest of the garage. The search of the upstairs portion of the garage revealed several marijuana plants, methamphetamine and drug precursor substances and paraphernalia.” Id. at 603-04 (internal citations omitted).
Relying on Devine, the defendant in Wood argued that the search exceeded the scope of the warrant. In that *216case, however, we did not view Devine as controlling, nor did we articulate a rule that, once the separate premises were discovered, the warrant automatically lacked particularity. Rather, we indicated that because the garage was within the premises described in the warrant and because there was information concerning the garage in the supporting affidavit, it did not matter if, during the course of the search, the police discovered that there was a separate apartment upstairs in the garage. We explained:
“Nothing in the grant of authority in the warrant required the police to terminate the search of the garage because they discovered that someone was living in part of it or that it contained living quarters that were separate from those in the house. The search of the apartment in the garage is consistent with the holding in Devine, because what was searched were the premises specified in the warrant” Id. at 605 (emphasis added).
The majority takes the position that our decision in Wood is factually distinguishable from this case and is not inconsistent with its holding here. I disagree. As here, the warrant in Wood authorized the search of one residence. It specifically mentioned the garage, as does the warrant in this case, and there was no indication in the warrant that there was a separate apartment upstairs in the garage.2 As noted above, we held in Wood that it did not matter if there was a *217separate apartment in the garage, because the garage structure was sufficiently described in the warrant. The majority’s analysis would require a different outcome in Wood. If there were a separate residence in a garage — under the majority’s understanding of Decine — the police could search only one residence, where there was information in the warrant from which the police could determine which residence to search; but, if there was no such information in the warrant, the warrant automatically would be invalid. In this case, as in Wood, both living units were within a structure described in the warrant. Further, here, all occupants of the structure were named in the warrant.
The majority relies on a number of cases, both from Oregon and other jurisdictions, for its holding that if, during a search, separate premises are encountered, the search of all parts of the premises is unauthorized without regard to whether the officers could have anticipated ahead of time that they would encounter the separate premises. Notably, none of the cases relied on by the majority involved circumstances such as here, where there is information about all of the occupants of the structure in the supporting affidavit, and all of the occupants of the structure are named in the warrant.
For example, the Supreme Court’s decision in Siverson v. Olson, 149 Or 323, 40 P2d 65 (1935), involved a civil suit in which the plaintiff, whose home had been searched pursuant to a warrant, brought a suit for damages against the judge who issued, and the officer who executed, the warrant. The warrant authorized the search of “a certain building situated on the premises occupied by and under the control of the said John Doe at No. 309 East Hancock St.” The warrant did not indicate that there were two residences in the building nor did it name the persons to be searched. On appeal from a judgment of nonsuit, the court considered whether the search violated the plaintiffs Article I, section 9, rights as a predicate issue to whether the action could be maintained against the defendants. The court characterized the argument as:
“The fourth assignment of error charges the violation by defendants of section 9, article one of the Constitution of *218Oregon. This is quite indirect. It resembles the piling of Pelion upon Olympus to load the errors of defendants upon the learned trial judge[.]” 149 Or at 327.
The court noted that there were “at least two buildings upon the premises designated as No. 309 East Hancock street.” Id. at 328. Then, citing to a note in Corpus Juris Secondum, the court concluded that the search was invalid. It distinguished an earlier opinion, State v. Quartier, 114 Or 657, 236 P 746 (1925), noting in that case that “it did not appear that there was more than one building” and the “true names of those in possession were expressly stated,” whereas the warrant in Siverson stated on “premises occupied and under the control of said John Doe.” Id. (emphasis added).
In this case, the warrant authorized the search of the entire premises at 111 Cary Street and its three occupants. As discussed above, it is not challenged here that the magistrate, based on the information available at the time of the issuance of the warrant, found that there was probable cause to search the entire structure at 111 Cary Street and the three occupants. As in Wood, the particularity requirement of Article I, section 9, does not automatically require the exclusion of evidence obtained in the search of the structure described in the warrant simply because, during the execution of the search, the police discover a separate living area within the described structure. Here, the magistrate concluded that the information provided probable cause to search the entire structure and all of its occupants. Based on that finding, there was no risk here that, in the execution of the warrant, the police would intrude into an area for which there was no probable cause.
Finally, I agree with the majority that, in light of Devine, the viability of our decision in State v. Wilcutt, 19 Or App 93, 536 P2d 607, rev den (1974), is doubtful. However, I do not agree with the majority that the record supports the finding that the officers had knowledge of the multi-unit nature of this structure before the execution of the warrant. Apparently, Detective Fetsch had performed a consent search of Brown’s apartment located at 111 Cary Street, during the year before this search occurred. However, the trial court expressly found that Admire was not aware of any *219knowledge that Fetsch might have gained about the multiunit nature of this structure during the earlier search of the building. Further, there was no evidence that Fetsch communicated to Admire any knowledge that Fetsch might have gained in the earlier search. In fact, there is no evidence in the record that shows that Fetsch had any recollection that there were multiple units in this building.3 As the trial court found, defendants failed to prove that Admire knew that there was more than one living unit in the apartment.
Because I would affirm the trial court’s denial of defendants’ motion to suppress, I will address defendants’ second assignment of error, in which they argue that the trial court erred in denying their motion to controvert. ORS 133.693. Under that statute, a defendant may contest the “good faith accuracy and truthfulness of the affiant as to the evidence presented before the issuing authority.” ORS 133.693(2). It is a defendant’s burden to prove by a preponderance of evidence that the evidence offered before the issuing magistrate “was not offered in good faith, was not accurate and was not truthful.” ORS 133.693(3).
Defendants argue that the search warrant affidavit contains insufficient facts to have permitted the magistrate to assess the unnamed confidential informant’s reliability and that the police did not sufficiently corroborate the informant’s information. When an affidavit includes information supplied by an unnamed informant, as is the case here, we consider whether the “affidavit communicated the basis for the informant’s knowledge of the things stated and the credibility of the informant or the reliability of the things stated.” State v. Brust, 94 Or App 416, 420, 765 P2d 1246 (1988). “[W]e give deference to the issuing magistrate and resolve doubtful or marginal cases in the light of the preference for warrants.” State v. Poulson, 150 Or App 164, 170, 945 P2d 1084 (1997).
Defendants argue that the information supplied by the confidential informant here failed to meet that standard *220because the affidavit did not provide information on which the magistrate could assess the unnamed informant’s reliability. I disagree. A search warrant affidavit that is based on hearsay must “set forth facts bearing on any unnamed informant’s reliability and shall disclose, as far as possible, the means by which the information was obtained.” ORS 133.545(4). Here, the affidavit states that the informant observed drugs inside defendants’ residence and that one of the defendants personally told the informant that she had additional drugs. That adequately meets the ORS 133.545(4) threshold requirement of setting forth the means by which the information was obtained. See State v. Grimes, 135 Or App 497, 502-03, 899 P2d 1201 (1995), rev den 322 Or 490 (1996) (informant’s knowledge of drug transaction that he witnessed was a sufficient basis for the magistrate to give weight to the informant’s statements).
Similarly, there was adequate information in the affidavit from which the magistrate could ascertain the credibility of the unnamed informant. The affidavit shows that the informant had previously provided information to the police that led to the issuance of five search warrants and the arrest of seven persons. Defendants assert that the information leading to previous arrests was insufficient because it did “not inform the magistrate whether the previous information was itself accurate or reliable.” As the state notes, however, the magistrate was capable of ascertaining accuracy and reliability based on the fact that the informant’s information had led to past arrests. See Grimes, 135 Or App at 503 (fact that informant had previously provided information leading to seizure of drugs and felony arrests was sufficient to establish credibility); see also State v. Kapsalis / Scroggins, 123 Or App 138, 859 P2d 1157 (1993), rev den 318 Or 326 (1994); State v. Strubhar / Jackson, 82 Or App 560, 728 P2d 928 (1986), rev den 302 Or 657 (1987). There was adequate information in the affidavit from which the magistrate could evaluate the credibility of the informant.
Defendants also argue that the affidavit included insufficient corroborating information. The informant here was not criminally involved with the crimes being investigated and, consequently, the court’s review of the informant’s reliability is subject to a less stringent standard than it would *221be if the informant were connected to criminal activity. See State v. Wheelon, 137 Or App 63, 72, 903 P2d 399 (1995), rev den 327 Or 123 (1998) (“We conclude that the informants in this case were subject to the lesser showing of reliability that is required when information is supplied by disinterested citizens and that, in the light of that more lenient standard, the affidavit is sufficient.”). As the trial court found, the police did corroborate the information provided by the informant by viewing the house that the informant described, confirming that someone with the name given by the informant lived there, and discovering that one of the vehicles at the house was registered to a person whose name matched the name given by the informant. The trial court did not err in denying the motion to controvert.
For the reasons discussed above, I would uphold the trial court’s denial of defendants’ motion to suppress and affirm the judgment. Accordingly, I respectfully dissent.
Linder, Wollheim, and Kistler, JJ., join in this dissent.I disagree with the majority’s position that defendants necessarily raised the issue of whether the supporting affidavit provided probable cause to justify the search of all parts of the structure at 111 Cary Street. As pointed out above, defendants make the argument on appeal that, as a matter of law, if a warrant describes one residence and, in fact, the structure includes more than one residence, the warrant is constitutionally defective for a lack of particularity, regardless of the circumstances. Defendants simply did not make the further argument, which they easily could have done, that, even if there is not a per se rule, the information in this supporting affidavit concerning the activities in the structure, and the information regarding its occupants, did not provide probable cause to justify the search of all parts of the structure and its occupants.
In Wood, the warrant authorized the search for evidence of unlawful manufacture and distribution of methamphetamine:
“ ‘CURRENTLY WITHIN, OR ABOUT THE CURTILAGE, OR ASSOCIATED VEHICLES * * * LOCATED AT 4339 ASTER STREET, SPRINGFIELD, LANE COUNTY, OREGON FURTHER DESCRIBED AS A SINGLE STORY, WOOD FRAMED, SINGLE FAMILY DWELLING, LIGHT GREEN IN COLOR WITH WHITE TRIM, WITH THE NUMBERS ‘4339’ ON THE FRONT (NORTH SIDE) OF THE RESIDENCE AND NEXT TO THE DOOR. A CARPORT IS LOCATED ON THE WEST SIDE OF THE RESIDENCE AND A GARAGE CONNECTS TO THE CARPORT ON THE SOUTH SIDE. A TRAVEL TRAILER APPROXIMATELY SIXTEEN FEET IN LENGTH AND WHITE IN COLOR IS PARKED IN THE DRIVEWAY AND NORTH OF THE RESIDENCE. THE RESIDENCE FACES NORTH AND IS LOCATED ON THE SOUTH SIDE OF ASTER STREET, SPRINGFIELD, LANE COUNTY, OREGON.’
“It commands any police officer to
“ ‘SEARCH THE ABOVE DESCRIBED RESIDENCE, CURTILAGE, AND VEHICLES AND PERSONS FOR THE ABOVE DESCRIBED EVIDENCE ***.’ ”114 Or App at 603 n 1.
Contrary to the majority’s assertions, I do not rely only on Admire’s lack of knowledge regarding the premises. I would emphasize that there is no evidence in this record that Fetsch had any recollection that there was more than one living unit in the building.