UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4143

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BENJAMIN C. THOMPKINS, JR., a/k/a Benjamin Thompkins, a/k/a 

Benjie,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:08-cr-00339-REP-1)

Submitted: April 16, 2010 Decided: May 6, 2010

Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, Decatur, 

Georgia, for Appellant. Dana J. Boente, United States Attorney, 

Angela Mastandrea-Miller, Jessica A. Brumberg, Assistant United

States Attorneys, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Benjamin C. Thompkins, Jr., was convicted of 

possession with intent to distribute fifty grams or more of 

cocaine base, 21 U.S.C. § 841(a) (2006) (Count One); possession 

of a firearm in furtherance of a drug trafficking crime, 18 

U.S.C. § 924(c) (2006) (Count Two); possession of a firearm and 

ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (2006) 

(Count Three); and manufacturing and possessing with intent to 

distribute marijuana, 21 U.S.C. § 841 (2006) (Count Four). He 

received an aggregate sentence of 300 months in prison. 

Thompkins now appeals his convictions. We affirm. 

I

Prior to trial, Thompkins moved to suppress evidence 

seized from his residence pursuant to a search warrant. The 

court determined that the affidavit supporting the search 

warrant established probable cause and that, even if it did not, 

the good faith exception to the warrant requirement applied. 

Thompkins contends on appeal that these rulings were in error.

“In assessing a trial court’s decision on a motion to 

suppress, we review the court’s factual findings for clear error 

and its legal determinations de novo.” United States v. Day, 

591 F.3d 679, 682 (4th Cir. 2010). We view the evidence in the 

light most favorable to the Government, the prevailing party 
3

below. See United States v. Matthews, 591 F.3d 230, 234 (4th 

Cir. 2009). 

The Fourth Amendment prohibits “unreasonable searches 

and seizures.” U.S. const. amend. IV. Further, “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.” Id. The 

magistrate’s task in deciding whether to issue a search warrant 

“is simply to make a practical, common-sense decision,” based on 

the totality of the circumstances, whether “there is a fair 

probability that contraband or evidence of a crime will be found 

in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 

(1983).

In reviewing the validity of a search warrant, “the 

duty of a reviewing court is simply to ensure that the 

magistrate had a substantial basis for . . . conclud[ing] that 

probable cause existed.” Id. (internal quotation marks 

omitted). The magistrate’s probable cause determination is 

entitled to “great deference.” United States v. Chandia, 514 

F.3d 365, 373 (4th Cir. 2008). 

Here, the district court properly denied the 

suppression motion based on its determination that the affidavit 

contained enough information to establish probable cause that 

evidence of marijuana cultivation would be found at Thompkins’ 
4

residence. DEA Special Agent Bertsch, who had extensive 

experience investigating drug trafficking, applied for the 

warrant. In his affidavit, he recited that a confidential 

informant, who had provided reliable information in previous 

investigations, had reported that “BJ” had made six calls to a 

hydroponics store, requesting prices for products typically used 

to cultivate marijuana. The calls came from 13011 Five Forks 

Road, Benjamin Thompkins’ residence. Thompkins had previously 

been served a summons at that address in connection with a 

cocaine investigation. BJ had also visited the hydroponics

store and purchased products commonly used to cultivate 

marijuana. 

The affidavit further stated that Thompkins’ residence 

had used an average of 3008 kilowatt hours of power during each 

billing cycle between December 2007 and May 2008. During the 

same time period, a significantly larger neighboring residence 

had used an average of 2092 kilowatt hours per cycle, and a 

comparably sized residence had used an average of 1190 kilowatt 

hours per cycle. Agent Bertsch stated that, in his experience, 

this unusually large consumption of electricity was consistent 

with the interior cultivation of marijuana. Additionally, 

Thompkins’ girlfriend had inquired about how to reset a digital 

timer of the sort that is often used in the cultivation of 

marijuana. Finally, employment records showed that Thompkins 
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had no reported income since 2003, and Agent Bertsch stated that 

drug dealers typically do not report illegal income. Based on 

the totality of the circumstances, we conclude that there was a 

substantial basis for the magistrate judge’s finding of probable 

cause.

Even if the affidavit did not establish probable 

cause, rendering the warrant deficient, the good faith exception 

to the warrant requirement would apply in this case, as the 

district court found. In United States v. Leon, 468 U.S. 897 

(1984), the Supreme Court held that evidence obtained from 

execution of a defective search warrant is admissible under this 

exception if the officer’s reliance on the warrant was 

objectively reasonable. Id. at 922-23. Leon identified four 

situations in which an officer’s reliance on a warrant could not 

be objectively reasonable, including where the affidavit 

supporting the warrant is “so lacking in indicia of probable 

cause as to render official belief in its existence entirely 

unreasonable.” Id. at 923. Although Thompkins contends that 

his case falls within this exception, characterizing the 

affidavit as “bare bones,” we disagree. To the contrary, the 

affidavit is replete with facts obtained from numerous sources, 

including: a reliable confidential informant; official 

telephone, power company, sheriff’s department, and Virginia 
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Employment Commission records; and Agent Bertsch’s own extensive 

experience investigating similar offenses. 

II

The affidavit supporting the warrant referred to 

information gleaned from power use records subpoenaed from 

Dominion Virginia Power (Dominion). The day before trial was 

scheduled to begin, Thompkins requested a continuance so that he 

could ascertain whether a subpoena in fact was served on

Dominion as represented in the affidavit. He stated that 

Dominion had not produced certain documents requested in a 

subpoena duces tecum that had recently been served on Dominion’s 

registered agent. Those documents, he contended, would tend to 

establish whether the affidavit had been falsified. 

During a hearing on the motion, the Assistant United 

States Attorney informed the court that the Drug Enforcement 

Agency had issued administrative subpoenas to Dominion for the 

three residences identified in the affidavit. All records 

received pursuant to that request were provided to the defense, 

as were copies of the subpoenas. Thompkins’ attorney 

acknowledged having received both the records and the copies of 

the subpoenas. However, he told the court that someone in 

Dominion’s legal department had informed him that a computer 

search turned up no record of Dominion’s having received any 
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subpoena or having provided the records in question. Thus, 

counsel questioned whether the records had been deliberately 

falsified and whether, as a result, the affidavit was valid.

The district court denied the motion for a 

continuance, finding there was no valid reason to support the 

motion. Counsel renewed the motion at trial the next day, and 

the court again denied it. Thompkins now questions the 

propriety of the court’s ruling. 

We review the denial of a motion for a continuance for 

abuse of discretion. United States v. Williams, 445 F.3d 724, 

739 (4th Cir. 2006) “[E]ven if such an abuse is found, the 

defendant must show that the error specifically prejudiced [his] 

case in order to prevail.” Id. After reviewing the record, we 

conclude that Thompkins failed to make the specific showing 

required. Most notably, he has not demonstrated that the power 

usage records in question were erroneous. 

III

Thompkins contends that counsel was ineffective 

because he did not move for reconsideration of the denial of the 

motion to suppress or move for a new trial based on the power 

records issue. He further suggests that counsel was ineffective 

for failing to file a motion for a Franks v. Delaware, 438 U.S. 

134 (1978), hearing on that issue. 
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“Claims of ineffective assistance of counsel are 

normally raised before the district court via 28 [U.S.C.A.] 

§ 2255 [West Supp. 2009] and are cognizable on direct appeal 

only where it conclusively appears on the record that defense 

counsel did not provide effective representation.” United 

States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007); see United 

States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Because 

ineffective assistance does not conclusively appear on the 

record, we decline to address this claim. 

IV

We therefore affirm. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED