Court Filing
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 CR01-24-31665 Plaintiff, MOTION TO SUPPRESS AND V. MEMORANDUM IN SUPPORT BRYAN C. KOHBERGER, RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 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 for Google data obtained from three warrants dated January 3, 2023, January 23, 2023, and February 24, 2023. That data includes MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 1 emails, personal contacts, financial information, documents, PowerPoint presentations, photos, IP addresses and more. 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. The Affidavit Submitted in Support of the Application for the Issued Search Warrants Recklessly or Intentionally Omitted Material Information. II. The Affidavits Submitted in Support of the Applications for the Issued Search Warrants Included Information that Must be Excised. a. All information in the affidavit was gathered because of law enforcement's unconstitutional and intentionally omitted use of Investigative Genetic Genealogy, and thus nothing in the warrant should remain. b. Information gathered about Mr. Kohberger via previous invalid warrants must also be excised. III. The search warrants are duplicative and fail to command law enforcement to search the Google accounts. IV. The search warrants fail to provide specific particularization of what law enforcement could search. V. Mr. Kohberger has a privacy interest in his Google information and email accounts, protected by Art. I Sec. 17 of the Idaho Constitution and the Fourth Amendment. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 2 FACTS Pennsylvania law enforcement, along with officers from Idaho and the FBI, arrested Mr. Kohberger on December 30, 2022. Subsequent to Mr. Kohberger's arrest, many warrants were executed. On January 3, 2023, Moscow Police Detective Mowery began work on Google warrants. He obtained Google Warrant One on January 3, 2023, a search warrant for all data available in a Google Account in connection with the email BryanChristopher1994@gmail.com plus two phone numbers and an IMEI number. (Exhibit A) On January 25, 2023 Mowery obtained a Google Warrant Two, a search warrant for all data available in a Google Account in connection with yewsrineighm@gmail.com. (Exhibit B) No specific nexus is mentioned in the second warrant for the new email account other than it was identified. On February 24, 23 Mowery obtained Google Warrant Three, seeking all data available in relation to Mr. Kohberger. (Exhibit C) No reference is made in the affidavit to a nexus between Kohberger and bk5781@gmail.com. Google Warrant Three adds the email account bk5781@deslaes.edu without explanation. (Exhibit C) The warrants have no limiting language in the search and no justification for duplication. Google Warrant three return, signed by Payne March 14, 2023, references a warrant return only for the wrong email: Bryanchistopher@gmail.com instead of bryanchristopher1994@gmail.com; (Exhibit D) the receipt and inventory, also signed by Payne references Bryanchristopher@gmail.com and yewsirneighm@gmail.com but the return or the receipt and inventory report nothing about bk5781@desales.edu. (Exhibit E) This is particularly noteworthy because email communication between Mowery and Google on January 4, 2022 reference Google not producing data on nonpersonal accounts (i.e. desales.edu), Mowery indicates, “ they [Desales] are going to be able help us with their end of the process. So that should be taken care of. " (Exhibit F) Yet, bk5781@deslaes.edu found its way into Google Warrant Three without any nexus or explanation on February 24. 2022. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 3 The information in the warrants was cut and pasted from an affidavit originally bearing the signature of Moscow Police Department Sgt. Blaker, at other times Cpl. Payne and now Mowery. The Google specific information in Google Warrant One referenced the United States and government as well as the search of a phone for single decedent (i.e. looking for the location of a decedent), indicating it was cut and pasted without edits. Google Warrants Two and Three remove the United States language, reference to the government, and the single decedent language. The basic facts Mowery used to support the searches were those listed in Exhibit B, which are those that had been used to support arrest. Exhibits B to the three Google warrants were different versions of the arrest warrant and: 1. Details about Google as a company and what it stores based on Mowery's " personal knowledge " 2. A request for any accounts associated with Kohberger for any time periods 3. Kohberger was observed entering a CVS in Pennsylvania on December 16, 2022 and his email account Bryanchristopher1994@gmail.com and phone number was somehow obtained by law enforcement. 4. For Google Warrant Two, January 24, 2023 a new email is referenced as having been found in Google warrant one data return: yewsirneighm @ gmail. See Exhibit B 5. Also added was " a high probability a VPN was identified in Google return 1/3/23. See Exhibit B 6. For Google Warrant Three, a new email, bk5781@desales.edu is incorporated into the third warrant without any supporting explanation. See Exhibit C. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 4 ARGUMENT I. 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 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 MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 5 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. In this case, law enforcement either intentionally or recklessly omitted exculpatory evidence as to almost every facet of its affidavit for this warrant. Thus, it will require suppression. II. The Affidavits Submitted in Support of the Application for the Issued Search Warrants Included Information that Must be Excised. Where information in a warrant was obtained via a violation of the constitution, Idaho courts excise that information. See, e.g., State v. Johnson, 110 Idaho 516, 526 (1986); State v. Bunting, 142 Idaho 908 (Ct.App.2006); State v. Buterbaugh, 138 Idaho 96, 101 (Ct. App.2002). 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. Mr. Kohberger has argued in a separate Motion that the genetic genealogy investigation in this matter was done in violation of the constitution. Additionally, he argues there would be no investigation into him without that original constitutional violation. It is not that the results of the IGG sped up the investigation. Instead, they focused the investigation on Mr. Kohberger, a person whose only connection to the case was his mode of transportation and the shape of his eyebrows, two identifications of little to no value. See Franks Motion filed simultaneously. As the Idaho MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 6 Supreme Court has explained, while the initial burden in showing a factual nexus between the illegality and the evidence, the State must show it would have been discovered anyway. State v. Maahs, 171 Idaho 738, 752 (2022). The State cannot make this showing. Without IGG, there is no case, no request for his phone records, surveillance of his parents ' home, no DNA taken from the garbage sitting in his driveway, in a gated community, subject to a garbage removal ordinance. Because the IGG analysis is the origin of this matter, everything in the affidavit should be excised. b. Information gathered about Mr. Kohberger via previous invalid warrants must also be excised. Separately, the information gathered via the various other warrants should be excised for the reasons set out in the Franks proffer and as argued in the other motions to suppress such as the ATT and trap and trace data. III. The search warrants fail to command law enforcement to search the Google Accounts. The warrants in this matter fail to actually provide a command to search the Google account. They state:: (1) there are grounds for issuing a search warrant (2) there are grounds to believe the property referred to and sought in or upon said premises consists of information related to investigation of crimes... on the Google account of... " (3) the command is made to search the premises for the property and seize it. The premises is Google LLC at 1600 Amphitheater Parkway Mountain View, CA 94043 (4) there is no incorporating language for the search warrant affidavit. The Idaho Supreme Court found in Adamcik v. State, 163 Idaho 114, 124-25 (2017): The Fourth Amendment to the United States Constitution requires that warrants must “ particularly describ [e] the place to be searched, and the persons or things to be seized. " However, decisions must “ reflect the recognition that the Fourth Amendment's commands, like all constitutional requirement, are practical and not abstract. " United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 7 684 (1965). The circuit courts are nearly uniform in allowing an affidavit to support the particularity requirement when the warrant suitably references the affidavit, and the affidavit accompanies the warrant. See, e.g., United States v. SDI Future Health, Inc., 568 F.3d 684, 699–700 (9th Cir. 2009); United States v. Waker, 534 F.3d 168, 172 (2d Cir. 2008); Rodriguez v. Beninato, 469 F.3d 1, 5 (1st Cir. 2006); United States v. Ortega-Jimenez, 232 F.3d 1325, 1329 (10th Cir. 2000). The Supreme Court has acknowledged " that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. " Groh v. Ramirez, 540 U.S. 551, 557–58, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). In SDI Future, the Ninth Circuit held that a statement on the face of the warrant noting " the supporting affidavit (s) ” was sufficient as a suitable reference and incorporation. 568 F.3d at 700. The court relied on these findings to dismiss a post-conviction claim, finding the defendant would not have been successful had he challenged the fact that the computer searched was omitted from items to be searched in the " command " section of the warrant. Id. at 124. In this case, however, there is no reference to the affidavit, only to " proof ”. In Adamcik, the Court found the warrant explicitly reference the affidavit. In SDI Future, the court relied on a reference to " Upon the sworn complaint made before me ” (emphasis in original). 568 F.3d at 700. The word “ proof ” does not specify that the Court relied on the affidavit for its probable cause determination. Additionally, there is no evidence that the warrants and affidavits were attached to each other. Thus, the warrants did not permit the searches. IV. The search warrants fail to provide specific particularization of what law enforcement could search on the Google Accounts. The Fourth Amendment and Article I § 17 of the Idaho Constitution do not permit email and its attachments to be searched without a valid warrant. There is a subjective expectation of privacy in email and attachments that society is prepared to recognize as reasonable. Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) and United States v. Wilson 13 F.4th 961 (9th Cir. 2021). The United States Supreme Court “ when confronting new concerns wrought by digital technology, has been careful not to critically extend existing precedents. ” MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 8 Wilson. citing Capenter, 138 S.Ct. at 2222. A warrant is not a magical wand that grants access to anything a Google account contains. 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). In striking a balance between law enforcement interests and rights of individuals to be free of unreasonable searches and seizures, “ the process of segregating electronic data that is sizeable from that which is not must not become a vehicle for the government to gain access to data which it has not probable cause to collect ”. Comprehensive Drug Testing, Inc. 579 F.3d 989, 1177 (9th Cir. 2009). There must be some threshold showing before the government may “ seize the haystack to look for the needle. ” U.S. v. Hill, 59 F.3d 966 (9th Cir. 2006).The three Google warrants lack appropriate particularization for three separate email accounts, two phone numbers and one IMEI number. They list the following as possibly existing on the accounts: • Google Account subscriber information, as defined in 18 U.S.C. § 2703 (c) (2); • Google Account recent activity logs and connected devices; • Google email messages (Gmail) including drafts and those in the trash; • Google Pay- Account information and transactions; • Calendar- calendar events; • Contacts-people contact files; MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23-24-23, and 2-24-23 Page 9 • Photos- photos, videos and albums, and associated metadata; • Drive- documents, spreadsheets, presentations and files, and associated metadata; • Keep- titles and the notes; • Hangouts and Chats- messages, including attachments such as photos; • Location History- location data and deletion records; • My activity- searches and browsing history, including activity from Web & App Activity, Google Assistant, and Google Home; • Google Voice- Google Voice information, including Google Voice basic subscriber information, call logs, forwarding number, text messages, and voicemails; • YouTube- Registration email, channel ID, display name, IP logs, and account registration information; • Android- records for Android Devices, to include subscriber information, other associated accounts, cellular ~ carrier information, and device / hardware information; • Google Play- Google Play purchases made and Google Play applications Downloaded. The data compilation is too broad in that it makes no attempt at narrowing and results instead in a blanket request for everything available in a Goggle account, which is akin to the search of all electronic records, an entire computer, or all data on a cell phone. It is a request for the full " haystack. " Jurisdictions across the nation agree