State v. Benters

IN THE SUPREME COURT OF NORTH CAROLINA
No. 5A14
Filed 19 December 2014

STATE OF NORTH CAROLINA

v.
GLENN EDWARD BENTERS

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel

of the Court of Appeals, ___ N.C. App. ___, 750 S.E.2d 584 (2013), affirming an

order granting defendant’s motion to suppress entered on 24 September 2012 by

Judge Carl R. Fox in Superior Court, Vance County. Heard in the Supreme Court

on 8 September 2014.

Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney
General, for the State-appellant.

Brock & Meece, P.A., by C. Scott Holmes, for defendant-appellee.

BEASLEY, Justice.

In this appeal we consider the sufficiency of an affidavit in support of an

application for a search warrant. We hold that under the totality of the

circumstances, the affidavit failed to provide a substantial basis for the magistrate

to conclude that probable cause existed. The information available to law

enforcement officers from an anonymous tip and from the officers’ corroborative

investigation was qualitatively and quantitatively deficient, and the affidavit’s
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Opinion of the Court

material allegations were uniformly conclusory. Accordingly, we affirm the Court of

Appeals.

The affidavit at issue provides in relevant part as follows:

I, Deputy Joseph R. Ferguson, am a certified North
Carolina law enforcement officer, sworn and employed by
the Vance County Sheriff’s Office. I have been a sworn
law enforcement officer since 1998. While employed by
the Sheriff’s Office I have been assigned to the patrol
division, the Community Policing Program, and am
currently a Detective Lieutenant in the Criminal
Investigations and Narcotics Division. I have attended
and successfully completed Basic Law Enforcement
Training and obtained an Associates Degree in Applied
Science in Criminal Justice Technology at Vance
Granville Community College. I have received the
following training related to the enforcement of North
Carolina State Laws: Constitutional Law, Arrest, Search,
and, Seizure, Search and Seizure in North Carolina,
Criminal Investigations, Search Warrant Preparation,
Interview and Interrogation, Advance Death
Investigations, and Crime Scene Processing as part of the
in service training courses provided by the North
Carolina Community College system[.] I have also
completed the Drug Law Enforcement Training Program
through the Federal Law Enforcement Training Center
and attended the Discovery for Law Enforcement Agents
Seminar sponsored by the Eastern District of North
Carolina’s U.S. Attorney’s Office. During my career in
law enforcement I have investigated over one thousand
criminal cases and have made over five hundred arrests
many resulting in conviction by trail [sic] or plea bargain
in Vance County District and Superior Courts.

On September 29, 2011 Lt. Ferguson, hereby
known as your affiant, received information from
Detective J. Hastings of the Franklin County Sheriff’s
Office Narcotics Division about a residence in Vance
County that is currently being used as an indoor

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Opinion of the Court

marijuana growing operation. Detective Hastings has
extensive training and experience with indoor marijuana
growing investigations on the state and federal level.
Within the past week Hastings met with a confidential
and reliable source of information that told him an indoor
marijuana growing operation was located at 527 Currin
Road in Henderson, North Carolina. The informant said
that the growing operation was housed in the main house
and other buildings on the property. The informant also
knew that the owner of the property was a white male by
the name of Glenn Benters. Benters is not currently
living at the residence, however [he] is using it to house
an indoor marijuana growing operation. Benters and the
Currin Road property [are] also known by your affiant
from a criminal case involving a stolen flatbed trailer with
a load of wood that was taken from Burlington North
Carolina. Detective Hastings obtained a subpoena for
current subscriber information. Kilowatt usage, account
notes, and billing information for the past twenty-four
months in association with the 527 Currin Road
Henderson NC property from Progress Energy Legal
Department. Information provided in said subpoena
indicated that Glenn Benters is the current subscriber
and the kilowatt usage hours are indicative of a
marijuana grow operation based on the extreme high and
low kilowatt usage.

Also on 9-29-2011 Detective Hastings and your
affiant along with narcotics detectives from the Vance and
Franklin County Sheriffs’ Office as well as special agents
with the North Carolina S.B.I. traveled to the residence at
527 Currin Road Henderson NC[ ]and observed from
outside of the curtilage multiple items in plain view that
were indicative of an indoor marijuana growing operation.
The items mentioned above are as followed [sic]; potting
soil, starting fertilizer, seed starting trays, plastic cups,
metal storage racks, and portable pump type sprayers.
Detectives did not observe any gardens or potted plants
located around the residence. Detectives observed a red
Dodge full size pickup truck parked by a building located
on the curtilage of the residence and heard music coming

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Opinion of the Court

from the area of the residence.

After observing the above listed circumstances,
detectives attempted to conduct a knock and talk
interview with anyone present at the residence. After
knocking on the back door, which your affiant knows
Benters commonly uses based on previous encounters,
your affiant waited a few minutes for someone to come to
the door. When no one came to the door, your affiant
walked to a building behind the residence that music was
coming from in an attempt to find someone. Upon
reaching the rear door of the building, your affiant
instantly noticed the strong odor of marijuana emanating
from the building. Your affiant walked over to a set of
double doors on the other side of the building and
observed two locked double doors that had been covered
from the inside of the building with thick mil black plastic
commonly used in marijuana grows to hide light
emanated by halogen light typically used in indoor
marijuana growing operations. Thick mil plastic was also
present on windows inside the residence as well.

Based on these facts your affiant respectfully
request[s] a search warrant in order to obtain evidence
from the property located at 527 Currin Road Henderson
NC . . . .

....

s/ J. Ferguson s/ [Magistrate]
Affiant Judge

9-29-11/ 9/29/11 9/29/11
Date Date

That same day, a magistrate issued a warrant based upon this affidavit

authorizing a search of defendant’s home and outbuildings on his property. Law

enforcement officers immediately executed the warrant and seized fifty-five

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Opinion of the Court

marijuana plants; various indoor growing supplies, including lights, timers,

chemicals, water pumps, flexible tubing, humidifiers, and several boxes of Ziploc

plastic bags; numerous firearms and ammunition; and $1540 in cash.

A grand jury indicted defendant for maintaining a dwelling to keep a

controlled substance (two counts), manufacture of a Schedule VI controlled

substance, possession of drug paraphernalia, trafficking in marijuana by

manufacture, trafficking in marijuana by possession, and possession with intent to

sell or deliver a Schedule VI controlled substance. On 20 February 2012, defendant

moved to suppress the items seized under the search warrant, arguing that the

search and seizure violated the Fourth Amendment to the United States

Constitution and Article I, Section 20 of the North Carolina Constitution. On 24

September 2012, the trial court entered an order allowing defendant’s motion. The

State timely appealed to the Court of Appeals.

A majority of the panel of the Court of Appeals concluded that the affidavit at

issue was not supported by probable cause and affirmed the trial court’s order

allowing defendant’s motion to suppress. State v. Benters, ___ N.C. App. ___, ___,

750 S.E.2d 584, 591 (2013). The dissent agreed with the majority “that the affidavit

did not contain a sufficient factual basis to establish probable cause under the

confidential informant standard” because “L[ieutenant] Ferguson’s description of

the source’s reliability was merely conclusory.” Id. at ___, 750 S.E.2d at 591-92

(Hunter, Robert C., J., dissenting). The dissent, however, would have concluded

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that the affidavit was supported by probable cause under an anonymous tip

standard because “the affidavit contained detailed information provided by the

source which was independently corroborated by experienced officers.” Id. at ___,

750 S.E.2d at 591. The State appeals to this Court based on the dissent. N.C.G.S. §

7A-30(2) (2013). We now affirm.

The issue before this Court is whether the facts and circumstances set forth

in the affidavit establish probable cause. The Fourth Amendment to the United

States Constitution provides:

The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated; and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.

U.S. Const. amend. IV. The “common-sense, practical question” of whether

probable cause exists must be determined by applying a “totality of the

circumstances” test. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L.

Ed. 2d 527, 543 (1983); State v. Arrington, 311 N.C. 633, 637, 641, 319 S.E.2d 254,

257 (1984). Thus,

“[t]he 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,
including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a

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particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial
basis for . . . conclud[ing]’ that probable cause existed.

Arrington, 311 N.C. at 638, 319 S.E.2d at 257-58 (quoting Gates, 462 U.S. at 238-39,

103 S. Ct. at 2332, 76 L. Ed. 2d at 548 (third and fourth alterations in original)).

“ ‘[P]robable cause requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity.’ ” State v. Riggs, 328 N.C. 213, 219,

400 S.E.2d 429, 433 (1991) (emphasis omitted) (quoting Gates, 462 U.S. at 244 n.13,

103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at 552 n.13). This commonsense, practical

inquiry is to be based upon “ ‘the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal technicians, act.’ ” Id. (quoting

Gates, 462 U.S. at 231, 103 S. Ct. at 2328, 76 L. Ed. 2d at 544).

Further, “a magistrate is entitled to draw reasonable inferences from the

material supplied to him by an applicant for a warrant.” State v. Sinapi, 359 N.C.

394, 399, 610 S.E.2d 362, 365 (2005) (citing Riggs, 328 N.C. at 221, 400 S.E.2d at

434). And we acknowledge that “ ‘great deference should be paid a magistrate’s

determination of probable cause and that after-the-fact scrutiny should not take the

form of a de novo review.’ ” Id. at 398, 610 S.E.2d at 365 (quoting Arrington, 311

N.C. at 638, 319 S.E.2d at 258). This deference, however, is not without limitation.

A reviewing court has the duty to ensure that a magistrate does not abdicate his or

her duty by “mere[ly] ratif[ying] . . . the bare conclusions of [affiants].” Gates, 462

U.S. at 239, 103 S. Ct. at 2333, 76 L. Ed. 2d at 549; see State v. Campbell, 282 N.C.

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125, 130-31, 191 S.E.2d 752, 756 (1972) (“Probable cause cannot be shown by

affidavits which are purely conclusory . . . .” (citation and internal quotation marks

omitted)); see also United States v. Leon, 468 U.S. 897, 914, 104 S. Ct. 3405, 3416,

82 L. Ed. 2d 677, 693 (1984) (“[C]ourts must . . . insist that the magistrate purport

to perform his neutral and detached function and not serve merely as a rubber

stamp for the police.”) (citations and internal quotation marks omitted), superseded

in part by Fed. R. Crim. P. 41(e).

Because the affidavit is based in part upon information received by Detective

Hastings from a source unknown to Lieutenant Ferguson, we must determine the

reliability of the information by assessing whether the information came from an

informant who was merely anonymous or one who could be classified as confidential

and reliable. State v. Hughes, 353 N.C. 200, 203, 539 S.E.2d 625, 628 (2000). This

Court has explained that statements against an informant’s penal interests and

statements given by an informant with a history of providing reliable information to

law enforcement carry greater weight for purposes of establishing reliability. Id. at

204, 539 S.E.2d at 628-29; Riggs, 328 N.C. at 219, 400 S.E.2d at 433 (discussing

informant reliability based on an informant’s “track record”); State v. Beam, 325

N.C. 217, 221, 381 S.E.2d 327, 330 (1989) (acknowledging the credibility of

statements against penal interest (citation omitted)); Arrington, 311 N.C. at 641,

319 S.E.2d at 259 (discussing the credibility of statements against penal interest);

see Hughes, 353 N.C. at 204, 539 S.E.2d at 628 (suggesting that “other indication[s]

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Opinion of the Court

of reliability” may suffice even in the absence of statements against penal interest

or an informant’s history of giving reliable information).

When sufficient indicia of reliability are wanting, however, we evaluate the

information based on the anonymous tip standard. Hughes, 353 N.C. at 205, 539

S.E.2d at 629. An anonymous tip, standing alone, is rarely sufficient, but “the tip

combined with corroboration by the police could show indicia of reliability that

would be sufficient to [pass constitutional muster].” Id. (citing Alabama v. White,

496 U.S. 325, 329, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 308 (1990)). Thus, “a

tip that is somewhat lacking in reliability may still provide a basis for [probable

cause] if it is buttressed by sufficient police corroboration.” 353 N.C. at 207, 539

S.E.2d at 630 (citation omitted). Under this flexible inquiry, when a tip is less

reliable, law enforcement officers carry a greater burden to corroborate the

information. Id. at 205, 539 S.E.2d at 629. As compared with the less demanding

reasonable suspicion standard, probable cause requires both a greater quantity and

higher quality of information. White, 496 U.S. at 329-30, 110 S. Ct. at 2416, 110 L.

Ed. 2d at 308-09.

As a preliminary matter, the State argues that it did not concede the

illegality of the law enforcement officers’ entry onto defendant’s property to conduct

a “knock and talk interview” at the back door of defendant’s residence or at an

outbuilding from which officers heard music playing. See Benters, ___ N.C. App. at

___, 750 S.E.2d at 588 (majority) (“The State concedes that the ‘knock and talk’

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Opinion of the Court

entry onto defendant’s property was an illegal search . . . .”); see also id. at ___, 750

S.E.2d at 590 (“As previously acknowledged by the State, this entry was illegal and

thus the marijuana smell and plastic coverings could not be properly considered in

seeking a search warrant.”). Having reviewed the opinion below and record on

appeal, including the State’s briefs to the Court of Appeals, we observe that the

State did not expressly concede the point, but rather “[a]ssum[ed], without deciding,

that the trial court correctly determined that the officers’ entry onto defendant’s

property to conduct a ‘knock and talk’ – and further entry onto the property to

locate or engage any person near the building from which the music was emanating

– was illegal, and omitting this information from the warrant, the warrant was

nevertheless valid.” Nonetheless, by failing to preserve the issue for appeal or to

present any argument whatever, the State limits its arguments and our scope of

review to the first three paragraphs of the affidavit. N.C. Rs. App. P. 10(b), 16(b),

28(b)(6).

In its principal argument on appeal, the State argues that the majority of the

panel of the Court of Appeals erred by concluding that the first three paragraphs of

the affidavit failed to establish probable cause upon which a search warrant could

issue. In support of this argument, the State contends that the tip given to

Detective Hastings and relayed to Lieutenant Ferguson had sufficient indicia of

reliability to provide probable cause. Even if the tip is considered wholly

anonymous, the State suggests that law enforcement officers independently

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Opinion of the Court

corroborated the tip through Lieutenant Ferguson’s prior personal knowledge of

defendant and the property, the subpoenaed Progress Energy utility reports, and

the officers’ personal observations of defendant’s gardening supplies. The State

further argues that the officers’ reliance upon the tip and their interpretation of the

investigation must “be viewed through the eyes of a narcotics officer with the

appropriate training and experience that both Lieutenant Ferguson and Detective

Hastings appeared to have.”

With respect to whether the source of the information at issue should be

treated as a reliable, confidential informant or an anonymous informant, the

affidavit states the following relevant information: (1) the affiant’s name; (2) the

name of the detective from whom the affiant received the tip; (3) that the detective

“met with a confidential and reliable source”; and (4) that the source informed the

detective about an indoor marijuana growing operation at a house and other

buildings on property owned by defendant.

It is clear from the affidavit that the information provided does not contain a

statement against the source’s penal interest. Nor does the affidavit indicate that

the source previously provided reliable information so as to have an established

“track record.” Thus, the source cannot be treated as a confidential and reliable

informant on these two bases. Hughes, 353 N.C. at 204, 539 S.E.2d at 628; Riggs,

328 N.C. at 219, 400 S.E.2d at 433; Beam, 325 N.C. at 221, 381 S.E.2d at 329-30;

Arrington, 311 N.C. at 641-42, 319 S.E.2d at 259-60. Nonetheless, the State argues

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Opinion of the Court

that because Detective Hastings met “face-to-face” with the source, the source

should be considered more reliable, and we acknowledge that Lieutenant Ferguson

is entitled to rely upon information reported to him by Detective Hastings. See

State v. Vestal, 278 N.C. 561, 576, 180 S.E.2d 755, 765 (1971) (citation omitted),

cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973).

We already have addressed this issue on similar facts presented in Hughes.

There we explained that the law enforcement officer who filed the affidavit “had

never spoken with the informant and knew nothing about the informant other than

[his captain’s] claim that he was a confidential and reliable informant.” Hughes,

353 N.C. at 204, 539 S.E.2d at 628. Although the captain in Hughes received the tip

from a phone call rather than a face-to-face meeting, the captain told the affiant

that the confidential source was reliable. Id. at 201, 539 S.E.2d at 627. We

concluded that the source must be analyzed under the anonymous tip standard

because the affiant had nothing more than the captain’s “conclusory statement that

the informant was confidential and reliable,” id. at 204, 539 S.E.2d at 629. We see

no reason to reach a different result here. The affidavit does not suggest Lieutenant

Ferguson was acquainted with or knew anything about Detective Hastings’s source

or could rely on anything other than Detective Hastings’s statement that the source

was confidential and reliable. Id.

Authorities cited by the State bolster our decision. See United States v.

Perkins, 363 F.3d 317, 320-23 (4th Cir. 2004) (explaining that an informant’s tip

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Opinion of the Court

was reliable when the informant (1) was known to the investigating officer, (2) had

provided reliable information on six to ten prior occasions, and (3) lived directly

across the street from the defendant, and when material aspects of the tip were

corroborated), cert. denied, 543 U.S. 1056, 125 S. Ct. 867, 160 L. Ed. 2d 781 (2005);

United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000) (explaining that a

face-to-face tip gave the officer an opportunity to assess the informant’s credibility

and demeanor, and the informant’s close proximity to the drug sales and her

“expos[ure] . . . to the risk of reprisal” by talking with uniformed officers in public

bolstered the informant’s credibility), cert. denied, 531 U.S. 1098, 121 S. Ct. 830,

148 L. Ed. 2d 712 (2001); State v. Allison, 148 N.C. App. 702, 705, 559 S.E.2d 828,

830 (2002) (finding that a face-to-face tip allowed the officer to assess the

informant’s demeanor and “significantly increased the likelihood that [the

informant] would be held accountable if her tip proved to be false” (citation

omitted)).

In contrast, the affidavit here fails to establish the basis for Detective

Hastings’s appraisal of his source’s reliability, including the source’s demeanor or

degree of potential accountability. The affidavit does not disclose whether Detective

Hastings met his source privately, or publicly and in uniform such that the source

could risk reprisal. Moreover, nothing in the affidavit suggests the basis of the

source’s knowledge. We previously have explained that

[i]n the absence of a statement detailing the manner in

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which the information was gathered, it is especially
important that the tip describe the accused’s criminal
activity in sufficient detail that the magistrate may know
that he is relying on something more substantial than a
casual rumor circulating in the underworld or an
accusation based merely on an individual’s general
reputation.

State v. Edwards, 286 N.C. 162, 168, 209 S.E.2d 758, 762 (1974) (citation and

quotation marks omitted).

Accordingly, we hold that Detective Hastings’s source of information is an

anonymous informant. The tip, as averred, amounts to little more than a

conclusory rumor, and the State is not entitled to any great reliance on it.

Therefore, the officers’ corroborative investigation must carry more of the State’s

burden to demonstrate probable cause. See White, 496 U.S. at 330, 110 S. Ct. at

2416, 110 L. Ed. 2d at 309 (“[I]f a tip has a relatively low degree of reliability, more

information will be required to establish the requisite quantum of suspicion than

would be required if the tip were more reliable.”); Hughes, 353 N.C. at 205, 539

S.E.2d at 629.

The State directs our attention to several factors which it believes sufficiently

corroborate the anonymous tip. These factors include: (1) Lieutenant Ferguson’s

knowledge of defendant and his property resulting “from a criminal case involving a

stolen flatbed trailer”; (2) utility records for the preceding twenty-four months

subpoenaed by Detective Hastings that “indicated that Glenn Benters is the current

subscriber and the kilowatt usage hours are indicative of a marijuana grow

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operation based on the extreme high and low kilowatt usage”; and (3) the law

enforcement officers’ observations of “multiple items in plain view that were

indicative of an indoor marijuana growing operation,” including “potting soil,

starting fertilizer, seed starting trays, plastic cups, metal storage racks, and

portable pump type sprayers,” in the absence of “any gardens or potted plants

located around the residence.” The State argues that all of these corroborative

factors must be “viewed through the eyes of” the officers in light of their training

and experience.

The State suggests that law enforcement officers’ “corroboration of mundane

matters” conveyed by the informant, such as defendant’s name and address,

increases the reliability of the tip. We agree, but the State’s proposition has limited

effect. On the fluid balance prescribed by the Supreme Court, a less specific or less

reliable tip requires greater corroboration to establish probable cause. White, 496

U.S. at 329-30, 110 S. Ct. at 2416, 110 L. Ed. 2d at 308-09 (citations omitted). Thus,

some measure of reliability flows from law enforcement officers’ corroboration of

mundane matters, but such corroboration supports a finding of probable cause only

to a coterminous extent. Here, the officers corroborated defendant’s name and

address through subpoenaed Progress Energy records showing defendant as the

current subscriber and through Lieutenant Ferguson’s knowledge of defendant and

his address from a prior, unrelated criminal charge. The officers’ corroboration

tends to show they know defendant’s identity and address, although it is not clear

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Opinion of the Court

that defendant ever resides at this address. Thus, the officers’ corroboration adds a

small measure of reliability to the anonymous tip, but does little toward

establishing probable cause.

With respect to the subpoenaed Progress Energy utility records, we note that

this Court has not yet addressed law enforcement officers’ use of electricity usage

records in an affidavit for a search warrant related to an alleged indoor marijuana

growing operation. We are cognizant that we must view the records as part of the

totality of the circumstances. As we consider this novel issue before our Court,

however, we momentarily consider in isolation the rules regarding this source of

information. Having reviewed numerous state and federal authorities that have

assessed an affiant’s use of utility records, we acknowledge that these records can

provide powerful support for probable cause in applications for search warrants,

and we adopt the following principles.

In a totality of the circumstances inquiry, the value to be accorded to energy

records is, of course, flexible. The weight given to power records increases when

meaningful comparisons are made between a suspect’s current electricity

consumption and prior consumption, or between a suspect’s consumption and that

of nearby, similar properties. See, e.g., United States v. Kattaria, 553 F.3d 1171,

1174 (8th Cir.) (en banc) (per curiam) (Probable cause existed when the affidavit

showed, inter alia, that “between November 2003 and April 2004, the [defendant’s]

residence . . . consumed between 1890 and 2213 kilowatt hours of electricity per

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month, while neighboring residences of comparable size consumed between 63 and

811 kilowatt hours in the same time period.”), cert. denied, 558 U.S. 1061, 130 S. Ct.

771, 175 L. Ed. 2d 537 (2009); United States v. Miller, No. 1:12CR269–1, 2012 WL

4061771, at *1-2 (M.D.N.C. Sept. 14, 2012) (probable cause found when the affidavit

showed, inter alia, the defendant’s electricity consumption to be nearly three times

higher than nine similarly sized houses on his street); State v. Hook, 255 Mont. 2, 5,

839 P.2d 1274, 1276 (1992) (finding probable cause when the affidavit, inter alia,

“recited in detail the power usage, the times of residence by the defendant, previous

usage by former occupants, normal residential usage, and comparisons as to these

facts”); State v. Lemonds, 160 N.C. App. 172, 179, 584 S.E.2d 841, 845-46 (2003)

(probable cause found when, inter alia, electric bills for the defendant’s first home

“revealed a dramatic increase in electricity usage during the period of [the]

defendant’s residency,” and electric bills for the defendant’s second home, into

which he moved during the course of the investigation, revealed a dramatic increase

after his occupancy “when compared with the previous occupant’s bills for the same

time of year”).

By contrast, little to no value should be accorded to wholly conclusory, non-

comparative allegations regarding energy usage records. See, e.g., State v. Kaluza,

272 Mont. 404, 409, 901 P.2d 107, 110 (1995) (concluding probable cause was not

established because, inter alia, “no basis [wa]s provided for the affiant’s conclusory

statement concerning his training and experience in investigating marijuana grow

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operations” and utility records were insufficient without “detailed comparisons with

average and previous resident’s usage”); State v. McManis, 2010 VT 63, ¶ 18, 188

Vt. 187, 196, 5 A.3d 890, 896 (“Without any information to put the power records

into context, the bare recitation of an increase in power usage cannot corroborate

the [confidential informant]’s claim of a marijuana growing operation.”); see also

Campbell, 282 N.C. at 130-31, 191 S.E.2d at 756 (requiring affidavits to set forth

underlying circumstances rather than merely conclusory allegations (citation

omitted)).

Here Lieutenant Ferguson averred that “Detective Hastings has extensive

training and experience with indoor marijuana growing investigations on the state

and federal level,” and that Detective Hastings had subpoenaed defendant’s

Progress Energy power records. Lieutenant Ferguson then summarily concluded

that “the kilowatt usage hours are indicative of a marijuana grow operation based

on the extreme high and low kilowatt usage.” As explained above, the absence of

any comparative analysis severely limits the potentially significant value of

defendant’s utility records. Kaluza, 272 Mont. at 409, 901 P.2d at 110; McManis,

2010 VT 63, ¶¶ 16-19, 188 Vt. at 195-97, 5 A.3d at 896. Therefore, these

unsupported allegations do little to establish probable cause independently or by

corroborating the anonymous tip. Campbell, 282 N.C. at 130-31, 191 S.E.2d at 756.

We acknowledge that investigating officers or a reviewing magistrate may

have some degree of suspicion regarding defendant’s “extreme high and low

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kilowatt usage” given that defendant “is not currently living at the residence.”

These unspecified extremes also may be explained, however, by wholly innocent

behavior such as defendant’s intermittently visiting his property. Thus, these

circumstances may justify additional investigation, but they do not establish

probable cause.

We turn next to the officers’ observations of multiple gardening items on

defendant’s property in the absence of exterior gardens or potted plants. In

relevant part, the affidavit provides that law enforcement officers

observed from outside of the curtilage multiple items in
plain view that were indicative of an indoor marijuana
growing operation. The items mentioned above are as
followed [sic]; potting soil, starting fertilizer, seed starting
trays, plastic cups, metal storage racks, and portable
pump type sprayers. Detectives did not observe any
gardens or potted plants located around the residence.

Nothing here indicates “a ‘fair probability that contraband or evidence of a

crime will be found in a particular place’ ” beyond Lieutenant Ferguson’s wholly

conclusory allegations. Arrington, 311 N.C. at 638, 319 S.E.2d at 258 (quoting

Gates, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548); see Riggs, 328 N.C.

at 219-21, 400 S.E.2d at 433-34. The affidavit does not state whether or when the

gardening supplies were, or appeared to have been, used, or whether the supplies

appeared to be new, or old and in disrepair. Thus, amid a field of speculative

possibilities, the affidavit impermissibly requires the magistrate to make what

otherwise might be reasonable inferences based on conclusory allegations rather

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 STATE V. BENTERS

Opinion of the Court

than sufficient underlying circumstances. This we cannot abide. Campbell, 282

N.C. at 130-31, 191 S.E.2d at 756.

With respect to the officers’ training and experience, we must “give due

weight to inferences drawn from . . . facts by . . . local law enforcement officers.”

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911, 920-21 (1996) (observing that “a police officer views the facts through the lens

of his police experience and expertise”). The affidavit here sets forth Lieutenant

Ferguson’s training and experience, including his having been a sworn law

enforcement officer since 1998, his employment with the Vance County Sheriff’s

Office, his current employment as a Detective Lieutenant in the Criminal

Investigations and Narcotics Division, his training in “Search[ ] and Seizure, Search

and Seizure in North Carolina, Criminal Investigations, [and] Search Warrant

Preparation,” and his completion of the “Drug Law Enforcement Training Program

through the Federal Law Enforcement Training Center.” The affidavit also states

that “Detective Hastings has extensive training and experience with indoor

marijuana growing investigations on the state and federal level.” We are not

convinced that these officers’ training and experience are sufficient to balance the

quantitative and qualitative deficit left by an anonymous tip amounting to little

more than a rumor, limited corroboration of facts, non-comparative utility records,

observations of innocuous gardening supplies, and a compilation of conclusory

allegations. See White, 496 U.S. at 329-30, 110 S. Ct. at 2416, 110 L. Ed. 2d at 308-

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 STATE V. BENTERS

Opinion of the Court

09. Furthermore, we are unaware of any precedent that would permit, much less

require, such a heavy reliance upon officers’ training and experience as the State

calls for here.

Taking the relevant factors together in view of the totality of the

circumstances, we conclude that the officers’ verification of mundane information,

Detective Hastings’s statements regarding defendant’s utility records, and the

officers’ observations of defendant’s gardening supplies are not sufficiently

corroborative of the anonymous tip or otherwise sufficient to establish probable

cause, notwithstanding the officers’ professional training and experience.

Furthermore, the material allegations set forth in the affidavit are uniformly

conclusory and fail to provide a substantial basis from which the magistrate could

determine that probable cause existed. Gates, 462 U.S. at 238-39, 103 S. Ct. at

2332-33, 76 L. Ed. 2d at 548-49; Arrington, 311 N.C. at 638, 319 S.E.2d at 257-58;

Campbell, 282 N.C. at 130-31, 191 S.E.2d at 756. Accordingly, although “great

deference should be paid a magistrate’s determination of probable cause,” Sinapi,

359 N.C. at 399, 610 S.E.2d at 365 (citation and quotation marks omitted), we hold

the affidavit at issue is insufficient to establish probable cause.

In its remaining arguments on appeal, the State notes that the trial court

took additional evidence once defendant challenged the search. The State contends

that the Court of Appeals erred by relying upon facts elicited at the hearing that

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 STATE V. BENTERS

Opinion of the Court

went beyond “the four corners of [the] warrant.” The State argues that if additional

evidence is considered, the record demonstrates that the officers had probable cause

to support a search warrant independent of any information gathered during the

allegedly illegal entry onto defendant’s property. The State argues, moreover, that

had the entry not occurred, “the police unquestionably would have pursued the

investigation until it reached a successful conclusion,” making it “inevitable” that

the marijuana and other items would have been discovered pursuant to a search

warrant supported by probable cause.

We acknowledge that the Court of Appeals majority and dissenting opinions

made glancing references to additional evidence found during defendant’s

suppression hearing and it was error to consider this evidence, but in light of our

holding and analysis based solely upon the affidavit, we do not believe these errors

warrant reversal. Therefore, we need not consider the State’s conditional argument

regarding inevitable discovery. See, e.g., Poore v. Poore, 201 N.C. 791, 792 161 S.E.

532, 533 (1931) (“It is no part of the function of the courts . . . to give advisory

opinions . . . .”).

For the reasons set forth above, we affirm the opinion of the Court of Appeals.

AFFIRMED.

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No. 5A14 – State v. Benters

Justice NEWBY dissenting.

In this case we address the level of corroboration required to substantiate an

informant’s tip such that probable cause exists to obtain a search warrant for a

defendant’s property. The majority concludes that, under the anonymous tip

standard, “the State is not entitled to any great reliance” on a tip from a known

informant. In doing so, the majority ignores the fact that the informant clearly was

not anonymous and incorrectly affords his tip the same weight as if he were

completely unknown to police. Because a tip provided to police by an identified

informant is inherently more reliable than a completely anonymous tip, it should

require less independent corroboration. Although purportedly applying a “common

sense” approach, the majority’s rigid, formalistic dissection of the evidence

corroborating the tip undermines the purpose of the required totality of the

circumstances test. Here, the information provided in the tip, most of which was

corroborated by other evidence, under a common sense application of the totality of

the circumstances, establishes probable cause to believe that defendant was

growing marijuana on his property. Therefore, the warrant was valid, and the

search did not violate the Fourth Amendment. Accordingly, I respectfully dissent.

The Fourth Amendment to the Constitution of the United States contains a

guarantee against unreasonable searches and seizures and provides that “no

Warrants shall issue, but upon probable cause.” In State v. Arrington our Court

adopted the Supreme Court of the United States’ “totality of the circumstances” test
 STATE V. BENTERS

NEWBY, J., dissenting

for determining when probable cause exists:

“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,
including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.”

311 N.C. 633, 638, 319 S.E.2d 254, 257-58 (1984) (emphasis added) (quoting Illinois

v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). A

reviewing court should grant “great deference” to the magistrate’s determination of

probable cause, id. at 638, 319 S.E.2d at 258, keeping in mind that “ ‘[t]he

resolution of doubtful or marginal cases in this area should be largely determined

by the preference to be accorded to warrants,’ ” State v. Sinapi, 359 N.C. 394, 398,

610 S.E.2d 362, 365 (2005) (quoting State v. Riggs, 328 N.C. 213, 222, 400 S.E.2d

429, 435 (1991)).

Tips from informants can establish probable cause if they are reliable. See

Gates, 462 U.S. at 227, 233-34, 103 S. Ct. at 2326, 2329-30, 76 L. Ed. 2d at 541, 545.

Tips from informants with a proven track record with police are considered

trustworthy and can establish probable cause standing alone when the affidavit

states that the informant is reliable and provides factual grounds to support that

belief. See State v. Isleib, 319 N.C. 634, 635, 639, 356 S.E.2d 573, 574-75, 577 (1987)

(concluding that an informant’s tip alone established probable cause because the

informant had provided information to police on three prior occasions that had led

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 STATE V. BENTERS

NEWBY, J., dissenting

to arrests and convictions). On the other hand, anonymous tips are generally

insufficient standing alone to establish probable cause. Alabama v. White, 496 U.S.

325, 329, 110 S. Ct. 2412, 2415-16, 110 L. Ed. 2d 301, 308 (1990).

Not all anonymous tips, however, are created equal. Some bear more indicia

of reliability than others, and in evaluating the totality of the circumstances, “the

indicia of the tip’s reliability are certainly among the circumstances that must be

considered.” State v. Maready, 362 N.C. 614, 619, 669 S.E.2d 564, 567 (2008) (citing

White, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309). “[The] view that

tips fall into two stark categories that are wholly anonymous or wholly non-

anonymous is inconsistent both with reality and with Fourth Amendment law. For

in reality, tips fall somewhere on a spectrum of reliability . . . .” United States v.

Perkins, 363 F.3d 317, 324 (4th Cir. 2004), cert. denied, 543 U.S. 1056, 125 S. Ct.

867, 160 L. Ed. 2d 781 (2005); see also Gates, 462 U.S. at 232, 103 S. Ct. at 2329, 76

L. Ed. 2d at 544 (“[T]ips doubtless come in many shapes and sizes” and “ ‘may vary

greatly in their value and reliability.’ Rigid legal rules are ill-suited to an area of

such diversity.” (quoting Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921,

1924, 32 L. Ed. 2d 612, 617 (1972))). In a recent decision, the United States

Supreme Court observed that even a wholly anonymous tip, without more, “can

demonstrate sufficient indicia of reliability to provide reasonable suspicion to make

[an] investigatory stop.” Navarette v. California, ___ U.S. ___, ___, 134 S. Ct. 1683,

1688, 188 L. Ed. 2d 680, 687 (2014) (alteration in original) (quotation marks

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 STATE V. BENTERS

NEWBY, J., dissenting

omitted) (concluding that a tip from an anonymous 911 caller that another vehicle

ran her off the road “bore adequate indicia of reliability for the officer to credit the

caller’s account” because the caller witnessed the dangerous driving and reported it

immediately and because a 911 caller may later be identified (quoting id. at ___, 134

S. Ct. at 1688-90, 188 L. Ed. 2d at 687-89)).

When, however, the anonymous tip alone is insufficient, “the tip combined

with corroboration by the police could show indicia of reliability that would be

sufficient to [pass constitutional muster].” State v. Hughes, 353 N.C. 200, 205, 539

S.E.2d 625, 629 (2000). Thus, even when analyzing tips under the anonymous tip

standard, there is a sliding scale, and the extent of independent corroboration

required to render a tip reliable becomes a factual determination, “tak[ing] into

account all the facts surrounding [the] tip.” Perkins, 363 F.3d at 324; see Hughes,

353 N.C. at 206, 539 S.E.2d at 630 (“ ‘[I]f a tip has a relatively low degree of

reliability, more information will be required to establish the requisite quantum of

suspicion than would be required if the tip were more reliable.’ ” (quoting White, 496

U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309)).

As illustrated by Navarette, a tipster is not treated as wholly unreliable

simply because the affidavit does not disclose the tipster’s prior experience with law

enforcement. It follows that less independent verification is needed to substantiate

a tip from an informant who is readily identifiable by police than one who is

completely anonymous. See Maready, 362 N.C. at 619-20, 669 S.E.2d at 567-68

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 STATE V. BENTERS

NEWBY, J., dissenting

(giving significant weight to a tip when the tipster provided information to police in

a face-to-face encounter and was, therefore, not completely anonymous); see also

Perkins, 363 F.3d at 323 (“Where the informant is known . . . , an officer can judge

the credibility of the tipster firsthand and thus confirm whether the tip is

sufficiently reliable . . . .”). Moreover, because affidavits are practical documents

and the existence of probable cause is a commonsense determination, the summary

nature of the affidavit becomes less important when a tip shows some indicia of

reliability and is corroborated by independent investigation.

Here the majority’s analysis recognizes that the informant was known and

identified to police, yet it ignores that crucial fact to conclude instead that he “is an

anonymous informant” whose tip “amounts to little more than a conclusory rumor.”

However, the affidavit states that “within the past week [an officer] met with a

confidential and reliable source of information that told him an indoor marijuana

growing operation was located at [defendant’s property].” (Emphasis added.)

Because the police knew the informant’s identity, the informant’s tip had some

degree of reliability at the outset. Though the tip, at face value, may not be enough

on its own to establish probable cause, the tip is more reliable than if the informant

were completely anonymous. See Maready, 362 N.C. at 619-20, 669 S.E.2d at 567-

68. Therefore, even without specific details on why the informant was a reliable

source of information, the tipster should be afforded greater weight in the totality of

the circumstances than if he were unknown and unidentified. See id. at 619, 669

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 STATE V. BENTERS

NEWBY, J., dissenting

S.E.2d at 567 (“The potential indicia of reliability include all ‘the facts known to the

officers from personal observation’ including those that do not necessarily

corroborate or refute the informant’s statements.” (internal citation omitted)).

The detectives’ subsequent investigation into the informant’s allegations

sufficiently corroborated the tip that defendant was conducting a marijuana

growing operation, and when taken together and viewed through the lens of

common sense, the tip and corroborating evidence detailed in the first three

paragraphs of the affidavit established “ ‘a fair probability that contraband or

evidence of a crime [would] be found’ ” on defendant’s property. Arrington, 311 N.C.

at 638, 319 S.E.2d at 258 (quoting Gates, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L.

Ed. 2d at 548). In the tip, the informant did not simply say that there was a

marijuana growing operation. He identified defendant by name and appearance,

provided defendant’s address, specified that defendant was not currently living at

the residence, and described the buildings that defendant was using to house the

marijuana growing operation. The affiant was also familiar with defendant and his

property from a prior, unrelated criminal case. Based on the tip, which already bore

some indicia of reliability, detectives obtained utility records for the address and

learned that defendant was the current subscriber, confirming a detail provided by

the informant. Furthermore, according to a law enforcement officer with “extensive

training and experience with indoor marijuana growing investigations on the state

and federal level,” the two year history of “extreme high and low kilowatt usage”

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 STATE V. BENTERS

NEWBY, J., dissenting

was “indicative of a marijuana grow operation,” just as the informant said.

The majority concludes for the first time that the opinion of a trained and

experienced detective who analyzed the power usage is not sufficient, absent a

comparative analysis, despite the fact that the detective reviewed power records for

the preceding two years. In doing so, the majority ignores the expertise of trained

and experienced law enforcement officers. Under the majority’s reasoning,

detectives should have invaded the privacy of innocent, neighboring landowners by

obtaining their power records in order to conduct a comparative analysis. Even so,

detectives here did not rely solely on the utility bills to establish probable cause;

rather, the unusual power usage was just another piece of evidence that helped

bolster the informant’s reliability and corroborate his tip that defendant was

housing an indoor marijuana growing operation.

Detectives further confirmed the information in the tip by conducting

surveillance of defendant’s property. Despite the noticeable absence of gardens or

potted plants around the property, officers observed multiple horticultural items in

plain view, including “potting soil, starting fertilizer, seed starting trays, plastic

cups, metal storage racks, and portable pump type sprayers.” Based on their

training and experience, detectives determined that these objects were consistent

with a marijuana growing operation. This observation is yet another circumstance

establishing the informant’s reliability and lending support to the tip that

defendant was operating an indoor marijuana growing operation.

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 STATE V. BENTERS

NEWBY, J., dissenting

Moreover, the fact that any of the corroborating evidence can be explained by

innocent behavior does not mean it cannot also be used to establish probable cause,

as the majority suggests. The possibility of innocent behavior does not rule out

probable cause. Gates, 462 U.S. at 243 n.13, 103 S. Ct. at 2335 n.13, 76 L. Ed. 2d at

552 n.13 (“[I]nnocent behavior frequently will provide the basis for a showing of

probable cause; to require otherwise would be to sub silentio impose a drastically

more rigorous definition of probable cause than the security of our citizens’

demands. . . . In making a determination of probable cause the relevant inquiry is

not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion

that attaches to particular types of noncriminal acts.” (internal citation omitted)).

Applying the required commonsense approach to the totality of the

circumstances, the information contained in the affidavit established a “fair

probability” that defendant was conducting an indoor marijuana growing operation.

Detectives received a tip from an identified informant who provided details about

defendant, his property, and his indoor marijuana growing operation. In a

subsequent investigation, a trained and experienced detective concluded that

defendant’s power usage was indicative of a marijuana growing operation.

Furthermore, surveillance of defendant’s property produced evidence consistent

with a marijuana growing operation. This circumstantial evidence unequivocally

supported the initial, detailed tip. Even under an anonymous tip standard, a

known informant’s tip must be afforded more weight than if he were wholly

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 STATE V. BENTERS

NEWBY, J., dissenting

anonymous. Each piece of independent, corroborating evidence thereafter

substantiated the informant’s reliability, and the tip, combined with the

corroborating evidence, provided a sufficient basis for the warrant. Therefore, the

search was lawful. Accordingly, I respectfully dissent.

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