Motion to Suppress Cell Phone and USB Data

Electronically Filed
11/14/2024 5:06 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court Anne Taylor Law, PLLC By: Margaret Smith, Deputy Clerk 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 CELL

V. PHONE / USB FILE AND

MEMORANDUM IN SUPPORT

BRYAN C. KOHBERGER,

RE: MOSCOW POLICE FORENSIC LAB

Defendant. WARRANT DATED JANUARY 9, 2023 COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, 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 the Seagate 2TB External USB Drive with Serial Number # NA87T1GN.

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

II. 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. Information gathered about Mr. Kohberger via previous invalid warrants must also be excised.

III. The search warrant fails to command law enforcement to search the USB Drive.

IV. The search warrant fails to provide specific particularization of what law enforcement could search on the copy of Mr. Kohberger's phone contained on the hard drive.

FACTS

Pennsylvania law enforcement, along with officers from Idaho and the FBI, raided Mr.

Kohberger's parents ' home on December 30, 2022. During the raid law enforcement seized Mr.

Kohberger's cell phone. After seizing the phone, FBI SSA Jeffrey Tanzola made a copy of the
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contents on the cellphone on a Seagate 2TB External USB Drive with the serial number # NA87T1GN labeled Philadelphia RCFL evidence # 00043447 (hereinafter “ USB Drive ”).

On January 9, 2023, Detective Lawrence Mowery of the Moscow Police Department requested a warrant to search the contents of the USB Drive at that time stored at the forensics lab of the Moscow Police Department. (Exhibit A) The affidavit for the warrant was signed by Detective Mowery. However, most of the information in the warrant was cut and pasted from an affidavit originally bearing the signature of Moscow Police Department Sgt. Blaker, but according to Mowery, now the sworn statement of Cpl. Payne. (Exhibit A) The basic facts Mowery used to support the search warrant were those used to arrest Mr.

Kohberger and are the subject of a Franks motion. Additional facts related to the cell phone data are as follows:
1) The phone was seized when Mr. Kohberger's house in Pennsylvania was searched.

2) Data on the phone had already been extracted by the FBI.

The search warrant for Mr. Kohberger's family home in Pennsylvania is also the subject of a motion to suppress. If the search of the house is suppressed, that will be an additional ground to suppress the phone.

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
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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 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.

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In this case, law enforcement either intentionally or recklessly (but, likely intentionally) omitted exculpatory evidence as to almost every facet of its affidavit for this warrant. The details of these omissions are explained fully in a Franks proffer and are incorporated as if fully set forth here. Suppression is required.

II. The Affidavit Submitted in Support of the Application for the Issued Search Warrant 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. As the Idaho 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 in his driveway, in a gated community, required to follow a trash removal ordinance. Because the IGG analysis is the origin of this matter, everything in the affidavit should be excised.

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b. Information gathered about Mr. Kohberger via previous invalid warrants must also be excised.

Separately, the information gathered via the various other warrants are argued in motions to suppress and any applicable information should be excised for the reasons argued.

III. The search warrant fails to command law enforcement to search the USB Drive.

The warrant in this matter fails to actually provide a command to search the USB Drive. It states in summary:
(1) there are grounds for issuing a search warrant (2) there are grounds to believe the USB drive “ for evidence regarding the investigation... including " [sic] and then lists all possibly types of data on the drive, located in the MPD's forensic lab (3) the command is made to search the premises (defined as the police station's forensic lab) for the property and seize it.

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 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.

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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 warrant and affidavit were attached to each other. Thus, the warrant did not permit the search.

IV. The search warrant fails to provide specific particularization of what law enforcement could search on the copy of Mr. Kohberger's phone contained on the USB Drive.

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 be. 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).

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The specific evil that the particularity requirement guards against “ is the 6 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 USB Drive Mr. Kohberger's cell phone lacks appropriate particularization. It lists the following as possibly existing on the USB drive:
• Data Compilations relating to or containing information indicating, suggesting, or related to violence, a fight, or motive / hostility for any of the same, to include without limitation ledgers, papers, lists, books, notes, letters, calendars, diaries, tapes, photographs, audio, videos, or other media or similar documents or items, computer and communications devices capable of storing electronic data, other electronic storage devices and media, and access to contents of all of the above;
• Records of communications;
• Written / text communications including emails, SMS text messages, MMS messages, and other communications, including but not limited to, third-party applications such as Kik, Whatsapp, Facebook, Instagram;
• Contacts stored;
• Location information;
• Location information stored in any cloud account associated with the phone if [sic] said account credentials can be obtained from the forensic image of the phone;
• Internet history, bookmarks, and / or associated cloud accounts;
• Written and audio recorded notes or any cloud account associated with the device;
• Indicia of residency in, or ownership or possession of, the premises and any of the above items [.] To be clear then, the government, which created an “ image ” or copy of Mr. Kohberger's phone and put it on a USB Drive, requested and received permission to search that drive for roughly fifteen types of “ data compilations ”, aside from the “ communications device [] capable of storing electronic data ” it actually knew it contained. It then listed separately eight things that are obviously included within the “ contents ” of the data compilation it already requested access to.

Presumably, the only reason for listing them was to get away from the only attempt the warrant made at limiting what was to be seized- “ information indicating, suggesting, or related to violence, a fight, or motive / hostility for any of the same ”. The data compilation is too broad in that it makes
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no attempt at defining the type of file sought, the remaining eight in that they make no attempt to define what is to be seized.

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 (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 (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 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:
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More fundamentally, the fourth amendment does not countenance the seizure of a container, such as the f