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: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., Defendant. ALBRIGHTSVILLE, PA AND STATEMENTS MADE 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 evidence gathered by law enforcement as a result of the entry into and search of Mr. Kohberger's parents ' home at 119 Lamsden Dr., Albrightsville, PA, including statements made after his arrest. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE 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. This Court Should Apply Idaho's Exclusionary Rule and Law to this Search. II. Mr. Kohberger has standing to challenge the search of his parents ' home. III. Pennsylvania Law Enforcement Violated Mr. Kohberger's Fourth Amendment Rights by Entering and Searching His Parents ' Home without a Valid Local Warrant. a. The Idaho arrest warrant could not have given police in Pennsylvania the authority to enter the home. IV. Federal and Pennsylvania Law Enforcement Violated Mr. Kohberger's Idaho and Pennsylvania Constitutional Rights by not Knocking and Announcing their Presence and Presenting Mr. Kohberger with the Opportunity to Surrender. V. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Recklessly or Intentionally Omitted Material Information. VI. 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 about the client's locations taken from his phone must also be excised due to being gathered from an invalid warrant. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 2 VII. Statements After Arrest are either Fruit of the Poisonous Tree from the Illegal Arrest or Should be Suppressed as a Miranda Violation. FACTS Due to the haphazard way in which law enforcement has kept and disclosed records in this matter, the following are the facts relating to obtaining the search warrant for f119 Lamsden Dr. Chestnut Hill Twp: 1) On December 28, 2022, Trooper Leri of Pennsylvania State Police became aware of the objective of arresting Mr. Kohberger via Moscow Police Cpl. Payne. 2) On December 29, 2022, at 4:44 PM EDT (1:44 PDT), a Magistrate in Pennsylvania issued a search warrant for 119 Lamsden Dr., Chestnut Hill Twp., Monroe County, the home of Mr. Kohberger's parents. (Exhibit A) 3) On December 29, 2022, at 2:22 PM PDT, the Magistrate in this matter signed an arrest warrant for Mr. Kohberger in Latah County. The affidavit for the warrant was signed by Moscow Police Department Sgt. Blaker. (Exhibit B) The basic facts Blaker used to support the search were: 1. Next to the body of Madison Mogen was a tan leather knife sheath. The Idaho State Lab later located a single source of male DNA on the button snap of the knife sheath. 2. Footage from “ the King Road Neighborhood ” showed what the police suspected was the vehicle of the killer. This white sedan lacked a front license plate. A “ vehicle specialist ” decided based on the footage that the vehicle was a 2011-2016 Hyundai Elantra. A vehicle matching that description was spotted via surveillance in Pullman. It was later discovered that Mr. Kohberger drives a 2015 Hyundai Elantra, and that he lived not far from the last place a white sedan was seen driving in Pullman over an hour later. That same specialist indicated the car seen in Pullman was a 2014-2016 Hyundai Elantra. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 3 3. Witness Dylan Mortensen had indicated the height of the person she saw at the time of the attack was between 5'10 " and 6 ', and they had bushy eyebrows. Police determined Mr. Kohberger fit that description. 4. Records from an August 21, 2022, traffic stop showed Mr. Kohberger was the driver of a white 2015 Hyundai Elantra with Pennsylvania plates, lacking a front plate. It also showed he had the phone number 509-592-8458. He noted “ Investigators ” learned this was an AT & T number. 5. Mr. Kohberger had changed his vehicle registration to Washington on November 18, 2022. 6. Cell tower records did not show Mr. Kohberger was in Moscow at the time of the murders. In law enforcement's experience, however, people committing crimes typically turn off their phones. 7. Historical cell site location information (CSLI) was obtained and given to a Cellular Analysis Survey Team (CAST) with the FBI. That team determined that on Nov. 13, 2022, at approximately 2:42 AM, Mr. Kohberger's phone was “ utilizing cellular resources " that provide coverage to his apartment in Pullman, WA. They then support the idea that he left his apartment and went south. They then supported the phone being off. Then they support at 4:48 AM that the phone is south of Moscow, ID, near Blaine, ID. The phone utilizes resources that make their way back to Pullman, coinciding with a white Elantra seen on some surveillance there. A similar data showing occurs at approximately 9:00 AM with a trip into Moscow and returning at around 9:32 AM. 8. That same team determined Mr. Kohberger had been to Moscow on “ at least twelve ” occasions prior to the event, and that he came into the area the morning following the murders. However, law enforcement, without explanation, indicated it did not believe that final trip ever occurred. 9. Pennsylvania agents seized garbage at Mr. Kohberger's parents ' residence and found DNA it determined was likely the father of the suspect DNA found on the sheath. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 4 At 2:43 PM PDT on December 29, 2022, a criminal complaint and probable cause order were filed in this matter. At 10:00 PM EDT (7:00 PM PDT), Pennsylvania SWAT began preparations to arrest Mr. Kohberger. Despite weeks of constant FBI surveillance, Pennsylvania law enforcement did their own surveillance starting at 11:15 PM EDT (8:15 PM PDT). And despite the fact that weeks of constant FBI surveillance showed Mr. Kohberger was unarmed and tended to go for runs around his parents ' neighborhood, police decided that, in the dead of night, within his parents ' home, was the best way to make their arrest. On December 30, 2022, at 1:14 AM EDT (10:14 PM PDT), Pennsylvania SWAT raided Mr. Kohberger's parents ' home. During the raid, law enforcement broke the front door of home, shattered the sliding glass door of the basement, held the entire family at gunpoint, and seized Mr. Kohberger. Mr. Kohberger made statements to his arresting officers. He was transported to a police station in Stroudsburg, PA, and made statements during transport. At the station, Mr. Kohberger was processed during which police collected information about his person. Finally, during interrogation, before requesting an attorney, Mr. Kohberger made statements to interrogators from the Idaho State Police and the Moscow Police Department. At 4:00 AM EDT on December 30, 2022, Pennsylvania State Police filed a criminal complaint against Mr. Kohberger. ARGUMENT I. This Court Should Apply Idaho's Exclusionary Rule and Law to this Search. The first question this Court must determine is whether there is a conflict of laws in this matter, i.e., whether Idaho law or Pennsylvanian law controls the validity of the search warrant for Mr. Kohberger's parents ' home and the necessary relief. Unlike the issue of arrest warrants, cases involving multi-state investigations have produced far less case law. In fact, the Defense could not find a precise case on point for the state of Idaho. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 5 The issue, however, has received some attention in academia. Professor Kerr argued in his article for the Harvard Law Review that the jurisdiction where the crime occurred should control how the investigation is done, but that states and / or the federal government should provide some form of authorization to each other to participate in each other's criminal investigations. See, Orin Kerr, Cross-Enforcement of the Fourth Amendment, 132 Harv. L. Rev. 471, 531 (2018). As it stands, there are at least five different approaches to this increasingly common situation See, Megan McGlynn, Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and Seizure Law, 127 Yale L. J. 406 (2017). Fortunately for this Court, Idaho and Pennsylvania do not differ in their approaches to the enforcement of their Fourth Amendment analog provisions- both do not accept the good faith exception. See, State v. Guzman, 122 Idaho 981, 995 (1992); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 888 (1991). Thus, this Court can likely afford to leave as an open question which forum's exclusionary rule applies. However, it is also clear from the grounding of the exclusionary rule in Art. I Sec. 17 that evidence obtained in violation of the constitution must be excluded. See, Guzman, 122 Idaho at 992-93. Thus, Mr. Kohberger argues that the Idaho Constitution's exclusionary rule must apply, as its basis lies not only in deterring police misconduct, but because exclusion is constitutionally mandated and judicial integrity demands it. Id. However, it remains to be determined whether the actions of the FBI and Pennsylvania State Troops should be judged by the protections of Article I, Section 17, or its analogues. It is not at all clear that whether a search should be judged by Idaho's standards of reasonableness, or that of Pennsylvania, or in the case of the FBI agents, by the Fourth Amendment. As noted, Professor Kerr would have Idaho's reasonableness apply in that the FBI and the Pennsylvania State Troopers were acting under its authorization. See, Kerr, 132 Harv. L. Rev. at 531. This approach would also mesh well with older cases such as U.S. v. Di Re, 332 U.S. 581 MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 6 (1948) (looking to the laws of the state where the defendant was arrested in the absence of a federal law permitting the arrest by a federal agent for a federal law violation), Johnson v. U.S., 333 U.S. 10 (1948). It also goes along with the legal framework of agency. See, generally, Restatement (Third) of Agency (Am. Law. Inst. 2024). In this matter, Idaho authorities requested assistance from the FBI and the Pennsylvania State Police. Mr. Kohberger was not under investigation for violating Pennsylvania or federal law. Thus, this Court should be required to apply Idaho search and seizure law to their actions in Pennsylvania. However, this approach has its detractors. McGlynn argues that when the situs officer is performing the search they should only be held to upholding their own laws. McGlyyn, 127 Yale L. J. at 447-48. While that position has merit as it does not require a situs officer to get a rundown of the differences between their law and the trial state's laws, it remains that the Idaho Constitution is not merely concerned with deterrence to officers who misbehave. See, Guzman, 122 Idaho at 992-93. Moreover, it is of concern that such a rule would permit forum shopping. After all, if Idaho's law enforcement may take advantage of laxer restrictions in a different state, they may simply pause their investigation until their suspect is in that new jurisdiction, or in the case of the FBI, state law enforcement could at any point, even within Idaho, call upon federal agents with the far laxer rules of the Fourth Amendment. Finally, it must be said that there is very little daylight between the Idaho Constitution and the Pennsylvania Constitution. Both apply exclusion to a failure to knock and announce. See, State v. Rauch, 99 Idaho 586, 592 (1978); Commonwealth v. Frederick, 124 A.3d 748, 755-56 (Pa. Super. Ct. 2015). If anything, Pennsylvania appears to have stricter warrant requirements for particularity. Commonwealth v. Grossman, 555 A.2d 896, 899-900 & n.3 (Pa. 1989). II. Mr. Kohberger has standing to challenge the search of his parents ' home. Mr. Kohberger grew up in his parents ' home and at the time of the entry and search he was staying there for winter break. As an overnight guest, he undoubtedly has standing to challenge MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 7 the search in this case. See, Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Moreover, the Court in Olson clearly had a situation just like this case in mind: [t] hat the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy. The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away or asleep, the guest will have a measure of control over the premises. The host may admit or exclude from the house as he prefers, but it is unlikely that he will admit someone who wants to see or meet with the guest over the objection of the guest. On the other hand, few houseguests will invite others to visit them while they are guests without consulting their hosts; but the latter, who have the authority to exclude despite the wishes of the guest, will often be accommodating. The point is that hosts will more likely than not respect the privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in the premises and do not have the legal authority to determine who may or may not enter the household. If the untrammeled power to admit and exclude were essential to Fourth Amendment protection, an adult daughter temporarily living in the home of her parents would have no legitimate expectation of privacy because her right to admit or exclude would be subject to her parents ' veto. [emphasis added] Id., at 99-100. Thus, Mr. Kohberger as a son home for a weeks-long stay at his parents ' home has standing to challenge the entry and search in this case, regardless of his authority within the home. III. Pennsylvania Law Enforcement Violated Mr. Kohberger's Fourth Amendment Rights by Entering and Searching His Parents ' Home without a Valid Local Warrant. Pennsylvania courts require a warrant for a particular residence to go after a person police are aware has an arrest warrant. Commonwealth v. Romero, 183 A.3d 364 (Pa. 2018). The need for a warrant for a fugitive from another State is codified in 42 Pa.C.S.A. §§ 9128, 9129. Without a Governor's warrant, an officer can get a judicial warrant to permit entry into a home. See 42 Pa.C.S.A. § 9134. Without either type of warrant, an officer lacks this authority. See 42 Pa.C.S.A. § 9135. This understanding also comports with Payton v. New York, 445 U.S. 573, 602 (1980). a. The Idaho arrest warrant could not have given police in Pennsylvania the authority to enter the home. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 8 State warrants have no extraterritorial effect. State v. Bradley, 106 Idaho 358, 360 (1983). The use of an out-of-state warrant is ipso facto a warrantless entry. Id. Thus, law enforcement in Pennsylvania could not rely on the existence of the Idaho arrest warrant to enter the home.¹ IV. Federal and Pennsylvania Law Enforcement Violated Mr. Kohberger's Pennsylvania and Idaho Constitutional Rights by not Knocking and Announcing their Presence and Presenting Mr. Kohberger with the Opportunity to Surrender. As noted above, Idaho's law should apply to the entry in this case. However, Pennsylvania, like Idaho, has rejected the good faith exception. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 888 (1991). Similarly, it insists upon suppression where the knock and announce rule has not been complied with absent an exigent circumstance. Commonwealth v. Frederick, 124 A.3d 748, 755-56 (Pa. Super. Ct. 2015). The Pennsylvania Supreme Court has only found four exigent circumstances permitting police to ignore the knock and announce rule: 1. the occupants remain silent after repeated knocking and announcing; 2. the police are virtually certain that the occupants of the premises already know their purpose; 3. the police have reason to believe that an announcement prior to entry would imperil their safety; [or¹¹] 4. the police have reason to believe that evidence is about to be destroyed. Fn. 11 Even though the exigencies are enumerated with the conjunctive “ and, ” courts have held that “ any one of the instances justifies noncompliance with the knock and announce rule. ” Commonwealth v. Piner, 767 A.2d 1057, 1059 n. 1 (Pa.Super.2000) (holding that the second exigency applied because “ a uniformed officer stood under a porch light and engaged the attention of at least several occupants with an announcement of his identity, authority, and purpose "). Id. (citing Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539, 541 (1991); accord Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220, 222 (1992); Commonwealth v. Crompton, 682 A.2d 286, 288 (1996); Commonwealth v. Carlton, 701 A.2d 143, 147 (1997)). 1 Note, there is an Idaho Court of Appeals decision, State v. Branigh, 155 Idaho 404 (Ct.App.2013), that seems to be counter to the holding in Bradley. The Branigh court, however, never mentions or analyzes Bradley, and does not appear to be aware of it. The holding in Branigh could not have overruled Bradley, and thus it remains governing law in this state. MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PENNSYLVANIA SEARCH WARRANT FOR 119 LAMSDEN DR., ALBRIGHTSVILLE, PA AND STATEMENTS MADE Page 9 Idaho's understanding of the knock and announce rule is set out in Rauch. The Rauch Court did not adopt a test such as that in Pennsylvania but held a case by case analysis must be made. 99Idaho 586, 590 (1978) (cita