Latest / Beyond The Horizon / Mega Edition: Bryan Kohberger's Motion To Exclude Evidence Seized From His Parents Home (9/19/26)

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Mega Edition: Bryan Kohberger's Motion To Exclude Evidence Seized From His Parents Home (9/19/26) · 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 spinning back up to Moscow, and we're
• 0:06
  Speaker 1: going to continue our dive into the court documents. And
• 0:09
  Speaker 1: this time, we're going to be taking a look at
• 0:11
  Speaker 1: the motion to suppress and memorandum in support for the
• 0:15
  Speaker 1: Pennsylvania search warrant for 119 Lambsden Drive, Albrightville, Pennsylvania, and
• 0:21
  Speaker 1: the statements made. Case number, CR01-24-31665, state of Idaho plaintiff.
• 0:29
  Speaker 1: Brian C. Koberger, the defendant, comes now, Brian C. Koberger
• 0:34
  Speaker 1: buying through his attorneys of record, and submits the following
• 0:37
  Speaker 1: memorandum in support of his contemporaneously filed motion for an
• 0:40
  Speaker 1: order suppressing all evidence gathered by law enforcement as a
• 0:44
  Speaker 1: result of the entry into the search of Mr. Koberger's
• 0:48
  Speaker 1: parents' home at 119 Lambsden Drive, Albrightville, Pennsylvania, including statements
• 0:53
  Speaker 1: made after his arrest. The motion and documents in support
• 0:57
  Speaker 1: of a Franks v. Delaware 438 U.S. 154 1978 hearing
• 1:02
  Speaker 1: are hereby incorporated into this memorandum. The proffer with supportive
• 1:06
  Speaker 1: documentation regarding Franks are filed under seal. For that reason,
• 1:11
  Speaker 1: they are not set forth in full detail here, but
• 1:13
  Speaker 1: instead are incorporated. The issues. 1. This court should apply
• 1:19
  Speaker 1: Idaho's exclusionary rule and law to this search. 2. Mr.
• 1:23
  Speaker 1: Koberger has standing to challenge the search of his parents' home. 3.
• 1:27
  Speaker 1: Pennsylvania law enforcement violated Mr. Koberger's Fourth Amendment rights by
• 1:32
  Speaker 1: entering and searching his parents' home without a valid local warrant. A.
• 1:37
  Speaker 1: The Idaho warrant could not have given police in Pennsylvania
• 1:40
  Speaker 1: the authority to enter the home. 4. Federal and Pennsylvania
• 1:44
  Speaker 1: law enforcement violated Mr. Koberger's Idaho and Pennsylvania constitutional rights
• 1:49
  Speaker 1: by not knocking and announcing their presence in and presenting Mr.
• 1:52
  Speaker 1: Kohlberger with the opportunity to surrender. 5. The affidavit submitted
• 1:58
  Speaker 1: in support of the application for the issued search warrant
• 2:01
  Speaker 1: recklessly or intentionally omitted material information. 6. The affidavit submitted
• 2:06
  Speaker 1: in support of the application for the issued search warrant
• 2:09
  Speaker 1: included information that must be excised. a. All information in
• 2:14
  Speaker 1: the affidavit was gathered because of law enforcement's unconstitutional use
• 2:18
  Speaker 1: of investigative genetic genealogy. and thus nothing in the warrant
• 2:21
  Speaker 1: should remain. B. Information about client's locations taken from his
• 2:26
  Speaker 1: phone must also be excised due to being gathered from
• 2:30
  Speaker 1: an invalid warrant. 7. Statements after arrest are either fruit
• 2:34
  Speaker 1: of the poisonous tree from the illegal arrest or should
• 2:37
  Speaker 1: be suppressed as a Miranda violation. Facts. Due to the
• 2:42
  Speaker 1: haphazard way in which law enforcement is kept and disclosed
• 2:45
  Speaker 1: records in this matter, the following are the facts relating
• 2:48
  Speaker 1: to obtaining the search warrant 4. 119 Lambsden Drive, Chestnut
• 2:53
  Speaker 1: Hill Township 1. On December 28, 2022, Trooper Larry of
• 2:58
  Speaker 1: Pennsylvania State Police became aware of the objective of arresting Mr.
• 3:02
  Speaker 1: Koberger via Moscow Police Corporal Payne. On December 29, 2022,
• 3:07
  Speaker 1: at 4.44 p.m., a magistrate in Pennsylvania issued a search
• 3:12
  Speaker 1: warrant for 119 Lambsden Drive, Chestnut Hill Township, Monroe County,
• 3:16
  Speaker 1: the home of Mr. Koberger's parents. 3. On December 29, 2022,
• 3:22
  Speaker 1: at 2.22 p.m., the magistrate in this matter signed an
• 3:25
  Speaker 1: arrest warrant for Mr. Koberger in Latah County. The affidavit
• 3:29
  Speaker 1: for the warrant was signed by Moscow Police Department Sergeant Blaker.
• 3:33
  Speaker 1: The basic facts Blaker used to support the search were, one,
• 3:37
  Speaker 1: next to the body of Madison Mogan was a tan
• 3:40
  Speaker 1: leather knife sheath. The Idaho State Lab later located a
• 3:43
  Speaker 1: single source of male DNA on the button snap of
• 3:46
  Speaker 1: the knife sheath. Footage from the King Road neighborhood showed
• 3:50
  Speaker 1: what the police suspected was the vehicle of the killer.
• 3:52
  Speaker 1: The white sedan lacked a front license plate. A vehicle
• 3:56
  Speaker 1: specialist decided, based on the footage, that the vehicle was
• 3:59
  Speaker 1: a 2011 through 2016 Hyundai Elantra. A vehicle matching that
• 4:05
  Speaker 1: description was spotted via surveillance in Pullman. It was later
• 4:09
  Speaker 1: discovered that Mr. Kohlberger drives a 2015 Hyundai Elantra and
• 4:13
  Speaker 1: that he lived not far from the last place. A
• 4:16
  Speaker 1: white sedan was seen driving in Pullman over an hour later.
• 4:20
  Speaker 1: That same specialist indicated the car seen in Pullman was
• 4:23
  Speaker 1: a 2014 through 2016 Hyundai Elantra. 3. Witness Dylan Mortensen
• 4:31
  Speaker 1: had indicated the height of the person that she saw
• 4:33
  Speaker 1: at the time of the attack was between 5'10 and 6'.
• 4:36
  Speaker 1: They had bushy eyebrows. Police determined Mr. Kohlberger fit that description.
• 4:41
  Speaker 1: Records from an August 21, 2022 traffic stop showed Mr.
• 4:45
  Speaker 1: Kohlberger was the driver of a white 2015 Ford Hyundai
• 4:49
  Speaker 1: Elantra with Pennsylvania plates lacking a front plate. It also
• 4:53
  Speaker 1: showed he had the phone number of 509-592-8458. He noted
• 4:58
  Speaker 1: investigators learned this was from an AT & T number. Mr.
• 5:02
  Speaker 1: Koberger had changed his vehicle registration to Washington on November 18, 2022.
• 5:09
  Speaker 1: Cell tower records did not show Mr. Koberger was in
• 5:11
  Speaker 1: Moscow at the time of the murders. In law enforcement's experience, however,
• 5:16
  Speaker 1: people committing crimes typically turn off their phones. Historical cell
• 5:20
  Speaker 1: site location information was obtained and given to a cellular
• 5:23
  Speaker 1: analyst survey team with the FBI. That team determined that
• 5:27
  Speaker 1: November 13, 2022, at approximately 2.42 a.m., Mr. Kohlberger's phone
• 5:32
  Speaker 1: was utilizing cellular resources that provide coverage to his apartment
• 5:37
  Speaker 1: in Pullman, Washington. They then support the idea that he
• 5:41
  Speaker 1: left his apartment and went south. They then supported the
• 5:45
  Speaker 1: phone being off. Then they support at 4.48 a.m. The
• 5:49
  Speaker 1: phone is south of Moscow, Idaho, near Blaine, Idaho. The
• 5:52
  Speaker 1: phone utilizes resources that make their way back to Pullman,
• 5:56
  Speaker 1: coinciding with the white Elantra seen on some surveillance there.
• 6:00
  Speaker 1: A similar data showing occurs at approximately 9 a.m. with
• 6:03
  Speaker 1: a trip into Moscow and returning at around 9.32 a.m.
• 6:08
  Speaker 1: That same team determined Mr. Kohlberger had been to Moscow
• 6:11
  Speaker 1: on at least 12 occasions prior to the event and
• 6:14
  Speaker 1: that he came into the area the morning following the murders. However,
• 6:18
  Speaker 1: law enforcement, without explanation, indicated it did not believe that
• 6:22
  Speaker 1: final trip ever occurred. Pennsylvania agents seized garbage at Mr.
• 6:26
  Speaker 1: Koberger's parents' residence and found DNA it determined was likely
• 6:31
  Speaker 1: the father of the suspect, DNA found on the sheath.
• 6:35
  Speaker 1: At 2.43 p.m. on December 29, 2022, a criminal complaint
• 6:39
  Speaker 1: and probable cause order were filed in this matter. At
• 6:42
  Speaker 1: 10 a.m., PM Eastern Standard Time, Pennsylvania SWAT began preparations
• 6:49
  Speaker 1: to arrest Mr. Kohlberger despite weeks of constant FBI surveillance.
• 6:53
  Speaker 1: Pennsylvania law enforcement did their own surveillance starting at 11.15 PM,
• 6:58
  Speaker 1: and despite the fact that weeks of the constant FBI
• 7:01
  Speaker 1: surveillance showed Mr. Kohlberger was unarmed and tended to go
• 7:04
  Speaker 1: for runs around his parents' neighborhood, police decided that in
• 7:08
  Speaker 1: the dead of the night within his parents' home was
• 7:10
  Speaker 1: the best way to make their arrest. On December 30, 2022,
• 7:14
  Speaker 1: at 114 EDT, Pennsylvania SWAT raided the Kohlberger's parents' home.
• 7:19
  Speaker 1: During the raid, law enforcement broke the front door of
• 7:22
  Speaker 1: the home, shattered the sliding glass door of the basement,
• 7:25
  Speaker 1: held the entire family at gunpoint, and seized Mr. Kohlberger. Mr.
• 7:30
  Speaker 1: Kohlberger made statements to his arresting officers. He was transported
• 7:34
  Speaker 1: to a police station in Stroudsburg, Pennsylvania, and made statements
• 7:37
  Speaker 1: during transport. At the station, Mr. Kohlberger was processed, during
• 7:41
  Speaker 1: which police collected information about his person. Finally, during interrogation,
• 7:46
  Speaker 1: before requesting an attorney, Mr. Kohlberger made statements to interrogators
• 7:50
  Speaker 1: from the Idaho State Police and the Moscow Police Department.
• 7:54
  Speaker 1: At 4 a.m. EDT on December 30, 2022, Pennsylvania State
• 7:59
  Speaker 1: Police filed a criminal complaint against Mr. Kohlberger. The argument, 1.
• 8:05
  Speaker 1: This court should apply Idaho's exclusionary rule. and law to
• 8:08
  Speaker 1: this search. The first question this court must determine is
• 8:12
  Speaker 1: whether there's a conflict of laws in this matter, i.e.
• 8:15
  Speaker 1: whether Idaho law or Pennsylvania law controls the validity of
• 8:18
  Speaker 1: the search warrant for Mr. Kohlberger's parents' home and the
• 8:21
  Speaker 1: necessary relief. Unlike the issue of arrest warrants, cases involving
• 8:26
  Speaker 1: multi-state investigations have produced far less case law. In fact,
• 8:31
  Speaker 1: the defense could not find a precise case on point
• 8:34
  Speaker 1: for the state of Idaho. The issue, however, has received
• 8:37
  Speaker 1: some attention in academia. Professor Kerr argued in his article
• 8:42
  Speaker 1: for the Harvard Law Review that the jurisdiction where the
• 8:45
  Speaker 1: crime occurred should control how the investigation is done, but
• 8:48
  Speaker 1: the state and or federal government should provide some form
• 8:52
  Speaker 1: of authorization to each other to participate in each other's
• 8:55
  Speaker 1: criminal investigations. See Oren Kerr, Cross-Enforcement of the Fourth Amendment,
• 9:00
  Speaker 1: 132 Harvard Law Review, 471-531-2018. As it stands, there are
• 9:07
  Speaker 1: at least five different approaches to this increasingly common situation.
• 9:12
  Speaker 1: See Megan McGlynn competing exclusionary rules in multi-state investigations resolving
• 9:17
  Speaker 1: conflicts of state search and seizure law. Fortunately for this court,
• 9:21
  Speaker 1: Idaho and Pennsylvania do not differ in their approaches to
• 9:25
  Speaker 1: enforcement of their Fourth Amendment analog provisions. Both do not
• 9:29
  Speaker 1: accept the good faith exception. See State v. Guzman, 122 Idaho, 981, 995, 1992. Thus,
• 9:38
  Speaker 1: this court can likely afford to leave as an open
• 9:42
  Speaker 1: question which forum's exclusionary rule applies. However, it is also
• 9:46
  Speaker 1: clear from the grounding of the exclusionary rule in Article 1,
• 9:49
  Speaker 1: Section 17, that evidence obtained in violation of the Constitution
• 9:54
  Speaker 1: must be excluded. See Guzman, 122 Idaho, at 992 and 93. Thus, Ms.
• 10:00
  Speaker 1: Kohlberger argues that the Idaho Constitution's exclusionary rules must apply.
• 10:06
  Speaker 1: As its basis lies not only in deterring police misconduct,
• 10:09
  Speaker 1: but because exclusion is constitutionally mandated and judicial integrity demands it. However,
• 10:16
  Speaker 1: it remains to be determined whether the actions of the
• 10:19
  Speaker 1: FBI and Pennsylvania state troops should be judged by the
• 10:23
  Speaker 1: protections of Article 1, Section 17, or its analogs. It's
• 10:28
  Speaker 1: not at all clear that whether a search should be
• 10:30
  Speaker 1: judged by Idaho's standards of reasonableness or that of Pennsylvania,
• 10:35
  Speaker 1: or in the case of the FBI agents by the
• 10:37
  Speaker 1: Fourth Amendment. As noted, Professor Kerr would have Idaho's reasonableness
• 10:42
  Speaker 1: apply in the FBI investigation and Pennsylvania state troopers were
• 10:45
  Speaker 1: acting under its authorization. C. Kerr, 132, Harvard Law Review,
• 10:52
  Speaker 1: at 531. This approach would also mesh well with older
• 10:55
  Speaker 1: cases such as U.S. v. Dury, 1948, looking to the
• 11:00
  Speaker 1: laws of the state where the defendant was arrested in
• 11:03
  Speaker 1: the absence of a federal law permitting the arrest by
• 11:06
  Speaker 1: a federal agent for a federal law violation. Johnson v. U.S., 333, U.S. 10, 1948.
• 11:13
  Speaker 1: It also goes along with the legal framework of agency.
• 11:16
  Speaker 1: See generally restatement third of agency American Law Institute 2024.
• 11:21
  Speaker 1: In this matter, Idaho authorities requested assistance from the FBI
• 11:25
  Speaker 1: and Pennsylvania State Police. Mr. Kohlberger was not under investigation
• 11:29
  Speaker 1: for violating Pennsylvania or federal law. Thus, the court should
• 11:33
  Speaker 1: be required to apply Idaho search and seizure law to
• 11:36
  Speaker 1: their actions in Pennsylvania. However, this approach has its detractors.
• 11:42
  Speaker 1: McGlynn argues that when the CITUS officer is performing the search,
• 11:47
  Speaker 1: they should only be held to upholding their own laws. McGlynn, Yale,
• 11:51
  Speaker 1: at 447 and 448. While that position has merit, as
• 11:55
  Speaker 1: it does not require a CITUS officer to get a
• 11:58
  Speaker 1: rundown of the differences between their law and the trial
• 12:01
  Speaker 1: state's laws, it remains that the Idaho Constitution is not
• 12:05
  Speaker 1: merely concerned with deterrence to officers who misbehave. See Guzman 122, Idaho.
• 12:11
  Speaker 1: at 992 and 93. Moreover, it is of concern that
• 12:15
  Speaker 1: such a rule would permit forum shopping. After all, if
• 12:18
  Speaker 1: Idaho's law enforcement may take advantage of laxer restrictions in
• 12:22
  Speaker 1: a different state, they may simply pause their investigation until
• 12:26
  Speaker 1: their suspect is in that new jurisdiction, or in the
• 12:29
  Speaker 1: case of the FBI, state law enforcement could at any point,
• 12:33
  Speaker 1: even within Idaho, call upon federal agents with the far
• 12:36
  Speaker 1: laxer rules of the Fourth Amendment. Finally, it must be
• 12:40
  Speaker 1: said that there is very little daylight between the Idaho
• 12:43
  Speaker 1: Constitution and the Pennsylvania Constitution. Both apply exclusion to a
• 12:47
  Speaker 1: failure to knock and announce. See State v. Rausch, 99
• 12:50
  Speaker 1: Idaho 586-592, 1978. Commonwealth v. Frederick, 124A. 3D- 748, 755-56. If anything,
• 12:52
  Speaker 1: Pennsylvania appears to have stricter warrant requirements for particularity. Commonwealth v. Grossman, 555A. 2D, 896, 899,
• 13:13
  Speaker 1: and 900. N. 3PA, 1989. Alright, we're going to wrap up
• 13:18
  Speaker 1: this first episode here. And in the next episode, we're
• 13:21
  Speaker 1: going to pick up where we left off. All of
• 13:23
  Speaker 1: the information that goes with this episode, including my contact information,
• 13:28
  Speaker 1: can be found in the description box. What's up, everyone,
• 13:31
  Speaker 1: and welcome back to the program. In this episode, we're
• 13:34
  Speaker 1: picking up where we left off with a motion to suppress...
• 13:38
  Speaker 1: and memorandum in support, Pennsylvania search warrant for 119 Lambsden Drive, Albrightville, Pennsylvania,
• 13:45
  Speaker 1: and the statements made. Part 2. Mr. Koberger has standing
• 13:50
  Speaker 1: to challenge the search of his parents' home. Mr. Koberger
• 13:53
  Speaker 1: grew up in his parents' home, and at the time
• 13:56
  Speaker 1: of the entry and search, he was staying there for
• 13:58
  Speaker 1: a winter break. As an overnight guest, he undoubtedly has
• 14:02
  Speaker 1: standing to challenge the search in this case. See Minnesota vs. Olsen.
• 14:06
  Speaker 1: 495 U.S. 91 110 Supreme Court 1684. Moreover, the court
• 14:14
  Speaker 1: in Olson clearly had a situation just like this case
• 14:18
  Speaker 1: in mind. That the guest has a host who has
• 14:22
  Speaker 1: ultimate control of the house is not inconsistent with the
• 14:24
  Speaker 1: guest having a legitimate expectation of privacy. The house guest
• 14:29
  Speaker 1: is there with the permission of his host who is
• 14:31
  Speaker 1: willing to share his house and his privacy with his guest.
• 14:34
  Speaker 1: It's unlikely that the guest will be confined to a
• 14:37
  Speaker 1: restricted area of the house, and when the host is
• 14:40
  Speaker 1: away or asleep, the guest will have a measure of
• 14:42
  Speaker 1: control over the premises. The host may admit or exclude
• 14:46
  Speaker 1: from the house as he prefers, but it's unlikely that
• 14:49
  Speaker 1: he will admit someone who wants to see or meet
• 14:52
  Speaker 1: with the guest over the objection of the guest. On
• 14:55
  Speaker 1: the other hand, few house guests will invite others to
• 14:58
  Speaker 1: visit them while they are a guest without consulting their hosts,
• 15:01
  Speaker 1: but the latter will who have the authority to exclude
• 15:04
  Speaker 1: despite the wishes of the guest, will often be accommodating.
• 15:08
  Speaker 1: The point is that the host will more likely than
• 15:11
  Speaker 1: not respect the privacy interests of their guests who are
• 15:14
  Speaker 1: entitled to a legitimate expectation of privacy despite the fact
• 15:17
  Speaker 1: that they have no legal interest in the premises and
• 15:20
  Speaker 1: do not have legal authority to determine who may or
• 15:23
  Speaker 1: may not enter the household. If the untrammeled power to
• 15:28
  Speaker 1: admit and exclude were essential to Fourth Amendment protection, an
• 15:31
  Speaker 1: adult daughter temporarily living in the home of her parents
• 15:35
  Speaker 1: would have no legitimate expectation of privacy because her right
• 15:38
  Speaker 1: to admit or exclude would be subject to her parents' veto. Thus, Mr. Kohlberger,
• 15:43
  Speaker 1: as a son, home for a week-long stay, at his
• 15:46
  Speaker 1: parents' home has standing to challenge the entry and search
• 15:49
  Speaker 1: in this case, regardless of his authority within the home. 3.
• 15:53
  Speaker 1: Pennsylvania law enforcement violated Mr. Kohlberger's Fourth Amendment rights by
• 15:57
  Speaker 1: entering and searching his parents' home without a valid local warrant.
• 16:01
  Speaker 1: Pennsylvania courts require a warrant for a particular residence to
• 16:05
  Speaker 1: go after a person police are aware has an arrest warrant.
• 16:08
  Speaker 1: Commonwealth v. Romero, 183A. 3D. 364PA. 2018. The need for a warrant for
• 16:16
  Speaker 1: a fugitive from another state is codified in 42 Pennsylvania,
• 16:20
  Speaker 1: CSA Section 9128 and 9129. Without a governor's warrant, an
• 16:26
  Speaker 1: officer can get a judicial warrant to permit entry into
• 16:29
  Speaker 1: a home, C-42PA-CSA Section 9134. Without either type of warrant,
• 16:37
  Speaker 1: an officer lacks this authority. C-42PA-CSA Section 9135. This understanding
• 16:44
  Speaker 1: also comports with Payton v. New York 445 U.S. 573-602-1980.
• 16:48
  Speaker 1: The Idaho arrest warrant could not have given police in
• 16:54
  Speaker 1: Pennsylvania the authority to enter the home. State warrants have
• 16:58
  Speaker 1: no extraterritorial effect. State v. Bradley, 106 Idaho, 358, 360, 1983.
• 17:05
  Speaker 1: The use of an out-of-state warrant is ipso facto a
• 17:08
  Speaker 1: warrantless entry. Thus, law enforcement in Pennsylvania cannot rely on
• 17:12
  Speaker 1: the existence of the Idaho arrest warrant to enter the home. 4.
• 17:17
  Speaker 1: Federal and Pennsylvania law enforcement violated Mr. Kohlberger's Pennsylvania and
• 17:22
  Speaker 1: Idaho constitutional rights by not knocking and announcing their presence.
• 17:26
  Speaker 1: and presenting Mr. Kohlberger with an opportunity to surrender. As
• 17:30
  Speaker 1: noted above, Idaho's law should apply to the entry in
• 17:32
  Speaker 1: this case. However, Pennsylvania, like Idaho, has rejected the good
• 17:37
  Speaker 1: faith exception, Commonwealth v. Edmonds, 586, 1991. Similarly, it insists
• 17:43
  Speaker 1: upon suppression, where the knock and announce rule has not
• 17:46
  Speaker 1: been complied with, absent an exigent circumstance, Commonwealth v. Frederick, 124,
• 17:51
  Speaker 1: PA Superior Court, 2015. The Pennsylvania Supreme Court has only
• 17:57
  Speaker 1: found four exigent circumstances permitting police to ignore the knock-and-announce rule. 1.
• 18:03
  Speaker 1: The occupants remain silent after a repeated knocking and announcing. 2.
• 18:08
  Speaker 1: The police are virtually certain that the occupants of the
• 18:10
  Speaker 1: premises already know their purpose. 3. The police have reason
• 18:14
  Speaker 1: to believe that an announcement prior to entry would imperil
• 18:17
  Speaker 1: their safety. 4. The police have reason to believe that
• 18:21
  Speaker 1: evidence is about to be destroyed. Even with them enumerated,
• 18:24
  Speaker 1: with the conjunctive and, courts have held that any of
• 18:27
  Speaker 1: those instances justifies noncompliance with the knock-and-announce rule, Commonwealth v. Piner, 767A. 2D. 1057, 1059, N1,
• 18:38
  Speaker 1: PA Superior Court 2000, holding that the second be applied
• 18:43
  Speaker 1: because a uniformed officer stood under a porch light and
• 18:46
  Speaker 1: engaged the attention of at least several occupants with an
• 18:49
  Speaker 1: announcement of his identity, authority, and purpose. Idaho's understanding of
• 18:54
  Speaker 1: the knock and announce rule is set out in Roush.
• 18:58
  Speaker 1: The Roush court did not adopt a test such as
• 19:00
  Speaker 1: that in Pennsylvania, but held a case by case analysis
• 19:03
  Speaker 1: must be made. The general circumstances which have been found
• 19:07
  Speaker 1: to constitute exigent circumstances are 1. A reasonable belief that
• 19:12
  Speaker 1: compliance with a knock and announce statute would result in
• 19:15
  Speaker 1: the destruction of evidence, or 2. A reasonable belief that
• 19:18
  Speaker 1: compliance would place the officer in peril. In this case,
• 19:22
  Speaker 1: there is and can be no showing of exigencies. Mr.
• 19:27
  Speaker 1: Kohlberger had been surveilled by the FBI for weeks. At
• 19:31
  Speaker 1: no point during his surveillance was he seen to have
• 19:34
  Speaker 1: any weapons. There was no reason to take him inside
• 19:37
  Speaker 1: the house, as surveillance undoubtedly was aware of his daily runs.
• 19:41
  Speaker 1: The evidence the police sought was simply not the kind that,
• 19:44
  Speaker 1: give a chance to exit the residence, would have imperiled.
• 19:47
  Speaker 1: In State v. Ramos 142, item 628, our Court of
• 19:52
  Speaker 1: Appeals held that an officer knocking and announcing and then
• 19:54
  Speaker 1: breaking in the door two seconds later was done without exigency,
• 19:59
  Speaker 1: where the only evidence offered was that large quantities of
• 20:03
  Speaker 1: drugs were believed to be within the home. The state
• 20:05
  Speaker 1: urges us to also consider the district court's finding and
• 20:09
  Speaker 1: that SWAT officers approaching the front door of the house
• 20:12
  Speaker 1: were exposed and could be easily seen by any occupant
• 20:15
  Speaker 1: of the house looking out the window. We are unpersuaded.
• 20:19
  Speaker 1: The police would have been aware of the tactical environment
• 20:22
  Speaker 1: of the front of Ramos' house when requesting the warrant,
• 20:25
  Speaker 1: and the record indicates they did not seek a no-knock
• 20:27
  Speaker 1: warrant on these grounds. We note also that the visibility
• 20:31
  Speaker 1: of the area in front of the house through the
• 20:33
  Speaker 1: windows in Ramos' home as described in the district court's
• 20:36
  Speaker 1: opinion seems typical of most residential houses. We do not
• 20:40
  Speaker 1: accept that in every case the exposed nature of a
• 20:42
  Speaker 1: suburban home is a fact giving rise to reasonable suspicion
• 20:46
  Speaker 1: of some exigency allowing for near immediate police entry into
• 20:51
  Speaker 1: a private dwelling. There is little difference between what, if anything,
• 20:55
  Speaker 1: the officers could claim required the destruction of the Koberger
• 20:58
  Speaker 1: home and what the state relied upon in Ramos. Pennsylvania
• 21:02
  Speaker 1: cases show the failure to announce in this case was egregious.
• 21:06
  Speaker 1: In chambers, detectives, covered both doors of a residence, knocked,
• 21:10
  Speaker 1: and then immediately shoved the defendant back into his house
• 21:13
  Speaker 1: the moment he started to open the door while aiming
• 21:15
  Speaker 1: their weapons at him. The Supreme Court found the forcible
• 21:19
  Speaker 1: entry was completely unwarranted. In Commonwealth v. Kitchener, 506A. 2D. 941, 1986, Pennsylvania,
• 21:24
  Speaker 1: the court found exigent circumstances where the defendant had a
• 21:32
  Speaker 1: history of violence and fleeing police, and after they announced themselves,
• 21:36
  Speaker 1: heard running and believed the suspect was either fleeing or
• 21:39
  Speaker 1: going to arm himself. By a history of violence, the
• 21:43
  Speaker 1: defendant had arrests for attempted murder, aggravated assault, and assault
• 21:46
  Speaker 1: with a deadly weapon. He was known to have a
• 21:49
  Speaker 1: handgun in his car and reputed to be the person
• 21:51
  Speaker 1: who liked guns, machine guns in particular. In comparison, Mr.
• 21:55
  Speaker 1: Koberger has no criminal history, no reputation for violence, or
• 22:00
  Speaker 1: even being a gun aficionado. It makes no sense that
• 22:03
  Speaker 1: police were willing to announce themselves in Kitchener and not
• 22:06
  Speaker 1: to him. Taking the allegations in this case is true.
• 22:10
  Speaker 1: There is still no explanation as to why a small
• 22:12
  Speaker 1: army was required to capture Mr. Kohlberger. Given the force
• 22:16
  Speaker 1: the police decided to use here, there was no reason
• 22:19
  Speaker 1: whatsoever to break down the front door, shatter the basement
• 22:23
  Speaker 1: sliding door, and point guns at the inhabitants. 5. The
• 22:27
  Speaker 1: affidavit submitted in support of the application for the issued
• 22:30
  Speaker 1: search warrant recklessly, or intentionally omitted material information. The Fourth
• 22:35
  Speaker 1: Amendment states, unambiguously, that no warrant shall issue but upon
• 22:40
  Speaker 1: probable cause, supported by oath of affirmation, and particularly describing
• 22:44
  Speaker 1: the place to be searched and the persons or things
• 22:47
  Speaker 1: to be seized. Groh v. Ramirez, 540 U.S. 2004 Quoting U.S.
• 22:54
  Speaker 1: Constitutional Amendment No. 4 Probable cause exists when, given the
• 22:58
  Speaker 1: circumstances set forth in the affidavit, There is a fair
• 23:01
  Speaker 1: probability that contraband or evidence of a crime will be
• 23:05
  Speaker 1: found in a particular place. Illinois v. Gates, 462, 1983.
• 23:11
  Speaker 1: Because the right of a man to retreat to his
• 23:13
  Speaker 1: own home and there be free from unreasonable governmental intrusion
• 23:17
  Speaker 1: stands at the very core of the Fourth Amendment. Kylo v.
• 23:21
  Speaker 1: United States, 533, 2001. Quoting Silverman v. United States, 365 U.S., 1961.
• 23:29
  Speaker 1: Courts have firmly established the basic principle of the Fourth
• 23:32
  Speaker 1: Amendment law that searches and seizures inside the home without
• 23:36
  Speaker 1: a warrant are presumptively unreasonable. Grove v. Ramirez, 540 U.S.,
• 23:42
  Speaker 1: 2004 Quoting Peyton, New York, 445, 1980 For a search
• 23:47
  Speaker 1: warrant to be valid, the judge issuing the warrant must
• 23:50
  Speaker 1: rely on an affidavit or affidavits sworn to before the
• 23:53
  Speaker 1: judge or by testimony under oath and recorded that establish
• 23:57
  Speaker 1: the grounds for issuing the warrant. State v. Nunes, 138, Idaho, 636, 2003.
• 24:04
  Speaker 1: Any discrepancy between the items for which there was probable
• 24:07
  Speaker 1: cause and their description in the search warrant requires suppression.
• 24:12
  Speaker 1: It's clear that issuing magistrate himself, if he is to
• 24:15
  Speaker 1: fulfill the constitutionally mandated function of interposing an independent intelligence
• 24:20
  Speaker 1: between law enforcement officers and the citizen, must actually, in fact,
• 24:24
  Speaker 1: draw the inferences from the evidence presented to him. People v.
• 24:28
  Speaker 1: Potwara 1979. It's for this reason that the courts have
• 24:33
  Speaker 1: insisted that the full facts from which inferences might be
• 24:36
  Speaker 1: drawn and the information necessary to determine the reliability be
• 24:40
  Speaker 1: placed before the issuing magistrate. Finally, a criminal defendant may
• 24:45
  Speaker 1: challenge the veracity of an affidavit used to obtain a
• 24:48
  Speaker 1: search warrant. State v. Peterson, 133, Idaho, 1999. Upon a
• 24:53
  Speaker 1: preliminary showing of a warrant's deficiency, the defendant must prove
• 24:57
  Speaker 1: by a preponderance of evidence that that intentional or reckless
• 25:01
  Speaker 1: falsehoods were included in the warrant affidavit and were material
• 25:05
  Speaker 1: to the magistrate's finding a probable cause, or that the
• 25:08
  Speaker 1: material exculpatory information was deliberately or recklessly omitted. Peterson, 133, Idaho,
• 25:15
  Speaker 1: at 1157. An omission of exculpatory facts is material only
• 25:20
  Speaker 1: if there is a substantial probability that had the omitted
• 25:23
  Speaker 1: information been presented, it would have altered the magistrate's determination
• 25:27
  Speaker 1: of probable cause. whether an omission was intentional or reckless
• 25:32
  Speaker 1: might be inferred in part from the relative importance of
• 25:35
  Speaker 1: the information and its exculpatory power. ID 133 Idaho at 48,
• 25:42
  Speaker 1: 981 at 1158. In this case, law enforcement either intentionally
• 25:47
  Speaker 1: or recklessly, but likely intentionally, omitted exculpatory evidence as to
• 25:52
  Speaker 1: almost every facet of its affidavit for this warrant. Thus,
• 25:55
  Speaker 1: it will require suppression. The argument proffered for a Franks
• 25:59
  Speaker 1: hearing in support of this argument is filed as a
• 26:02
  Speaker 1: separate motion and adopted here. 6. The affidavit submitted in
• 26:07
  Speaker 1: support of the application for the issued search warrant included
• 26:10
  Speaker 1: information that must be excised. Where information in a warrant
• 26:15
  Speaker 1: was obtained via a violation of the Constitution, Idaho courts
• 26:19
  Speaker 1: excise that information. See State v. Johnson, Idaho 110, 1986,
• 26:22
  Speaker 1: State v. Bunting, All information in the affidavit was gathered
• 26:35
  Speaker 1: because of law enforcement's unconstitutional use of investigative genetic genealogy
• 26:41
  Speaker 1: and thus nothing in the warrant should remain. Mr. Kohlberger
• 26:45
  Speaker 1: has argued in a separate motion that the genetic genealogy
• 26:48
  Speaker 1: investigation in this matter was done in violation of the Constitution. Additionally,
• 26:53
  Speaker 1: he argues, there would be no investigation into him without
• 26:56
  Speaker 1: that original constitutional violation. It's not that the results of
• 27:01
  Speaker 1: the IGG sped up the investigation. Instead, they focused the
• 27:04
  Speaker 1: investigation on Mr. Kohlberger, a person whose only connection to
• 27:08
  Speaker 1: the case was his mode of transportation and shape of
• 27:11
  Speaker 1: his eyebrows, to identifications of little to no value, as
• 27:15
  Speaker 1: previously argued. As the state of Idaho Supreme Court explained,
• 27:20
  Speaker 1: While the initial burden in showing a factual nexus between
• 27:23
  Speaker 1: the illegality and the evidence the state must show, it
• 27:27
  Speaker 1: would have been discovered anyway. State v. Moss, 171, Idaho, 2022.
• 27:33
  Speaker 1: The state cannot make this showing. Without IGG, there is
• 27:37
  Speaker 1: no case. No request for his phone record, surveillance of
• 27:40
  Speaker 1: his parents' home, no DNA taken from the garbage out front.
• 27:43
  Speaker 1: Because the IgG analysis is the origin of this matter,
• 27:47
  Speaker 1: everything in the affidavit should be excised. B. Information about
• 27:51
  Speaker 1: the client's locations taken from his phone must also be
• 27:54
  Speaker 1: excised due to being gathered from an invalid warrant. Separately,
• 27:59
  Speaker 1: the information gathered via the warrant for Mr. Koberger's AT
• 28:02
  Speaker 1: & T account and the pen trap and trace device
• 28:05
  Speaker 1: warrant should be excised for the reasons set out in
• 28:07
  Speaker 1: those motions to suppress and all other motions to suppress
• 28:11
  Speaker 1: the impact, the warrant language. 7. Statements after arrest are
• 28:15
  Speaker 1: either fruit of the poisonous tree from the illegal arrest
• 28:19
  Speaker 1: or should be suppressed as a Miranda violation. Any statements
• 28:22
  Speaker 1: post-arrest to Mr. Koberger are fruit of the poisonous tree
• 28:25
  Speaker 1: from an unlawful arrest. In addition, statements made as soon
• 28:29
  Speaker 1: as he was placed in zip ties and held at
• 28:31
  Speaker 1: gunpoint by many police officers without a Miranda warning should
• 28:34
  Speaker 1: be suppressed. To protect the Fifth Amendment privilege against compulsory self-incrimination,
• 28:39
  Speaker 1: police must inform individuals of their right to remain silent
• 28:43
  Speaker 1: and their right to counsel, either retained or appointed, before
• 28:46
  Speaker 1: undertaking a custodial interrogation. The requirement for Miranda warnings is
• 28:51
  Speaker 1: triggered by custodial interrogation. A person need not be under
• 28:56
  Speaker 1: arrest to be in custody for Miranda purposes, Parkinson, 135 Idaho,
• 29:02
  Speaker 1: at 307. Short of an actual arrest, the safeguards prescribed
• 29:05
  Speaker 1: by Miranda become applicable as soon as a suspect's freedom
• 29:09
  Speaker 1: of action is curtailed to a degree associated with formal arrest.
• 29:13
  Speaker 1: The custody test is an objective one. It's not based
• 29:16
  Speaker 1: upon the subjective impressions in the minds of either the
• 29:19
  Speaker 1: defendant or the law enforcement officer. The only relevant inquiry
• 29:23
  Speaker 1: is how a reasonable man in the suspect's position would
• 29:26
  Speaker 1: have understood the situation. Mr. Koberger was zip-tied after a
• 29:31
  Speaker 1: no-knock warrant was served. He was zip-tied at his hands
• 29:34
  Speaker 1: and surrounded by police at gunpoint. Law enforcement did not
• 29:37
  Speaker 1: mirandize him immediately. Instead, they waited. until after he was
• 29:41
  Speaker 1: transported in a police car, handcuffed, with at least two
• 29:44
  Speaker 1: officers in the car. One was seated next to him
• 29:48
  Speaker 1: in the back seat, C. Frank 133, Idaho, at 369
• 29:51
  Speaker 1: and 70. Defendant was in custody for purpose of Miranda
• 29:55
  Speaker 1: when he was questioned while handcuffed and restricted to the
• 29:57
  Speaker 1: area of the patrol car. A reasonable person in Mr.
• 30:01
  Speaker 1: Kohlberger's position would have understood himself to be in custody.
• 30:05
  Speaker 1: Two conversations took place before Mr. Kohlberger was Mirandized at
• 30:09
  Speaker 1: the police station. It's clear from the police station video
• 30:12
  Speaker 1: that detectives asked him if he had ever been Mirandized
• 30:15
  Speaker 1: before and said they needed to go through the formality
• 30:18
  Speaker 1: of Mirandizing him. He said no. No video or audio
• 30:22
  Speaker 1: recording of the entry into his home and initial arrest
• 30:25
  Speaker 1: has been produced. Video and audio begin with Mr. Kohlberger
• 30:29
  Speaker 1: In determining whether a person has been subjected to custodial
• 30:33
  Speaker 1: interrogation for purposes of Miranda, courts may also consider the
• 30:38
  Speaker 1: conduct of the officers and the nature and manner of
• 30:40
  Speaker 1: the questioning. The conduct of law enforcement with Mr. Koberger
• 30:47
  Speaker 1: in the house is referred to as small talk when
• 30:50
  Speaker 1: he is being recorded during transport. This cannot be verified
• 30:54
  Speaker 1: because no audio or video is produced. The conduct of
• 30:57
  Speaker 1: the officer is in the police car during transport cannot
• 31:01
  Speaker 1: be described as an interrogation. However, without the video or
• 31:05
  Speaker 1: audio recording of in-custody discussions inside the house, the true
• 31:09
  Speaker 1: nature of the statements made in the car are without context.
• 31:14
  Speaker 1: All statements made at the police station were post-Miranda, information
• 31:18
  Speaker 1: in the media right after the arrest and attributed to
• 31:20
  Speaker 1: law enforcement report that Mr. Kohlberger redacted. Such a statement
• 31:24
  Speaker 1: is not in a police report or in an audio-video
• 31:27
  Speaker 1: recording that can be found in discovery. If it's a
• 31:31
  Speaker 1: statement that the state will seek to attribute to him
• 31:33
  Speaker 1: at trial, it should be suppressed as a non-Morandi statement.
• 31:38
  Speaker 1: If the conversation with Mr. Kohlberger inside the house was
• 31:40
  Speaker 1: custodial in nature, that context may warrant suppression of the
• 31:44
  Speaker 1: conversation in the police car during transport. Conclusion. Mr. Kohlberger
• 31:49
  Speaker 1: requests his court to suppress all evidence obtained by police
• 31:52
  Speaker 1: via warrant that permitted them to search his parents' home.
• 31:56
  Speaker 1: As explained above, law enforcement failed to knock and announce
• 31:59
  Speaker 1: before raiding the home and the warrant lacked probable cause
• 32:03
  Speaker 1: as written. Given its heavy reliance on conclusions reached by
• 32:06
  Speaker 1: law enforcement without details necessary for the magistrate to draw
• 32:10
  Speaker 1: its own conclusions and because the warrant omitted exculpatory information
• 32:15
  Speaker 1: and information that put into question the reliability of the
• 32:17
  Speaker 1: facts upon which it relies and finally because the affidavit
• 32:22
  Speaker 1: relied on evidence gained in violation of the constitutions. all
• 32:26
  Speaker 1: in violation of the Fourth Amendment and Article 1, Section 17.
• 32:30
  Speaker 1: Any statements made by Mr. Koberger are the fruit of
• 32:33
  Speaker 1: the poisonous tree of the illegal arrest. Some statements may
• 32:36
  Speaker 1: also be excludable under Miranda. This document was dated November 13, 2024,
• 32:44
  Speaker 1: and it was signed by J. Weston Logsdon. All of
• 32:47
  Speaker 1: the information that goes with this episode, including my contact information,
• 32:51
  Speaker 1: can be found in the description box.