Heard, September 8, 2014
N.C. Court of Appeals. No. 13-305. Wanda G. Bryant, Judge. Vance County. No. 11CRS52943-45. Carl R. Fox, Judge.
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. Justice NEWBY dissenting.
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.
In this appeal we consider the sufficiency of an affidavit in support of an application for a search warrant. We hold that under the [367 N.C. 661] 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 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 marijuana growing operation. Detective Hastings has extensive training and experience with indoor marijuana growing investigations on the state and federal level. Within [367 N.C. 662] 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 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, [367 N.C. 663] 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
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 marijuana plants; various indoor growing supplies, including lights, timers, chemicals, water pumps, flexible tubing, humidifiers, ...