State Response to Defendant Motion in Limine 9

Electronically Filed
3/17/2025 5:25 PM

Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Jennifer Keyes, Deputy Clerk
LATAH COUNTY PROSECUTOR'S OFFICE

WILLIAM W. THOMPSON, JR., ISB 2613

PROSECUTING ATTORNEY

ASHLEY S. JENNINGS, ISB 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 JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA

STATE OF IDAHO, Case No. CR01-24-31665 Plaintiff,
STATE'S RESPONSE TO DEFENDANT'S

V. MOTION IN LIMINE # 9

BRYAN C. KOHBERGER RE: EXCLUDING AMAZON CLICK

Defendant. ACTIVITY EVIDENCE AT TRIAL COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and hereby responds to Defendant's Motion in Limine # 9 Re: Excluding Amazon Click Activity Evidence at Trial.

FACTS

On November 13, 2022, law enforcement responded to 1122 King Road in Moscow, Idaho. Payne Aff., page 1, attached as State's Exhibit S-1. Four victims were found deceased with apparent stab wounds. Id. at pages 1-2. A Ka-Bar knife sheath with a United States Marine Corps (USMC) logo was found lying next to one of the victims. Id. Bryan Kohberger's DNA was found on the Ka-Bar knife sheath found on scene. Id. at page 18.

STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 1

On April 26, 2023, the State applied for and was granted a search warrant for Bryan Kohberger's Amazon.com user activity. This Search Warrant was amended by Magistrate Judge Megan Marshall on May 8, 2023, to correct a scrivener's error. Amended Search Warrant, dated May 8, 2023, attached as State's Exhibit S-2. The Search Warrant directed law enforcement to seize from Amazon.com: (1) Bryan Kohberger's “ customer click activity pertaining to knives and accessories ”; (2) payment methods used; (3) “ details of items in carts, to include all items added to cart, all items removed or deleted from cart, wish listed or shopping baskets ”; (4) “ all suggestions made to account "; (5) all records regarding “ reviews by other Amazon users ” viewed by Bryan Kohberger; (6) advertising data; (7) devices used to connect to account; (8) all account linked to account. Id. at pages 1-2. The Search Warrant was limited to March 20, 2022, to March 30, 2022, and November 1, 2022, through December 6, 2022. Id. The Search Warrant was served on May 10, 2023. Mowery Aff. attached as State's Exhibit S-3. On June 27, 2023, Amazon.com provided law enforcement responsive data for the dates requested for each of the above categories. Id. This evidence was provided to Defendant as AV000388 on July 12, 2023.

On December 18, 2024, the State disclosed Shane Cox, Litigation and Regulatory Manager II Law Enforcement Response (LER), for Amazon.com as a witness for the above evidence. As articulated in the disclosure, it is the State's position that Shane Cox's testimony is not expert testimony pursuant to Idaho Rules of Evidence 701. However, out of an abundance of caution, the State disclosed Mr. Cox as an expert pursuant to Idaho Rules of Evidence 702 and
703. The State made this strategic decision solely to ensure the State was not precluded from calling Mr. Cox as a witness if the Court subsequently made the determination that his testimony is based on specialized knowledge.

STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 2

On March 14, 2025, and in response to the Court's January 24, 2025, instruction that more disclosures were needed, the State filed an amended disclosure.¹
ARGUMENT

I. I.R.E. Rule 106 Does Not Apply to Business Records Containing User Activity Records The Defendant primarily relies on Idaho Rules of Evidence Rule 106 as the basis for his motion to exclude Amazon click history data. I.R.E. 106 states:
Remainder of or Related Writings or Recorded Statements. If a party introduces all or part of a writing or recorded statement, and adverse party may require the introduction, that time, of any other part – or any other writing or recorded statement – that in fairness ought to be considered at the same time.

Under I.R.E. 801 a “ statement ” is defined as an “ oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. ” Examples of related writings or recorded statements related to I.R.E. 106 include: (1) transcript of Defendant's taped interview;
(See State v. Fain, 116 Idaho 82, 774 P.2d 252 (1989)); (2) recording of defendant's statements to law enforcement (See State v. Parmer, 147 Idaho 210, 207 P.3d 186 (2009)); (3) videotape of victim's interview (See State v. Bingham, 124 Idaho 698, 864 P.2d 144 (1993)); and (4) Defendant's statements recorded on police officer body cam footage (See State v. Ogden, 171 Idaho 843, 526 P.3d 1013 (2023)).

Defendant cites the Idaho Supreme Court's ruling in Ogden regarding the reasoning for the adoption of Rule 106 (completeness doctrine). As this Court is well-aware (Steven J. Hippler was the presiding judge), Ogden was a felony drug case. The evidence at issue (officer body worn video) fell under the purview of Rule 106. On appeal, the Idaho Supreme Court 1 The State is awaiting additional information from Amazon that the State understands will clarify that the extent AI is incorporated into Amazon's system, AI does not create a user's actual inquiry.

STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 3

commented on the common-law rule underpinning I.R.E. 106 stating: “ there is a danger that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material. ” Id. at 856, 1026. (emphasis added). Further the Ogden Court held that Rule 106 “ requires the admission of these portions of the statement that are ‘ necessary to qualify, explain or place into context the portion already introduced. ” Id. (emphasis added).

The Supreme Court's analysis of the completeness doctrine relates to “ statements. ” User activity from a business does not fall under the purview of Rule 106 because they are not “ statements. ” The State is not able to locate any Idaho caselaw that extends Rule 106 to raw data of user activity from a business.

Further, in this case the evidence at issue is complete. The Defendant argues that the data the State has disclosed to the Defendant is “ extremely narrow ” when compared to the “ more inclusive and broad warrants and subpoenas. ” Def. Mot. at 2. But this argument is incorrect. To confirm, the State has disclosed to the Defendant all data, including clickstream data, that Amazon has produced in this case. The State narrowly tailored a search warrant for evidence regarding the crimes of homicide or burglary occurring at 1122 King Road. This included temporal limitations based on the officer's investigation which limited the search from March 20, 2022, through March 30, 2022, (time it was known Bryan Kohberger purchased a Ka-Bar knife with sheath, and sharpener from Amazon.com) and November 1, 2022, through December 6, 2022 (time right before and after the homicides). Kohberger's entire click history (items not related to knives and accessories) was not relevant. Without any legal basis, the Defendant claims the State “ cherry-pick [ed] specific clicks or purchases out the Amazon click history. ” This is simply not true unless you consider seeking only items of evidentiary value “ cherry-picking. " Irrelevant click activity on Kohberger's account would not provide any relevant context to
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 4

Kohberger's actual click activity (i.e. purchase of a Ka-Bar knife with sheath before the murders and his click activity indicating a search for a knife with sheath after the murders).2 II. Bryan Kohberger's Amazon.com Click Activity is Relevant and Admissible Under Idaho Rule of Evidence 401, evidence is relevant if “ it has the tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action. ” I.R.E. 401. Defendant appears to argue that the evidence of Defendant's Amazon.com click history is not relevant. That is not the case. A Ka-Bar knife sheath with a USMC logo was found next to one of the victims at 1122 King Road. The Defendant's DNA was found on the Ka-Bar knife sheath found on scene. Applying the test for relevancy, first, Kohberger's click activity which shows a purchase of a Ka-Bar knife and sheath before the homicides makes it more probable (than it would be without the evidence) that the Ka- Bar sheath found at the crime scene was Bryan Kohberger's. Second, Kohberger's click activity after the homicides makes it more probable (than it would be without the evidence) that Kohberger had a reason to search for a Ka-Bar knife and sheath after the homicides. These facts are of consequence to determining whether Bryan Kohberger committed the homicides at 1122 King Road- the central question before the jury. This evidence is clearly relevant.

Defendant argues pursuant to I.R.E. 403, the relevant evidence should be excluded. The Defendant fails to show how this evidence is unfair, confusing, misleading, would cause delay, waste time, or would be cumulative. That is because it is none of those things. What is clear from the Defendant's filing, is that the Defendant doesn't like this piece of the State's evidence 2 The Defendant argues that Amazon's recommendation system “ influences what users see and click on. " Def. Mot.

at 3. But this purported use of AI technology is not relevant. Even if an algorithm might suggest certain products to a customer, the algorithm would not cause a customer to repeatedly and over the course of several days browse webpages relating to Ka-Bar knives, sharpeners, and sheaths.

STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 5

(Defendant's Amazon click activity) and therefore would like to keep this piece of evidence from the jury. However, his arguments are without merit. While this evidence is prejudicial (relevant evidence tends to be) it is not unfair.3
CONCLUSION

In conclusion, the State respectfully requests this Court rule that the Amazon data received in response to a search warrant (which includes “ click activity) is complete and this evidence is relevant and admissible.

RESPECTFULLY SUBMITTED this 17th day of March 2025.

asheup &. Juning
ASHLEY S. JENNINGS

SENIOR DEPUTY PROSECUTOR

3 The Defendant touches on the issue of identifying the account user making the Amazon search inquiries as shown by the click activity. Defendant's Motion at page 4. The State recognizes that the identity of the user making the inquiries is relevant, and the State intends to rely not only on the click activity but also other circumstances to connect the Defendant to the original knife purchase and subsequent search inquiries for a replacement knife and / or sheath. This will include the Defendant's financial activities; the click activities vis-a - vis other events, such as the homicides; a related purchase activity connected only to the Defendant; and testimony from witnesses with knowledge that the Defendant purchased a Ka-Bar knife.

STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 6

CERTIFICATE OF DELIVERY

I hereby certify that true and correct copies of the STATE'S REPONSE TO
DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK ACTIVITY
EVIDENCE AT TRIAL 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 17th day of March 2025.

Se
STATE'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE # 9 RE: EXCLUDING AMAZON CLICK
ACTIVITY EVIDENCE AT TRIAL 7

Exhibit A Statement of Brett Payne The below information is provided by Brett Payne, who is a duly appointed, qualified and acting peace officer within the County of Latah, State of Idaho. Brett Payne is employed by Moscow Police Department in the official capacity or position of Corporal (CPL) and has been a trained and qualified peace officer for approximately four (4) years. CPL Payne is being assisted by members of the Idaho State Police and agents of the Federal Bureau of Investigation.

On November 13, 2022, at approximately 4:00 p.m., Moscow Police Department (MPD) Sergeant Blaker and I responded to 1122 King Road, Moscow, Idaho, hereafter the " King Road Residence, " to assist with scene security and processing of a crime scene associated with four homicides. Upon our arrival, the Idaho State Police (ISP) Forensic Team was on scene and was preparing to begin processing the scene. MPD Officer (OFC) Smith, one of the initial responding officers to the incident, advised he would walk me through the scene.

OFC Smith and I entered the King Road Residence through the bottom floor door on the north side of the building. OFC Smith and I then walked upstairs to the second floor. OFC Smith directed me down the hallway to the west bedroom on the second floor, which I later learned (through Xana's driver's license and other personal belongings found in the room) was Xana Kernodle's, hereafter " Kernodle " room. Just before this room there was a bathroom door on the south wall of the hallway. As I approached the room, I could see a body, later identified as Kernodle's, laying on the floor. Kernodle was deceased with wounds which appeared to have been caused by an edged weapon.

Also in the room was a male, later identified as Ethan Chapin, hereafter, " Chapin ".

Chapin was also deceased with wounds later determined (Autopsy Report provided by Spokane 1 STATE'S EXHIBIT exhibitsticker.com 008404
S-1

CR01-24-31665

County Medical Examiner Veena Singh dated December 15, 2022) to be caused by " sharp-force injuries. " I then followed OFC Smith upstairs to the third floor of the residence. The third floor consisted of two bedrooms and one bathroom. The bedroom on the west side of the floor was later determined to be Kaylee Goncalves, hereafter " Goncalves, " room. I later learned (from review of Officer Nunes ' body camera) there was a dog in the room when Moscow Police Officers initially responded. The dog belonged to Goncalves and her ex-boyfriend Jack Ducoeur.

I found out from my interview with Jack Ducouer on November 13, 2022 that he and Goncalves shared the dog. OFC Smith then pointed out a small bathroom on the east side of the third floor.

This bathroom shared a wall with Madison Mogen's, hereafter " Mogen " bedroom which was situated on the southeast corner of the third floor.

As I entered this bedroom, I could see two females in the single bed in the room. Both Goncalves and Mogen were deceased with visible stab wounds. I also later noticed what appeared to be a tan leather knife sheath laying on the bed next to Mogen's right side (when viewed from the door). The sheath was later processed and had " Ka-Bar " " USMC " and the United States Marine Corps eagle globe and anchor insignia stamped on the outside of it. The Idaho State Lab later located a single source of male DNA (Suspect Profile) left on the button snap of the knife sheath.

As part of the investigation, numerous interviews were conducted by Moscow Police Department Officers, Idaho State Police Detectives, and FBI Agents. Two of the interviews included B.F., and D.M. Both B.F. and D.M. were inside the King Road Residence at the time of the homicides and were roommates to the victims. B.F.'s bedroom was located on the east side of the first floor of the King Road Residence.

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Based on numerous interviews conducted by MPD Officers, ISP Detectives, and FBI Agents as well as my review of evidence, I have learned the following:
On the evening of November 12, 2022, Chapin and Kernodle are seen by B.F. at the Sigma Chi house on the University of Idaho campus at 735 Nez Perce Drive from approximately
9:00 p.m. on November 12 to 1:45 a.m. on November 13. B.F. also estimated that at approximately, 1:45 a.m. Chapin and Kernodle returned to the King Road Residence. B.F. also stated that Chapin did not live in the King Road Residence but was a guest of Kernodle.

Goncalves and Mogen were at a local bar, the Corner Club at 202 N. Main Street, in Moscow. Goncalves and Mogen can be seen on video footage provided by the Corner Club between 10:00 p.m. on November 12 and 1:30 a.m. on November 13th. At approximately 1:30 a.m. Goncalves and Mogen can be seen on video at a local food vendor called the " Grub Truck " at 318 S. Main Street in downtown Moscow. The Grub Truck live streams video from their food truck on the streaming platform Twitch which is available for public viewing on their website.

This video was captured by law enforcement. A private party (Eric Grower) reported that he provided a ride to Goncalves and Mogen at approximately 1:56 a.m. from downtown Moscow (in front of the Grub Truck) to the King Road Residence.

D.M. and B.F. both made statements during interviews that indicated the occupants of the King Road Residence were at home by 2:00 a.m. and asleep or at least in their rooms by approximately 4:00 a.m. This is with the exception of Kernodle, who received a DoorDash order at the residence at approximately 4:00 a.m. (law enforcement identified the DoorDash delivery driver who reported this information).

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D.M. stated she originally went to sleep in her bedroom on the southeast side of the second floor. D.M. stated she was awoken at approximately 4:00 a.m. by what she stated sounded like Goncalves playing with her dog in one of the upstairs bedrooms, which were located on the third floor. A short time later, D.M. said she heard who she thought was Goncalves say something to the effect of " there's someone here. " A review of records obtained from a forensic download of Kernodle's phone showed this could also have been Kernodle as her cellular phone indicated she was likely awake and using the TikTok app at approximately 4:12 a.m.

D.M. stated she looked out of her bedroom but did not see anything when she heard the comment about someone being in the house. D.M. stated she opened her door a second time when she heard what she thought was crying coming from Kernodle's room. D.M. then said she heard a male voice say something to the effect of " it's ok, I'm going to help you. " At approximately 4:17 a.m., a security camera located at 1112 King Road, a residence immediately to the northwest of 1122 King Road, picked up distorted audio of what sounded like voices or a whimper followed by a loud thud. A dog can also be heard barking numerous times starting at 4:17 a.m. The security camera is less than fifty feet from the west wall of Kernodle's bedroom.

D.M. stated she opened her door for the third time after she heard the crying and saw a figure clad in black clothing and a mask that covered the person's mouth and nose walking towards her. D.M. described the figure as 5'10 " or taller, male, not very muscular, but athletically built with bushy eyebrows. The male walked past D.M. as she stood in a " frozen shock phase. " The male walked towards the back sliding glass door. D.M. locked herself in her 4 008407

room after seeing the male. D.M. did not state that she recognized the male. This leads investigators to believe that the murderer left the scene.

The combination of D.M.'s statements to law enforcement, reviews of forensic downloads of records from B.F. and D.M.'s phone, and video of a suspect video as described below leads investigators to believe the homicides occurred between 4:00 a.m. and 4:25 a.m.

Durin