Latest / Beyond The Horizon / Mega Edition: Judge Hippler Makes A Ruling On The ATT Warrant And The Hyundai Warrant (9/6/26)

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Mega Edition: Judge Hippler Makes A Ruling On The ATT Warrant And The Hyundai Warrant (9/6/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome back to the program. In
• 0:03
  Speaker 1: this episode we're going to keep it rolling and take
• 0:05
  Speaker 1: a look at some more court documents up in Moscow.
• 0:09
  Speaker 1: And this time we're taking a look at Brian Koberger's
• 0:12
  Speaker 1: motion to suppress and his memorandum in support of that
• 0:16
  Speaker 1: suppression of the first AT & T warrant. Case number 124-31665.
• 0:21
  Speaker 1: State of Idaho Plaintiff vs. Brian C. Koberger, the defendant.
• 0:28
  Speaker 1: Comes now. Brian C. Koberger by and through his attorneys
• 0:31
  Speaker 1: of record and hereby submits the following memorandum in support
• 0:35
  Speaker 1: of his contemporaneously filed motion for an order suppressing all
• 0:38
  Speaker 1: data found by law enforcement from its search of his
• 0:41
  Speaker 1: AT & T account. Issues. Mr. Koberger has a privacy
• 0:46
  Speaker 1: interest in his AT & T account information protected by
• 0:49
  Speaker 1: Article 1, Section 17 of the Idaho Constitution and by
• 0:53
  Speaker 1: the Fourth Amendment. 2. The affidavit submitted in support of
• 0:56
  Speaker 1: the application for the issued search warrant recklessly or intentionally
• 1:00
  Speaker 1: omitted material information and fails to provide probable cause for
• 1:04
  Speaker 1: the requested search. 3. The search warrant fails to provide
• 1:09
  Speaker 1: specific particularization of what law enforcement could search and seize
• 1:13
  Speaker 1: in Mr. Kohlberger's AT & T account. 4. The affidavit
• 1:17
  Speaker 1: submitted in support of the application for the issued search
• 1:20
  Speaker 1: warrant included information that must be excised. a. All information
• 1:26
  Speaker 1: in the affidavit was gathered because of law enforcement's unconstitutional
• 1:30
  Speaker 1: use of investigative genetic genealogy and thus nothing in the
• 1:34
  Speaker 1: warrant should remain. Facts. On December 23, 2023, Corporal Payne
• 1:40
  Speaker 1: of the Moscow Police Department requested a warrant to search
• 1:44
  Speaker 1: the contents of Mr. Koberger's AT & T account for
• 1:47
  Speaker 1: information regarding his phone's whereabouts between November 12, 2023 and
• 1:50
  Speaker 1: November 14, 2023, as well as messages and phone calls
• 1:52
  Speaker 1: from during that period. The affidavit for the warrant was
• 2:00
  Speaker 1: signed by Corporal Payne. The basic facts Corporal Payne used
• 2:04
  Speaker 1: to support the search are discussed in a separate motion
• 2:06
  Speaker 1: for Frank's hearing pursuant to Frank's vs. Delaware and are
• 2:10
  Speaker 1: incorporated but not repeated here. The affidavit requested 1. All
• 2:15
  Speaker 1: customer subscriber information, including any listed addresses, other listed telephone numbers,
• 2:21
  Speaker 1: social security numbers, date of birth, names and addresses, any
• 2:25
  Speaker 1: other customer identifying information, mobile handset or device identifier serial numbers,
• 2:31
  Speaker 1: activation date and deactivation date, and point of purchase or
• 2:35
  Speaker 1: location device was purchased, if applicable. 2. Device purchase information.
• 2:41
  Speaker 1: This is specifically to include the date, time, and location
• 2:45
  Speaker 1: of where the device or any prepaid refill cards were purchased,
• 2:49
  Speaker 1: as well as any information maintained by the purchaser. to
• 2:52
  Speaker 1: include store name, store number, terminal number, and amount of purchase. 3.
• 2:57
  Speaker 1: Any email addresses associated with the account or with the
• 3:01
  Speaker 1: device that is currently on file and stored in the
• 3:04
  Speaker 1: normal course of business of the service provider. 4. Call
• 3:08
  Speaker 1: detail records, including detailed information in reference to all known, outgoing,
• 3:13
  Speaker 1: and incoming calls associated with the account, dates and times
• 3:16
  Speaker 1: calls were made, and duration of all calls made or received,
• 3:20
  Speaker 1: This is to include any other pertinent call detail records
• 3:23
  Speaker 1: including special feature codes or any other codes that are
• 3:27
  Speaker 1: maintained in the normal course of business for the service provider.
• 3:31
  Speaker 1: Of any cellular numbers identified in the course of the investigation,
• 3:35
  Speaker 1: in addition to voice calls, this would also include any
• 3:38
  Speaker 1: detail records showing text messages, MMS messages, or data activity.
• 3:43
  Speaker 1: In the event the requested call detail records contain other
• 3:46
  Speaker 1: service provider customer numbers, Identified as either incoming or outgoing calls,
• 3:51
  Speaker 1: the service provider will provide subscriber information to the specific
• 3:55
  Speaker 1: numbers identified if requested. 5. Cell site information to include
• 4:00
  Speaker 1: all known cell towers associated with outgoing and incoming calls.
• 4:04
  Speaker 1: This information is to include any sector information, azimuth for
• 4:09
  Speaker 1: each identified sector, cell site location, handoff tower and sector,
• 4:13
  Speaker 1: time on tower information, and any other related material. that
• 4:17
  Speaker 1: would be necessary to identify the location and sector in
• 4:21
  Speaker 1: reference to the cell site information associated with the call
• 4:25
  Speaker 1: detail records. In the event text messages, MMS messages, data
• 4:30
  Speaker 1: activity including IP sessions and destination addresses that were produced,
• 4:35
  Speaker 1: these records are also included in this request. 6. Cell
• 4:39
  Speaker 1: site locations for all service provider cell sites. Sector information
• 4:44
  Speaker 1: including azimuth headings in the regional market, associated with the
• 4:48
  Speaker 1: requested cell site information. 7. Location information to include any
• 4:54
  Speaker 1: estimated or known longitude and latitude of the cellular device's
• 4:57
  Speaker 1: current location or approximate location, information received by cell towers
• 5:03
  Speaker 1: in reference to direction and distance from the tower a
• 5:06
  Speaker 1: device may be located, timing, and triangulation information, radio frequency
• 5:12
  Speaker 1: signal strengths, direction, and transmission information. The geographical constraints of
• 5:17
  Speaker 1: location information will be limited to the United States. 8.
• 5:21
  Speaker 1: Location information can be in the form of the historical records.
• 5:25
  Speaker 1: This would include any reports of device activity that would
• 5:28
  Speaker 1: include the approximate latitude and longitude of the device at
• 5:31
  Speaker 1: the time of the activity, estimated margin of error, direction
• 5:35
  Speaker 1: and distance from the tower, and other location-related information commonly
• 5:40
  Speaker 1: referred to as real-time tool, timing advance information, location database
• 5:44
  Speaker 1: of record, This further includes any other report similar in
• 5:48
  Speaker 1: nature that would provide an estimate of the cellular phone
• 5:52
  Speaker 1: on the service provider's network. 9. All text messages and
• 5:56
  Speaker 1: or MMS messages, including message content, currently stored in the
• 6:00
  Speaker 1: normal course of business for the service provider to include
• 6:04
  Speaker 1: any cloud services which allow for the long-term storage of
• 6:07
  Speaker 1: both voicemails and SMS SIMS messages. 10. Cloud Data any
• 6:13
  Speaker 1: content that may have been backed up to the cloud
• 6:16
  Speaker 1: storage for the listed dates and times. If said cloud
• 6:20
  Speaker 1: storage has been provided by a third-party provider, please provide
• 6:23
  Speaker 1: relevant contact information for that provider. In the exhibit attached
• 6:28
  Speaker 1: to the warrant, however, law enforcement indicates only wanting historical
• 6:32
  Speaker 1: phone records between the hours of November 12th and 2022
• 6:35
  Speaker 1: at 12 a.m. and November 14th, 2022 at 12 a.m.
• 6:41
  Speaker 1: as well as prospective phone records. The Argument 1. Mr.
• 6:46
  Speaker 1: Koberger has a privacy interest in his AT & T
• 6:48
  Speaker 1: account information protected by Article 1, Section 17 of the
• 6:52
  Speaker 1: Idaho Constitution and by the Fourth Amendment. Both the Fourth
• 6:56
  Speaker 1: Amendment and Article 1, Section 17 protect people's interest in privacy.
• 7:01
  Speaker 1: A person challenging a search has the burden of showing
• 7:03
  Speaker 1: that he or she had a legitimate expectation of privacy
• 7:07
  Speaker 1: in the item or place searched. That involves a two-part inquiry. 1.
• 7:12
  Speaker 1: Did the person have a subjective expectation of privacy in
• 7:15
  Speaker 1: the object of the challenge search? 2. Is society willing
• 7:19
  Speaker 1: to recognize that expectation as reasonable? Here at stake are
• 7:23
  Speaker 1: records of a telephone account and the records the state
• 7:26
  Speaker 1: sought included 1. Identifying information about account owner and their
• 7:30
  Speaker 1: devices 2. Device purchase information 3. Email addresses associated with
• 7:36
  Speaker 1: the account 4. Call detail records including text messages and
• 7:40
  Speaker 1: data activity. 5. Cell site information. 6. Historical location information. 7.
• 7:46
  Speaker 1: Cloud data. The Fourth Amendment has generally refused to acknowledge
• 7:51
  Speaker 1: a privacy interest in records held by a corporation about
• 7:54
  Speaker 1: communications they facilitate. Every circuit to have considered the question
• 8:00
  Speaker 1: has held that an individual has no reasonable expectation of
• 8:03
  Speaker 1: privacy in a phone service provider's records of the phone
• 8:07
  Speaker 1: number he has dialed or from which he has received calls. However,
• 8:11
  Speaker 1: in Carpenter v. U.S. 585, the Supreme Court declined to
• 8:15
  Speaker 1: extend the third-party doctrine to historical cell site records and
• 8:19
  Speaker 1: cell site location information, CSLI. In this matter, Corporal Payne
• 8:24
  Speaker 1: specified at his request that the purpose for gathering the
• 8:27
  Speaker 1: information from the AT & T records was to aid
• 8:30
  Speaker 1: and determine the location of the A458 phone and the
• 8:34
  Speaker 1: White Elantra in efforts to determine whether the White Elantra,
• 8:38
  Speaker 1: is the same vehicle identified in the surveillance videos. Pursuant
• 8:42
  Speaker 1: to Carpenter, to the extent that information was being gathered
• 8:46
  Speaker 1: for the movements of the vehicle, Mr. Koberger has a
• 8:49
  Speaker 1: privacy right protected both by the Fourth Amendment and Article I,
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  Speaker 1: Section 17. In the wake of Carpenter and the court's
• 8:56
  Speaker 1: recognition of the abundant records maintained on everyone in modern society,
• 9:01
  Speaker 1: it's questionable whether the third-party doctrine is still good law. However,
• 9:06
  Speaker 1: this court need not consider whether the Fourth Amendment needs
• 9:09
  Speaker 1: updating because Idaho has already recognized an expectation in the
• 9:13
  Speaker 1: privacy of whom we dial and the content of text
• 9:16
  Speaker 1: messages we send. See State v. Thompson, 114 Idaho, 1988.
• 9:20
  Speaker 1: State v. Branagh, 155 Idaho, 2013. Therefore, to collect the
• 9:27
  Speaker 1: records law enforcement requested in this matter, it had to
• 9:30
  Speaker 1: have a valid warrant. 2. The affidavit submitted in support
• 9:34
  Speaker 1: of the application for the issued search warrant recklessly or
• 9:38
  Speaker 1: intentionally omitted material information. The Fourth Amendment states unambiguously that
• 9:43
  Speaker 1: no warrant shall issue but upon probable cause supported by
• 9:47
  Speaker 1: oath of affirmation and particularly describing the place to be searched,
• 9:51
  Speaker 1: the persons or things to be seized. Probable cause exists when,
• 9:54
  Speaker 1: given all the circumstances, set forth in the affidavit, there
• 10:02
  Speaker 1: is a fair probability that contraband or evidence of a
• 10:05
  Speaker 1: crime will be found in a particular place. Illinois v. Gates, 462,
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  Speaker 1: 1983 For a search warrant to be valid, the judge
• 10:14
  Speaker 1: issuing the warrant must rely on an affidavit or affidavit sworn...
• 10:19
  Speaker 1: to before the judge, or by testimony under oath, and
• 10:22
  Speaker 1: recorded that established the grounds of issuing the warrant. Any
• 10:27
  Speaker 1: discrepancy between the items for which there was probable cause
• 10:30
  Speaker 1: and their description in the search warrant requires suppression. Criminal
• 10:34
  Speaker 1: Procedure of Rights of the Accused, 887-2022 It's clear that
• 10:40
  Speaker 1: the issuing magistrate himself, if he is to fulfill the
• 10:44
  Speaker 1: constitutionally mandated function, of interposing an independent intelligence between the
• 10:49
  Speaker 1: law enforcement officer and the citizen, must actually and in
• 10:53
  Speaker 1: fact draw the inferences from the evidence presented to him,
• 10:56
  Speaker 1: people versus Petora. 1979. It is for this reason that
• 11:01
  Speaker 1: the courts have insisted that the full facts from which
• 11:04
  Speaker 1: inferences might be drawn and information necessary to determine the
• 11:07
  Speaker 1: reliability be placed before the issuing magistrate. Finally, a criminal
• 11:12
  Speaker 1: defendant may challenge the veracity of of an affidavit used
• 11:15
  Speaker 1: to obtain such a search warrant, State v. Peterson, 133, Idaho, 1999.
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  Speaker 1: Upon a preliminary showing of a warrant's deficiency, the defendant
• 11:25
  Speaker 1: must prove by a preponderance of the evidence that intentional
• 11:29
  Speaker 1: or reckless falsehoods were included in the warrant affidavit and
• 11:32
  Speaker 1: were material to the magistrate's finding of probable cause or
• 11:36
  Speaker 1: that material exculpatory information was deliberately or recklessly omitted. Peterson, 133, Idaho,
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  Speaker 1: 981 at 1157. An omission of exculpatory facts is material
• 11:48
  Speaker 1: only if there is a substantial probability that, had the
• 11:51
  Speaker 1: omitted information been presented, it would have altered the magistrate's
• 11:54
  Speaker 1: determination of probable cause. Whether an omission was intentional or
• 12:00
  Speaker 1: reckless might be inferred, in part, from the relative importance
• 12:03
  Speaker 1: of the information and its exculpatory power. The challenge pursuant
• 12:08
  Speaker 1: to this section is of the motion is separately laid
• 12:11
  Speaker 1: out in Kohlberger's motion for hearing under Franks. The motion
• 12:15
  Speaker 1: and proffer are incorporated, but not repeated herein. All right,
• 12:18
  Speaker 1: we're going to wrap up right here, and in the
• 12:20
  Speaker 1: next episode, we're going to pick up with part three.
• 12:22
  Speaker 1: The search warrant fails to provide specific particularization of what
• 12:27
  Speaker 1: law enforcement could search and seize in Mr. Kohlberger's AT
• 12:30
  Speaker 1: & T account. All of the information that goes with
• 12:33
  Speaker 1: this episode can be found in the description box. What's up, everyone,
• 12:38
  Speaker 1: and welcome back to the program. In this episode, we're
• 12:41
  Speaker 1: going to pick up where we left off with Brian
• 12:43
  Speaker 1: Koberger's motion to suppress the first AT & T search warrant. Three,
• 12:49
  Speaker 1: the search warrant fails to provide specific particularization of what
• 12:53
  Speaker 1: law enforcement could search and seize in Mr. Koberger's AT
• 12:57
  Speaker 1: & T account. The Fourth Amendment and Article 1, Section
• 13:00
  Speaker 1: 17 of the Idaho Constitution do not permit a cell
• 13:04
  Speaker 1: phone to be searched incident to arrest. Riley v. California
• 13:09
  Speaker 1: 573 U.S. 373 2014. Rather, the police must seek a warrant.
• 13:15
  Speaker 1: A warrant, however, is not a magical wand that grants
• 13:18
  Speaker 1: access to anything a cell phone contains. As the Supreme
• 13:22
  Speaker 1: Court found, cell phones can contain enormous amounts of information
• 13:25
  Speaker 1: that is private and may not be viewed by the government.
• 13:28
  Speaker 1: Riley 573 U.S. 403. Courts have long required that warrants
• 13:33
  Speaker 1: be sufficiently particular to allow a government agent to know
• 13:37
  Speaker 1: what may be seized, viewed, or searched, and what may
• 13:40
  Speaker 1: not be. See State v. Yoder, 96, Idaho, 1975. A
• 13:46
  Speaker 1: search warrant must be particular enough so that, as to
• 13:49
  Speaker 1: what is to be taken, nothing left to the discretion
• 13:52
  Speaker 1: of the officer executing the warrant. Marin v. United States, 275, U.S., 192, 48,
• 13:57
  Speaker 1: Supreme Court, 74, 76, 72, 231, 237, 1927. However, this
• 14:08
  Speaker 1: statement is not to be read literally. State v. Weimer, 133, Idaho, 2008.
• 14:12
  Speaker 1: Wayne v. LaFave, Search and Seizure, 4.6, at 605, 4th edition, 2004. Instead,
• 14:21
  Speaker 1: the warrant must enable the searcher to reasonably ascertain and
• 14:25
  Speaker 1: identify the things which are authorized to be seized. United
• 14:28
  Speaker 1: States v. Cook, 657, F. 2D, 730, 5th Circuit, 1981. See
• 14:35
  Speaker 1: also United States First Beton Court 734 F. 2D 750 11th
• 14:40
  Speaker 1: Circuit 1984. The specific evil that the particularity requirement guards
• 14:46
  Speaker 1: against is the general warrant abhorred by the colonists, and
• 14:50
  Speaker 1: the problem is not that the intrusion per se, but
• 14:53
  Speaker 1: of a general exploratory rummaging in a person's belongings. Weimer 133,
• 14:57
  Speaker 1: Idaho at 449. A warrant accomplishes this objective by requiring
• 15:03
  Speaker 1: a particular description of the things to be seized. The
• 15:07
  Speaker 1: warrant for Mr. Kohlberger's AT & T account lacks appropriate particularization.
• 15:12
  Speaker 1: It lists all the following that could be found in
• 15:14
  Speaker 1: the account. All identifying information of the account holder. All
• 15:18
  Speaker 1: information about the creation of the account. All information about
• 15:22
  Speaker 1: the account's maintenance. All call records. All text messages, MMS messages,
• 15:27
  Speaker 1: or data activity. the device's historical and prospective locations, and
• 15:32
  Speaker 1: data now in the cloud. The warrant and the affidavit
• 15:36
  Speaker 1: are not only all-encompassing, they are duplicative, often repeating things
• 15:41
  Speaker 1: to be searched and seized. The only limitation in scope
• 15:45
  Speaker 1: is that the property be related to the homicides in
• 15:47
  Speaker 1: this matter. Jurisdictions across the nation agree that such broad
• 15:51
  Speaker 1: warrants are problematic, but found that trying to fix that
• 15:54
  Speaker 1: issue via more particularized warrants has its own issues. Still,
• 15:59
  Speaker 1: this case presents a warrant that is overbroad under the
• 16:02
  Speaker 1: long-standing principles of Article I, Section 17 of the Fourth Amendment. First,
• 16:08
  Speaker 1: this court should review what Idaho courts have already held
• 16:12
  Speaker 1: about particularity in State v. Caldero, 109 Idaho, 80, 1985.
• 16:16
  Speaker 1: The Court of Appeals found the requirement of probable cause
• 16:21
  Speaker 1: and particularity serve different purposes. There are two distinct constitutional
• 16:26
  Speaker 1: protections served by the warrant requirement. First, the magistrate's scrutiny
• 16:30
  Speaker 1: is intended to eliminate altogether searches not based on probable cause.
• 16:34
  Speaker 1: The second distinct objective is that those searches deemed necessary
• 16:39
  Speaker 1: should be as limited as possible. Here, the specific evil
• 16:42
  Speaker 1: is the general warrant abhorred by the colonists and the
• 16:45
  Speaker 1: problem is not the intrusion, per se, but of a
• 16:48
  Speaker 1: general exploratory rummaging in a person's belongings. The warrant accomplishes
• 16:53
  Speaker 1: this second objective by requiring a particular description of the
• 16:57
  Speaker 1: things to be seized. In our view, the particularity requirement
• 17:01
  Speaker 1: is as important today as it was to the framers
• 17:04
  Speaker 1: of the Fourth Amendment. It protects all citizens from unduly
• 17:08
  Speaker 1: broad intrusions upon the privacy of their persons, houses, papers,
• 17:12
  Speaker 1: and effects by government agents. As noted by one distinguished authority,
• 17:18
  Speaker 1: If the police, upon obtaining entry to a house under
• 17:21
  Speaker 1: a search warrant, were permitted to seize any item, regardless
• 17:24
  Speaker 1: of its connection with crime and regardless of whether they
• 17:27
  Speaker 1: knew the item was on the premises, the requirement that
• 17:30
  Speaker 1: a warrant particularly describes the items to be seized and
• 17:33
  Speaker 1: that only items for which probable cause exists be seized
• 17:37
  Speaker 1: would be meaningless. In effect, a warrant to enter the
• 17:40
  Speaker 1: premises to search would be a general warrant in actual execution,
• 17:44
  Speaker 1: if not in form. In that case, the court considered
• 17:47
  Speaker 1: a filing cabinet not mentioned in the warrant. The state
• 17:51
  Speaker 1: argued that the cabinet could not be searched under the
• 17:53
  Speaker 1: plain view doctrine. The court disagreed, holding, However, the court
• 17:57
  Speaker 1: also noted in dicta, We have considered the possibility that
• 18:16
  Speaker 1: Caldero's personal papers inside the file cabinet might have furnished
• 18:20
  Speaker 1: the necessary link to criminal activity. It would have been
• 18:23
  Speaker 1: punishable for the officers to look inside the cabinet for
• 18:25
  Speaker 1: items such as a manuscript listed in the search warrants.
• 18:29
  Speaker 1: Had they done so, the personal papers would have been discovered.
• 18:33
  Speaker 1: To be clear, what the court held was that the
• 18:35
  Speaker 1: warrant controlled the discretion of the officers performing the search
• 18:39
  Speaker 1: as to what was to be seized, but not what
• 18:41
  Speaker 1: might be searched to locate the items listed. Consider the
• 18:45
  Speaker 1: practicalities of what the court has held. If it's not
• 18:48
  Speaker 1: listed in the warrant, it cannot be seized, but you
• 18:51
  Speaker 1: may search your heart's content for the things listed in
• 18:54
  Speaker 1: the premises named. Then try to compare this to searching
• 18:57
  Speaker 1: a cell phone. In the words of the Supreme Court,
• 19:00
  Speaker 1: that is like saying riding on horseback is materially indistinguishable
• 19:04
  Speaker 1: from a flight to the moon. Modern cell phones as
• 19:07
  Speaker 1: a category implicate privacy concerns far beyond those Implicated by
• 19:11
  Speaker 1: the search of a cigarette pack, a wallet, or a purse,
• 19:14
  Speaker 1: a conclusion that inspecting the contents of an arrestee's pockets
• 19:18
  Speaker 1: works no substantial additional intrusion on privacy beyond the arrest
• 19:22
  Speaker 1: itself may make sense as applied to physical items, but
• 19:26
  Speaker 1: any extension of that reasoning to digital data has to
• 19:30
  Speaker 1: rest on its own bottom. In U.S. First Comprehensive Drug
• 19:34
  Speaker 1: Testing Incorporated 579 F. 3D 989 1176 9th Circuit, 2009, the
• 19:41
  Speaker 1: court found the pressing need of law enforcement for broad
• 19:44
  Speaker 1: authorization to examine electronic records so persuasively demonstrated. in the
• 19:50
  Speaker 1: introduction to the original warrant in this case creates a
• 19:53
  Speaker 1: serious risk that every warrant for electronic information will become
• 19:57
  Speaker 1: in effect a general warrant, rendering the Fourth Amendment irrelevant.
• 20:03
  Speaker 1: This concern grew in the aftermath of Riley with a
• 20:05
  Speaker 1: number of jurists, C.E.G. State v. Mansoor, 421 P. 3D 323
• 20:10
  Speaker 1: 345 Wheeler v. State 135 A. 3D 282 299 In the
• 20:18
  Speaker 1: words of one, Of course, Riley requires that officers first
• 20:22
  Speaker 1: get a warrant 573 U.S. at 403 134 Supreme Court 2473.
• 20:28
  Speaker 1: But if the facts that the arrestee was carrying a
• 20:31
  Speaker 1: cell phone at the time of arrest is sufficient to
• 20:33
  Speaker 1: support probable cause for a search, then the warrant requirements
• 20:37
  Speaker 1: is merely a paperwork requirement. It cannot be Riley's holding.
• 20:41
  Speaker 1: It's so hollow. U.S. v. Morton, 46F, 331, 2022, Higginson, C.J., concurring.
• 20:49
  Speaker 1: In State v. Castanola, the court rejected that in the
• 20:53
  Speaker 1: case of a computer, it was enough to state the
• 20:55
  Speaker 1: offense charged and the items to be searched for. In
• 20:59
  Speaker 1: that case, the search warrant commanded a computer to be
• 21:02
  Speaker 1: searched for records and documents which, if found, will be
• 21:05
  Speaker 1: seized and used as evidence of and provided the crimes alleged.
• 21:09
  Speaker 1: The court found that a search warrant that includes broad
• 21:13
  Speaker 1: categories of items to be seized may nevertheless be valid
• 21:16
  Speaker 1: when the description is as specific as the circumstances and
• 21:20
  Speaker 1: the nature of the activity under investigation permit. Guest vs. Lease,
• 21:24
  Speaker 1: 255 F. 3D, 325-336 Sixth Circuit, 2001. Quoting United States vs. Henson,
• 21:27
  Speaker 1: 848 F. 2D, 1374 Henson, through 1383 Sixth Circuit, 1988, quoting
• 21:39
  Speaker 1: United States v. Bloom, 753 F. 2d, 999-1001, 11th Circuit, 1985,
• 21:48
  Speaker 1: warrants that fail to describe the items to be seized
• 21:51
  Speaker 1: with as much specificity as the government's knowledge and the
• 21:54
  Speaker 1: circumstances allow are invalidated by their substantial failure to specify
• 21:59
  Speaker 1: as nearly as possible the distinguishing characteristics of the goods
• 22:02
  Speaker 1: to be seized. United States v. Fuchilo, 808 F. 2D 173, 1987.
• 22:09
  Speaker 1: The court then found that the warrant failed the test
• 22:13
  Speaker 1: in two respects. First, it left to the discretion of
• 22:16
  Speaker 1: the investigator what was relevant to the crimes alleged. Second,
• 22:20
  Speaker 1: it made no attempt to delineate the types of files
• 22:22
  Speaker 1: the court be relevant to what the police believed they
• 22:25
  Speaker 1: would find in that particular case. Evidence that the defendant
• 22:30
  Speaker 1: had made an online search of his alleged victim's addresses
• 22:32
  Speaker 1: is In those circumstances, there was no reason to go
• 22:35
  Speaker 1: looking at videos and pictures. Thus, returning to our analogy,
• 22:40
  Speaker 1: the Ohio Supreme Court found that the warrant failed as
• 22:43
  Speaker 1: to where, category, and what description of the file sought.
• 22:48
  Speaker 1: As the court noted, the where and what can be
• 22:50
  Speaker 1: named with more specificity based on what is known to
• 22:53
  Speaker 1: law enforcement. In this case, the first thing to be
• 22:56
  Speaker 1: seized was data, complication relating to or containing information indicating, suggesting,
• 23:02
  Speaker 1: or related to violence, a fight, or a motive, hostility
• 23:05
  Speaker 1: for any of the same. But then it permits the
• 23:08
  Speaker 1: entire contents, i.e., every category of data, on the cell
• 23:12
  Speaker 1: phone to be searched. The limiting description of the data
• 23:15
  Speaker 1: is not repeated in the remaining eight requests to search
• 23:17
  Speaker 1: categories of data. Therefore, in the case at bar, law
• 23:21
  Speaker 1: enforcement was certainly capable of greater specificity in both instances,
• 23:26
  Speaker 1: but instead gave itself an overbroad mandate permitting a complete
• 23:30
  Speaker 1: access to everything from Mr. Koberger's phone. Another example of
• 23:34
  Speaker 1: the court cracking down on overbroad digital warrants is Wheeler v. State.
• 23:39
  Speaker 1: In Wheeler, investigators used a warrant with several parts, including
• 23:42
  Speaker 1: one explaining terminology, one explaining that digital information basically never
• 23:47
  Speaker 1: becomes stale, and one settling out the facts of the
• 23:50
  Speaker 1: case and explaining that additional emails or text messages. The warrant, however,
• 23:55
  Speaker 1: commanded law enforcement to collect any device that contained data
• 23:59
  Speaker 1: and any data found thereon. The Delaware Supreme Court found
• 24:03
  Speaker 1: the warrants overbroad. All right, folks, we're going to wrap
• 24:06
  Speaker 1: up right here, and in the next episode, we're going
• 24:08
  Speaker 1: to finish this bad boy off. All of the information
• 24:11
  Speaker 1: that goes with this episode can be found in the
• 24:14
  Speaker 1: description box. What's up, everyone, and welcome back to the program.
• 24:18
  Speaker 1: In this episode, we're going to pick up where we
• 24:20
  Speaker 1: left off with Brian Koberger's motion to suppress... The first
• 24:25
  Speaker 1: AT & T warrant. The court began by recalling the
• 24:28
  Speaker 1: hatred of the colonists towards general warrants at 297. The
• 24:33
  Speaker 1: court then noted that the United States Supreme Court had
• 24:36
  Speaker 1: found that warrants for the digital contents of a cell
• 24:38
  Speaker 1: phone gave the government access to more information than a house.
• 24:43
  Speaker 1: The court acknowledged the difficulties in specifying what categories of
• 24:46
  Speaker 1: data are sought when criminals are known to hide data
• 24:49
  Speaker 1: in files. The court then reviewed both U.S. v. Riccardi 405, F. 3D
• 24:55
  Speaker 1: at 852, 10th Circuit 2005, and Castanola, noting in both
• 25:01
  Speaker 1: cases the courts found digital warrants overbroad where no limitation
• 25:05
  Speaker 1: was included as to what to seize. The court then
• 25:08
  Speaker 1: held we hesitate to prescribe rigid rules and instead reiterate
• 25:12
  Speaker 1: that warrants must designate the things to be searched and
• 25:16
  Speaker 1: seized as particularly as possible. Striking the correct balance when
• 25:20
  Speaker 1: protecting against generality and overbreath requires vigilance on the part
• 25:25
  Speaker 1: of judicial officers who are on the front lines of
• 25:28
  Speaker 1: preserving constitutional rights while assisting the government officials in the
• 25:32
  Speaker 1: legitimate pursuit of prosecuting criminal activity. Whereas here the investigators
• 25:37
  Speaker 1: had available to them a more precise description of the
• 25:41
  Speaker 1: alleged criminal activity, that is the subject of the warrant,
• 25:44
  Speaker 1: such information should be included in in the instrument and
• 25:48
  Speaker 1: the search and seizure should be appropriately narrowed to the
• 25:50
  Speaker 1: relevant time period so as to mitigate the potential for
• 25:54
  Speaker 1: unconstitutional exploratory rummaging. The court went on in dicta to
• 25:59
  Speaker 1: note the various other inconsistencies with that what the government
• 26:03
  Speaker 1: knew it was looking for and its overbroad demand, idea
• 26:07
  Speaker 1: 306 and 07. The Wheeler case is important to this
• 26:11
  Speaker 1: case not simply for the concept of a temporal limitation
• 26:15
  Speaker 1: on the information to be sought, but for the principle
• 26:17
  Speaker 1: that the government must make the warrant as particular as
• 26:20
  Speaker 1: it knows how to make it. In the case at Barr,
• 26:24
  Speaker 1: the government is investigating a quadruple homicide in Idaho. Does
• 26:27
  Speaker 1: it make sense to see if there is some hint
• 26:29
  Speaker 1: at wanting to fight someone from two years prior? Five years? Ten?
• 26:34
  Speaker 1: What of everything else that may be relevant to what
• 26:36
  Speaker 1: police knew? The K-Bar sheath? And the Elantra? For that matter,
• 26:40
  Speaker 1: what of the victims themselves? Their sororities and fraternities? The
• 26:44
  Speaker 1: warrant could have specified... what was to be seized, but
• 26:47
  Speaker 1: it did not. The court in Wheeler condemns government attempts
• 26:50
  Speaker 1: to cast too broad a net under these circumstances. Recently
• 26:54
  Speaker 1: in Georgia, their Supreme Court determined that a warrant for
• 26:57
  Speaker 1: digital contents of a cell phone that permits the police
• 27:00
  Speaker 1: to seize every bit of data is unconstitutionally lacking in
• 27:04
  Speaker 1: particularization in a murder case like the one at Barr.
• 27:07
  Speaker 1: In that case, the court upheld the suppression of the
• 27:10
  Speaker 1: fruits of a warrant where The magistrate issued a warrant
• 27:13
  Speaker 1: that authorized a forensic search of Wilson cell phones to
• 27:17
  Speaker 1: be completed in order to obtain any and all stored
• 27:20
  Speaker 1: electronic information, including but not limited to user account information,
• 27:25
  Speaker 1: stored phone information, images, text messages, videos, documents, emails, internet activity,
• 27:31
  Speaker 1: call logs, contact information, phone book, or any deleted data.
• 27:36
  Speaker 1: The warrant further included Pre-printed form language stating the foregoing
• 27:41
  Speaker 1: described property, items, articles, instruments, and persons to be searched
• 27:45
  Speaker 1: for and seized constitute evidence connected with the foregoing listed
• 27:49
  Speaker 1: crimes and is, are, check all that are applicable. The
• 27:53
  Speaker 1: swearing officer then checked four boxes on the pre-printed form
• 27:57
  Speaker 1: indicating that investigators believe the cell phones were intended for
• 28:01
  Speaker 1: use in the commission of crimes, herein described, used in
• 28:04
  Speaker 1: the commission of crimes, herein described, tangible or visible evidence
• 28:09
  Speaker 1: of the commission of the crime set forth above and
• 28:11
  Speaker 1: intangible or invisible evidence of the commission of the crime
• 28:15
  Speaker 1: set forth above. This code section does not reference criminal activity. Instead,
• 28:21
  Speaker 1: it lists the process by which law enforcement and officers
• 28:24
  Speaker 1: must abide when seeking a warrant. The government acknowledged the
• 28:28
  Speaker 1: breadth of the warrant but claimed it was particularized. The
• 28:32
  Speaker 1: court disagreed, finding that there was nothing limiting about the
• 28:35
  Speaker 1: language in the warrant As the state acknowledged, the search
• 28:38
  Speaker 1: warrant broadly authorizes the seizure of any and all stored
• 28:41
  Speaker 1: electronic information on the phones, including, but not limited to,
• 28:45
  Speaker 1: various kinds of electronic information. The state points to the
• 28:49
  Speaker 1: pre-printed form language following this sweeping authorization as limiting in nature. However,
• 28:55
  Speaker 1: that language clearly states that the foregoing described property, that is,
• 28:59
  Speaker 1: any and all stored electronic information on the phones, constitutes
• 29:03
  Speaker 1: evidence connected with the crimes, this language cannot plausibly be read,
• 29:07
  Speaker 1: as the state suggests, to limit the otherwise limitless authorization
• 29:12
  Speaker 1: to search for and seize any and all data that
• 29:15
  Speaker 1: can be found on Wilson's cell phones. The Georgia Supreme
• 29:18
  Speaker 1: Court went on to note that it would likely have
• 29:20
  Speaker 1: upheld the warrant had it merely limited the search to
• 29:23
  Speaker 1: digital evidence pertaining to the commission of murder. More noteworthy
• 29:27
  Speaker 1: than finding a warrant that failed to limit what sort
• 29:30
  Speaker 1: of evidence was to be seized was overbroad was the
• 29:33
  Speaker 1: concurrence of Justice Peterson, which five other justices joined. Georgia's
• 29:37
  Speaker 1: Supreme Court has nine justices. Justice Peterson found, the Supreme
• 29:41
  Speaker 1: Court in Anderson, Maryland, 1976, held only that otherwise particularized
• 29:48
  Speaker 1: warrant was not made unconstitutionally general by the presence of
• 29:51
  Speaker 1: residual language. Instead, the residual clause had to be read
• 29:55
  Speaker 1: in the light of the language before it. 427, at 2737.
• 30:01
  Speaker 1: But the inverse does not follow the logic of Anderson,
• 30:05
  Speaker 1: does not support the idea that an otherwise general warrant
• 30:08
  Speaker 1: lacking particularity in the places to be searched or things
• 30:11
  Speaker 1: to be seized can be saved by this sort of
• 30:13
  Speaker 1: boilerplate language. Taking the warrants in this case as example,
• 30:17
  Speaker 1: a warrant that fails to give any parameters for a
• 30:20
  Speaker 1: forensic examination of cell phones is not narrowed by the
• 30:23
  Speaker 1: empty assurances that the search will only be looking for
• 30:26
  Speaker 1: evidence of a particular crime. Perhaps a search warrant may
• 30:31
  Speaker 1: once have been sufficient when cell phones had a fraction
• 30:33
  Speaker 1: of the functionality and storage capacity they do now, but
• 30:37
  Speaker 1: today a caveat that the search is limited to evidence
• 30:40
  Speaker 1: of a particular crime might narrow the object of the search,
• 30:44
  Speaker 1: but it gives little or no clarity to an officer
• 30:46
  Speaker 1: as to where to look, for what to look, or
• 30:49
  Speaker 1: how to look for it. This misstep may have stemmed
• 30:51
  Speaker 1: from a slight ambiguity in the wording of Reeves. We
• 30:55
  Speaker 1: held that the residual clauses in the search warrants at
• 30:57
  Speaker 1: issue In this case, limit the items, which may be
• 31:00
  Speaker 1: seized to evidence of cruelty to children and murder. In context,
• 31:05
  Speaker 1: that meant that the residual clauses themselves were limited to
• 31:08
  Speaker 1: evidence of those crimes. CID. But it's easy enough to
• 31:13
  Speaker 1: see how one might mistakenly read the language, specifically the
• 31:16
  Speaker 1: direct object items, to mean the list of items preceding
• 31:20
  Speaker 1: the residual clauses. And indeed, that seems to be what
• 31:23
  Speaker 1: we've done in recent years. The concurrence in Wilson is
• 31:27
  Speaker 1: worth noting in this case because the residual clause in
• 31:31
  Speaker 1: this warrant, if it exists at all, comes in the
• 31:33
  Speaker 1: opening paragraph. But as the concurrence notes, this residual clause
• 31:37
  Speaker 1: does not truly do much to keep the warrant from
• 31:40
  Speaker 1: becoming a general warrant. If anything, it merely shows how
• 31:43
  Speaker 1: much more particular the warrant could have been had it
• 31:45
  Speaker 1: been done correctly. Most recently in People v. Carson, Michigan 2024,
• 31:50
  Speaker 1: the court found the warrant lacked particularization where the warrant
• 31:55
  Speaker 1: was a general warrant that gave the police license to
• 31:58
  Speaker 1: search everything on the defendant's cell phone in the hopes
• 32:00
  Speaker 1: of finding anything but nothing in particular that could help
• 32:03
  Speaker 1: with the investigation. This warrant did not place any limitations
• 32:08
  Speaker 1: on the permissible scope of the search of defendant's phone.
• 32:11
  Speaker 1: The only hint of specificity was the opening reference to
• 32:14
  Speaker 1: the investigation of larceny in a building in Safe Breaking.
• 32:18
  Speaker 1: But this small guardrail was negated by ensuring instruction to
• 32:23
  Speaker 1: search for such items by searching and seizing the entirety
• 32:26
  Speaker 1: of the phone's contents. The court went on to find
• 32:29
  Speaker 1: that to avoid being overly broad in this case, police
• 32:32
  Speaker 1: could have said they expected to find communications between the
• 32:35
  Speaker 1: defendant and co-defendant and therefore look at the SMS messages
• 32:40
  Speaker 1: and other messaging applications. The court found many states have
• 32:43
  Speaker 1: joined in our conclusion that the particularity requirement disallows the
• 32:48
  Speaker 1: issuance of warrants authorizing police to search the entirety of
• 32:51
  Speaker 1: a person's cell phone contents for evidence of a particular crime.
• 32:56
  Speaker 1: The massive scale of the personal information people store on
• 32:59
  Speaker 1: their mobile device means that there must be some limits
• 33:02
  Speaker 1: to the scope of the search. To conclude, the warrant
• 33:05
  Speaker 1: issued for Mr. Koberger's AT & T account was unconstitutionally overbroad.
• 33:10
  Speaker 1: Law enforcement had the ability to be more specific both
• 33:13
  Speaker 1: as to the content and the category of data it sought,
• 33:16
  Speaker 1: and it chose not to be specific because what it
• 33:19
  Speaker 1: wanted and what it got was a general warrant. Therefore,
• 33:23
  Speaker 1: everything found in the search of the AT & T
• 33:25
  Speaker 1: account must be suppressed. 4. The affidavit submitted in support
• 33:30
  Speaker 1: of the application for the issued search warrant included information
• 33:33
  Speaker 1: that must be excised. Where information in a warrant was
• 33:37
  Speaker 1: obtained via violation of the Constitution, Idaho courts excised that information. C. Johnson, 1986, Bunting, 2006, Butterbaugh, 2002.
• 33:50
  Speaker 1: All information in the affidavit was gathered because of law
• 33:53
  Speaker 1: enforcement's unconstitutional use of investigative genetic genealogy and thus nothing
• 33:58
  Speaker 1: in the warrant should remain. Mr. Koberger has argued in
• 34:01
  Speaker 1: a separate motion that the genetic genealogy investigation in this
• 34:05
  Speaker 1: matter was done in violation of the Constitution. Additionally, he
• 34:09
  Speaker 1: has argued, there would be no investigation into him without
• 34:12
  Speaker 1: that original constitutional violation and It's not that the results
• 34:16
  Speaker 1: of the IGG sped up the investigation. Instead, they focused
• 34:20
  Speaker 1: the investigation on Mr. Koberger, a person whose only connection
• 34:24
  Speaker 1: to the case was his mode of transportation and the
• 34:26
  Speaker 1: shape of his eyebrows, two identifications of little to no value,
• 34:30
  Speaker 1: as previously argued. As the Idaho Supreme Court has explained,
• 34:34
  Speaker 1: while the initial burden in showing a factual nexus between
• 34:37
  Speaker 1: the illegal and the evidence the state must show, it
• 34:41
  Speaker 1: would have been discovered anyway. The state cannot make this showing.
• 34:45
  Speaker 1: Without IGG, there is no case, no request for his
• 34:48
  Speaker 1: phone records, surveillance of his parents' home, no DNA taken
• 34:51
  Speaker 1: from the garbage out front. Because the IGG analysis is
• 34:55
  Speaker 1: in the origin of this matter, everything in the affidavit
• 34:58
  Speaker 1: should be excised. Conclusion Mr. Koberger requests this court suppress
• 35:03
  Speaker 1: all evidence obtained by police via the warrant for his
• 35:06
  Speaker 1: AT & T phone records. As explained above, this warrant
• 35:10
  Speaker 1: lacked probable cause. as written, given its heavy reliance on
• 35:13
  Speaker 1: conclusions reached by law enforcement without the details necessary for
• 35:17
  Speaker 1: the magistrate to draw its own conclusions, and because the
• 35:20
  Speaker 1: warrant omitted exculpatory information and information that put into question
• 35:25
  Speaker 1: the reliability of the facts upon which it relies, and finally,
• 35:29
  Speaker 1: because the affidavit and warrant do not specify what data
• 35:33
  Speaker 1: could be searched and seized, all in violation of the
• 35:35
  Speaker 1: Fourth Amendment, Article 1, Section 17. This document was dated
• 35:40
  Speaker 1: and November 13th of 2024 and it was signed by
• 35:44
  Speaker 1: Jay Weston and Anne C. Taylor. All of the information
• 35:47
  Speaker 1: that goes with this episode including my contact information can
• 35:51
  Speaker 1: be found in the description box. What's up everyone and
• 35:55
  Speaker 1: welcome back to the program. In this episode we're headed
• 35:58
  Speaker 1: right back to Moscow and this time we're going to
• 36:00
  Speaker 1: take a look at the motion to suppress and memorandum
• 36:03
  Speaker 1: in support of the Pennsylvania search warrant for the white
• 36:07
  Speaker 1: Hyundai Elantra bearing VIN number 5 N P D H
• 36:11
  Speaker 1: 4 A E 6 F H 5 7 9 8
• 36:16
  Speaker 1: 6 0 State of Idaho Plaintiff vs. Brian C. Koberger,
• 36:20
  Speaker 1: the defendant. Comes now. Brian C. Koberger, by and through
• 36:24
  Speaker 1: his attorneys of record, and hereby submits the following memorandum
• 36:27
  Speaker 1: in support of his contemporaneously filed motion for an order
• 36:31
  Speaker 1: suppressing all evidence gathered by law enforcement as a result
• 36:34
  Speaker 1: of the entry into the search of Mr. Koberger's vehicle. Issues. 1.
• 36:41
  Speaker 1: The court should apply Idaho's exclusionary rule and law to
• 36:44
  Speaker 1: this search. 2. Pennsylvania law enforcement violated Mr. Kohlberger's Fourth Amendment,
• 36:49
  Speaker 1: rights by entering and searching his vehicle without a valid warrant. 3.
• 36:53
  Speaker 1: The affidavit submitted in support of the application for the
• 36:56
  Speaker 1: issued search warrant recklessly or intentionally omitted material information. 4.
• 37:01
  Speaker 1: The affidavit submitted in support of the application for the
• 37:06
  Speaker 1: issued search warrant included information that must be excised. All
• 37:10
  Speaker 1: information in the affidavit was gathered because of law enforcement's
• 37:13
  Speaker 1: unconstitutional use of investigative genetic genealogy, and thus nothing in
• 37:18
  Speaker 1: the warrant should remain. Information about the client's locations taken
• 37:23
  Speaker 1: from his phone must also be excised due to being
• 37:25
  Speaker 1: gathered from an invalid warrant. Facts. Due to the haphazard
• 37:30
  Speaker 1: way in which law enforcement has kept and disclosed records
• 37:32
  Speaker 1: in this matter, the following are the facts as best
• 37:35
  Speaker 1: the defense can tell. On December 28, 2022, Trooper Larry
• 37:41
  Speaker 1: of Pennsylvania State Police became aware of the objective of
• 37:44
  Speaker 1: arresting Mr. Kohlberger via Moscow Police Corporal Payne. On December 29, 2022,
• 37:51
  Speaker 1: at 4.44 p.m., a magistrate in Pennsylvania issued a search
• 37:55
  Speaker 1: warrant for Mr. Kohlberger's vehicle. On December 29, 2022, at 2.22 p.m.,
• 38:01
  Speaker 1: the magistrate in this matter signed an arrest warrant for Mr.
• 38:04
  Speaker 1: Kohlberger in Latah County. The affidavit for the warrant was
• 38:07
  Speaker 1: signed by Moscow Police Department Detective Payne. The basic facts
• 38:12
  Speaker 1: Payne used to support the search are described in a
• 38:14
  Speaker 1: separately filed motion pursuant to Franks v. Delaware, 438 U.S.
• 38:19
  Speaker 1: at 1978. The facts and issues are incorporated herein without
• 38:24
  Speaker 1: repeating them. At 2.43 p.m. on December 29, 2022, a
• 38:29
  Speaker 1: criminal complaint and probable cause order were filed in this matter.
• 38:34
  Speaker 1: At 10 p.m. Eastern Standard Time, Pennsylvania SWAT began preparations
• 38:38
  Speaker 1: to arrest Mr. Kohlberger. Despite weeks of constant FBI surveillance,
• 38:42
  Speaker 1: Pennsylvania law enforcement did their own surveillance starting at 11.15 p.m.
• 38:47
  Speaker 1: And despite the fact that weeks of constant FBI surveillance
• 38:50
  Speaker 1: showed Mr. Kohlberger was unarmed and tended to go for
• 38:53
  Speaker 1: runs around his parents' neighborhood, police decided attacking Mr. Kohlberger
• 38:58
  Speaker 1: within his parents' home was the best option. On December 30, 2022,
• 39:02
  Speaker 1: at 1.14 a.m., Pennsylvania SWAT and federal agents raided Mr.
• 39:07
  Speaker 1: Kohlberger's parents' home. During the raid, law enforcement found Mr.
• 39:11
  Speaker 1: Kohlberger's vehicle in the garage, seized, and later searched it. Argument.
• 39:17
  Speaker 1: This court should apply Idaho's exclusionary rule and law to
• 39:20
  Speaker 1: this search. The first question this court must determine is
• 39:23
  Speaker 1: whether there is a conflict of laws in this matter.
• 39:26
  Speaker 1: Whether Idaho law or Pennsylvania law controls the validity of
• 39:30
  Speaker 1: of the search warrant for Mr. Kohlberger's automobile and the
• 39:33
  Speaker 1: necessary relief. Unlike the issue of arrest warrants, cases involving
• 39:38
  Speaker 1: multi-state investigations have produced far less case law. In fact,
• 39:42
  Speaker 1: the defense could not find precise case on point for
• 39:45
  Speaker 1: the state of Idaho. The issue, however, has received some
• 39:48
  Speaker 1: attention in academia. Professor Kerr argued in his article for
• 39:52
  Speaker 1: the Harvard Law Review that the jurisdiction where the crime
• 39:55
  Speaker 1: occurred should control how the investigation is done, but the
• 39:59
  Speaker 1: states and or federal government should provide some form of
• 40:02
  Speaker 1: authorization to each other to participate in each other's criminal investigations.
• 40:07
  Speaker 1: See Oren Kerr, Cross Enforcement of the Fourth Amendment, 132,
• 40:11
  Speaker 1: Harvard Law Review, 2018. As it stands, there are at
• 40:15
  Speaker 1: least five different approaches to this increasingly common situation. See
• 40:19
  Speaker 1: Megan McGlynn, competing exclusionary rules in multi-state investigations. Fortunately for
• 40:25
  Speaker 1: this court, Idaho and Pennsylvania do not differ in their
• 40:29
  Speaker 1: approaches to the enforcement of the Fourth Amendment analog provisions.
• 40:33
  Speaker 1: Both do not accept the good faith exception. See State v. Guzman,
• 40:37
  Speaker 1: 122 Idaho, 1992. Commonwealth v. Edmonds, 526, 1991. Thus, this
• 40:44
  Speaker 1: court can likely afford to leave as an open question
• 40:48
  Speaker 1: which forms exclusionary rules apply. However, it's also clear from
• 40:53
  Speaker 1: the grounding of the exclusionary rules in Article 1, Section
• 40:56
  Speaker 1: 17 that evidence obtained in violation of the Constitution must
• 41:01
  Speaker 1: be excluded. See Guzman at 992 and 93. Thus, Mr.
• 41:05
  Speaker 1: Koberger argues that the Idaho Constitution's exclusionary rule must apply
• 41:10
  Speaker 1: as its basis lies not only on deterring police misconduct
• 41:14
  Speaker 1: but because exclusion is constitutionally mandated and judicial integrity demands it. However,
• 41:20
  Speaker 1: it remains to be determined whether the actions of the
• 41:22
  Speaker 1: FBI and Pennsylvania state troops should be viewed through the
• 41:25
  Speaker 1: lens of Article 1, Section 17, or its analogs. It
• 41:29
  Speaker 1: is not at all clear that whether a search should
• 41:32
  Speaker 1: be judged by Idaho's standards of reasonableness, or that of Pennsylvania,
• 41:37
  Speaker 1: or in the case of the FBI agents by the
• 41:38
  Speaker 1: Fourth Amendment. As noted, Professor Kerr would have Idaho's reasonableness
• 41:43
  Speaker 1: apply in that the FBI and the Pennsylvania State Troopers
• 41:46
  Speaker 1: were acting under its authorization. See Kerr 132, Harvard Law
• 41:52
  Speaker 1: revised at 531. This approach would also mesh well with
• 41:56
  Speaker 1: older cases such as U.S. v. DeRee, 332, 1948. Looking
• 42:02
  Speaker 1: to the laws of the state where the defendant was arrested...
• 42:05
  Speaker 1: in absence of a federal law permitting the arrest by
• 42:08
  Speaker 1: a federal agent for a federal law violation. Johnson v. U.S. 333, U.S. 10, 1948.
• 42:16
  Speaker 1: It also goes a long way with the legal framework
• 42:18
  Speaker 1: of agency. See generally, restatement, 3rd of Agency, American Law Institute, 2024.
• 42:24
  Speaker 1: In this matter, Idaho authorities requested assistance from the FBI
• 42:29
  Speaker 1: and the Pennsylvania State Police. Thus, this court should be
• 42:32
  Speaker 1: required to apply Idaho's search and seizure law to their
• 42:35
  Speaker 1: actions in Pennsylvania. However, this concept has its detractors. McGlynn
• 42:40
  Speaker 1: argues that when the CITUS officer is performing the search,
• 42:44
  Speaker 1: they should only be held to upholding their own laws. McGlynn, 127, Yale,
• 42:50
  Speaker 1: Law Review, 447 and 48. While that position has merit,
• 42:55
  Speaker 1: as it does not require a CITUS officer to get
• 42:57
  Speaker 1: a rundown of the differences between their law and the
• 43:00
  Speaker 1: trial state's laws, it remains that Idaho's Constitution states is
• 43:04
  Speaker 1: not merely concerned with deterrence to officers who misbehave. Moreover,
• 43:09
  Speaker 1: it is a concern that such a rule would permit
• 43:11
  Speaker 1: forum shopping. After all, if Idaho's law enforcement may take
• 43:15
  Speaker 1: advantage of laxer restrictions in a different state, they may
• 43:19
  Speaker 1: simply pause their investigation until their suspect is in that
• 43:22
  Speaker 1: new jurisdiction, or, in the case of the FBI, state
• 43:26
  Speaker 1: law enforcement could at any point, even within Idaho, call
• 43:29
  Speaker 1: upon federal agents with their far laxer rules of the
• 43:32
  Speaker 1: Fourth Amendment. Finally, it must be said that there is
• 43:35
  Speaker 1: very little daylight between the Idaho Constitution and the Pennsylvania Constitution.
• 43:40
  Speaker 1: If anything, Pennsylvania appears to have stricter warrant requirements for particularity. 2.
• 43:46
  Speaker 1: Pennsylvania law enforcement violated Mr. Koberger's Fourth Amendment rights by
• 43:50
  Speaker 1: entering and searching his vehicle without a valid warrant. Police
• 43:55
  Speaker 1: cannot search a vehicle within the curtilage of a home
• 43:57
  Speaker 1: without a warrant. Collins v. Virginia, 584 U.S., 2018. Mr.
• 44:03
  Speaker 1: Koberger's vehicle was in his parents' garage in a home
• 44:06
  Speaker 1: where he was an overnight guest. Overnight guests have an
• 44:10
  Speaker 1: expectation of privacy in the home where they stay, see
• 44:12
  Speaker 1: Minnesota v. Olson, 495 U.S. 1990. Therefore, he had an
• 44:18
  Speaker 1: expectation of privacy in the contents of his vehicle and
• 44:21
  Speaker 1: a warrant is required. 3. Pennsylvania law enforcement search warrant
• 44:26
  Speaker 1: lack probable cause. The Fourth Amendment states, unambiguously, that no
• 44:30
  Speaker 1: warrant shall issue but upon probable cause, supported by oath
• 44:34
  Speaker 1: of affirmation, and particularly describing the place to be searched,
• 44:38
  Speaker 1: and the persons or things to be seized. Groh v. Ramirez,
• 44:43
  Speaker 1: 540 U.S. 551, 2004. Quoting U.S. Constitution Amendment 4. Probable
• 44:49
  Speaker 1: cause exists when, given all the circumstances set forth in
• 44:52
  Speaker 1: the affidavit, there is a fairer probability... that contraband or
• 44:55
  Speaker 1: evidence of a crime will be found in a particular place,
• 44:59
  Speaker 1: Illinois v. Gates, 462, 1983. For a search warrant to
• 45:04
  Speaker 1: be valid, the judge issuing the warrant must rely on
• 45:07
  Speaker 1: an affidavit or affidavits sworn to before the judge or
• 45:11
  Speaker 1: by testimony under oath and recorded that establish the grounds
• 45:14
  Speaker 1: for issuing the warrant, State v. Nunez, 138, Idaho, 2003.
• 45:16
  Speaker 1: Any discrepancy between the items stated for which there was
• 45:23
  Speaker 1: probable cause and their description in the search warrant, requires suppression. 23.
• 45:28
  Speaker 1: CJS Criminal Procedure and Rights of the Accused, Section 887, 2022.
• 45:35
  Speaker 1: It's clear that the issuing magistrate himself, if he is
• 45:38
  Speaker 1: to fulfill the constitutionally mandated function of interposing an independent
• 45:43
  Speaker 1: intelligence between the law enforcement officer and the citizen, must
• 45:47
  Speaker 1: actually and in fact draw the inferences from the evidence
• 45:50
  Speaker 1: presented to him. People v. Batuara, 48 NY 2D, 1979.
• 45:58
  Speaker 1: It is for this reason that the courts have insisted
• 46:01
  Speaker 1: that the full facts from which inferences might be drawn
• 46:05
  Speaker 1: and information necessary to determine the reliability be placed before
• 46:09
  Speaker 1: the issuing magistrate. Finally, a criminal defendant may challenge the
• 46:14
  Speaker 1: veracity of an affidavit used to obtain a search warrant.
• 46:17
  Speaker 1: State v. Peterson, 133 Idaho, 1999. Upon a preliminary showing
• 46:23
  Speaker 1: of a warrant's deficiency, the defendant must prove by a
• 46:26
  Speaker 1: preponderance of evidence that intentional or reckless falsehoods were included
• 46:31
  Speaker 1: in the warrant affidavit and were material to the magistrate's
• 46:34
  Speaker 1: finding of probable cause or that material exculpatory information was
• 46:38
  Speaker 1: deliberately or recklessly omitted. Peterson 133, Idaho 981 at 1157.
• 46:47
  Speaker 1: An omission of exculpatory facts is material only if there
• 46:50
  Speaker 1: is a substantial probability that, had the omitted information been presented,
• 46:54
  Speaker 1: it would have altered the magistrate's determination of probable cause.
• 46:59
  Speaker 1: Whether an omission was intentional or reckless might be inferred,
• 47:02
  Speaker 1: in part, from the relative importance of the information and
• 47:06
  Speaker 1: its exculpatory power. ID at 133, Idaho at 48, at 1158.
• 47:13
  Speaker 1: The challenge pursuant to this action of the motion is
• 47:15
  Speaker 1: separately laid out in Mr. Kohlberger's motion for a hearing
• 47:18
  Speaker 1: under Franks v. Delaware, 438 U.S. 154, 1978. The motion
• 47:25
  Speaker 1: and proffer are incorporated but not repeated herein. 5. The
• 47:30
  Speaker 1: affidavit submitted in support of the application for the issued
• 47:33
  Speaker 1: search warrant included information that must be excised. Where information
• 47:38
  Speaker 1: in a warrant was obtained via a violation of the Constitution,
• 47:42
  Speaker 1: Idaho courts excise that information. A. All information in the
• 47:46
  Speaker 1: affidavit was gathered because of law enforcement's unconstitutional use of
• 47:50
  Speaker 1: investigative genetic genealogy and thus nothing in the warrant should remain. Mr.
• 47:56
  Speaker 1: Koberger has argued in the separate motion that the genetic
• 47:58
  Speaker 1: genealogy investigation in this matter was done in violation of
• 48:02
  Speaker 1: the Constitution. Additionally, he has argued that There would be
• 48:07
  Speaker 1: no investigation into him without that original constitutional violation. It's
• 48:11
  Speaker 1: not that the results of the IGG sped up the investigation. Instead,
• 48:15
  Speaker 1: they focused the investigation on Mr. Koberger, a person whose
• 48:19
  Speaker 1: only connection to the case was his mode of transportation
• 48:22
  Speaker 1: and the shape of his eyebrows, to identifications of little
• 48:26
  Speaker 1: to no value as previously argued. As the Idaho Supreme
• 48:29
  Speaker 1: Court has explained, while the initial burden in showing a
• 48:32
  Speaker 1: factual nexus between the illegality and the evidence The state
• 48:37
  Speaker 1: must show it would have been discovered anyway. State v. Moss, 171, Idaho, 2022.
• 48:43
  Speaker 1: The state cannot make this showing. Without IGG, there is
• 48:46
  Speaker 1: no case, no request for his phone records, surveillance of
• 48:49
  Speaker 1: his parents' home, no DNA taken from the garbage out front.
• 48:53
  Speaker 1: Because the IGG analysis is the origin of this matter,
• 48:56
  Speaker 1: everything in the affidavit should be excised. B. Information about
• 49:01
  Speaker 1: the client's locations taken from his phone must also be
• 49:04
  Speaker 1: excised due to being gathered from an invalid warrant. Separately,
• 49:08
  Speaker 1: the information gathered via the warrant for Mr. Kohlberger's AT
• 49:11
  Speaker 1: & T account and the pen trap and trace device
• 49:13
  Speaker 1: warrant should be excised for the reason set out in
• 49:16
  Speaker 1: those warrants. Conclusion, Mr. Koberger requests his court suppress all
• 49:21
  Speaker 1: evidence obtained by police via the warrant that permitted them
• 49:24
  Speaker 1: to search his car. As explained above, this warrant lacked
• 49:28
  Speaker 1: probable cause as written given its heavy reliance on conclusions
• 49:32
  Speaker 1: reached by law enforcement without the details necessary for the
• 49:35
  Speaker 1: magistrate to draw its own conclusions. and because the warrant
• 49:39
  Speaker 1: omitted exculpatory information and information that put into question the
• 49:43
  Speaker 1: reliability of the facts upon which it relies, and finally
• 49:47
  Speaker 1: because the affidavit relied on evidence gained in violation of
• 49:50
  Speaker 1: the Constitution, all in violation of the Fourth Amendment and
• 49:54
  Speaker 1: Article I, Section 17. This document was dated November 13th
• 49:59
  Speaker 1: of 2024 and it was signed by Ann Taylor. All
• 50:03
  Speaker 1: of the information, including my contact information, can be found
• 50:07
  Speaker 1: in the description box.