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 CASE NUMBER CR01-24-31665
Plaintiff,
MOTION TO SUPPRESS AND
V. MEMORANDUM IN SUPPORT
BRYAN C. KOHBERGER, RE: APPLE ACCOUNT FEDERAL
GRAND JURY SUBPOENA AND
Defendant. SEARCH WARRANT DATED AUGUST 1, 2023 COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and submits the following Memorandum with exhibits in support of his contemporaneously filed Motion for an Order suppressing all data found by law enforcement from its search of his Apple accounts, primarily his iCloud account.
MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT
RE: APPLE ACCOUNT FEDERAL GRAND JURY SUBPOENA
AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 1
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 Apple account information protected by Art. I Sec. 17 of the Idaho Constitution and the Fourth Amendment, requiring 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.
a. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Included Information that Must be Excised.
b. 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.
c. Information gathered about Mr. Kohberger via previous invalid warrants must also be excised.
III. The Search Warrants Fail to Command Law Enforcement to Search the Apple Accounts or Contents of the iCloud.
IV. The Search Warrants Fail to Provide Specific Particularization of What to Search.
MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT
RE: APPLE ACCOUNT FEDERAL GRAND JURY SUBPOENA
AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 2
FACTS
On December 21, 2022, the FBI issued a preservation request letter to Apple Inc. (Exhibit A). On December 30, 2022, Pennsylvania law enforcement, along with officers from Idaho and the FBI, raided Mr. Kohberger's parents ' home at 119 Lamsden Drive, in Albrightsville, Pennsylvania, and arrested him.¹ An iPad was located at the parents ' home; but it was not seized because it was found in a common area. During a subsequent search of Mr. Kohberger's vehicle, a receipt was located for an Apple iPad.2 Based on incomplete³ records available to the defense, FBI served a Grand Jury Subpoena on Apple on January 12, 2023, and Apple produced responsive data on January 27, 2023, for Apple Accounts DSID 1012112549 and DSID 10616147671.
(Exhibit B). The data was shared with Cpl. Brett Payne of the Moscow Police Department.
Subsequently, Apple sent an email to FBI Tactical Specialist Maria Tyndall acknowledging receipt of a preservation request on April 6, 2023. (Exhibit C). Over the next few days, Detective Mowery of the Moscow Police Department was included in an email chain discussing Apple's response to the preservation request. The communications reference “ setting up a chat ” with Apple's point of contact to discuss issues that need clarified or resolved. The communications also include Apple telling law enforcement which accounts do or don't exist for Mr. Kohberger.
Perhaps recognizing that subpoenaing Mr. Kohberger's records was a violation of the United States and Idaho Constitutions, on August 1, 2023, Cpl. Payne of the Moscow Police requested a warrant for the same information subpoenaed from Apple Inc. by the FBI (Apple Accounts DSID 1012112549 and DSID 10616147671), admitting in his affidavit that the FBI had 1 Exhibit D, p. 23.
2 Exhibit D, pp. 23 and 30.
3 Grand Jury subpoenas issued by the government have been the subject of a motion to compel. There is an order to compel their production " if available ” or at a minimum for the state to provide dates. The state has done neither. Order on Defendant's 4th and 5th Motions to Compel June 14, 2024. The issues in the memorandum are among the reasons a copy of the subpoenas are necessary. It is unclear what the subpoena asked for or its scope. The subpoena return identifies two iCloud accounts.
MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT
RE: APPLE ACCOUNT FEDERAL GRAND JURY SUBPOENA
AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 3
already subpoenaed the requested information. (Exhibit D). Cpl. Payne served the subpoena later that day via email. On August 7, 2023, Apple sent an email to Cpl. Payne responding to the warrant and providing access to the responsive data. On August 9, 2023, Cpl. Payne, and Detective Mowrey downloaded the data provided by Apple in response to the search warrant. (Exhibit E).
The data was inventoried, and a return of search warrant was prepared. (Id.).
The August 1, 2023, Affidavit for Search Warrant was signed by Cpl. Brent Payne.
(Attached hereto as Exhibit D). 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 Payne, now the sworn statement of Cpl. Payne.
The basic facts Payne used to support the search beyond those included in the arrest affidavit were:
1. His knowledge of Apple and what data it maintains with an Apple ID.
2. The method that iCloud uses to “ create, store, access, share, and synchronize data ” on any internet connected device, including back up of “ devices data. ”
3. On January 7, 2023 Apple had responded to the federal grand jury subpoena that a “ full iCloud account under the name Bryan Kohberger was in Active status " and another account wifiarmyowns @ yahoocom was inactive.
4. Using the information produced in the federal grand jury subpoena Cpl. Payne “ determined ” that the “ AMS Subscirber_Account ” was linked to bkohberger@spartan.northahmpton.edu.
5. Timing of account access, as searched by Cpl. Payne, was around December 20, 2022, when Payne knew Kohberger was in Pennsylvania “ still accessing the Apple account with a known iCloud before the homicides and then days before his arrest. ”
6. Cpl. Payne requested a very broad time frame of October 7, 2016 to December 30, 2022 and for any and all Apple accounts linked.
MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT
RE: APPLE ACCOUNT FEDERAL GRAND JURY SUBPOENA
AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 4
ARGUMENT
I. Mr. Kohberger has a privacy interest in his Apple account information protected by the Fourth Amendment of the United States Constitution and Art. I Sec. 17 of the Idaho Constitution, requiring a warrant.
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 (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 reasonable? California v. Ciraolo, 476 U.S.
207, 211, (1986); State v. Donato, 135 Idaho 469, 473 (2001).
Here, at stake is data collected by Apple Inc. through Apple accounts and / or iCloud accounts associated with Mr. Kohberger. The records the State sought included:
1. All records or other information regarding the identification of the account to include identifying information about the account owner;
2. Information regarding the devices associated with or used in connection with the account;
3. The contents of all emails associated with the account including stored or preserved copies of emails sent to and from the account;
4. The contents of all instant messages associated with the account, including stored or preserved copies of instant messages;
4 Exhibit D, Affidavit for Search Warrant, pp. 1-2.
MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT
RE: APPLE ACCOUNT FEDERAL GRAND JURY SUBPOENA
AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 5
5. The contents of all files and other records stored on iCloud, including all iOS device backups;
6. All activity, connection and transactional logs for the account;
7. All records and information regarding locations where the account or devises associated with the account were accessed;
8. All records pertaining to the types of service used;
9. All files, keys, or other information necessary to decrypt and data produced in an encrypted form.
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 Apple Inc. was a belief that the Apple accounts would provide “ information concerning Kohberger's plans, thought process, research, locations, photos or other pertinent information stored on his Apple account, including his iCloud account. " Pursuant to Carpenter, to the extent that information gathered included information from an Apple account created in 2016 and an iPad purchased in 2018. Such information included device backups, private emails,
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RE: APPLE ACCOUNT FEDERAL GRAND JURY SUBPOENA
AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 6
documents, photos, and videos that pre-dated the applicable time frame that Mr. Kohberger was in the Moscow-Pullman area. Mr. Kohberger has a privacy right protected by both the Fourth Amendment and Art. I Sec. 17. This was in essence a cell phone search.
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 from Apple, it had to have a valid warrant and that valid warrant could not rely on a records produce by a federal grand jury subpoena or a search warrant that recklessly and intentionally omitted material facts.
This case is not about bank records, but about data collected by a third party (Apple) from devices associated with Mr. Kohberger's Apple Accounts, which backup or duplicate his internet connected devices, including cellphone data. From the standpoint of the Fourth Amendment, the data Apple collects can provide a massive amount of information about a person's private life. In his affidavit supporting the issuance of the search warrant, Cpl. Payne acknowledged that Apple products often require the creation of an Apple account to use their products. Further, Cpl. Payne noted that:
• Apple accounts provide access to email, iMessage, Facetime, game center and location services among others.
• Apple captures information associated with the creation and use of an Apple ID including basic personal information such as the user's full name, physical address, and telephone numbers. The user may also provide means of payment for products offered by Apple.
• Apple captures the date on which the account was created, the length of service, records of log-in times and durations, the types of service utilized, the status of the account (including 5 Exhibit D, Affidavit for search warrant, pp. 23-26.
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AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 7
whether the account is inactive or closed), the methods used to connect to and utilize the account, the Internet Protocol address (" IP address ") used to register and access the account, and other log files that reflect usage of the account.
• Additional information is captured by Apple in connection with the use of an Apple ID to access certain services. For example, Apple maintains connection logs with IP addresses that reflect a user's sign-on activity for Apple services such as iTunes Store and App Store, iCloud, Game Center, and the My Apple ID and iForgot pages on Apple's website.
• Apple also maintains information about the devices associated with an Apple ID.
• Apple also may maintain records of other device identifiers, including the Media Access Control address (" MAC address "), the unique device identifier (" UDID "), and the serial number.
• Apple provides users with five gigabytes of free electronic space on iCloud, and users can purchase additional storage space. That storage space, located on servers controlled by Apple, may contain data associated with use of iCloud connected services, including: email ; images and videos; documents, spreadsheets, presentations, and other files; and web browser settings and Wi-Fi network.
• iCloud can also be used to store iOS device backups, which can contain a user's photos and videos, iMessages, Short Message Service (" SMS ") and Multimedia Messaging Service (" MMS ") messages, voicemail messages, call history, contacts, calendar events, reminders, notes, app data and settings, Apple Watch backups, and other data.
• iCloud Backup allows users to create a backup of their device data. Productivity apps enable iCloud to be used to create, store, and share documents, spreadsheets, and presentations.
• iCloud Keychain enables a user to keep website username and passwords, credit card information, and Wi-Fi network information synchronized across multiple Apple devices.
See also Matt Burgess, All the Data Apple Collects About You — and How to Limit It, WIRED (Jan.
16, 2023) (available at https://www.wired.com/story/apple-privacy-data-collection). Given the sheer amount of information Apple retains, the Fourth Amendment as understood in Carpenter requires a warrant before the government can access such information.
And as for Idaho, there can be no doubt that Art. I Sec. 17 requires a warrant before law enforcement can access Idahoan's online records. Apple Inc. is heavily regulated and guarantees its customers ' privacy. See, Apple Privacy Policy, https://www.apple.com/legal/privacy/en-ww/ (last updated Sept. 18, 2024).
6 Apple is subject to the provisions of the federal Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. SS 2510-2523. The ECPA governs how Apple can disclose customer data.
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AND SEARCH WARRANT DATED AUGUST 1, 2023 Page 8
To the extent that this court might see this as a third party doctrine issue, the arguments made in Mr. Kohberger's memorandum in support of suppressing Amazon records fully argue that doctrine and are incorporated here. Idaho's constitutional exclusionary rule, protects privacy. See State v. Guzman, 122 Idaho 981, 992 (1992).
For these reasons, this Court should find a warrant is required to access such information.
The FBI's subpoena gathering the information from Mr. Kohberger's account violated his rights, and its results must be suppressed.
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 § 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
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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 inferre