State v. Kochetkov

• Court: Court of Appeals of North Carolina
• Decided: November 16, 2021
• Docket: 20-774
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-617

No. COA20-774

Filed 16 November 2021

Wake County, No. 18 CRS 218812-13

STATE OF NORTH CAROLINA

v.

ARTHUR VLADIMIR KOCHETKOV, Defendant.

Appeal by defendant from judgments and orders entered 15 July 2020 by Judge

A. Graham Shirley in Wake County Superior Court. Heard in the Court of Appeals

10 August 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Tamika L. Henderson, for the State-appellee.

Appellate Defender Glen G. Gerding, by Assistant Appellate Defender Michele Goldman, for defendant-appellant.

GORE, Judge.

¶1 Defendant Arthur Vladimir Kochetkov appeals from a plea of guilty to five

counts of second-degree sexual exploitation of a child. Defendant challenges the trial

court’s denial of his motion to suppress evidence. We affirm the trial court’s order.

I. Background

¶2 This case arises from several posts made on a Facebook account with the name

“Kochetkov Arthur.” The Wake Forest Police Department (“WFPD”) became aware of STATE V. KOCHETKOV

Opinion of the Court

the relevant Facebook posts after being contacted by Officer Streb with the Town of

Greece Police Department (“GPD”) in New York. Officer Streb informed Corporal

Chilton with the WFPD that Dean Stavalone, an acquaintance of defendant, had

contacted the GPD about the Facebook posts. Screenshots of the Facebook posts,

which are only viewable to the account owner’s “Facebook friends,” were sent to

Corporal Chilton.

¶3 Corporal Chilton used the Facebook posts to obtain a warrant for defendant’s

arrest for Communicating Threats under N.C. Gen. Stat. § 14-277.1. However, the

magistrate judge concluded there was not enough evidence to obtain an involuntary

commitment order. The arrest warrant was executed on 17 September 2018;

defendant was arrested but his home was not searched.

¶4 On 19 September 2018, Detective B.J. High with the WFPD applied for a

search warrant of defendant’s home. Items to be seized under the warrant were

electronic devices including cell phones, computers, tablets, hard drives, USB drives,

CDs, and disks; written documentation including any handwritten notes, printed

notes, photographs, or documents in which a threat is communicated or which contain

information or documentation about schools or other possible targeted areas of mass

violence; and weapons to include handguns, long guns, weapons of mass destruction,

or explosives. The crimes being investigated in conjunction with the search warrant

were Communicating Threats, under N.C. Gen. Stat. § 14-277.1, and Making a False STATE V. KOCHETKOV

Report Concerning Mass Violence on Educational Property, under N.C. Gen. Stat. §

14-277.5. The search warrant application included screenshots of the Facebook posts

obtained from the GPD and outlined defendant’s prior encounters with the WFPD.

Wake County Superior Court Judge Andrew Heath found the search warrant

application demonstrated probable cause and issued a search warrant of defendant’s

home.

¶5 On 19 September 2018, the WFPD executed the search warrant and searched

defendant’s home. One of the items seized in the search was defendant’s cell phone.

While conducting a forensic search of the cell phone, images of alleged child

pornography were found. These images led to a subsequent search warrant and

search of defendant’s home, ultimately leading to defendant being charged and

indicted with five counts of Second-Degree Sexual Exploitation of a Child.

¶6 On 29 July 2019, defendant filed a motion to suppress alleging the information

provided in the affidavit supporting the search warrant application was stale, the

warrant was insufficient because Mr. Stavalone’s veracity was not established, the

Facebook posts did not support the crimes alleged, and that there was not a nexus

between defendant’s home and potential evidence to be seized. The motion did not

come on for hearing until 1 June 2020. Following the hearing on the motion, the trial

court denied defendant’s motion to dismiss. On 15 July 2020, defendant pled guilty

to all five counts of Second-Degree Sexual Exploitation of a Child, having given prior STATE V. KOCHETKOV

proper notice of his intention to appeal the trial court’s order on his motion to dismiss.

Defendant filed a written notice of appeal on 27 July 2020.

II. Discussion

¶7 “We review an order denying a motion to suppress to determine whether the

trial court’s underlying findings of fact are supported by competent evidence and

whether those factual findings in turn support the trial court’s ultimate conclusions

of law.” State v. Worley, 254 N.C. App. 572, 576, 803 S.E.2d 412, 416 (2017) (cleaned

up).

¶8 The Fourth Amendment to the United States Constitution protects the people

from “unreasonable searches and seizures.” U.S. Const. amend. IV. Generally, the

police need a warrant to conduct a search or seizure in a home, and a warrant may

be issued only after a showing of probable cause. See Payton v. New York, 445 U.S.

573, 586, 63 L. Ed. 2d 639 (1980). Article I, Section 20 of the Constitution of North

Carolina similarly prohibits unreasonable searches and seizures and requires a

showing of probable cause to issue a warrant. See State v. Arrington, 311 N.C. 633,

643, 319 S.E.2d 254, 260-61 (1984).

¶9 The totality of the circumstances test is used to determine whether probable

cause exists. Illinois v. Gates, 462 U.S. 213, 230-31, 76 L. Ed. 2d 527 (1983);

Arrington, 311 N.C. at 643, 319 S.E.2d at 260-61 (adopting the federal test for

evaluating probable cause). “To determine whether probable cause exists under the STATE V. KOCHETKOV

totality of the circumstances, a magistrate may draw reasonable inferences from the

available observations.” State v. Allman, 369 N.C. 292, 294, 794 S.E.2d 301, 303

(2016) (cleaned up). To support a magistrate’s finding of probable cause, the evidence

need not be conclusive, so long as all the evidence together “yields a fair probability

that a police officer executing the warrant will find contraband or evidence of a crime

at the place to be searched.” Id.

¶ 10 A magistrate’s probable cause determination should not be subject to de novo

review, instead the magistrate’s probable cause determination should be given “great

deference.” Id. (citations omitted). The duty of a reviewing court is to ensure that the

magistrate had a “substantial basis for concluding that probable cause existed.”

Arrington, 311 N.C. at 638, 319 S.E.2d at 258 (cleaned up).

¶ 11 An application for a search warrant must be accompanied by, among other

things, “one or more affidavits particularly setting forth the facts and circumstances

establishing probable cause to believe that the items [to be seized] are in the places

or in the possession of the individuals to be searched.” N.C. Gen. Stat. § 15A-244(3)

(2020). “A supporting affidavit is sufficient when it gives the magistrate reasonable

cause to believe that the search will reveal the presence of the items sought on the

premises described in the warrant application, and that those items will aid in the

apprehension or conviction of the offender.” Allman, 369 N.C. at 294, 794 S.E.2d at

304. A magistrate cannot lawfully issue a search warrant based on a “purely STATE V. KOCHETKOV

conclusory” affidavit that does not state the underlying circumstances allegedly

giving rise to probable cause. State v. Bright, 301 N.C. 243, 249, 271 S.E.2d 368, 372

(1980).

¶ 12 The affidavit in this case, which was submitted by Detective High, contained

all of the following allegations: screenshots of the Facebook posts allegedly made by

defendant, which contained vague threats of violence, references to local schools, and

defendant’s military training; descriptions of the WFPD’s prior encounters with

defendant, which over the span of three years includes serving involuntary

commitment orders, welfare checks, tips received from the Federal Bureau of

Investigation based on Facebook posts defendant made, an arrest for posting threats

to law enforcement on Facebook (although no probable cause was found in that case);

and the issuance of a warrant for defendant’s arrest for Second-Degree Trespassing

after defendant was allegedly seen photographing locks on doors at a local elementary

school, which is located adjacent to defendant’s home.

¶ 13 In addition to stating these allegations, the affidavit recited Detective High’s

law enforcement training and experience. The affidavit also described how the WFPD

became aware of defendant’s alleged Facebook posts and obtained screenshots of the

posts. Additionally, the affidavit provided information on how and why Detective

High knew the address listed on the affidavit was defendant’s residence. STATE V. KOCHETKOV

¶ 14 Defendant first argues that the trial court erred in denying his motion to

suppress evidence, because the affidavit did not establish probable cause he

committed the designated offense. Defendant asserts that the Facebook posts did not

provide enough evidence to establish the elements of Communicating Threats nor did

the Facebook posts directly or indirectly communicate a threat to the person to be

threatened. However, defendant mischaracterizes the standard to issue a search

warrant. Probable cause does not require evidence of every element of a crime. To

find probable cause exists, a magistrate need only “make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him . .

. there is a fair probability that contraband or evidence of a crime will be found in a

particular place.” State v. Hunt, 150 N.C. App. 101, 105, 562 S.E.2d 597, 600 (2002).

¶ 15 As discussed above, the affidavit in this case included screenshots of Facebook

posts allegedly made by defendant which contained content relating to threats,

violence, and referencing schools, as well as information of defendant’s prior

encounters with the police, including an arrest for trespassing at a nearby elementary

school. We conclude that this information is sufficient to support a magistrate’s

finding, under the totality of the circumstances test, that evidence of a crime may be

found at the place to be searched and in the items to be seized.

¶ 16 Defendant also argues that the information listed in the affidavit was stale

because it failed to establish when the Facebook posts were made or discovered. “The STATE V. KOCHETKOV

general rule is that no more than a ‘reasonable’ time may have elapsed. The test for

‘staleness’ of information on which a search warrant is based is whether the facts

indicate that probable cause exists at the time the warrant is issued.” State v.

Lindsey, 58 N.C. App. 564, 565, 293 S.E.2d 833, 834 (1982) (citations omitted).

“Common sense must be used in determining the degree of evaporation of probable

cause. The likelihood that the evidence sought is still in place is a function not simply

of watch and calendar but of variables that do not punch a clock.” Id. at 566, 293

S.E.2d at 834 (cleaned up). “As a general rule, an interval of two or more months

between the alleged criminal activity and the affidavit has been held to be such an

unreasonably long delay as to vitiate the search warrant.” Id. However, courts have

expanded these time limits when the items to be seized include items with enduring

utility to the defendant beyond criminal activity and the defendant is not likely to

dispose of the items, such as computers, computer equipment, camera equipment, etc.

See Pickard, 178 N.C. App. 330, 336, 631 S.E.2d 203, 207–08 (2006).

¶ 17 Defendant contends that because the screenshots of the Facebook posts do not

include dates and times, nor did the affidavit provide information as to when Mr.

Stavalone provided the information to the police, we must find the information to be

stale because no determination as to how much time has elapsed can be made. In

contrast, the State argues that because of the nature of the posts and their inclusion

in a “course of conduct” the exact age of the posts is less critical to the validity of STATE V. KOCHETKOV

probable cause in connection with the specific items subject to a search here. The

search warrant provided the items to be seized were electronic devices to include cell

phones, computers, tablets, hard drive devices, USB drives, CDs, and disks; written

documentation to include any handwritten notes, printed notes, photographs, or

other documents; and weapons to include handguns, long guns, weapons of mass

destruction, or explosives. Because the items to be seized included items with

enduring utility, like those listed to be seized in cases such as Pickard where the time

period for staleness was determined to be several months or longer, we conclude the

information was not stale, despite the lack of date and time information. See id.

¶ 18 Finally, defendant argues that the trial court erred because its order did not

find that the affidavit supplied probable cause to believe that the designated crimes

had occurred or were about to occur. Instead, the trial court concluded that “the

affidavit sufficiently established that the evidence sought was relevant to the

investigation of the defendant.” Defendant contends that nowhere in its order did the

trial court find the affidavit established probable cause. Defendant’s argument and

contentions lack merit. While the trial court’s order did conclude that the evidence

sought was relevant to the investigation, the order also explicitly found that the

affidavit established probable cause in finding of fact 16 and conclusion of law 2.

Therefore, we dismiss this argument.

III. Conclusion STATE V. KOCHETKOV

¶ 19 For the foregoing reasons we affirm the trial court’s order denying defendant’s

motion to suppress because the trial court properly found the affidavit supported the

magistrate’s finding of probable cause and the trial court applied the proper standard

in its order.

AFFIRMED.

Judges DIETZ and COLLINS concur.