Motion to Suppress AT&T First Warrant

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: AT & T FIRST WARRANT

Defendant.

COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and hereby 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.

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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 and fails to provide probable cause for the requested search.

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.

FACTS

On December 23, 2023, Cpl. Payne of the Moscow Police Department requested a warrant to search the contents Mr. Kohberger's AT & T account for information regarding his phone's whereabouts between November 12, 2023 and November 14, 2023, as well as messages and phone calls during that period.

The affidavit for the warrant was signed by Cpl. Payne.

The basic facts Cpl. Payne used to support the search are discussed in a separate motion for Franks hearing pursuant to Franks v. Delaware 438 US 154, (1978) and are incorporated but not repeated here.

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The affidavit requested:
1. All customer / subscriber information, including any listed addresses, other listed telephone number (s), social security number (s), dates of birth, name (s), address (es), any other customer identifying information, mobile handset or device identifiers / serial numbers (MEID, ESN, IMSI, IMEI, SUPI), activation date and deactivation date, and point of purchase or location device was purchased if applicable;
2. Device Purchase Information. This is specifically to include the Date, Time and Location of where the device or any pre-paid refill cards were purchased as well as any information maintained about the purchase to include store name, store number, terminal number, and amount of purchase;
3. Any email addresses associated with the account or with the device that is currently on file and stored in the normal course of business of the Service Provider;
4. Call detail records, including detailed information in reference to all known outgoing and incoming calls associated with the account, dates and times calls were made, and duration of all calls made or received. This is to include any other pertinent call detail records including special features codes, or any other codes that are maintained in the normal course of business for the Service Provider, of any cellular numbers identified in the course of the investigation.

In addition to voice calls, this would also include any detail records showing text messages, MMS messages, or data activity;
a. In the event the requested Call Detail Records contain other Service Provider customer numbers, identified as either incoming or outgoing calls, the Service Provider will provide subscriber information to the specific numbers identified, if requested.

5. Cell site information, to include all known cell towers associated with outgoing and incoming calls (Call Detail Records). This information is to include any sector information, azimuth for each identified sector, cell site location, handoff tower and sector, time on tower information, and any other related material that would be necessary to identify the location and sector in reference to the cell site information associated with the call detail records. In the event text messages, MMS messages, Data activity, including IP sessions and destination addresses that were produced, these records are also included in this request;
6. Cell site locations for all Service Provider Cell Sites, sector information, including azimuth headings, in the regional market associated with the requested cell site information;
7. Location information, to include any estimated or known longitude and latitude of the cellular device's current location, or approximate location, information
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received by cell tower (s) in reference to direction and distance from the tower a device may be located (timing and triangulation information). Radio Frequency signal strengths, direction, and transmission information. The geographical constraints of location information will be limited to the United States;
8. Location information can be in the form of historical records. This would include any reports of device activity that would include the approximate latitude and longitude of the device at the time of the activity, estimated margin of error, direction and distance from the tower, and other location related information commonly referred to as Real Time Tool (RTT), Timing Advance Information, Location Database of Record (LocDBoR). This further includes any other report similar in nature that would provide an estimate of the cellular phone on the Service Provider's network;
9. All text message and / or MMS messages, including message content, currently stored in the normal course of business for the Service Provider, to include any cloud services which allow for the long-term storage of both voicemails and SMSIMMS messages;
10. Cloud Data, any content that may have been backed up to Cloud Storage for the listed dates / times. If said Cloud Storage has been provided by a third-party provider, please provide relevant contact information for that provider;
In the Exhibit attached to the warrant, however, law enforcement indicates only wanting " historical phone records between the hours of November 12, 2022 [,] at 12:00 a.m. and November 14, 2022 [,] at 12:00 a.m. ” and well as “ prospective phone records ”.

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, 100 S.Ct. 2556, 65 L.Ed.2d 633, 641 (1980); State v. Cowen, 104 Idaho 649, 651, 662 P.2d 230, 232 (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 to recognize that expectation as
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reasonable? California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811–12, 90 L.Ed.2d 210, 215-16 (1986); State v. Donato, 135 Idaho 469, 473, 20 P.3d 5, 9 (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.

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
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being gather 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.

" 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 § 887 (2022). “ It is clear that the issuing Magistrate himself, if he is to fulfill the constitutionally
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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.

Finally, " [a] criminal defendant may challenge the veracity of an affidavit used to obtain a search warrant. ” State v. Peterson, 133 Idaho 44, 47, 981 P.2d 1154, 1157 (Ct. App. 1999).

Upon a preliminary showing of a warrant's deficiency, the defendant must prove, by a preponderance of the evidence, “ that intentional or reckless falsehoods were included in the warrant affidavit and were material to the magistrate's finding of probable cause, or that material exculpatory information was deliberately or recklessly omitted. ” Peterson, 133 Idaho at 47, 981 P.2d at 1157. “ An omission of exculpatory facts is “ material ” only if there is a substantial probability that, had the omitted information been presented, it would have altered the magistrate's determination of probable cause. ” Id. “ Whether an omission was intentional or reckless might be inferred, in part, from the relative importance of the information and its exculpatory power. ” Id., 133 Idaho at 48, 981. P.2d at 1158.

The challenge pursuant to this section of the motion is separately laid out in Mr.

Kohberger's motion for hearing under Franks. 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.

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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 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 ";
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• 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.

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 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, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971).

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
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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.

Consider the practicalities of what the court has held- if it is not listed in the warran