Crime Fix with Angenette Levy - Bryan Kohberger Demands Judge Throw Out Evidence in Idaho Murders

Episode Date: November 19, 2024

Bryan Kohberger's attorneys have filed 13 motions to suppress evidence including his genetic information, evidence seized from his car, his parents home, electronics and statements he made to law enforcement. Kohberger's lawyers have also asked for a Franks hearing where they claim a police officer lied in an affidavit to obtain a search warrant. Kohberger is accused of murdering Maddie Mogen, Kaylee Goncalves, Ethan Chapin and Xana Kernodle in Moscow, Idaho in November 2022. Law&Crime's Angenette Levy goes over the motions and new information revealed in this episode of Crime Fix — a daily show covering the biggest stories in crime.PLEASE SUPPORT THE SHOW: If you’re ever injured in an accident, you can check out Morgan & Morgan. You can submit a claim in 8 clicks or less without having to leave your couch. To start your claim, visit: https://www.forthepeople.com/CrimeFixHost:Angenette Levy  https://twitter.com/Angenette5Guest:Philip Dube https://x.com/PhilipCDube CRIME FIX PRODUCTION:Head of Social Media, YouTube - Bobby SzokeSocial Media Management - Vanessa BeinVideo Editing - Daniel CamachoGuest Booking - Alyssa Fisher & Diane KayeSTAY UP-TO-DATE WITH THE LAW&CRIME NETWORK:Watch Law&Crime Network on YouTubeTV: https://bit.ly/3td2e3yWhere To Watch Law&Crime Network: https://bit.ly/3akxLK5Sign Up For Law&Crime's Daily Newsletter: https://bit.ly/LawandCrimeNewsletterRead Fascinating Articles From Law&Crime Network: https://bit.ly/3td2IqoLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge all episodes of this Law & Crimes series ad-free right now. Join Wondery Plus in the Wondery app, Apple Podcasts, or Spotify. This new year, why not let Audible expand your life by listening? Audible CA contains over 890,000 total titles within its current library, including audiobooks, podcasts, and exclusive Audible Originals that'll inspire and motivate you. Tap into your well-being with advice and insight from leading professionals and experts on better health, relationships, career, finance, investing, and more. Maybe you want to kick a bad habit or start a good one. If you're looking to encourage

positive change in your life, one day and challenge at a time, look no further than Tabitha Brown's I Did a New Thing, 30 Days to Living Free. In the audiobook, Tab shares her own stories and those of others, alongside gentle guidance and encouragement to create these incredible changes for yourself and see what good can come from them. Trust me, listening on Audible can help you reach the goals you set for yourself. Start listening today when you sign up for a free 30-day trial at audible.com slash wonderyca. That's audible.com slash wonderyca. Brian Koberger, the man accused of murdering four University of Idaho students in their home off campus wants most of the evidence in his case thrown out. I lay out the reasons why Koberger's lawyers say police

violated his rights and how one piece of evidence, if thrown out, could make the entire case against him collapse. Welcome to Crime Fix. I'm Anjanette Levy. Brian Koberger's trial is scheduled to begin next August, and his attorneys are asking the new judge presiding over his criminal case to throw out most, if not all, of the evidence police have gathered against him. The 13 motions to suppress include his Amazon, Google, Apple, and AT&T accounts, along with the search of his parents' home and his apartment, his car, cell phone, and the genetic information that was gathered on him. There are also new details about the night that Koberger was arrested

included in those motions. I'll get to that and more on the things Koberger wants Judge Stephen Hippler to suppress shortly. But first, a quick look back at how we got here. Koberger is charged with murdering Maddie Mogan, Kaylee Gonsalves, Ethan Chapin, and Zanna Kernodle in the early morning hours of November 13th, 2022. That's a little more than two years ago. He could face the death penalty if convicted, but his lawyers say he's innocent. I was in Moscow after the murders, and I can't overstate just how much this crime affected the community. There was fear. This was a brutal, brutal crime. Four college kids stabbed to death, some as they slept. More than a month passed without an arrest. And then on December 30th, Latah County Prosecutor Bill Thompson

announced that an arrest had been made. It's sad to be here, but happy to be here at the same time. As Chief Fry indicated, a criminal complaint was filed yesterday here in Latah County, charging the defendant, Mr. Kohlberger, with four counts of first-degree murder, in addition to felony burglary, which involves entering the residence with the intent to commit the crime of murder. Prosecutors and police say Kohlberger's car matches the description of the white Hyundai seen at the crime scene, and DNA found on a knife sheath found on Maddie Mogan's bed matches Koberger's. Now Koberger's attorneys have filed 13 motions to suppress evidence. The first is likely the most important because it's the foundation of the state's case.

Everything else seems to rest on it. Koberger's lawyers filed a motion to suppress genetic information. The motion asks to suppress all evidence illegally gathered by law enforcement using his genetic information. Now we know that the FBI used genetic genealogy to identify Brian Koberger as a suspect in the murders.

How? Well, there was an unknown male DNA profile on the snap of the K-bar knife sheath left on Maddie Mogan's bed. That DNA profile didn't come up in the Combined DNA Index System or CODIS. That's the FBI database of known felons. Moscow police had a big, big case on their hands. Idaho State Police were helping and so was the FBI. Othram Labs helped the FBI develop information and turned it over to the FBI. The FBI then used that information to come up with a suspect,

which led them to Brian Koberger. Without Brian Koberger's name matched to that profile, all police really had was an unknown male DNA profile, a description of a white Hyundai Elantra, and one of the victim's roommates saying the killer had bushy eyebrows. Having a name to put with the profile led police to request warrants for Brian Coburger's cell phone records, and they pulled trash from his parents' home in Pennsylvania, which had his father's DNA in it.

And police said that confirmed that Coburger was their suspect. Coburger is also asking that all of the evidence seized from his parents' home in Albrightville, Pennsylvania, be suppressed. Pennsylvania State Police and the FBI descended upon the home in Monroe County in the early morning hours of December 30th, 2022. The operation to arrest Koberger and then the search of his home effectively shut down the neighborhood for hours. We don't know what law enforcement seized from Koberger's parents' home, but Koberger's lawyers argue he has standing

to challenge the search, despite the fact that he doesn't own the home. There are a number of reasons why Brian Koberger's lawyers believe the evidence seized from the home and anything he said should be thrown out. First, Koberger's lawyers say that federal and Pennsylvania law enforcement violated Mr, Koberger's lawyers say that federal and Pennsylvania law enforcement violated Mr. Koberger's Idaho and Pennsylvania constitutional rights by not knocking and announcing their

presence and presenting Mr. Koberger with the opportunity to surrender. Next, the lawyers say the affidavit submitted in support of the application for the issued search warrant recklessly or intentionally omitted material information. Koberger's lawyers also claim all information in the affidavit was gathered because of law enforcement's unconstitutional use of investigative genetic genealogy, and thus nothing in the warrant should remain. And finally, Koberger's lawyers say his statements after his arrest are fruit of the poisonous

tree from his illegal arrest and should be suppressed as a Miranda violation. Now, I told you at the time that Koberger was taken to the Pennsylvania police barracks and initially agreed to talk to detectives. But then he asked for a lawyer. His public defender at the time in Monroe County told me that following the arrest. There were reports at the time as well that when police entered Koberger's parents' home that he asked, have you arrested anyone else? I've not been able to confirm that information, but that was reported at the time. This is what Koberger's lawyers write about the arrest. On December 30th, 2022 at 1.14 a.m. Eastern Daylight Time, Pennsylvania SWAT raided Mr. Koberger's parents' home.

During the raid, law enforcement broke the front door of the home, shattered the sliding glass door of the basement, held the entire family at gunpoint, and seized Mr. Koberger. Mr. Koberger made statements to his arresting officers. He was transported to a police station in Stroudsburg, Pennsylvania, and made statements during transport. At the station, Mr. Koberger was processed, during which police collected information about his person. Finally, during interrogation, before requesting an attorney, Mr. Koberger made statements to interrogators from the Idaho State Police and the Moscow Police Department. Around the same time, police in Pullman, Washington, searched Brian Koberger's apartment, and Koberger's attorneys want all of the evidence seized from his home suppressed as well.

We know that Koberger's lawyers have said no DNA from the victims was found there or in his car, but computers and other items were seized. And Koberger's lawyers say the search of his apartment also violated his rights because of the original investigative genetic genealogy work conducted in the case by the FBI. All information in the affidavit was gathered because of law enforcement's unconstitutional use of investigative genetic genealogy, and thus nothing in the warrant should remain. They also write, it is not that the results of the IgG sped up the investigation. Instead, they focused the investigation on Mr. Koberger, a person whose only connection to the case was his mode of transportation and the surveillance of his parents' home, no DNA taken from his driveway in a gated community subject to a refuse removal ordinance. Koberger also wants the judge to throw out the information law enforcement gathered from a warrant for his Amazon account. The motion says the time frame March 20, 2022 through March 30th, 2022 and November 1st, 2022 through December 6th, 2022 were selected.

Koberger is also asking that three searches of his Google account be suppressed. His lawyer says the warrant lacked probable cause. Koberger also wants the search of his cell phone and a two terabyte USB drive suppressed. They're also asking to throw out the pen trap and trace warrant of Koberger's cell phone, which allowed law enforcement to track his location. Koberger also wants all evidence found in the search of his Hyundai Elantra thrown out, along with the searches of his person in Pennsylvania and Idaho, along with a warrant for AT&T. And finally, the defense wants a Franks hearing. That's a special hearing to determine whether police lied in an affidavit in an effort to get a search warrant.

I want to bring in Philip Dubé. He works as court appointed counsel in Los Angeles County in California, not affiliated with this case at all. Philip, your thoughts, first of all, on the request by the defense in this case to suppress Brian Koberger's genetic information. To me, that has always been one of the major things in this case was the use of genetic genealogy. And we knew because this is being used in an active case and not a cold case, it was more of like a hot case, that the defense was always going to fight back against this, this genetic genealogy being used to identify him as a suspect? Well, I got to tell you, it's a pretty novel approach.

And I got to give kudos to defense counsel because it's actually brilliant. She's doing whatever she can to protect her client in the death case. Having said that, I'm not sure that her client has standing under the law. In order to challenge any type of search or seizure under the Fourth Amendment to our Constitution, a defendant has to have legal standing. And what does that mean? It means that he has to have a legitimate expectation of privacy in the item or the place it's being searched and seized.

And if the data in this particular case is the type of data that was voluntarily submitted to a virtual public database for millions of people to access and look at and download and analyze, then you don't really have an objective, reasonable expectation of privacy. The United States Supreme Court revolutionized this notion of privacy interest back in the 60s in a case called Katz versus United States. And what the court said is, look, the old standard that we used to use in deciding whether or not a search was valid is whether or not you had a possessory interest in the place or the thing that's being searched or seized. And what they did is they changed it to a privacy interest. And I think under these facts, he may have a subjective expectation of privacy in it. But objectively, I think the courts are going to rule against him.

That's very interesting. And we know that in other cases where this has been brought up, the use of genetic genealogy, there is some case law, although I'm not sure there's a lot of case law, but there is some laws law on the books that allows the use of this. But this is really the linchpin in this case. They had to go that route because the DNA profile left on the knife sheath was not in CODIS. And we don't know the exact arguments they're making, Philip, unfortunately, because the defense's motion, they filed the motion, but then exhibits and things of that nature, a lot of this stuff is filed under seal. But we know that they've been contesting this from the get-go. So you think

they're not going to be successful in this? I absolutely think a judge is going to deny that motion. First of all, the state of Idaho doesn't even provide the right under their state law or under their state constitution. So sometimes if the United States Constitution through our jurisprudence from the high court doesn't provide that right, we can look to our state case law. And I don't believe Idaho is ever so held that you have standing to challenge ancestry type DNA in these databases. It just doesn't exist yet in our jurisprudence. Now, having said that, it doesn't mean that the high court cannot extend the bounds and the reach of the Fourth Amendment

should the matter be taken up on appeal after conviction. And you never know what our high court will do. But I think if you follow the trajectory and the course, if you will, of most of the cases coming out of this type of data, I do not see this being successful on appeal. Very interesting. I want to go now to the next thing that they're asking to suppress, the next motion to suppress. And that is really the search. Any evidence seized during the search of Brian Koberger's parents home in Pennsylvania and then any statements that he made? I mean, they make a number of arguments claiming that, you know, the police violated his rights by not knocking on the door and allowing him to surrender. I find that to be an interesting argument, given the fact that this is kind of what cops do. I mean, you're going in

to arrest somebody for a quadruple homicide. They don't just knock on the door and say, you who can we knock, knock, knock knock can we arrest you i mean this is what cops do they go in with a swat team this is how it works so they're making a number of arguments saying that his rights were violated and he has right a right to challenge this warrant because you know even though it's his parents house but this whole idea that they didn't knock on the door uh seems like an interesting argument to me. Well, first of all, he does have constitutional standing to contest a search or a seizure done in his parents' home, even if he was just an overnight guest. So let's just assume he wasn't living there full time, but he'd come by occasionally or drive across the country to go visit.

The courts have held that even overnight guests have standing to challenge a search or seizure. So if he had belongings in there or they wanted to interview him and they actually had a warrant and went in there, they can do it. The question now is, does knock and announce give them suppression, if you will? If they fail to knock, wait a few seconds and then force entry. And unfortunately for Brian Koberger, back in, I think it was 2006, the high court abrogated suppression as a remedy for a knock and announce violation. Yes, there are safety concerns. You want to knock, you want to announce your presence and let people know why you're there.

You know, knock, knock, knock, FBI, we have a search warrant. You wait a few seconds in the middle of the night for people to get dressed. You never know. They might be walking around in their birthday suit or in their underwear. So you give them a chance to be decent. And then if you don't open the door, they can just raid the place with a battering ram, you know. But let's just pretend hypothetically that they didn't do it. Let's just say they knocked and just bulldozed their way through. And of course they go and they seize everything. The high court said that the remedy is not suppression as discourteous as it might be from a law enforcement standpoint, your remedy is purely civil in nature. If you want to sue them for disturbing the peace or for any type of a tort that may have occurred under color of law.

But constitutionally, that evidence is coming in. The question is why? You know, I'll tell you why. Because they got a warrant. Remember, they're there with a search warrant. It means that a magistrate has reviewed the factual basis for their need to go in and a judge has approved it and found probable cause. So they showed up there with the document and the courts are not going to suppress a boatload of evidence merely for a technical violation. They're just not going to do it. Instead, their remedy is purely civil. They're also wanting to suppress the statements that Brian Koberger made during this search of the house as he was transported when he was at the police barracks. So, I mean, that's a that might be pretty tough as well. I mean, he's a pretty intelligent guy. He's a Ph.D. student.

They talked about a possible Miranda violation. We don't know the nitty gritty of that because these items are filed under seal again. But they're looking to suppress. Obviously, they're looking to suppress anything and everything. So they're talking about all of the statements that he made. Well, the first thing the court's going to look to is, A, was he in custody? If he wasn't even in custody, then Miranda's not even's just doing so of his own free will, then constitutionally, your rights under Miranda are not even triggered. But let's just pretend hypothetically he is in custody. They just haul him in, cuff him, and he's in the squad car on his way downtown.

The next part of the inquiry is, is he being interrogated? Because again, Miranda only applies when you are being questioned by police about the crime, not about ordinary booking procedures like what's your name, what's your height, your date of birth, where were you born? Do you have any medical problems? Booking questions and things of that nature are not considered legal interrogation under Miranda law. So from that standpoint, there's really nothing to suppress. But let's say he really is in custody and they are questioning him along the way. You know, you want to tell us about what happened. You want to explain to us why your DNA was on a sheet.

You want to explain to us why your car was at the scene, this kind of stuff. Without Mirandizing him, then yes, they have a meritorious motion and everything he said for not being properly Mirandized will be excluded from evidence. That is the sanction for the violation. Let's move on now to the electronic evidence. They want to suppress, they're asking to suppress everything, you know, these, his Amazon account, Google, Apple, AT&T accounts, cell phone records, all of this electronic evidence. They're basically saying these affidavits for the search warrants lacked probable cause, and they only got these because of the genetic genealogy information. So just because you're asking to suppress the information, does it necessarily mean

that it's damaging to your client or incriminating? Or do you do this because you see things in there and you just, or you think it was just a grave constitutional violation? Can it be both? Or what do you think about that? Well, first of all, anytime you're moving to suppress evidence, it means that the state has something that they want to use against you at a criminal trial. I mean, very rarely are they on the hunt for exculpatory evidence to exonerate you and set you free. They're looking to make a bust and get a conviction, frankly. Okay. So defense counsel has an obligation that we're duty bound to sort of

enforce the rights of our clients to make sure that they're not improperly interrogated in violation of due process or Miranda, and that they are free from unreasonable searches and seizures. And if they obtained anything, even by way of a search warrant, unlawfully, the remedy is a hearing before the court and suppression. So in a situation where you have a warrant for electronic data or social media data, et cetera, if you feel that the affidavit that was prepared by the law enforcement officer to get the warrant is full of untruths and falsities, or it omits certain facts that would negate the probable cause, then the remedy is what we call a motion to traverse the search warrant. And what that means is the court can go behind the warrant, look at the affidavit, and basically see if the

cop lied. You know, if the cop lied, just fabricated things or deliberately omitted facts that somehow contorted and twisted things into probable cause, then the remedy is suppression. Now, what the court can also do, the court can sever the falsities or the misstatements and the omissions and see if absent the falsities, there's still enough probable cause. So even though you bring what we call a Frank's motion or a motion to traverse, it doesn't mean that everything gets suppressed. It just means the court has to do an analysis to see if the factual basis can be severed and allow everything else in the affidavit to survive and support probable cause. And I've seen it happen over the years. So yes, it's a right in the end without a remedy. And they are asking for that, Frank's hearing. Philip Dubé, thank you so much for your time and your expertise as always.

Take care. And that's it for this episode of Crime Fix. I'm Ann Jeanette Levy. Thanks so much for being with me. I'll see you back here next time.