State v. Benters, 367 N.C. 660 (Dec. 19, 2014)

The court held that an affidavit supporting a search warrant failed to provide a substantial basis for the magistrate to conclude that probable cause existed. In the affidavit, the affiant officer stated that another officer conveyed to him a tip from a confidential informant that the suspect was growing marijuana at a specified premises. The affiant then recounted certain corroboration done by officers. The court first held that the tipster would be treated as anonymous, not one who is confidential and reliable. It explained: “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.” The court rejected the State’s argument that because an officer met “face-to-face” with the source, the source should be considered more reliable, reasoning: “affidavit does not suggest [the affiant] was acquainted with or knew anything about [the] source or could rely on anything other than [the other officer’s] statement that the source was confidential and reliable.” Treating the source as an anonymous tipster, the court found that the tip was supported by insufficient corroboration. The State argued that the following corroboration supported the tip: the affiant’s knowledge of the defendant and his property resulting “from a criminal case involving a stolen flatbed trailer”; subpoenaed utility records indicating that the defendant was the current subscriber and the kilowatt usage hours are indicative of a marijuana grow operation; and officers’ observations of items at the premises 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. Considering the novel issue of utility records offered in support of probable cause, the court noted that “[t]he 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.” It continued: “By contrast, little to no value should be accorded to wholly conclusory, non-comparative allegations regarding energy usage records.” Here, the affidavit summarily concluded that kilowatt usage was indicative of a marijuana grow operation and “the absence of any comparative analysis severely limits the potentially significant value of defendant’s utility records.” Thus, the court concluded: “these unsupported allegations do little to establish probable cause independently or by corroborating the anonymous tip.” The court was similarly unimpressed by the officers’ observation of plant growing items, noting:

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 than sufficient underlying circumstances. This we cannot abide.

As to the affidavit’s extensive recounting of the officers’ experience, the court held:

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.