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 V. DEFENDANT'S MOTION ΤΟ SUPPRESS AND MEMORANDUM IN BRYAN C. KOHBERGER, SUPPORT Defendant. RE: AT & T FIRST WARRANT COMES NOW, Bryan C. Kohberger, by and through is attorneys of record, and respectfully submits the following reply to the State's Objection to Defendant's Motion to Suppress and Memorandum in Support regarding the AT & T First Warrant filed with the Court on December 6th, 2024. The words “ proof upon oath ” are not synonymous with “ the affidavit for search warrant and REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTIOΝ ΤΟ SUPPRESS AND MEMORANDUM IN SUPPORT RE: AT & T FIRST WARRANT Page 1 its exhibits are hereby 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 issue addressed by the state, relating to this motion, is that of particularity. Mr. Kohberger maintains his argument as laid out in his opening memorandum and provides additional argument as the state's objection is limited to the argument regarding particularity. 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, 931 (2008). 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 sized. ” U.S. v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). Mr. Kohberger is aware that 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). The AT & T warrant was void of any language that the affidavit was incorporated therein. See State's Exhibit S-2, page 1. The State relies incorrectly 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 the warrant. " 163 Idaho 114, 125 (Idaho S. Ct. 2017). In this case, no such words exist in the warrant. The affidavit nor any of its exhibits were incorporated. This warrant was served remotely. The affidavit was not made part of the search warrant. The officer serving the warrant did not attach the documents that may have provided clarity. REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTIOΝ ΤΟ SUPPRESS AND MEMORANDUM IN SUPPORT RE: AT & T FIRST WARRANT Page 2 Those documents are therefore included in this filing as attachments¹. 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, 21126 (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)). In this situation the warrant contained a broad sweep of all kinds of information relating to location information – tower connections and hand-offs, other location programs, messaging, calls made and account information. The request was a wide sweep. The search warrant was emailed to AT & T and there is no indication the affidavit accompanied the search warrant. 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 electronically to AT & T 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. 1 See Exhibit A-Receipt and Inventory of Warrant for AT & T, Return of the search warrant for AT & T, and Order REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTIOΝ ΤΟ SUPPRESS AND MEMORANDUM IN SUPPORT RE: AT & T FIRST WARRANT Page 3 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 Reply in Support of Defendant's Motion and Memorandum in Support for a Franks Hearing ” and “ Reply in Support of Motion to Suppress Genetic Information. " DATED this 19 day of December, 2024. an ANNE C. TAYLOR ANNE TAYLOR LAW, PLLC 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: emassoth@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 MOTIOΝ ΤΟ SUPPRESS AND MEMORANDUM IN SUPPORT RE: AT & T FIRST WARRANT Page 4 CASE CLRK JAN NO OF . 9 DIST 2023 DEPUTY CT AM7 LATAH COUNTY PROSECUTOR'S OFFICE. Ashley S. Jennings LATAH: 17 Sr. Deputy Prosecuting Attorney Latah County Courthouse P.O. Box 8068 Moscow, ID 83843-0568 (208) 883-2246 ISB No. 8491 REDACTED paservice@latah.id.us 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) for a Search Warrant for: AT & T Mobility RETURN OF SEARCH WARRANT 11760 U.S. Highway 1, Suite 300 North Palm Beach, FL 33408-3029 MPD Case No. 22-M09903 STATE OF IDAHO) County of Latah I, CPL Brett Payne, the officer by whom this Warrant was executed, do certify the appended inventory contains a true and detailed account of all property taken by me or other officers pursuant to this Warrant, and that this Warrant and property have been duly returned before Judge Megan E. Marshall at 9:00 o'clock a.m., this 6th_day of January, 2023. I certify under penalty of perjury pursuant to the law the State of Idaho that the foregoing is true and correct. BR # 157 01/06/2023 (Date) Peace Officer RETURN OF SEARCH WARRANT 003779 Exhibit A-AT & T-Page 1 AFFIDAVIT OF BRETT PAYNE STATE OF IDAHO) : SS. County of Latah) I, CPL Brett Payne, being duly sworn, do hereby state the following information is true and correct to the best of my knowledge and belief: (1) That I am employed by Moscow Police Department in the official position of Detective Corporal; (2) Affidavit has been a trained and qualified peace office for 4 years; (3) On 12/23/2022, Cpl Brett Payne obtained a search warrant for AT & T; (4) The warrant was served on 12/23/2022, by email (fax, email, etc); (5) On 12/23/2022, Lawrence Mowery received an e-mail from AT & T which contained the requested information; (6) An inventory was prepared for all the items received; and (7) The information received was placed into evidence at the Moscow Police Department. FURTHER your Affiant sayeth not. CPL BRETT PAYNE. Affiant I certify (or declare) under penalty of perjury pursuant to the law the State of Idaho that the foregoing is true and correct. # 157 1/6/23 (Date) (Signature) AFFIDAVIT 1 003780 Exhibit A-AT & T-Page 2 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 Case No. THE APPLICATION FOR A SEARCH WARRANT FOR AT & T RECEIPT AND 11760 U.S. Highway 1, Suite 300 INVENTORY OF WARRANT North Palm Beach, FL 33408-3029 On the 23rd day of December 2022, at approximately 10:28 o'clock _.M., the following peace officers: Detective Lawrence Mowery served the Search Warrant heretofore issued upon the place and / or person (s) described therein as directed in said Search Warrant. Entrance was obtained by: email The person (s) found in said place were: The property found and taken and the location within or upon said place and / or person (s) are as follows: DESCRIPTION OF PROPERTY LOCATION / PERSON 509-592-8458 RECEIPT AND INVENTORY PAGE 1 OF 2 PAGES 003781 Exhibit A-AT & T-Page 3 This Receipt and Inventory was made in the presence of: A copy hereof was given to the following named person (s) on the 23RD day of DECEMBER 20 22; COMPCENT @ATFT. Com person (s) present during said search: DATED this 6 WITNESS day of RECEIPT AND INVENTORY PAGE 2 OF 2PAGES 003782 Exhibit A-AT & T-Page 4 CASE CLRK BY JAN NO OF . 9 DIST 2023 CT AM7 DEPUTY. LATAH COUNTY PROSECUTOR'S OFFICE LATAH: ASHLEY S. JENNINGS 18 SR. DEPUTY PROSECUTING ATTORNEY Latah County Courthouse P.O. Box 8068 Moscow, Idaho 83843-0568 (208) 883-2246 ISB UNREDACTER No.8491 paservice@latah.id.us 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) for a Search Warrant for:) ) AT & T Mobility 11760 U.S. Highway 1, Suite 300 North Palm Beach, FL 33408-3029 MPD Case No. 22-M09903 In the above-titled matter, this Court having heretofore issued a Search Warrant, and the said Search Warrant having been served according to law, and the Return of Warrant having been duly made as directed in said Search Warrant to this Court, and a written inventory of the property found and seized having been duly made and taken before the undersigned Magistrate or Judge and filed herein; NOW, THEREFORE IT IS HEREBY ORDERED that the said Peace Officer shall deliver or cause to be delivered, the property described in said inventory to the Moscow Police Department or such other law enforcement agency as may be appropriate for the purpose of preserving said property for use as evidence or until further order of a court of competent jurisdiction. Once any related criminal case has been concluded, including the expiration of time for appeal, or at such other appropriate time, the property can be released or disposed of upon authorization of the jurisdictional ORDER 003783 1 Exhibit A-AT & T-Page 5 prosecuting attorney. IT IS FURTHER ORDERED that said property or any part thereof, may be delivered to any person or laboratory or laboratories for the purpose of conducting or obtaining any tests, analysis, or identification of said property which is deemed necessary by the custodial law enforcement agency or jurisdictional prosecuting attorney without further order of this Court. DATED 1/7/23 9:15 am Meann mashall Megan Jarsha Magistrate ORDER 2 003784 Exhibit A-AT & T-Page 6