Court Filing
Electronically Filed
12/19/2024 5:54 PM
Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Jennifer Keyes, 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,
REPLY TO STATE'S OBJECTION ΤΟ
DEFENDANT'S MOTION ΤΟ
V. SUPPRESS AND MEMORANDUM IN
SUPPORT
BRYAN C. KOHBERGER, RE: GOOGLE WARRANTS DATED
1-3-23, 1-24-23, and 2-24-23 Defendant.
COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and submits the following Reply to the State's objection to his Motion to Suppress and Memorandum in
Support Re: Google Warrants Dated 1-3-23, 1-24-23, and 2-24-23.
REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS
AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23,
1-24-23, and 2-24-23 Page 1
The words “ proof upon oath " are not synonymous with “ the affidavit for search warrant is here by incorporated ”. A non-particularized general affidavit in support of a search warrant held in the hands of law enforcement, which never accompanied the electronically served warrant, cannot be relied upon to validate a warrant. The warrants never directed law enforcement to exclude any legal information obtained, in support of particularity. All contents of the Google Warrant returns must be suppressed.
I. The Warrants were General and the Affidavit was Not Incorporated into the Three Warrants or Served with the Warrants.
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 17 of the Idaho Constitution is virtually identical to the Fourth Amendment, except that “ oath or affirmation ” is termed “ affidavit. ” 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. The warrants contained no language that the affidavit was incorporated. In misguided fashion, the State asserts that there is no requirement for specific language and relies on Adamcik v. State, which upheld a warrant where “ the opening paragraph of the warrant unambiguously referenced the affidavit and sworn testimony of Detective Sellers as the basis for
REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS
AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23,
1-24-23, and 2-24-23 Page 2
the warrant. " 163 Idaho 114, 125 (Idaho S. Ct. 2017). No such language exists in the Google Warrants. The word affidavit is not mentioned or incorporated into the warrants.
The Affidavit of Det. Brett Payne swears that Detective Mowery served the “ warrant. ” See Exhibit D Google Memorandum. The email between Mowery and Google reference a “ warrant. ” See Exhibit F Google Memorandum. No return documents reference the Affidavit in Support of Search Warrant as having accompanied any of the Google warrants when they were served. Nor does the State produce such records in its Objection. The process described by the State as meeting the criteria of State v. Teal simply does not exist. In its incorporated Objection to the Motion to Suppress Apple Warrant, the State indicates that the “ investigators necessarily had copies of the affidavit in their possession when they executed the warrant by emailing it to Apple. " See Apple Objection, p. 5. Further, the State offers that “ [t] he effect of this is that the Affidavit for Search Warrant and appended Exhibit A cure any supposed deficiencies in the naked warrant. ” See Apple Objection, pp. 5-6. An officer sitting at a computer executing a search warrant by submitting it to Google through a law enforcement portal and having the affidavit for search warrant in his hand is different than an officer being physically present when executing a search warrant and having the affidavit for search warrant available for reference. Where a supporting affidavit does not accompany the search warrant at the time of execution, the detail set out in the affidavit does not cure any deficiencies. U.S. v. Pilling, 721 F.Supp. 3d 1113, 1126 (D. Idaho 2024) (warrant suppressed where supporting affidavit was not provided to Apple). An affidavit is considered “ to be part of a warrant, and therefore potential curative of any defects, ‘ only if (1) the warrant expressly incorporated the affidavit by reference and (2) the affidavit either is attached physically to the warrant or at least accompanies the warrant while agents execute the search. ” SDI Future Health Inc., at 699 (citing United States v. Kow, 58 F.3d 423, 429 n. 3 (9th Cir.1995)).
REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS
AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23,
1-24-23, and 2-24-23 Page 3
III. The Search Warrants Fail to Provide Specific Particularization of What to Search.
Courts consider three factors in analyzing the potential overbreadth of a warrant: (1) “ whether probable cause existed to seize all items of a category described in the warrant, ” (2) " whether the warrant set forth objective standards by which executing officers could differentiate items subject to seizure from those which were not, ” and (3) “ whether the government could have described the items more particularly in light of the information available. ” United States v. Flores, 802 F.3d 1028, 1044 (9th Cir. 2015) (quoting United States v. Lei Shi, 525 F.3d 709, 731-32 (9th Cir. 2008)).
The Fourth Amendment requires particularity. “ The particularity requirement's objective is that those searches deemed necessary based on a probable cause determination by a magistrate should be as limited as possible. ” State v. Teal, 145 Idaho 985, 991, 188 P.3d 927, 933 (2008).
Even if the Affidavit of Search Warrant had been incorporated into the warrant, it could have described particularized items as opposed to the laundry list of items held by Google without designation of a duty to separate lawful items.
The particularity requirement means that a warrant must be “ specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized. " U.S. v.
Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). Once the warrant is specific enough, there must still be a search that provides guidelines to ‘ distinguish items used lawfully from those the government had probably cause to seize. ” Id. at 964. Not only did the state obtain the entirety of Mr.
Kohberger's Google accounts, it has taken no action to sort through that which is lawful or applies to the charges. It has produced the warrant return data without any reports or analysis whatsoever.
The fact that the Google Accounts are sought because they may hold some of the objects of the proposed search does not automatically give the State authority to seize every piece of data
REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS
AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23,
1-24-23, and 2-24-23 Page 4
that ever touched the accounts between January 1, 2021 and December 30, 2022. Instead, the “ balance between the government's interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures of electronic data must be determined on a case- bycase basis. " United States v. Schesso, 730 F.3d 1040, 1050 (9th Cir. 2013).
The Google Search warrants were not supported by probable cause to support everything listed, there were absolutely no limiting standards included at all, and the state could have particularized the warrant to specific dates and items that would be evidence of the specific crimes.
The Google Search Warrants did none of that.
IV. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Recklessly or Intentionally Omitted Material Information.
In response to the State's arguments under “ Defendant Has Not Demonstrated the Search Warrant Affidavits Contain Intentionally or Recklessly False Statements or Omissions, ” Defendant refers the Court to and hereby incorporates Defendant's Replies in Support of Defendant's pleadings in support of a Franks Hearing and suppression of Genetic Information.
CONCLUSION
Mr. Kohberger requests that this Court suppress all evidence obtained by police via the subpoenas and warrants that permitted them to search Mr. Kohberger's Google accounts.
DATED this _19_ day of December, 2024.
BY: / s / Elisa G. Massoth Elisa G. Massoth
REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS
AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23,
1-24-23, and 2-24-23 Page 5
CERTIFICATE OF DELIVERY
I hereby certify that a true and correct copy of the foregoing was personally served as indicated below on the 19 day of December, 2024 addressed to:
Latah County Prosecuting Attorney –via Email: paservice@latahcountyid.gov Elisa Massoth – via Email: legalassistant@kmrs.net
Jay Logsdon-via Email: Jay.Logsdon@spd.idaho.gov Jeffery Nye, Deputy Attorney General – via Email: Jeff.nye@ag.idaho.gov Dul
REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS
AND MEMORANDUM IN SUPPORT RE: GOOGLE WARRANTS DATED 1-3-23,
1-24-23, and 2-24-23 Page 6
United States v. Pilling, 721 F.Supp.3d 1113 (2024) Attorneys and Law Firms 721 F.Supp.3d 1113 United States District Court, D. Idaho. * 1117 Cassandra Barnum, DOJ-Enrd, Washington, DC, Francis Joseph Zebari, United States Attorney's office, Boise, UNITED STATES of America, Plaintiff, ID, for Plaintiff.
V.
Brek PILLING, Defendant. David Z. Nevin, Nathan Pittman, Scott McKay, Nevin, Benjamin & McKay LLP, Boise, ID, for Defendant.
Case No. 4: 22-cr-00282-BLW | Signed March 2, 2024 MEMORANDUM DECISION AND ORDER Synopsis B. Lynn Winmill, United States District Court Judge
Background: Defendant, who was charged with violating the Clean Air Act (CAA) by causing the demolition of two buildings without following the Environmental Protection INTRODUCTION Agency's (EPA) National Emissions Standard for Hazardous Before the Court is Defendant Brek Pilling's Motion to Air Pollutants (NESHAP) work practice standards for Suppress (Dkt. 37). The * 1118 defendant seeks to suppress handling and removal of asbestos, moved to suppress evidence obtained pursuant to two search warrants. For the evidence obtained pursuant to two search warrants. reasons explained below, the Court will grant the motion, in part, and deny it, in part.
Holdings: The District Court, B. Lynn Winmill, J., held that:
BACKGROUND
search warrant directed to web-based email provider for two email accounts associated with defendant was not overbroad; The Clean Air Act (CAA) authorizes the Environmental Protection Agency (EPA) to establish standards for protecting search warrant directed to web-based email provider was supported by probable cause; the public from hazardous air pollutants. 42 U.S.C.
§ 7412 (h) (1). The EPA exercised that authority by search warrant directed to web-based email provider was promulgating the National Emissions Standard for Hazardous sufficiently particular; Air Pollutants (NESHAP). Among other things, the NESHAP identifies asbestos as a hazardous air pollutant and establishes warrant authorizing search of defendant's entire cloud storage " work practice standards " that govern the handling and account for fruits, contraband, evidence, and instrumentalities removal of asbestos. 40 C.F.R. § 61.140–157. The asbestos of violations of five statutes lacked particularity required by work practice standards apply to “ owners ” and “ operators ” of Fourth Amendment; demolition and renovation activities. § 61.145 (a). Under the CAA, failure to comply with the NESHAP is a crime. See doctrine of severance did not apply to warrant authorizing 42 U.S.C. § 7413 (c) (1).
search of defendant's entire cloud storage account; and In this case, the United States charges Defendant Brek Pilling government violated Fourth Amendment through its detailed, with seven counts of violating the CAA.¹ Specifically, the nine-month review of defendant's entire cloud storage Indictment (Dkt. 1) alleges that he caused the demolition account without removing unresponsive data. of two buildings in Burley, Idaho, without following the NESHAP work practice standards. Each count of the Indictment corresponds to a separate work practice standard Motion granted in part and denied in part.
that the defendant allegedly violated. See Indictment 8–21, Procedural Posture (s): Pre-Trial Hearing Motion. Dkt. 1.
WESTLAW 2024 Thomson Reuters. No claim to original U.S. Government Works. 1
United States v. Pilling, 721 F.Supp.3d 1113 (2024) 1 The Court dismissed Count One of the Indictment in a Memorandum Decision and Order entered In December of 2021, Google produced, and the government February 27, 2024. Dkt. 78. downloaded, approximately 9.56 gigabytes of compressed data pursuant to the search warrant. The government segregated portions of the data that were presumably
1. The Google Warrant The government executed at least two search warrants in privileged and filtered the remaining documents using search this case. The first (" the Google Warrant ") was signed terms designed to identify the materials that the government on November 2, 2021, and served on Google LLC the was specifically authorized to seize under Attachment B of following day. It authorized a search of two email accounts the warrant.
associated with the defendant: brek66@gmail.com and brek@kodiakamerica.us. 2 2. The Apple Warrant The government also served a warrant on Apple Inc.
2 The warrant also authorized a search of a third (" the Apple Warrant "). The warrant authorized a search email account belonging to Brian Tibbets. The of information associated with the defendant's Apple search of that account is not at issue here. account, mobile phone number, and two Apple IDs (brek66@gmail.com and brek@kodiakamerica.us).
In a probable cause affidavit (" the Google Affidavit ") attached to the warrant, Special Agent Bryan Byrd provided In his probable cause affidavit (" the Apple Affidavit "), a basis for the search. First, Agent Byrd reported that two Agent Byrd reported that the defendant's iCloud account demolition bids had been emailed to brek66@gmail.com likely contained evidence of " obstructive " conduct and before the demolition of the buildings in Burley, Idaho. information related to the defendant's ownership of the Google Warrant, Dkt. 38, 25-26. And second, after demolished buildings. Apple Warrant Dkt. 38-1. According to the demolition, the defendant reportedly sent an email information that Agent Byrd obtained during a proffer session from brek@kodiakamerica.us to Brian Tibbets regarding the with the defendant's former business partner, Brian Tibbets, discovery of asbestos at the demolition site. Id. 39. the defendant " made calls, sent text messages, or sent email to Tibbets and other relevant parties on or near the date of the Based upon those emails, Agent Byrd concluded that the first proffer session, as well as on or about June 2, 2018 [.] " Id.
email accounts likely “ contain [ed] emails unknown to the 52. Mr. Tibbets also told Agent Byrd that he had transferred Government regarding the Property, bids for the demolition, a recording of his first proffer session to the defendant via asbestos, and other relevant topics. " Id. 41. He further AirDrop. Id. 51.
explained that “ information stored in connection with an email account " may show the " who, what, why, when, Based upon the Apple Affidavit, the magistrate judge where, and how " of the alleged criminal conduct. Id. 46 authorized a search of the defendant's Apple account.
(emphasis added). For example, " user attribution " evidence Attachment A of the warrant described the property to be " may indicate who used or controlled the account at a relevant searched, and Attachment B listed the things to be seized.
time. " Id. Similarly, geographic location data revealing the Attachment B was divided into two subsections. Section " physical location associated with the logged IP addresses " I of Attachment B listed the information and records that may " inculpate or exculpate the account owner " by revealing Apple was required to disclose as to the defendant's accounts, who used the account on the relevant occasions. Id. including:
Based upon the Google Affidavit, the magistrate judge • All records and information " regarding the identification authorized a search of the defendant's accounts for “ evidence, of the account; " contraband, fruits, and / or instrumentalities of violations " of the Clean Air Act (CAA). Id., Attach. B (II). The warrant only • All records and information about all devices ever applied to " information from October 1, 2017, * 1119 to June associated with the account or used in connection with 30, 2018. " It also specified the categories of information and the account;
records that Google was required to produce, and identified
• The contents of all emails from October 1, 2017, to the kinds of materials that the government was authorized to present, including drafts and deleted emails;
seize.
WESTLAW 2024 Thomson Reuters. No claim to original U.S. Government Works. 2
United States v. Pilling, 721 F.Supp.3d 1113 (2024)
• The contents of all instant messages from October 1, • " The identity of the person (s) who communicated with 2017, to present, including drafts and deleted messages; the user ID about matters relating to the aforementioned violations, including records that help reveal their
• The content of all files stored on the iCloud, whereabouts. " including those related to email, photos, document drives, passwords, address books, contact lists, notes, In November of 2022, Apple provided, and the government reminders, calendars, images, videos, voicemails, device downloaded, approximately 118 gigabytes of data pursuant to settings, and bookmarks; the search warrant. In May of 2023, after filtering the data All activity, connection, and transactional records, to exclude presumptively privileged results, the prosecution
• team began to search and review the files. On January 30, including those related to FaceTime, messaging, email, iCloud, iTunes, the AppStore, and the Game Center; 2024, the government realized that it had inadvertently failed to purge the data of files that did not fall within the categories
• All records and information related to account access, authorized for seizure under Section II of Attachment B.
device location, and services used; The government did so and was left with 156 responsive documents, nine of which it intends to offer at trial.
• All records of communication with Apple regarding the account; and
3. Motion to Suppress (Dkt. 37)