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THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP C. CARTER, JR., )
) Court of Appeals No. A-5493
Appellant, ) Trial Court No. 3PA-S93-2126CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1456 - February 9, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Lance C. Wells, Anchorage,
for Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Phillip C. Carter, Jr., pled no contest to one count of
misconduct involving a controlled substance in the fourth degree,
for growing marijuana. See AS 11.71.040(a)(3)(F). In entering
the plea, Carter reserved the right to appeal Superior Court
Judge Beverly W. Cutler's denial of a motion to suppress
evidence. On appeal, Carter asserts that the evidence against
him was obtained by a search of his residence that was conducted
pursuant to a warrant issued without probable cause. We reverse.
On October 6, 1993, Investigator Jeannine Santora of
the Alaska State Troopers applied for a warrant to search
Carter's residence for evidence of a marijuana growing operation.
Palmer Magistrate David L. Zwink conducted a hearing on the
application. In support of the warrant, Santora submitted two
affidavits: the first dealt with anonymous tips alleging Carter's
involvement in drug-related activity in the vicinity of Houston,
Alaska; the second dealt with Matanuska Electric Association
(MEA) records purportedly showing a suspicious pattern of
electrical consumption by Carter.1
In her first affidavit, Santora described four
anonymous tips, called in to the police over a period of
approximately three and one-half years. Each tip alleged
Carter's involvement in drug-related activities. Santora's
affidavit provided nothing to indicate whether the tips came from
the same person or involved multiple tipsters.
According to Santora, the first tip, received by
Anchorage Crimestoppers on March 19, 1990, reported that Carter
and his sixteen-year-old daughter Julie were living in a
residence in Houston, where they were "selling 'just about
everything,'" and had "other people 'growing for them.'" The
second tip, received by the Anchorage Drug Enforcement Unit (DEU)
on January 27, 1992, asserted that Carter "has an indoor grow and
is dealing cocaine" at his residence. Both of these tips
included general descriptions of Carter and of the location of
his home.
The third tip, a Crimestoppers call to the Mat-Su
Narcotics office on May 19, 1993, reported an "individual who is
selling marijuana and gets his marijuana from another individual
and Phil Carter." According to the tip, Carter and the other
unnamed individual were "growing a lot of marijuana and selling
in the Valley." This tip did not describe Carter or mention his
residence, but it listed a telephone number for him. The final
tip, a call to the Anchorage DEU on August 30, 1993, alleged that
Carter was purchasing a house on Cheri Lake Road in Houston, that
he "has a grow" there, and that he "was 'dealing' to people in
the Big Lake area."2
In addition to describing these tips, Santora's first
affidavit confirmed that Carter owned a residence near Cheri Lake
Road in Houston. Santora had driven by the house on September 9,
1993. She described it as a single family residence with an
attached garage; the garage had an overhead door with "two
windows which were covered from inside." According to the
affidavit, Department of Public Safety records indicated that a
nineteen-year-old female named Julie Carter lived at the same
location; the records also indicated that Carter's telephone
number was 892-7920.3 Santora's affidavit further stated:
Investigator Ed Harrington, with the
Alaska State Troopers assigned to the DEA
task force, informed Investigator Santora
that PHILLIP CARTER was willing to provide
information to Investigator Harrington during
the summer of 1992, about cocaine activity,
but not marijuana. CARTER told Investigator
Harrington that CARTER believes marijuana
should be legalized.
Santora's second affidavit summarized MEA records of
electrical consumption at Carter's Cheri Lake Road residence.
The records themselves were introduced at the October 6, 1993,
search warrant hearing. Those records indicated that Julie
Carter first occupied the residence in August of 1992, when the
utility account was placed in her name. Due to nonpayment of
bills by the Carters, the utility account was relisted to the
name of the Carters' landlord on February 1, 1993. A service
order dated March 1 restored the account to Julie Carter's name;
a handwritten remark on the service order indicated that "Julie
paid her bill of $2,192.86 on March 23, 1993[.]"
In order to supplement and interpret the MEA records
described in Santora's second affidavit, the state called MEA
employee Byvan Bogue to testify at the October 6 search warrant
hearing. Bogue testified that he found nothing remarkable in the
Carters' electrical consumption from shortly after the beginning
of Julie Carter's listing on the account in August 1992 through
February 1993.4 But beginning in March 1993, Bogue thought he
detected "the first clues that something else is . . .
happening." What Bogue detected was that, in the March, April,
and May billings,5 the Carters' electrical consumption remained
relatively constant -- approximating their winter consumption --
even though average outdoor temperatures rose significantly.
Although June, July, and August consumption decreased
significantly, September and October consumption increased
sharply -- to winter levels -- even though the fall temperatures
remained relatively mild. Bogue interpreted this type of
electrical usage pattern to show that "something else other than
normal household usage is taking place." In Bogue's view, the
pattern was "very consistent with growing marijuana."
Based on this evidence, Magistrate Zwink issued the
requested warrant, finding probable cause to believe that Carter
was growing marijuana in his home. In issuing the warrant, the
magistrate reasoned that, given the recent pattern of electrical
consumption and the variance between Carter's use and the owner's
past use during the same months, there was "something highly
suspicious about [the] electrical usage, which is consistent with
a marijuana growing operation of some size[.]" In the
magistrate's view, this suspicious usage, coupled with "the
observation of the trooper that there are some blacked out
windows there," amounted to "corroborating factors to the tips,
which clearly indicated that . . . Phillip and Julie [Carter]
were selling marijuana [at the Carters']."
The troopers executed the search warrant the next day.
At Carter's house, they found and seized 248 marijuana plants
(199 starter plants and 49 more mature plants), growing
equipment, lights, scales, and miscellaneous drug paraphernalia.
Charges were subsequently filed against Carter, who moved to
suppress this evidence, arguing that the October 6 warrant was
not supported by probable cause.
Judge Cutler denied Carter's suppression motion. The
judge stated that if there had been just one tip and the
electrical information, the state would have "a very, very slim
case." However, Judge Cutler concluded that probable cause had
been established by the multiplicity of tips and the
corroborating MEA records. Judge Cutler also relied on three
other facts mentioned in Santora's first affidavit: the covered
windows on Carter's garage door; Julie Carter's lump sum payment
in March 1993 of $2192.86 for past due charges -- from which the
court found an "obvious inference" that the Carters had just sold
a marijuana crop; and Carter's 1992 statement that he believed
that marijuana should be legalized.
On appeal, Carter challenges Judge Cutler's findings
and argues that the information before Magistrate Zwink was
insufficient to establish probable cause.
"Probable cause to issue a search warrant exists when
'reliable information is set forth in sufficient detail to
warrant a reasonably prudent [person] in believing that a crime
has been or was being committed.'" Van Buren v. State, 823 P.2d
1258, 1261 (Alaska App. 1992) (quoting Badoino v. State, 785 P.2d
39, 41 (Alaska App. 1990)). In Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393 U.S. 410 (1969), the
United States Supreme Court articulated a two-prong analysis for
determining the validity of an affidavit that relies on a
confidential informant's tip to establish probable cause.
Although, for federal constitutional purposes, the Supreme Court
subsequently abandoned Aguilar-Spinelli's biprongularity in favor
of a totality of the evidence test, Illinois v. Gates, 462 U.S.
213 (1983), the Aguilar-Spinelli doctrine continues to govern the
determination of probable cause under Article I, Sections 14 and
22 of the Alaska Constitution. State v. Jones, 706 P.2d 317, 324-
25 (Alaska 1985).
The Alaska Supreme Court has described Alaska's
application of the Aguilar-Spinelli test as follows:
When a search warrant is based on
the hearsay statement of a confidential
informant, the affiant must establish the
informant's basis of knowledge and veracity.
To establish the informant's basis of
knowledge, the infor-mation must be based on
the informant's personal observations, not
his suspicions or beliefs. If the affidavit
lacks an affirm-ative allegation of the
informant's personal knowledge, "the facts
supplied must be so detailed as to support an
inference of personal knowledge."
Additionally, the affiant must
inform the magistrate or judge of some of the
underlying circumstances that led the affiant
to conclude that the informant was credible
or that his information was reliable. An
informant's veracity may be established by
demonstrating his past reliability, or by
independent police corroboration of detailed
facts in the informant's story. The personal
identity and involvement of the informant may
also establish his veracity. . . . Finally,
an informant's admission against his penal
interest may be sufficient to establish his
veracity in certain circumstances.
Jones, 706 P.2d at 324-25 (citations and footnotes omitted). In
describing the Aguilar-Spinelli test's application to Alaska
cases, our supreme court has also emphasized that "[i]t is
imperative under the Alaska Constitution that the magistrate be
presented with adequate supporting facts so that he can
independently test the confidential informant's basis of
knowledge and veracity." Id. at 326.
Applying Aguilar-Spinelli to the four anonymous tips
received by the police in the present case readily reveals their
deficiency. The tips provided general descriptions of Carter,
his daughter, Carter's telephone number, and the location of
Carter's residence. But their allegations of drug-related
activities were devoid of factual substance, advancing little
more than conclusory accusations. Neither alone nor in
combination do the tips contain any "supporting facts" that might
have enabled the magistrate to "independently test the
confidential informant's basis of knowledge and veracity."
Jones, 706 P.2d at 326. Nothing in any of the tips would support
an inference that the confidential informant or informants who
reported them to the police spoke truthfully or from personal
knowledge.
To be sure, Investigator Santora confirmed some of the
factual information in some of the tips. But the limited facts
about Carter and his residence that Santora confirmed involved
general information that would be readily available to virtually
anyone in the community.6 At best, corroboration of such general
facts "only justifies an inference that the informer has some
knowledge of the suspect and his activities, not that criminal
activity is occurring." State v. White, 720 P.2d 873, 875 (Wash.
App. 1986) (quoting State v. Jackson, 688 P.2d 136, 140 (Wash.
1984)). Although information corroborating a confidential infor
mant's tip need not be independently incriminatory, Schmid v.
State, 615 P.2d 565, 577 (Alaska 1980), it must relate to the tip
in some way that lends credibility to the report of illegality.
Clark v. State, 704 P.2d 799, 804 (Alaska App. 1985). Thus,
corroboration of public facts or wholly innocuous details will
not suffice. See, e.g., State v. Young, 867 P.2d 593, 604 (Wash.
1994) (en banc).
Apart from confirming some of the general information
from some of the anonymous tips, Santora described several
observations that Magistrate Zwink and Judge Cutler found to be
indicative of drug-related activity, and not innocuous. The
first such observation was what Magistrate Zwink referred to as
the "blacked out" garage door windows. Santora, however, never
stated that the windows of the garage doors were "blacked out."
She averred, instead, that they were covered from the inside, and
she did not specify whether the covering was opaque, translucent
or transparent. Nor did Santora state whether there were other
windows on the garage; describe whether she saw any other covered
windows on the garage or house; or provide any detail to suggest
that the coverings she did see were meant to obscure vision or
promote plant growth.
The mere presence of two "covered" windows on a garage
door supports no inference of criminality. Cf. State v. Huft,
720 P.2d 838, 839, 841 (Wash. 1986) (en banc) ("'extremely high-
intensity light' emitting from basement window" insufficient to
corroborate anonymous, conclusory tips of marijuana-growing
operation in defendant's basement apartment).
Second, Judge Cutler found it significant that, in
March 1993, Julie Carter made a $2,000 lump-sum payment for back
electrical bills. The judge found it an "obvious inference" from
the payment that the Carters had just sold a marijuana crop. Yet
there is nothing in the record to support such an inference.
Indeed, according to Bogue's testimony at the search warrant
hearing, the electrical records for the months preceding the
payment indicate normal winter electrical consumption. And while
lump-sum payments of cash made under unusual circumstances have
been deemed indicative of criminality, see, e.g., State v.
Christen, 720 P.2d 1303, 1310 (Ore. App. 1986) (en banc)
("payment in six crisp new one-hundred-dollar bills when
defendant indicated he worked only occasionally"), there is
nothing here to indicate a cash payment, and no suspicious
circumstances are described.
We are aware of no authority standing for the
proposition that the mere payment of a past due bill in and of
itself supports an inference of criminality. The inherent
fallacy of such an inference is that it depends on circular
reasoning. To infer the obvious existence of criminal activity
from nothing more than the fact that a past due bill has been
paid in lump sum requires one to assume the existence of
precisely the criminality one seeks to confirm: thus, the
inference that Julie Carter paid her utility bill using funds
derived from a marijuana crop becomes "obvious" only if we assume
at the outset that the Carters were raising marijuana. Without
such an assumption, the fact of payment itself suggests nothing.
Third, Judge Cutler mentioned as a corroborative fact
Carter's year-old statement to a police officer expressing the
belief that marijuana should be legalized. But to conclude that
a person who expresses a legitimate social or political belief is
likely to disregard the law to further that belief requires
reliance on an inferential process that at best is highly
attenuated and at worst recalls the abuses of the McCarthy era.
Absent a clear factual context suggesting Carter was prepared to
act illegally when he expressed his belief that marijuana should
be legalized -- and no such factual context was set before the
magistrate here -- no incriminatory significance can be ascribed
to Carter's statement.
In short, because Santora's observations confirmed only
general background facts and revealed no "extrinsic objective
facts indicative of criminal activity[,]" White, 720 P.2d at 875,
they added nothing of substantive value from which the
truthfulness or basis of the informants' reports of criminality
could be gauged. The allegations of drug-related activities that
were advanced in the four anonymous tips thus remained wholly
conclusory and speculative, even considering the additional
observations Santora described in her affidavit.
Nor can it be deemed significant that more than one tip
was received -- a consideration Judge Cutler found important in
upholding the warrant. On past occasions we have recognized that
"[c]ross-corroboration among informants is a well-accepted method
of demonstrating the validity of the information given." Lewis
v. State, 862 P.2d 181, 186 n.5 (Alaska App. 1993) (quoting State
v. Prince, 760 P.2d 1356, 1359-60 (Or. App. 1988) (en banc)
(citations omitted)). But this method of corroboration is based
on the common sense assumption that like factual details
emanating from independent sources are apt to be credible.
Here, as the state conceded below, there is nothing in
the record to establish that the four tips in question originated
from different informants. Moreover, as we have already
indicated, none of the anonymous tips in this case contained any
factual detail capable of cross-corroborating other tips or being
cross-corroborated in return: all involved conclusory and
unsupported allegations of criminal activity.7
The mere repetition of a conclusory accusation cannot
enhance its reliability or credibility. "Quality of information,
not quantity, is what establishes probable cause." Huft, 720
P.2d at 841. A house of probable cause can not be built by
piling bricks of speculation one atop another; without a mortar
of factual detail to bind them, the bricks will fall. Here, we
have four bricks and no mortar.
It remains to be considered whether the four anonymous
tips in the present case added enough to the evidence of Carter's
unusual electrical consumption to establish probable cause. It
is well settled that an anonymous tip that does not meet the
Aguilar-Spinelli test may be considered insofar as it
corroborates other evidence. See Spinelli, 393 U.S. at 418;
State v. Chapman, 783 P.2d 771, 773 & n.2 (Alaska App. 1989).
Such a tip may be used to "suppl[y] the 'little bit more' which
is needed to elevate [highly suspicious] information up to the
level of probable cause[.]" 2 Wayne R. LaFave, Search and
Seizure ' 3.3(f) at 180 (3d ed. 1996).
In considering this issue, we must note at the outset
that utility records showing unusual electrical consumption have
no inherent incriminatory value. There are many common and
legitimate uses of electricity that might account for high or
unusual electrical consumption, such as use of an electric sauna,
a hot tub, a potter's kiln, or even a "grow operation" involving
exotic flowers. Although a proper showing of probable cause need
not rule out all possibilities consistent with innocence, neither
can it consist of an undifferentiated showing that, among
multiple competing possibilities, one is consistent with guilt.
Probable cause must at least point the finger of likelihood
toward a possibility consistent with guilt.
For this reason, courts in other jurisdictions have
tended to find evidence of unusual electrical consumption to be
significant to the overall determination of probable cause only
if other solid facts have been presented to the issuing
magistrate to indicate that criminal activity is afoot or to
eliminate legitimate explanations for the unusual consumption.8
Absent solid facts indicating criminality or non-legitimate
consumption, courts have concluded that electrical records
showing unusual consumption -- even when combined with
conclusory, anonymous tips of drug-related activity -- are
insufficient to establish probable cause.9
Standing alone, the evidence in the present case that
Carter's electrical consumption was "very consistent with growing
marijuana" does little more than say that growing marijuana is
one possible explanation for the unusual consumption disclosed by
the MEA records. Nothing in the MEA records or in Byvan Bogue's
testimony interpreting those records rules out any of the
multitude of other conceivable explanations for the same pattern
of use or demonstrates that growing marijuana was a more likely
explanation than others.
Nor can the four anonymous tips in this case be deemed
to shift the balance toward probable cause. As we have already
observed, these tips, whether viewed collectively or
individually, advanced no "extrinsic objective facts indicative
of criminal activity," White, 720 P.2d at 875. If an anonymous
and conclusory allegation of drug-related activity were
sufficient to elevate evidence of unusual electrical consumption
from the level of mere suspicion to that of probable cause, then
the probable cause requirement might well be reduced to little
more than a hollow exercise in self-fulfilling prophecy. For
example, a meter reader who happened to notice high or unusual
electrical consumption at a residence would be free to create
probable cause by making an anonymous report that the homeowner
was operating a "marijuana grow."10 Police following up on the
tip would discover the high use or unusual consumption and have
probable cause. Worse yet, virtually any would-be mischief-maker
who knew of a homeowner pursuing a perfectly legitimate activity
that consumed unusual amounts of electricity would have an open
invitation to instigate a police search by calling in the same
type of tip.
We are fully cognizant that a magistrate's decision to
issue a search warrant may be reversed only when clearly
erroneous. Lewis, 862 P.2d at 185 (citing State v. Bianchi, 761
P.2d 127, 129-30 (Alaska App. 1988)). We are also aware that the
magistrate's findings are entitled to great deference, and must
be upheld in doubtful or marginal cases. Lewis, 862 P.2d at 185
(citing Metler v. State, 581 P.2d 669, 673 (Alaska 1978) and
Kvasnikoff v. State, 804 P.2d 1302, 1306 (Alaska App. 1991)). In
the present case, however, the record is not marginal and
establishes clear error in the probable cause finding.
We hold that the superior court erred in denying
Carter's motion to suppress. Carter's conviction must therefore
be REVERSED.
_______________________________
1. Santora executed the first affidavit on October 4, 1993, and submitted it
that same day to secure a warrant authorizing seizure of MEA records
dealing with Carter's electrical consumption. Magistrate Zwink issued the
warrant. After obtaining the MEA records, Santora executed her second
affidavit on October 6, and submitted it, together with her previous
affidavit, to obtain the warrant authorizing a search of Carter's
residence. Carter has not challenged the initial warrant authorizing
seizure of MEA records; he argues only that the second warrant lacked
probable cause.
2. Santora's affidavit described the most recent tip first and then set the
rest out in chronological order. In relevant part, the affidavit recited:
On August 30, 1993, the Anchorage office of the Statewide Drug
Enforcement Unit [DEU] received a tip that Philip Carter was
supposed to be purchasing a house in the Big Lake area, and he
has a grow at that residence which is on Cher[i] Lake Road,
second house on the left in Houston. The tip also provided that
Carter was "dealing" to people in the Big Lake area[.]
. . . .
On March 19, 1990, it was reported to Anchorage Crimestoppers
that Phil Carter, a white male age 30 to 40 with brown hair, and
Julie Carter, white female age 16, lived in Houston, Alaska at
the end of Horizon Boulevard. The caller provided that they are
father and daughter selling "just about everything." The caller
also provided that they have other people "growing for them."
On January 27, 1992, the Anchorage office of the [DEU] received
information that Phil Carter has an indoor grow and is dealing
cocaine at four miles past Big Lake cut off, before Houston.
Phil Carter is described to be a white male, late to mid 40's,
six feet tall with brown hair.
On May 19, 1993, the Mat-Su Narcotics office received a
Crimestoppers tip from an anonymous caller reporting on an
individual who is selling marijuana and gets his marijuana from
another individual and Phil Carter. The caller lists Carter's
phone number as 8-9-2-7-8-0-2. The caller goes on to state that
the other individual and Carter are growing a lot of marijuana
and selling in the Valley.
3. This number differs from the number provided in the third tip.
4. As to August 1992, the month Julie Carter's name was first listed on the
account, Bogue commented the consumption was "extremely high . . . well
outside the bounds."
5. Bogue testified that the monthly billings actually reflected consumption
occurring during the preceding month. The Carters' monthly billings
included a statement of the average daily temperature for each month
billed; these averages evidently also reflected the month of actual
consumption, rather than the month of billing.
6. Santora's affidavit also established that Carter's actual telephone number
differed from the number provided in the third tip.
7. In this regard it is worth noting that, even as to innocuous details,
Santora's independent investigation corroborated primarily the last tip.
Although Santora confirmed Carter's residence as reported in the most
recent tip, she did not confirm his occupancy of the residence described in
the first two tips -- evidently different than the one Carter occupied when
the warrant was issued.
8. See, e.g., State v. Darroch, 843 P.2d 978, 979-80 (Ore. App. 1992);
Christen, 720 P.2d at 1309.
9. See, e.g., State v. Young, 867 P.2d 593, 604-05 (Wash. 1994) (en banc);
White, 720 P.2d at 875-76; Huft, 720 P.2d at 841.
10. Indeed, the circumstances of the present case provide no assurance that
this did not occur here.
