Court Filing
NO. FILED, 117
Α.Μ.
FEB 19 2025
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICTREET TRIPPLE, Clerk By ANNA MEYER
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA DEPUTY
STATE OF IDAHO,
Plaintiff, Ada County Case No. CR01-24-31665
V.
ORDER ON DEFENDANT'S MOTION
BRYAN C. KOHBERGER, TO SUPPRESS RE: GENETIC
INFORMATION
Defendant.
I. INTRODUCTION
Defendant is charged with one count of Burglary and four counts of Murder in the First Degree. It is alleged that Defendant entered a residence at 1122 King Road in Moscow, Idaho, in the early morning hours of November 13, 2022 and stabbed Madison Mogen, Kaylee Goncalves, Ethan Chapin, and Xana Kernodle with a knife. Left at the crime scene was a knife sheath from which single source male DNA was extracted. Using forensic investigative genetic genealogy (" IGG "), law enforcement was able to identify Defendant as a possible suspect weeks after the crime occurred. Subsequently, law enforcement conducted a trash pull from Defendant's family residence and obtained DNA tying Defendant to the DNA found on the knife sheath. Defendant was subsequently arrested pursuant to a warrant and charged in this matter.
Defendant asserts law enforcement violated his constitutional rights by failing to secure a warrant before conducting the IGG and trash pull. He seeks to suppress all evidence obtained through these searches, as well as all evidence obtained through subsequent warrants as fruit of the poisonous tree. The State disputes that Defendant's constitutional rights were violated.
A suppression hearing was held on January 23, 2025, during which the Court received testimony from members of law enforcement and experts in IGG, each of whom the Court found to be credible and reliable.¹ Following argument, the Court took the matter under advisement.
The Court finds Defendant has failed to demonstrate his constitutional rights were contravened by the IGG and trash pull and, therefore, suppression is not warranted.
1 Specifically, the Court received testimony from Detective Corporal Brett Payne, Rylene Nowlin, Matthew Gamette, Daniel Hellwig and Leah Larkin.
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II. STANDARD
The standard of review of a motion to suppress is bifurcated. The power to assess the credibility of witnesses, resolve factual conflicts, weigh evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127 Idaho 102, 106, 897 P.2d 993, 997 (1995).
A trial court's ruling on a motion to suppress evidence combines the issue of law and fact, and the trial court's factual findings will not be overturned unless they are clearly erroneous. State v.
Conant, 143 Idaho 797, 799, 153 P.3d 477, 479 (2007). When a decision on a motion to suppress is challenged, the application of constitutional principles to the facts found will be freely reviewed. State v. Veneroso, 138 Idaho 925, 928, 71 P.3d 1072, 1075 (2003).
III. FINDINGS OF FACT
On November 13, 2022, law enforcement found the bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle, and Ethan Chapin inside a residence located at 1122 King Road in Moscow, Idaho. All four victims died from apparent knife wounds. A Ka-Bar knife sheath was found on a bed next to the bodies of Ms. Mogen and Ms. Goncalves. Law enforcement seized the knife sheath and swabbed around the button of the sheath for DNA. A sample of DNA, identified as Q1.1, was extracted from the swab by the Idaho State Police Forensics Lab and subsequently tested using standard DNA STR (Short Tandem Repeat) methods. The STR profile developed revealed that the DNA came from a single source male profile. Law enforcement uploaded the DNA profile to the CODIS² database, but it resulted in no hits to known offenders.
Subsequently, law enforcement made the decision to pursue forensic investigative genetic genealogy (" IGG ") testing on Q1.1. Such testing begins with the generation of a large amount of raw sequencing data from the DNA sample, which is then organized into SNPs, or Single Nucleotide Polymorphisms. Using bioinformatics software, the SNPs associated with ancestry and genealogy can then be pulled out of the raw data and organized into an SNP profile that can, in turn, be uploaded to commercial genetic genealogy databases to search for a genetic match.
Depending on the strength of the match, law enforcement can start building a family tree to identify potential genetic relatives of the uploaded SNP profile.
These genetic genealogy databases are hosted by private companies and populated by hundreds of thousands of members of the public who voluntarily submit their own DNA and 2 CODIS is the Combined DNA Index System, a national DNA database.
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publicly share personal information to allow the database to better match them with potential genetic relatives. Notably, at all relevant times, only two commercial genetic genealogy databases " permitted " searches by law enforcement: Family TreeDNA and GEDMatch Pro. The databases MyHeritage and GEDMatch purported to disallow such searches.
The IGG process essentially attempts to ascertain identity through genetic associations.
Unlike STR profiles, which can only reveal whether a person is genetically male or genetically female, the SNPs in their raw form have the ability to reveal a trove of personal information, including sensitive health information such as whether the person has traits indicating an increased risk for cancer or Alzheimers. However, IGG does not target these particular SNPs because, according to defense expert Daniel Hellwig, they are neither " relevant nor probative nor appropriate " to the identification process. In fact, gleaning medical information from SNPs is not possible for a layperson to do and would take a forensic scientist like Mr. Hellwig " a lot of research. " 3 The IGG was first performed by Othram Labs, a company with which the Idaho Department of Purchasing had an existing contract for such work. Othram was asked to develop an SNP profile from Q1.1, upload it to those public genealogy databases permitting law enforcement entry and submit a preliminary report of its findings. Othram was not asked to ascertain medical information associated with Q1.1, nor is there any evidence it tested for such.
Law enforcement did not obtain a warrant for Othram's work.
The Idaho State Police delivered Q1.1 to Othram on November 22, 2022. Othram developed an SNP profile from Q1.1 and searched Family TreeDNA and GEDMatch Pro.4 This work revealed four brothers of interest, all of whom were " low matches " to Q1.1. To further its family tree building, Othram asked the Idaho State Police to contact one of the identified 3 As defense expert Leah Larkin noted, however, it is possible for a person to upload an SNP profile to a third-party site called Promethease which, for a fee, will look for medically informative SNPs within the profile and generate a health report. There is no evidence or contention that was done here.
4 Matthew Gamette, the Systems Director for the Idaho State Police Forensics Lab, testified that Othram searched two databases that allowed law enforcement searches, but then named " GEDMatch " as one of the two databases searched, which does not permit law enforcement searches. He later clarified that " GEDMatch " has two databases:
GEDMatch and GEDMatch Pro, only the latter of which allows law enforcement searches. Thus, given Mr.
Gamette's clarification, it is apparent that Othram searched GEDMatch Pro, not GEDMatch.
5 These brothers did not share Defendant's last name.
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brothers to provide a DNA sample to upload into either of the two databases. Despite Idaho State Police's request, the contacted brother declined to provide a sample.
On December 10, 2022, members of law enforcement, including the FBI, had a meeting to discuss Othram's work. As a result, a decision was made to turn the IGG work over to the FBI.
That same day, Othram was instructed to stop work and turn over its SNP profile and search results to the Idaho State Police. Othram did so, along with a preliminary report of its findings.
The preliminary report did not contain any medical information associated with the SNP profile.
The Idaho State Police then turned the information over to the FBI, which was able to use Othram's profile to develop a significantly larger SNP profile. The FBI uploaded the larger SNP profile to multiple genetic genealogy databases, including GEDMatch and MyHeritage, which purport to disallow law enforcement searches. At the time, the FBI had an " Interim Policy " issued by the United States Department of Justice related to IGG analysis and searches by its agencies. Exh. D19. On the one hand, the Interim Policy required that investigative agencies conduct IGG searches in genetic genealogy databases permitting law enforcement use. Id., p. 6.
However, on the other hand, the Interim Policy also stated it was intended only as " internal guidance " and did not impose any legal restrictions on investigative agencies, noting:
[The Interim Policy] is not intended to, does not, and may not be relied upon to create any substantive or procedural rights or benefits enforceable at law or in equity by any party against the United States or its departments, agencies, entities, officers, employees, agents, or any other person in any matter, civil or criminal.
This interim policy does not impose any legal limitations on otherwise lawful investigative or prosecutorial activities or techniques utilized by the Department of Justice, or limit the prerogatives, choices, or decisions available to, or made by, the Department in its discretion.
Id., p. 1 (emphasis added).
From the information it acquired through the databases search, the FBI was able to build a family tree and arrive at a potential match. On December 19, 2022, the FBI provided Defendant's name to Idaho law enforcement as a possible source of the DNA. The FBI instructed that the identification of Defendant as a person of interest was to be considered solely as " a tip. " 6 There is no evidence that, in developing the larger SNP profile, the FBI targeted or even had access to those SNPs that can reveal sensitive health information.
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No warrant was obtained for the FBI's work, and subsequent warrant applications did not include the IGG results to inform probable cause.
As the investigation ensued, law enforcement discovered that Defendant had driven from Pullman, Washington to his parents ' home in a gated community in Monroe County, Pennsylvania. At the time, Monroe County's municipal waste ordinance required homeowners to dispose of their garbage by placing it out for collection or delivering it directly to a licensed waste hauler. Only an authorized trash collector could collect garbage left out for collection.
Law enforcement decided to conduct a warrantless trash pull from the Kohberger residence. Arrangements were made with the local trash collector to isolate and turn over the Kohbergers ' garbage to law enforcement for testing. Articles of trash were retrieved and sent to the Idaho State Police Forensics Lab to conduct standard DNA testing. A DNA profile developed from one article of trash was determined to be from the biological father of the source of Q1.1.
Another article of trash revealed a mixture of male and female DNA. According to Defendant's expert, Gary Shulter, Ph.D, the male DNA from the mixture was consistent with Q1.1 profile.
Aff. G. Shutler, 8 (December 19, 2024).7 Importantly, Defendant has not claimed ownership or knowledge of the knife sheath from which Q1.1 was taken.
After obtaining a search warrant, law enforcement collected DNA from a buccal swab obtained from Defendant. A traditional STR DNA comparison was done between the Q1.1 profile and Defendant's DNA. The comparison showed a statistical match. Specifically, Defendant was 5.37 octillion times more likely to be the source of the Q1.1 profile than an unrelated individual randomly selected from the general population. Defendant was subsequently charged in this case.
IV. CONCLUSIONS OF LAW
The Fourth Amendment to the United States Constitution protects " [t] he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures [.] " U.S. Const. amend. IV. In seeking suppression of evidence based on a 7 Because the DNA was a mixture, the Idaho State Police Forensics Lab's standards and protocols prevented it from doing a manual comparison of the male DNA to Q1.1.
The Idaho Constitution offers protection for unlawful search and seizure as well, which Defendant cites as an additional basis for his motion. Idaho Const. art. I, § 17. However, with the exception of the trash pull argument set forth in §I (E) of his opening memorandum, Defendant does not explain how Idaho's Constitution provides greater protection than the Fourth Amendment or otherwise explain how the application of the Donato factors supports a divergence from Fourth Amendment law. State v. Donato, 135 Idaho 469, 20 P.3d 5 (2001) (observing that where 5
warrantless search, a defendant bears the evidentiary burden to show that he had a legitimate expectation of privacy in the item or place searched. State v. Pruss, 145 Idaho 623, 626, 181 P.3d 1231, 1234 (2008). This involves a two-part inquiry: 1) did the defendant have a subjective expectation of privacy in the object of the challenged search, and; 2) is society willing to recognize that expectation as reasonable. Id. The former is a question of fact; the latter a question of law. Id. When a defendant makes such a showing, " the burden will shift to the State to show an exception to the warrant requirement exists or that the search was reasonable under the circumstances. " State v. Rebo, 168 Idaho 234, 238, 482 P.3d 569, 573 (2021) (citation omitted).
Here, Defendant challenges three allegedly unlawful DNA-related searches: 1) the development of an SNP profile from Q1.1; 2) the trash pull from the Kohberger residence and subsequent DNA testing thereon, and; 3) the search of the commercial genetic databases using the SNP profile. He seeks to suppress not only the genetic information obtained by law enforcement, but all other evidence obtained as a result of the alleged illegality. 10 In response, the State argues Defendant has not met his threshold burden of demonstrating that a constitutional violation occurred with regard to any of the three searches. The State is correct.
A. Defendant has Not Established a Fourth Amendment Violation With Regard to the Development of the SNP Profile.
Defendant first asserts that the extraction and testing of DNA from the sheath to develop the SNP profile constituted an unreasonable search mandating suppression. Noting recent advances that have made DNA capable of revealing prolific and sensitive information, as well as the fact that humans continually shed DNA into the environment, Defendant asks this Court to find that he had a reasonable expectation of privacy in his DNA, the testing of which through SNP methods required a warrant despite that fact that law enforcement was lawfully in possession of the object containing the DNA, i.e., the sheath. He further posits that this privacy greater protection has been afforded under Idaho's constitution, it has been based on " the uniqueness of our state, our Constitution, and our long-standing jurisprudence. ") Thus, the Court's analysis of his arguments, with the exception of the trash pull, is limited to Fourth Amendment law.
9 While property interests are also protected under the Fourth Amendment, Defendant has not alleged violation of such interests. Therefore, the property-based test to determine whether a search occurred is not implicated.
10 Defendant asserts that all evidence collected after he was identified through the FBI's IGG search, i.e., December 19, 2022, must be suppressed as fruit of the poisonous tree.
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interest is not subject to the doctrine of abandonment because the shedding of DNA into the environment is not a voluntary or knowing act.
The State denies that the testing of the DNA from the sheath was a search, pointing out the DNA was lawfully seized evidence from the scene of the crime. The State further contends Defendant has not demonstrated he had a reasonable expectation of privacy in this DNA because he abandoned it and / or because he has not shown the existence of a reasonable privacy interest society is willing to recognize.
This is a matter of first impression in Idaho. However, applying well-settled principles of Fourth Amendment law, the Court finds no constitutional violation. First, Defendant abandoned any privacy interest in his DNA by disclaiming knowledge or ownership of the sheath from which the DNA was extracted. Second, even if no such abandonment occurred, there is no reasonable expectation of privacy in DNA found at a crime scene which is subsequently analyzed to identify an unknown suspect.
1. Defendant cannot establish a subjection expectation of privacy in the DNA found on the sheath due to abandonment.
It is well settled that a person who " voluntarily abandons property prior to a search cannot be said to possess the requisite privacy interest under the Fourth Amendment. " Stark v.
State, 171 Idaho 541, 545, 524 P.3d 43, 47 (2023) (citation omitted). When one abandons property, " [t] here can be nothing unlawful in the Government's appropriation of such abandoned property. " Abel v. United States, 362 U.S. 217, 241 (1960). In the Fourth Amendment context, abandonment occurs " through words, acts, and other objective facts indicating that the defendant voluntarily discarded, left behind, or otherwise relinquished his or her interest in his or her property. " Stark, supra (citation omitted).
Disclaiming ownership or knowledge of an item constitutes abandonment. State v.
Melling, 160 Idaho 209, 212, 370 P.3d 412, 415 (Ct. App. 2016) (citations omitted). In Melling, for example, officers reported to the defendant's house after reports of a fight. Id. at 210, 370 P.3d at 412. While officers were speaking to the defendant, his girlfriend gave officers a lockbox that she said belonged to the defendant. The defendant told officers he had never seen the box before, had no idea who it belonged to, that nothing in the box was his and that he did not know what was inside of it. Id. The Court held that by disclaiming ownership of the lockbox and its contents, the defendant abandoned any privacy interest therein. Id. at 416.
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Moreover, a person need not specifically disclaim knowledge or ownership of the contents of a container to result in abandonment thereof. It is sufficient to disclaim knowledge or ownership of the container itself. See, State v. Zaitseva, 135 Idaho 11, 13, 13 P.3d 338, 340 (2000) (" by denying ownership of the bag in response to the officer's inquiry prior to the search, [the defendant] essentially relinquished or abandoned any privacy interest in the contents of the bag. ").
There is no dispute here that Defendant has not claimed any knowledge or ownership of the sheath, thus resulting in its abandonment. Defendant concedes as much, but argues that abandonment of any privacy interest in the sheath did not result in the abandonment of the DNA found on the sheath. He contends that unlike the voluntary act leaving the sheath, leaving DNA on the sheath is not voluntary because a person has no way to know that their DNA has been left behind. DNA, he points out, is shed everywhere; humans have no ability to keep their biological material from the environment. Consequently, he reasons, a finding that the DNA on the sheath was abandoned would mean that a person voluntarily gives up privacy in their entire genetic makeup every time they interact with the public.
In support of his argument, Defendant relies exclusively on a concurring opinion in State v. Carbo, which is factually similar to this case. 6 N.W.3d 114 (Minn. 2024). In Ca