Opinion
90-02-31186; CA A68331
Submitted on petition for reconsideration filed February 12, 1992
Reconsideration allowed; former decision ( 110 Or. App. 633, 823 P.2d 457) adhered to May 13, 1992
Appeal from Circuit Court, Multnomah County.
Stephen L. Gallagher, Judge.
John A. Wetteland, Jr., Portland, for petition.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reconsideration allowed; former decision adhered to.
Defendant petitions for review of our affirmance of the trial court's denial of his motion to suppress. We treat the petition as one for reconsideration. ORAP 9.15(1).
Defendant moved to suppress evidence obtained by a search conducted pursuant to a warrant. He argued that, because the affidavit supporting the warrant does not show that the confidential informant (CI) was credible or her information reliable, it did not establish probable cause. ORS 133.545(4); State v. Carlile, 290 Or. 161, 164, 619 P.2d 1280 (1980). The trial court found that the fruits of the search conducted pursuant to the warrant established that the CI was reliable and, therefore, denied defendant's motion.
Because a search and seizure cannot be justified by its fruits, State v. Ford, 20 Or. App. 384, 387, 531 P.2d 740 (1985), a court cannot consider evidence other than that in the affidavit. See State v. Dunavant, 250 Or. 570, 575, 444 P.2d 1 (1968). Nevertheless, any error was harmless, because the information within the four corners of the affidavit establishes probable cause. See State v. Morrison/Bartee, 107 Or. App. 343, 351 n 10, 812 P.2d 832, mod 108 Or. App. 766, 816 P.2d 1217 (1991).
Reconsideration allowed; former decision adhered to.