Court Filing
Electronically Filed 3/24/2025 2:32 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 No. 2613 PROSECUTING ATTORNEY ASHLEY S. JENNINGS, ISB No. 8491 SENIOR DEPUTY PROSECUTOR 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 REPLY TO OBJECTION TO THE STATE'S MOTION IN LIMINE V. RE: AT & T TIMING ADVANCE BRYAN C. KOHBERGER, RECORDS Defendant. COMES NOW the State of Idaho, by and through the Latah County Prosecuting Attorney, and respectfully replies to the Defendant's “ Objection to the State's Motion in Limine RE: AT & T Timing Advance Records ” filed on March 17, 2025. Timing Advance Records refer to data that is used by providers to estimate the location of a mobile device. The collection of this data is necessary for a cellular network to work properly. Carriers do not retain this data indefinitely. STATE'S REPLY TO OBJECTION TO THE STATE'S MOTION IN LIMINE RE: AT & T TIMING ADVANCE RECORDS 1 Regarding AT & T, before June 2023, AT & T retained timing advance records for seven (7) days. These records were not routinely provided in response to legal demand prior to June 2023. After June 2023, AT & T started providing these records pursuant to legal demand and began retaining timing advance records for thirteen (13) months. In this case, the homicides occurred on November 13, 2022. Bryan Kohberger was identified as a suspect December 19, 2022. Search warrants for his AT & T records were executed on December 23, 2022. At this point, timing advance records were not available for Bryan Kohberger's phone to cover the relevant time period-November 13, 2022. Despite Defendant's repeated assertions, the fact of the matter is that AT & T did not provide Timing Advance Records to law enforcement for Bryan Kohberger's phone. The State is attaching Affidavits from AT & T verifying that the State did not receive timing advance records for Bryan Kohberger's phone. See State's Exhibit S-1 and Exhibit S-2. Based on the above, statements or inferences by defense counsel or their witnesses that there is additional evidence that could have been provided, or was not provided, is simply not correct and should not be allowed. Under I.R.E. 403 any probative value of such evidence is outweighed by the danger of misleading the jury, undue delay, and waste of time. For these reasons, the State requests the Court issue an order in limine prohibiting the defense from making any reference to the absence of AT & T Timing Advance Records for Bryan Kohberger. RESPECTFULLY SUBMITTED this 24th day of March 2025. asheup & ganing Ashley S. Jennings Senior Deputy Prosecuting Attorney STATE'S REPLY TO OBJECTION TO THE STATE'S MOTION IN LIMINE RE: AT & T TIMING ADVANCE RECORDS 2 CERTIFICATE OF DELIVERY I hereby certify that true and correct copies of the STATE'S REPLY TO OBJECTION TO THE STATE'S MOTION IN LIMINE RE: AT & T TIMING ADVANCE RECORDS 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 Hand Delivered Dated this 24th day of February 2025. STATE'S REPLY TO OBJECTION TO THE STATE'S MOTION IN LIMINE RE: AT & T TIMING ADVANCE RECORDS 3 AT & T 11760 US HWY 1, SUITE 30 NORTH PALM BEACH FL 33408 (800) 635-6840 (888) 938-4715 (Fax) CERTIFICATE OF AUTHENTICITY OF DOMESTIC RECORDS PURSUANT TO FEDERAL RULES OF EVIDENCE 902 (11) AND 902 (13, AND 803 (7) GLDC FILE NUMBER 3586162 1, Stephen Gordon attest, under penalties of perjury by the laws of the United States of America pursuant to 28 U.S.C. § 1746, that the information contained in this certification is true and correct. I am employed by AT & T, and my title is Director-Compliance. I am qualified to authenticate records responsive to the attached Search Warrant dated 12/22/22 because I am familiar with how the records were created, managed, stored, and retrieved. I further state that: a. AT & T maintains records made at or near the time of the occurrence of the referenced matter set forth by, or from information transmitted by, a person with knowledge of those matters, and the records were kept in the ordinary course of the regularly conducted business activity of AT & T, and made by AT & T as a regular practice; and b. AT & T provided records for the phone number 509-592-8458 responsive to the referenced Search Warrant dated December 23, 2023, for records between November 12, 2022, at 12:00 a.m. PST to November 14, 2022 at 12:00 a.m. PST, related to the November 13, 2022, homicides; and c. AT & T did not provide Timing Advance Records for phone number 509-592-8458. Timing Advance Records were only available if requested within seven (7) days of the specified time frame. Timing Advance Records were not included in AT & T records responsive to the referenced Search Warrant because more than seven (7) days elapsed between November 13, 2022, and the date of the Search Warrant December 23, 2022. I further state that this certification is intended to satisfy Rules 902 (11), 902 (13) and 803 (7) of the Federal Rules of Evidence. 03/24/2025 Dated Signature STATE'S EXHIBIT exhibitsticker.com S-1 CR01-24-31665 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAН ) In the Matter of the Application) Case No. CR29- For a Search Warrant for:) ) AT & T ( 11760 U.S. Highway 1, Suite 300 (SEARCH WARRANT North Palm Beach, FL 33408-3029) ) MPD Case No. 22-M09903 TO: ANY PEACE OFFICER AUTHORIZED TO ENFORCE OR ASSIST IN ENFORCING ANY LAW OF THE STATE OF IDAHO. Brett Payne, having given me proof, upon oath, this day showing probable cause establishing grounds for issuing a search warrant and probable cause to believe property consists of certain evidence regarding the investigation into the crime (s) of homicide at 1122 King Road in Moscow, Idaho is on the AT & T account associated with the phone number 509-592-8458 between November 12, 2022 at 12:00 a.m. PST to November 14, 2022 at 12:00 a.m. PST. Information should include user account information, location data, and stored communications held by AT & T, described in further detail as follows: 1. All customer / subscriber information, including any listed addresses, other listed telephone number (s), social security number (s), dates of birth, name (s), address (es), any other customer identifying information, mobile handset or device identifiers / serial numbers (MEID, ESN, IMSI, IMEI, SUPI), activation date and deactivation date, and point of purchase or location device was purchased if applicable; SEARCH WARRANT 1 2. Device Purchase Information. This is specifically to include the Date, Time and Location of where the device or any pre-paid refill cards were purchased as well as any information maintained about the purchase to include store name, store number, terminal number, and amount of purchase; 3. Any email addresses associated with the account or with the device that is currently on file and stored in the normal course of business of the Service Provider; 4. Call detail records, including detailed information in reference to all known outgoing and incoming calls associated with the account, dates and times calls were made, and duration of all calls made or received. This is to include any other pertinent call detail records including special features codes, or any other codes that are maintained in the normal course of business for the Service Provider, of any cellular numbers identified in the course of the investigation. In addition to voice calls, this would also include any detail records showing text messages, MMS messages, or data activity; a. In the event the requested Call Detail Records contain other Service Provider customer numbers, identified as either incoming or outgoing calls, the Service Provider will provide subscriber information to the specific numbers identified, if requested. 5. Cell site information, to include all known cell towers associated with outgoing and incoming calls (Call Detail Records). This information is to include any sector information, azimuth for each identified sector, cell site location, handoff tower and sector, time on tower information, and any other related material that would be necessary to identify the location and sector in reference to the cell site information associated with the call detail records. In the event text messages, MMS messages, Data activity, including IP sessions and destination addresses that were produced, these records are also included in this request; 6. Cell site locations for all Service Provider Cell Sites, sector information, including azimuth headings, in the regional market associated with the requested cell site information; 7. Location information, to include any estimated or known longitude and latitude of the cellular device's current location, or approximate location, information received by cell tower (s) in reference to direction and distance from the tower a device may be located (timing and triangulation information). Radio Frequency signal strengths, direction, and transmission information. The geographical constraints of location information will be limited to the United States; 8. Location information can be in the form of historical records. This would include SEARCH WARRANT 2 any reports of device activity that would include the approximate latitude and longitude of the device at the time of the activity, estimated margin of error, direction and distance from the tower, and other location related information commonly referred to as Real Time Tool (RTT), Timing Advance Information, Location Database of Record (LocDBOR). This further includes any other report similar in nature that would provide an estimate of the cellular phone on the Service Provider's network; 9. All text message and / or MMS messages, including message content, currently stored in the normal course of business for the Service Provider, to include any cloud services which allow for the long-term storage of both voicemails and SMS / MMS messages; 10. Cloud Data, any content that may have been backed up to Cloud Storage for the listed dates / times. If said Cloud Storage has been provided by a third-party provider, please provide relevant contact information for that provider; located within the following described premises: AT & T Attn: Global Legal Demands Center 11760 US Highway 1, Suite 600 North Palm Beach, FL 33408 gldc@att.com Please provide this information to Brett Payne at b █████████████████████ in digital format on a compact disk in Excel, PDF or TXT format. You are therefore commanded to search the above-described premises for the property described above, to seize it if found and bring it promptly before the court above named. This warrant shall be executed within 14 days of issuance, and is authorized for daytime or nighttime service (pursuant to Idaho Criminal Rule 41, " daytime " means the hours between 6:00 a.m. and 10:00 p.m. PST), and under the following special directions: ** THIS SEARCH WARRANT IS ISSUED FOR A LAW ENFORCEMENT PURPOSE, THE SERVICE PROVIDER (AT & T) IS ORDERED NOT TO DISCLOSE THE EXISTENCE OR CONTENTS OF THIS SEARCH WARRANT OR THE INFORMATION FURNISHED IN RESPONSE TO THE SEARCH WARRANT FOR A PERIOD OF 90 SEARCH WARRANT 3 DAYS OR UNTIL FURTHER ORDER OF THE COURT. THE SERVICE PROVIDER SHALL DISCLOSE THE DESCRIBED PROPERTY AND INFORMATION WITHIN 14 DAYS OF ISSUANCE. ** GIVEN UNDER MY HAND and DATED this 23rd day of December, 2022, at 10:03 a.m. Megan & Marshall Magistrate Judge SEARCH WARRANT 4 AT & T 11760 US HWY 1, SUITE 30 NORTH PALM BEACH FL 33408 (800) 635-6840 (888) 938-4715 (Fax) CERTIFICATE OF AUTHENTICITY OF DOMESTIC RECORDS PURSUANT TO FEDERAL RULES OF EVIDENCE 902 (11) AND 902 (13, AND 803 (7) GLDC FILE NUMBER 3586353 I Stephen Gordon attest, under penalties of perjury by the laws of the United States of America pursuant to 28 U.S.C. § 1746, that the information contained in this certification is true and correct. I am employed by AT & T, and my title is Director-Compliance. I am qualified to authenticate records responsive to the attached Search Warrant dated 12/22/22 because I am familiar with how the records were created, managed, stored, and retrieved. I further state that: a. AT & T maintains records made at or near the time of the occurrence of the referenced matter set forth by, or from information transmitted by, a person with knowledge of those matters, and the records were kept in the ordinary course of the regularly conducted business activity of AT & T, and made by AT & T as a regular practice; and b. AT & T provided records for the phone number 509-592-8458 responsive to the referenced Search Warrant dated December 23, 2023, for records between June 23, 2022, to December 23, 2022, related to the November 13, 2022, homicides; and c. AT & T did not provide Timing Advance Records for phone number 509-592-8458. Timing Advance Records were only available if requested within seven (7) days of the specified time frame. Timing Advance Records were not included in AT & T records responsive to the referenced Search Warrant because more than seven (7) days elapsed between November 13, 2022, and the date of the Search Warrant December 23, 2022. I further state that this certification is intended to satisfy Rules 902 (11), 902 (13) and 803 (7) of the Federal Rules of Evidence. 03/24/2025 Dated Signature STATE'S EXHIBIT exhibitsticker.com S-2 CR01-24-31665 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH ) In the Matter of the Application) Case No. CR29- For a Search Warrant for:) ) SEARCH WARRANT AND AT & T) ORDER AUTHORIZING 11760 U.S. Highway 1, Suite 300) INSTALLATION AND / OR North Palm Beach, FL 33408-3029 (USE OF A PEN REGISTER, ) TRAP AND TRACE DEVICE ) ) AND ) NON-DISCLOSURE ORDER ) PURSUANT TO I.C. 18-6722 MPD Case No. 22-M09903 TO: ANY PEACE OFFICER AUTHORIZED TO ENFORCE OR ASSIST IN ENFORCING ANY LAW OF THE STATE OF IDAHO. Brett Payne, having given me proof, upon oath, this day showing probable cause establishing grounds for issuing a search warrant and probable cause to believe there are records related to the crime (s) of homicide at 1122 King Road, Moscow, Idaho and are currently under the control of AT & T for historic call detail records for the telephone number 509-592-8458 with cell sites for all voice, sms, and data connections between June 23, 2022, to present, to include: SEARCH WARRANT AND ORDER FOR A PEN REGISTER OR A TRAP AND TRACE DEVICE AND NON-DISCLOSURE ORDER PURSUANT TO I.C. 18-6722 1 Subscriber or Registration Account Information, including subscriber or registered user name or identity, address, billing / payment information; account initiation date; type of account; custom account features; additional phone numbers; addresses (both physical and electronic) and / or other contact information; additional persons having authority on the account; any additional accounts linked to the subject account; account changes for the target address and any linked accounts; and Device Identifying Information for the device using the target address, such as phone number, MAC address, IP address, and other unique hardware and software identifiers; and Usage and Location Information, including stored and transactional records for all voice, sms and data connections such as inbound and outbound call, message, radio or other communication detail data, together with date and time of each communication; including positioning information such as GPS longitude / latitude or multilateration or precision location, historical and prospective cell site location information (CSLI), or other information tending to reveal the proximate or precise location of the device associated with the above-identified target address; E911 data for the target address; and, for internet communications, detail such as IP address, Port, Socket Address, VoIP address, routing information; the address (es) from which the communication is made, conducted, and terminated; non-content text or email, header, IP address; and other non-content information; and such as cell site positioning information, GPS longitude / latitude or multilateration or precision location (including RTT and LocDBOR reports or similarly generated location information), Timing Advance and / or True Call or other information tending to reveal the proximate or precise location of the device associated with the target address; E911 data for the target address; and Physical address of cellular antenna towers used by the customer's device, together with RF coverage map (s) and / or satellites contacted or used by the above-identified customer / number / account (s) / device (s), and periods of telephone activation, session times, duration, and the identity of any temporarily assigned network addresses; and subscriber identity information for customers who contact or are contacted by the device using the target address; located at the following premises: SEARCH WARRANT AND ORDER FOR A PEN REGISTER OR A TRAP AND TRACE DEVICE AND NON-DISCLOSURE ORDER PURSUANT TO I.C. 18-6722 2 AT & T 11760 U.S. Highway 1, Suite 300 North Palm Beach, FL 33408-3029 You are therefore commanded to search the above-described premises for the property described above, to seize it if found and bring it promptly before the court above named. This warrant shall be executed within 14 days of issuance, and is authorized for daytime and nighttime service (pursuant to Idaho Criminal Rule 41, " daytime " means the hours between 6:00 a.m. and 10:00 p.m. PST). FURTHER, there is probable cause to believe that use of a pen register and / or trap and trace device will lead to law enforcement acquisition of real time pen register and / or trap and trace information, and that this information would be evidence related to the crime (s) of homicide which are currently under the control of AT & T. The court finds that Brett Payne, investigating officer, and Ashley Jennings, Senior Deputy Prosecutor, has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. Pursuant to I.C. 18-6722 (2) the Court finds that the identity of the person to whom the phone is leased or in whose name is listed to the telephone line to which the pen register or trap and trace device is to be attached is Bryan Kohberger; the identity of the person who is subject of the criminal investigation is Bryan Kohberger who resides at █████ █████████████████████████████████ Pullman, WA; the phone number is 509-592-8458 and the physical location of the phone is currently Albrightsville, Pennsylvania; the phone's SEARCH WARRANT AND ORDER FOR A PEN REGISTER OR A TRAP AND TRACE DEVICE AND NON-DISCLOSURE ORDER PURSUANT TO I.C. 18-6722 3 service provider is: AT & T 11760 U.S. Highway 1, Suite 300 North Palm Beach, FL 33408-3029 The geographic limits of the trap and trace order are the United States and U.S. Territories. IT IS HEREBY ORDERED pursuant to I.C. 18-6722 that the above-identified investigators and investigative agency / agencies are authorized to install and use a pen register to register, filter, record and decode electronic or other impulses, including, but not limited to dialing, routing, addressing, signs and signaling information, or other impulses that together with date time and duration identify the numbers dialed, electronic mail addressing or routing information, email address, IP address and / or other non-content infor