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 DEFENDANT'S MOTION ΤΟ V. SUPPRESS AND MEMORANDUM IN SUPPORT BRYAN C. KOHBERGER, RE: PEN TRAP AND TRACE DEVICE Defendant. COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, and submits the following Reply to the State's objection to his Motion to Suppress and Memorandum in Support Re: Pen Trap and Trace Device. The words “ proof upon oath " are not synonymous with REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE Page-1 “ the affidavit for search warrant and 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. I. The AT & T (Trap and Trace, or AT & T 2) Warrant was General, and the Affidavit was Not Incorpated into the Warrant or Served with the Warrant The Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Article I, Section 17 of the Idaho Constitution is virtually identical to the Fourth Amendment, except that " oath or affirmation ” is termed “ affidavit. ” 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). In SDI Future, the Ninth Circuit held that a statement on the face of the warrant noting " the supporting affidavit (s) ” was sufficient as a suitable reference and incorporation. U.S. v. SDI Future Health, Inc., 568 F.3d 684, 699–700 (9th Cir. 2009). The warrants contained no language that the affidavit was incorporated. In misguided fashion, the State asserts that there is no requirement for specific language and relies 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 REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE Page-2 its exhibits were incorporated. On page 3, in reference to the installation of a pen register and / or trap and trace device, there is language that states: " [t] he 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. " See State Exhibit S-2, p. 3. While this language is unique to the trap and trace warrant, it does not incorporate the search warrant affidavit or any of its attachments. The search warrant affidavit did not accompany service of the warrant. The state, in its Objection, attached the search warrant affidavit, its exhibit and the order to install the trap and trace device. It did not attach the documents that provide clarity that the search warrant affidavit was not included with the service of the search warrant. Those documents are therefore included in this filing as attachments. 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, 1126 (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)). The Affidavit of Cpl. Brett Payne swears that warrant was “ served on 12/23/2022, by sending to FBI for service. " See Exhibit A, p. 2.¹ An FBI form similarly reflects that a " prospective location tracking search warrant that included a Pen Register / Trap and Trace for telephone number 509-592-8458 on behalf of the Moscow Police Department ” was served on December 23, 2022. 1 Exhibits A-C to Reply in Support of Defendant's Motion to Suppress and Memorandum Re: Pen Trap and Trace Device was filed under seal concurrently with this Reply. REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE Page-3 See Exhibit B. On or about December 23, 2022, an AT & T Mobility Carrier Request Form was completed. See Exhibit C, p. 1. Attached to the AT & T form is the Pen Tap and Trace search warrant at issue. The Affidavit in Support of Search Warrant not included. Id., pp. 3-10. The return documents, the FBI form and the AT & T form do not reference the Affidavit in Support of Search Warrant as having accompanied the Pen Trap and Trace search warrant. See Exhibits A-C. Nor does the State produce such records in its Objection. 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. II. The Affidavit Submitted in Support of the Application for the Issued Search Warrant Recklessly or Intentionally Omitted Material Information. 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. ” REPLY TO STATE'S OBJECTION TO DEFENDANT'S MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE Page-4 CONCLUSION Mr. Kohberger requests that this Court suppress all evidence obtained by police via the warrant that permitted them to place a trace on Mr. Kohberger's cel phone number. DATED this_19_day of December, 2024. BY: / s / Elisa G. Massoth Elisa G. Massoth 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: legalassistant@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 MOTION TO SUPPRESS AND MEMORANDUM IN SUPPORT RE: PEN TRAP AND TRACE DEVICE Page-5 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 INREDACTED) 883-2246 ISB 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 Case No. CR29- 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. 1/6/23 # 157 B (Date) Peace Officer RETURN OF SEARCH WARRANT 003739 Exhibit A-Trap & Trace-Page 1 AFFIDAVIT OF LAWRENCE MOWERY 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; (2) Affidavit has been a trained and qualified peace office for 4 years; (3) On 12/23/2022, I obtained a search warrant for AT & T; (4) (5) (6) CPL BIRETT PAYNE Affiant 1/4/23 # 157 (Date) (Signature) AFFIDAVIT 003740 Exhibit A-Trap & Trace-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 On the 23rd day of December 2022 022,, at at app approximately 5:07 o'clock p.M., the following peace officers: Cpl Brett Payne 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: sending to FBI for service, as FBI hosted the Pen Register and Precision Location response portion of this warrant. 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 003741 Exhibit A-Trap & Trace-Page 3 This Receipt and Inventory was made in the presence of: UNREDACTER A copy hereof was given to the following named person (s) on the 23RD day of DECEMBER 2027: COMPCENT @ AT & T, Com A copy hereof was left on this date in a conspicuous place in the place searched, there being no person (s) present during said search: DATED this 6 day of 23 # 157 Bra WITNESS PEACE OFFICER The undersigned person (s) hereby acknowledge receiving a copy hereof on this day of 20: RECEIPT AND INVENTORY PAGE 2 OF 2_PAGES 003742 Exhibit A-Trap & Trace-Page 4 CASE CLRK 49 JAN NO OF . 9 DIST 2023 CT AM7 LATAH COUNTY PROSECUTOR'S OFFICE DEPUTY. ASHLEY S. JENNINGS LATAH: 17 SR. DEPUTY PROSECUTING ATTORNEY Latah County Courthouse P.O. Box 8068 Moscow, Idaho 83843-0568 (208) 883-2246 REDACTED ISB 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 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 003743 Exhibit A-Trap & Trace-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 UNREDACTED 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 @ 9:14 am ORDER 003744 Exhibit A-Trap & Trace-Page 6 9A-SU-3683464 Serial 303 -1 of 1- FD-302 (Rev. 5-8-10) UNCLASSIFIED // FOUO FEDERAL BUREAU OF INVESTIGATION Date of entry 02/24/2023 On December 23, 2022, the Federal Bureau of Investigation served a prospective UNREDACTED location tracking search warrant that included a Pen Register / Trap and Trace for telephone number 509-592-8458 on behalf of the Moscow Police Department. The information captured as part of this legal process is being attached to the 1A section of this serial. UNCLASSIFIED // FOUO Investigation on 02/24/2023 at Moscow, Idaho, United States (Other (Legal Process Return)) File # 9A-SU-3683464 Date drafted 02/24/2023 by Nicholas J. Ballance This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency. 009001 Exhibit B-Trap & Trace-Page 1 AT & T Mobility Carrier Request Form AT & T 11760 U.S. Hwy One, 6th Floor, North Palm Beach, FL 33408 Phone: 800-635-6840 Fax: 888-938-4715 Email: gldc@att.com CONTACT INFORMATION Requesting Agency: FBI-Salt Lake City LEA Tracking Number: ████████████████████ Date: 12/24/2022 Primary POC: Seth Footlik Office: (801) 579-6949 Mobile: ████████████ Email Addr: ███████████████ Fax: Additional Authorized Contacts: Billing Address: Federal Bureau of Investigation < See Attachment > Mailstop / Attn to: FBI ETMU FRE. Building 27958A Quantico. VA 22135 ** Please include last four digits of Target's telephone number and the FBI Tracking Number on invoice ** LEGAL AUTHORITY ████████████████████████████████████████ Legal Authority: Criminal Court Order Court Order / Docket Number: CR29- Action: New Activation Date / Time Signed: 12/23/2022 05:53 PM Time Zone MST Cell Site Location Authorized: Yes Judges Name: Megan Marshall PROVISIONING INFORMATION ████████████████████████████████████████ Target Identifier: (509) 592-8458 International Number IMSI / MSID CALEA Services Historical Records Services Pen Register / Trap and Trace Start 06/23/2022 End 12/23/2022 Start 12/23/2022 End 02/23/2023 ☑ Call Detail Records w / Cell Site Location Telephony ☑ w / Cell Site Location w / PCTDD ☑ W / PCMD / RTT / TRUECALL / NELOS ☑ Text Messaging w / PCTDD Stored Content ☑ Subscriber Info Push-To-Talk ☑ Packet Data / WiFi Email records to: njballance@fbi.gov PTT ID: Full Content Cell Tower Search Start End Email records to: Telephony w / PR / TT Location Services Text Messaging w / Cell Site Location Start 12/23/2022 End 02/23/2023 17:53:00 MST Packet Data / WiFi w / PCTDD GPS PING CALEA Event-Based Location Push-To-Talk Frequency: 15 Min 30 Min 60 Min PTT ID: Primary email: precisionlocation@4A35rack6.com Secondary email: PrecisionLocation@RakeReceiver.com Audio Delivery: Dial Down 1: Dial Down 2: Method: Call Data Channel Delivery: IP: Port: CFID: Packet Data / WiFi Delivery: IP: Port: CFID: Markets / Switches: Northeast, Southeast, Central, West REMARKS / SPECIAL INSTRUCTIONS ████████████████████████████████████████ Non-disclosure order included. Past seven (7) days of Timing Advance data, as available. Please include Cellular Analysis Survey Team SA Sean Kennedy, as well as SA Nicholas Ballance and Anthony Vega as additional contacts. Thank you, Exhibit C-Trap & Trace-Page 1 ADDITIONAL █ CONTACTS Wilson, Brandon Woodall, Brian Fellenz, Erich Capson, Karen Watson, Ken Kohn, Michael Footlik, Seth Fellenz, Mandy Wilson, Robert Nielsen, Jeremy Exhibit C-Trap & Trace-Page 2 IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LAТАН ) 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 1.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 LC. 18-6722 1 Exhibit C-Trap & Trace-Page 3 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 te