Motion to Suppress Pen Trap and Trace Device

Electronically Filed
11/14/2024 5:06 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Margaret Smith, Deputy Clerk Anne Taylor Law, PLLC Anne C. Taylor, Attorney at Law PO Box 2347 Coeur d'Alene, Idaho 83816
Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Jay W. Logsdon, First District Public Defender Idaho State Public Defender 1450 Northwest Blvd.

Coeur d'Alene, Idaho 83814
Phone: (208) 605-4575 Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: (208) 642-3797; Fax: (208)642-3799 Assigned Attorney:
Anne C. Taylor, Attorney at Law, Bar Number: 5836 Jay W. Logsdon, First District Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

STATE OF IDAHO, CASE NUMBER CR01-24-31665

Plaintiff,
MOTION TO SUPPRESS AND

V. MEMORANDUM IN SUPPORT

BRYAN C. KOHBERGER, RE: PEN TRAP AND TRACE DEVICE

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and submits the following Memorandum in support of his contemporaneously filed Motion for an Order suppressing all data found by law enforcement from its search of his AT & T account and tracing his phone usage.

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The Motion and documents in Support of a Franks v. Delaware 438 U.S. 154 (1978) hearing are hereby incorporated into this Memorandum. The proffer with supportive documentation regarding Franks are filed under seal. For that reason, they are not set forth in full detail here, but instead are incorporated.

ISSUES

I. Mr. Kohberger has a privacy interest in his AT & T account information protected by Art. I Sec. 17 of the Idaho Constitution and by the Fourth Amendment.

II. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Recklessly or Intentionally Omitted Material Information.

III. The Search Warrant fails to provide specific particularization of what law enforcement could search and seize in Mr. Kohberger's AT & T account.

IV. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Included Information that Must be Excised.

a. All information in the affidavit was gathered because of law enforcement's unconstitutional use of Investigative Genetic Genealogy, and thus nothing in the warrant should remain.

b. All information gathered via the invalid warrant for Mr. Kohberger's AT & T account must be excised.

FACTS

On December 23, 2023, Cpl. Payne of the Moscow Police Department requested a warrant to search the contents of Mr. Kohberger's AT & T account for information regarding his phone's whereabouts between November 12, 2022 and November 14, 2022, as well as messages and phone calls during that period. However, the affidavit and warrant went beyond that range. After the warrant was granted, law enforcement received information from AT & T.

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This new information is included in the affidavit for a new warrant sought for both account information as well as a pen trap for Mr. Kohberger's phone. The exhibit / affidavit was, like the previous warrant, signed by Cpl. Payne. The basic facts Cpl. Payne used to support the search were essentially the same but with the following added:
1. Cell tower records did not show Mr. Kohberger was in Moscow at the time of the murders. In law enforcement's experience, however, people committing crimes typically turn off their phones.

2. The new information received from the previous warrant, according to “ FBI Special Agents that specialize in the analysis of historical CSLI [Cell Site Location Information] ”, showed that on Nov. 13, 2022, at approximately 2:42 AM, Mr. Kohberger's phone was “ utilizing cellular resources " that provide coverage to his apartment in Pullman, WA. They support the idea that he left his apartment and went south. They supported the phone being off. They support at
4:48 AM that the phone is south of Moscow, ID, near Blaine, ID. The phone utilizes resources that make their way back to Pullman, coinciding with a white Elantra seen on some surveillance there. A similar data showing occurs at approximately 9:00 AM with a trip into Moscow and returning at around 9:32 AM.

ARGUMENT

I. Mr. Kohberger has a privacy interest in his AT & T account information protected by Art. I Sec. 17 of the Idaho Constitution and by the Fourth Amendment.

Both the Fourth Amendment and Art. I Sec. 17 protect people's interest in privacy. A person challenging a search has the burden of showing that he or she had a legitimate expectation of privacy in the item or place searched. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); State v.

Cowen, 104 Idaho 649, 651 (1983). That involves a two-part inquiry: (1) Did the person have a subjective expectation of privacy in the object of the challenged search? and (2) Is society willing
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to recognize that expectation as reasonable? California v. Ciraolo, 476 U.S. 207, 211, (1986); State v. Donato, (2001).

Here, at stake are records of a telephone account. The records the State sought included:
1. Identifying information about account owner and their devices;
2. Device purchase information;
3. Email addresses associated with the account;
4. Call detail records including text messages and data activity;
5. Cell site information;
6. Historical location information;
7. Cloud data;
8. Timing Advance Reports.

The Fourth Amendment has generally refused to acknowledge a privacy interest in records held by a corporation about communications they facilitate. See generally Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See also, Johnson v. Duxbury, Massachusetts, 931 F.3d 102, 107 (1st Cir.2019) (compiling cases and concluding, “ [e] very circuit to have considered the question has held that an individual has no reasonable expectation of privacy in a phone service provider's records of the phone number he has dialed or from which he has received calls. ").

However, in Carpenter v. U.S., 585 U.S. 296, 310-12 (2018), the Supreme Court declined to extend the third-party doctrine to historical cell-site records and cell site location information
(CSLI).

In this matter, Cpl. Payne specified in his request that the purpose for gathering the information from the AT & T records was to “ aid in determining the location of the 8458 phone and the white Elantra in efforts to determine whether the white Elantra is the same vehicle identified " in the surveillance videos. Pursuant to Carpenter, to the extent that information was being
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gathered for the movements of the vehicle, Mr. Kohberger has a privacy right protected by both the Fourth Amendment and Art. I Sec. 17.

In the wake of Carpenter and the Court's recognition of the abundant records maintained on everyone in modern society, it is questionable whether the third-party doctrine is still good law.

However, this Court need not consider whether the Fourth Amendment needs updating, because Idaho has already recognized an expectation in the privacy of whom we dial and the content of text messages we send. See, State v. Thompson, 114 Idaho 746, 749 (1988); State v. Branigh, 155 Idaho 404, 411 (Ct.App.2013).

Therefore, to collect the records law enforcement requested in this matter, it had to have a valid warrant.

II. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Recklessly or Intentionally Omitted Material Information, relies on information gained in violation of the constitution, and fails to provide probable cause for the requested search.

" The Fourth Amendment states unambiguously that “ no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ” Groh v. Ramirez, 540 U.S. 551, 557 (2004) (quoting U.S. Const. Amend. IV.). ‘ Probable cause ' exists when, given all the circumstances set forth in the affidavit, “ 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) (emphasis added).

“ For a search warrant to be valid, the judge issuing the warrant must rely on an affidavit or affidavits sworn to before the judge or by testimony under oath and recorded that establish the grounds for issuing the warrant. ” State v. Nunez, 138 Idaho 636, 640, 67 P.3d 831, 835 (2003).

" Any discrepancy between the items for which there was probable cause and their description in the search warrant requires suppression. ” 23 C.J.S. Criminal Procedure and Rights of Accused §
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887 (2022). “ It is clear that the issuing Magistrate himself, if he is to fulfill the constitutionally mandated function of interposing an independent intelligence between the law enforcement officer and the citizen, must actually and in fact, draw the inferences from the evidence presented to him. ” People v. Potwora, 48 N.Y.2d 91, 94, 397 N.E.2d 361, 363 (Ct. App. 1979). “ It is for this reason that the courts have insisted that the full facts from which inferences might be drawn, and information necessary to determine their reliability, be placed before the issuing magistrate. ” Potwora, 48 N.Y.2d at 94, 397 N.E.2d at 363.

The challenge pursuant to this section of the motion is separately laid out in Mr. Kohberger's motion for hearing under Franks v. Delaware. The motion and proffer are incorporated but not repeated herein.

III. The Search Warrant fails to provide specific particularization of what law enforcement could search and seize in Mr. Kohberger's AT & T account.

The Fourth Amendment and Article I § 17 of the Idaho Constitution do not permit a cell phone to be searched incident to arrest. Riley v. California, 573 U.S. 373 (2014). Rather, the police must seek a warrant. Id. A warrant, however, is not a magical wand that grants access to anything a cell phone contains. As the Supreme Court found, cell phones can contain enormous amounts of information that is private and may not be viewed by the government. Riley, 573 U.S. at 403.

Courts have long required that warrants be sufficiently particular to allow a government agent to know what may be seized, viewed, or searched, and what may not. See, State v. Yoder, 96 Idaho 651, 653 (1975).

A search warrant must be particular enough so that “ [a] s to what is to be taken, nothing is left to the discretion of the officer executing the warrant. ” Marron v.

United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 237 (1927). However, this statement is not to be read literally. [State v.] Weimer, 133 Idaho [985,] 449, 988 P.2d [927,] 223 [(Ct.App.2008)]; 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 4.6 (a), at 605 (4th ed.2004). Instead, the “ warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized. ” United States v. Cook, 657 F.2d 730, 733 (5th Cir.1981); see also United States v. Betancourt, 734 F.2d 750, 754 (11th
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Cir.1984). The specific evil that the particularity requirement guards against “ is the ' general warrant ' abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. " Weimer, 133 Idaho at 449, 988 P.2d at 223. A warrant accomplishes this objective by requiring a particular description of the things to be seized. Id.

State v. Teal, 145 Idaho 985, 991 (Ct.App.2008).

The warrant for the Mr. Kohberger's AT & T account lacks appropriate particularization. It lists all the following that could be found in the account:
• All identifying information of the account holder;
• All information about the creation of the account;
• All information about the accounts maintenance;
• All call records;
• All text messages, MMS messages, or “ data activity ”;
• The devices historical and prospective locations;
• Any data now in the Cloud.

The warrant and the affidavit are not only all encompassing, they are duplicative, often repeating things to be searched and seized. The only limitation in scope is that the property be related to the homicides in this matter. This warrant covers a scope of six months ' time.

Jurisdictions across the nation agree that such broad warrants are problematic but found that trying to fix that issue via more particularized warrants has its own issues. Still, this case presents a warrant that is overbroad under the long-standing principles of Article I Section 17 and the Fourth Amendment.

First, this Court should review what Idaho courts have already held about particularity. In State v. Caldero, 109 Idaho 80, 84 (Ct.App.1985), the Court of Appeals found:
The requirements of probable cause and particularity serve different purposes.

[There are] two distinct constitutional protections served by the warrant requirement. First, the magistrate's scrutiny is intended to eliminate
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altogether searches not based on probable cause.... The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the “ general warrant ” abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings.... The warrant accomplishes this second objective by requiring a particular description of the things to be seized.

Coolidge v. New Hampshire, 403 U.S. 443, 467.

In our view, the particularity requirement is as important today as it was to the framers of the fourth amendment. It protects all citizens from unduly broad intrusions upon the privacy of their persons, houses, papers and effects by government agents. As noted by one distinguished authority:
If the police, upon obtaining entry to a house under a search warrant, were permitted to seize any item, regardless of its connection with crime and regardless of whether they knew the item was on the premises, the requirement that a warrant particularly describe the items to be seized, and that only items for which probable cause exists be seized, would be meaningless. In effect, a warrant to enter the premises to search would be a general warrant in actual execution, if not in form.

W. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS §

6.5 (a), at 6-24 to –25 (1979 with 1984 Supp.).

In that case, the court considered a filing cabinet not mentioned in the warrant. Id. The State argued that the cabinet could be searched under the plain view doctrine. Id. The court disagreed, holding:
More fundamentally, the fourth amendment does not countenance the seizure of a container, such as the file cabinet, which is outside the scope of any warrant and which bears no outwardly apparent connection with any crime, simply for the purpose of searching it later.

Id. at 85. However- the court also noted in dicta:
We have considered the possibility that Caldero's personal papers inside the file cabinet might have furnished the necessary link to criminal activity. It would have been permissible for the officers to look inside the cabinet for items, such as a manuscript, listed in the search warrants. Had they done so, the personal papers would have been discovered.

Id. To be clear, what the court held was that the warrant controlled the discretion of the officers performing the search as to what was to be seized, but not what might be searched to locate the items listed.

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Consider the practicalities of what the court has held- if it is not listed in the warrant, it cannot be seized, but you may search to your heart's content for the things listed in the premises named. Then, try and compare this to searching a cell phone. In the words of the Supreme Court:
That is like saying a ride on horseback is materially indistinguishable from a flight to the moon... Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee's pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

Riley, 573 U.S. at 393.

In U.S. v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1176 (9th Cir. 2009), the court found:
This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case, see pp. 1167–68 supra, creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.

This concern grew in the aftermath of Riley, with a number of jurists See, e.g., State v. Mansor, 421 P3d 323, 345 (Or.2018); Wheeler v. State, 135 A.3d 282, 299 (Del.2016). In the words of one:
Of course, Riley requires that officers first get a warrant, 573 U.S. at 403, 134 S.Ct.

2473, but if the fact that the arrestee was carrying a cell phone at the time of arrest is sufficient to support probable cause for a search, then the warrant requirement is merely a paperwork requirement. It cannot be that Riley's holding is so hollow.

U.S. v. Morton, 46 F.4th 331, 340 (2022) (HIGGISON, CJ, concurring).

In State v. Castagnola, 46 N.E.3d 638, 656 (Ohio, 2015), the court rejected that in the case of a computer it was enough to state the offense charged and the items to be searched for. In that case, the search warrant commanded a computer be searched for “ records and documents ” which " if found... will be seized and used as evidence of ” and provided the crimes alleged. Id. at 657.

The court found that:
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A search warrant that includes broad categories of items to be seized may nevertheless be valid when the description is “ “ “ as specific as the circumstances and the nature of the activity under investigation permit. ” ' ” Guest v. Leis, 255 F.3d 325, 336 (6th Cir.2001), quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988), quoting United States v. Blum, 753 F.2d 999, 1001 (11th Cir.1985). Warrants that fail to describe the items to be seized with as much specificity as the government's knowledge and the circumstances allow are " invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized. ” United States v.

Fuccillo, 808 F.2d 173, 176 (1st Cir.1987).

Id. The court then found that the warrant failed the test in two respects. First, it left to the discretion of the investigator what was relevant to the crimes alleged. Id. at 658. Second, it made no attempt to delineate the types of files that court be relevant to what the police believed they would find in that particular case- evidence that the defendant had made an online search of his alleged victim's address. Id. In those circumstances, there was no reason to go looking at videos and pictures. Id.

Thus, returning to our analogy, the Ohio Supreme Court found the warrant failed as to where (category) and what (description of the file sought). As the Court noted, the where and what can be named with more specificity based on what is known t