State v Kochetkov, 280 N.C. App. 351, 2021-NCCOA-617 (Nov. 16, 2021)

An acquaintance of the defendant contacted the local police department about several posts made on a Facebook account with the defendant’s name. The department used screenshots of the Facebook posts to obtain an arrest warrant for communicating threats and later obtained a search warrant of the defendant’s home to seize items related to the crime. The search warrant application included screenshots of the Facebook posts and outlined the defendant’s prior encounters with the police department.

One of the items seized in the search was the defendant’s cell phone, on which images of alleged child pornography were found. These images led to a subsequent search warrant and search of the defendant’s home, ultimately leading to the defendant being charged and indicted with five counts of second-degree sexual exploitation of a child. The trial court denied the defendant’s motion to suppress, and the defendant ultimately pled guilty to all five counts of second-degree sexual exploitation of a child, having given proper notice of his intention to appeal.

On appeal, the defendant first argued that the trial court erred in denying his motion to suppress evidence because the affidavit to the warrant application did not establish probable cause he committed the designated offense. In rejecting this argument, the Court of Appeals noted that the affidavit included screenshots of Facebook posts allegedly made by the 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. The Court thus concluded that the information was 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.

The defendant next argued that the information listed in the affidavit was stale because it failed to establish when the Facebook posts were made or discovered. More specifically, the defendant contended that the screenshots of the Facebook posts did not include dates and times, nor did the affidavit provide information as to when the acquaintance provided the information to the police. 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. The Court of Appeals concluded that because the items to be seized included items with enduring utility, the information was not stale, despite the lack of date and time information.

The defendant’s final argument was 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. However, the trial court explicitly found that the affidavit established probable cause in its findings of fact and conclusions of law.

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