Court Filing
Filed: 12/6/2024 Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court By: Deputy Clerk-Smith, Margaret LATAH COUNTY PROSECUTOR'S OFFICE WILLIAM W. THOMPSON, JR., ISB No. 2613 PROSECUTING ATTORNEY ASHLEY S. JENNINGS, ISB No. 8491 SENIOR DEPUTY PROSECUTING ATTORNEY Latah County Courthouse 522 S. Adams Street, Ste. 211 Moscow, ID 83843 Phone: (208) 883-2246 paservice@latahcountyid.gov IN THE DISTRICT COURT OF THE FOURTH DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff, STATE'S OBJECTION TO DEFENDANT'S MOTION TO V. SUPPRESS AND MEMORANDUM IN SUPPORT BRYAN C. KOHBERGER, Defendant. RE: PEN TRAP AND TRACE DEVICE COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney and respectfully responds to " Defendant's Motion to Suppress and Memorandum in Support Re: Pen Trap and Trace Device " filed on November 13, 2024.¹ Defendant's filing refers to a " contemporaneously filed Motion for an Order suppressing all evidence gathered by law enforcement from its search of his AT & T account tracing his phone usage. " However, the State is not aware of a separate " contemporaneous " filing, so the State's response is only to the contents of the Defendant's singular " Motion to Suppress and Memorandum in Support. " STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE 1 FACTS Regarding the Defendant's represented " FACTS, " the State respectfully refers the Court to the State's Exhibit S-1 and S-2 filed in support as opposed to relying on the Defendant's subjective summary and interpretation that begins at Page 2 of his brief. The State's Exhibits are attached as follows: • Affidavit for Search Warrant for AT & T with appended Exhibits (State's Exhibit S-1) • AT & T Search Warrant (State's Exhibit S-2) ARGUMENTS I. DEFENDANT HAS NOT DEMONSTRATED THE SEARCH WARRANT AFFIDAVITS CONTAIN INTENTIONALLY OR RECKLESSLY FALSE STATEMENTS OR OMISSIONS. As the Defendant correctly notes in his brief, he had a privacy interest in his phone records. Recognizing this, the State sought and obtained a warrant. Defendant mounts a Franks attack on the warrant, but for all the reasons articulated in its responsive briefing on Defendant's Franks motion-which the State incorporates herein-his argument fails. II. THE AT & T WARRANT WAS NOT A GENERAL WARRANT For the Court's convenience, the State incorporates its analysis in " State's Objection to Defendant's Motion to Suppress and Memorandum in Support Re: Apple Account Federal Grand Jury Subpoena Search Warrant dated August 1, 2023 " and " State's Objection to Defendant's Motion to Suppress and Memorandum in Support Re: AT & T First Warrant " regarding the applicable case law to apply for Fourth Amendment analysis as opposed to restating the same. As applied to the AT & T Pen Trap and Trace Search Warrant, Idaho allows a search warrant affidavit to support the particularity requirement when the warrant references the affidavit for probable cause. Adamcik v. State, 163 Idaho 114, 124-25, 408 P.3d 474, 484-85 (2017). There are no STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE 2 magic words for reference. As stated above, the AT & T Pen Trap and Trace Search Warrant specifically referenced the Search Warrant Affidavit (and incorporated Exhibit A) with the words " Proof, upon oath, this day showing probable cause. " When the AT & T Search Warrant is considered along with the Affidavit for Probable Cause and the 15-page Exhibit A, the warrants are sufficiently particular and valid. In fact, Corporal Payne set forth why he believed the Defendant's cell phone would contain evidence of the crime, specifically, why each category of digital evidence listed on the warrant would reveal such information. The AT & T Pen Trap and Trace Search Warrant and the Search Warrant Affidavit and Exhibit A provide the particularity necessary to satisfy the three-factor test set forth in Teal. See State v. Teal, 145 Idaho 985, 989, 188 P.3d 927, 931 (Ct. App. 2008). First, probable cause existed to seize all items of a particular type described in the warrant. The specific phone number is listed in the affidavits and the individual categories of digital information sought are set forth in detail, including why probable cause existed to search those digital files (See AT & T Pen Trap and Trace Search Warrant pages 3-7, which specifically detail what actions investigators were allowed to take and what information they were allowed to collect). Second, the warrant set out objective standards by which executing officers could differentiate items subject to seizure from those that were not: (a) the seizure of items was limited to the crime for which the Defendant was arrested (homicide (s) at 1122 King Road in Moscow, Idaho); and (b) the warrant was temporally limited to the time June 23, 2022, at 12:00 to real time data (i.e. present). Third, the government was not able to describe the items more particularly considering the information available to it at the time the warrant was issued. Detective Payne was seeking evidence that could be in multiple formats and areas, and considering electronic data can be stored anywhere, STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE 3 it was impossible for Detective Payne to narrow down in advance the AT & T areas that should be searched. As a result, if the Court employs a " commonsense and realistic " approach and not the " hyper technical " approach the Defense is suggesting; the Court should find the AT & T Search Warrant passes the Teal test and sufficiently particular. See Wheeler v. State, 135 A.3d 282, (Del. 206) (quoting U.S. v. Christine, 687 F2d 749, 69 A.L.R. Fed. 503 (3d Cir. 1982). In summary, given the circumstances of this case, the AT & T Pen Trap and Trace Search Warrant and its respective Affidavit and Exhibit A are as particular as can reasonably be expected. Unlike a general exploratory warrant, the AT & T Pen Trap and Trace Search Warrant allowed the searcher to " reasonably ascertain and identify the things which are authorized to be seized. " See Teal, 145 Idaho at 992, 188 P.3d at 924. Thus, suppression is not warranted. III. IGG The Defendant raises its objections to the IGG (Investigative Genetic Genealogy) and, again, the State incorporates the State's arguments in objection to the Defendant's separate IGG Motion as opposed to restating them here. CONCLUSION Based on the above, the State respectfully requests the Court to deny the Defendant's " Motion to Suppress and Memorandum in Support Re: Pen Trap and Trace Device. " RESPECTFULLY SUBMITTED this 6th day of December 2024. ashley & ganings Ashley S. Jennings Senior Deputy Prosecuting Attorney STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE 4 CERTIFICATE OF DELIVERY I hereby certify that true and correct copies of the STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVUCE were served on the following in the manner indicated below: Anne Taylor Mailed Attorney at Law E-filed & Served / E-mailed PO Box 2347 Faxed Coeur D Alene, ID 83816 info@annetaylorlaw.com Hand Delivered Dated this 6th day of December, 2024. S STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE 5