dissent">SCHWAB, C. J.,

dissenting.

For convenience I restate the pertinent portions of the affidavit:

“* * * that Steve McManus is known to me as a trafficker in narcotics and dangerous drugs; that I have this date, April 3, 1972 observed Steve Mc-Manus to hand to Randall Mark Graven what appeared to be a baggie of marijuana and receive money in return; I have made approximately 40 arrests for narcotics violations and the object which McManus passed to Graven was the kind ordinarily used to contain marijuana; that at that time, Steve McManus was operating a 1972 white and orange Ford Ranchero bearing Oregon license AEH 679; that I have reasonable grounds to believe that narcotics and dangerous drugs are located in the above-described vehicle and on the person of the said *92Steve McManus and also are located in his residence at 974 E. Adams St. Burns, Oregon. I make this affidavit in request of a Search Warrant to search the above person and places for narcotics and dangerous drugs.”

Essentially, the only averments in the affidavit that could possibly be interpreted as giving rise to probable cause to suspect that the defendant had committed a crime were: (1) that the police officer saw the defendant hand to Graven what appeared to be a baggie of marihuana in exchange for money; and (2) that the defendant was known to the police officer as a trafficker in narcotics and dangerous drugs.

At the suppression hearing, the sole testimony of the police officer, on direct examination, as to the first averment dealt with what he saw while he was looking out the window of the district attorney’s office in Harney County:

“A. At that time, I observed two vehicles pull up—one belonging to Mr. McManus and the other belonging to Mr. Graven-—on the street out there, pull up side by side and observed Mr. McManus hand something plastic like a plastic baggie, or something, over to Mr. Graven. And then I saw him return something that was green, it looked to me like money.”

On cross-examination, he testified as follows:

“Q. Now, Officer Wilson, you stated that you were in the District Attorney’s office at the time you observed Mr. McManus and Mr. Graven?

“A. Yes, sir.

“Q. And you saw something passed, uh, between them?

“A. Yes, sir.

“Q. And it appeared to be a baggie.

“A. Yes, sir.

*93“Q. Could it have been, uh, uh, any—an ordinary plastic container?

“A. Yes, sir.

“Q. And you couldn’t see the contents of this I take it.

“A. No, sir.

“Q. And, uh, could you be certain that what you saw come back from Mr. Graven was money?

“A. No, sir, I could not.

“Q. (Pause) So then, you’re not certain what was passed.

“A. No, sir.”

The only testimony relating to the second averment was:

“Q. Prior to that particular date, had you known Mr. McManus?

“A. Yes, sir.

“Q. What, if anything, did you know about him?

((# # # # *

“A. Well, we have had information and stuff that he uses and sells, uh, marijuana and other items.

“Q. Did you have this knowledge at the time you were looking out this window?

“A. Yes, sir.”

Spinelli v. United States, 393 US 410, 89 S Ct 584, 21 L Ed 2d 637 (1969), should be dispositive of this matter. In Spinellithe defendant was charged in the federal court with conducting unlawful gambling activities based on evidence seized as the result of a search pursuant to warrant. The affidavit upon which the warrant was issued was made by an agent of the Federal Bureau of Investigation. In essence, it alleged :

(1) * * William Spinelli is known to this *94affiant and to federal law enforcement agents and local law enforcement agents as a bookmaker, an associate of bookmakers, a gambler, and an associate of gamblers.’ ”; •

(2) “* * * the FBI 'has been informed' by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones which have been assigned the numbers WYdown 4-0029 and WYdown 4-0136.’ ” ('393 US at 414) and

(3) “* * * Spinelli was * * * seen parking his car in a lot used by residents of an apartment house at 1108 Indian Circle Drive in’ St. Louis, between 3:30 p.m. and 4:45 p.m. On one day, Spinelli was followed further and seen to enter a particular apartment in the budding. .

“An FBI check with the telephone company revealed that this- apartment contained two telephones listed under the name of Grace P. Hagen, and carrying the numbers WYdown 4-0029 and WYdowñ 4-0136.” 393 US at 413-14.

The Supreme Court, speaking through Mr. Justice Harlan, held that the .affidavit was insufficient, stating:

“We conclude, then, that in the present case the informant’s tip—even when-corroborated to the extent indicated:—-was not sufficient to provide the basis for a finding of probable cause. This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. Bather,-it needed some further support. When we look to-the other- parts of the application, however, we find nothing alleged which w.ould permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed. As we have Y'already-séen, the allegations detailing' the FBI’s *95surveillance of Spinelli and its investigation of the telephone company records contain no suggestion of criminal conduct when taken by themselves— and they are not endowed with an aura of suspicion by virtue of the informer’s tip. Nor do we find that the FBI’s reports take on a sinister color when read in light of common knowledge that bookmaking is often carried on over the telephone and from premises ostensibly used by others for perfectly normal purposes. * * * All that remains to be considered is the flat statement that Spinelli was ‘known’ to the FBI and others as a gambler. But just as a simple assertion of police suspicion is not itself a sufficient basis for a magistrate’s finding of probable cause, we do not believe it may be used to give additional weight to allegations that would otherwise be insufficient.” 393 US at 418-19.

In the case at bar it is clear from the affidavit, as amplified by testimony at the suppression hearing, that all he saw was a small plastic package of a type in everyday use (contents unknown) being exchanged for something which might have been money. There is no doubt in my mind that if the two participants in this transaction had been wholly unknown to the officer the transaction would have appeared to him to be innocent or at the most one creating a vague suspicion— certainly not probable cause to believe that a crime was being committed. It seems reasonable to assume that only the police officer’s knowledge that one of the participants was a trafficker in drugs led him to believe that he was seeing a crime being committed. The fact remains that neither in his affidavit nor his testimony did the officer ever state how the defendant McManus became known to him as a trafficker in drugs. A restatement of the last sentence in the above quote from Spinelliis sufficient:

“* * * All that remains to be considered is the *96flat statement that Spinelli [McManus] was ‘known’ to the FBI [officer making the affidavit] and others as a gambler [drug trafficker]. But just as a simple assertion of police suspicion is not itself a sufficient basis for a magistrate’s finding of probable cause, we do not believe it may be used to give additional weight to allegations that would otherwise be insufficient [an exchange in broad daylight on the street in front of the courthouse of a small package, contents unknown, for something which might have been money].” 393 US at 418-19.

For the foregoing reasons I would reverse.

Langtry, J., joins in this dissent.

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