WEBVTT 1 00:00:00.120 --> 00:00:03.520 What's up, everyone, and welcome back to the program. In 2 00:00:03.560 --> 00:00:05.759 this episode, we're going to dive right back into those 3 00:00:05.799 --> 00:00:08.640 core documents up at Moscow and we're going to take 4 00:00:08.640 --> 00:00:12.759 a look at the state's objection to defendant's motion to 5 00:00:12.839 --> 00:00:17.000 suppress and memorandum in support of the Apple Account Federal 6 00:00:17.000 --> 00:00:21.440 grand Jury Subpoena and sirch Warrant dated August first, twenty 7 00:00:21.519 --> 00:00:26.039 twenty three, State of Idaho, Plaintiff versus Brian C. Colberger, 8 00:00:26.320 --> 00:00:30.559 the defendant case number CR zero one DASH twenty four 9 00:00:31.120 --> 00:00:34.520 DASH three one sixty sixty five comes now the State 10 00:00:34.560 --> 00:00:37.920 of Idaho, buying through the Leata County Prosecuting Attorney, and 11 00:00:38.039 --> 00:00:42.039 respectfully response to Defendant's motion to suppress and memorandum in 12 00:00:42.119 --> 00:00:46.560 support Apple Account Federal grand Jury Subpoena and Search Warrant 13 00:00:46.640 --> 00:00:50.640 dated August first, twenty twenty three, filed on November thirteenth, 14 00:00:50.759 --> 00:00:55.719 twenty twenty four. Facts regarding the defendants represented facts the 15 00:00:55.840 --> 00:00:59.520 State respectfully refers to the Court to the defendants exhibits 16 00:00:59.560 --> 00:01:02.439 a through D filed in support of his instant motion 17 00:01:02.799 --> 00:01:06.000 as opposed to relying on the Defendant's objective summary and 18 00:01:06.120 --> 00:01:10.280 interpretation that begins at page three. The state's exhibits are 19 00:01:10.319 --> 00:01:14.280 attached as follows affidavid for search warrant for Apple with 20 00:01:14.359 --> 00:01:19.680 appended exhibits Apple search Warrants, States Exhibit order for return, 21 00:01:19.879 --> 00:01:23.640 State's Exhibit S three, and Apple records obtained from the U. S. 22 00:01:23.680 --> 00:01:29.480 Attorney's Office, which show the limited scope of information arguments one. 23 00:01:29.760 --> 00:01:33.760 Apple account information falls within the third party doctrine. The 24 00:01:33.799 --> 00:01:37.480 defendant first argues mister Coberger has a privacy interest in 25 00:01:37.519 --> 00:01:40.959 his Apple account information protected by the Fourth Amendment of 26 00:01:41.000 --> 00:01:45.120 the United States Constitution and Article I, Section seventeen of 27 00:01:45.159 --> 00:01:49.439 the Idaho Constitution requiring a warrant. As detailed in the 28 00:01:49.439 --> 00:01:54.040 state's response are Amazon Account, Federal Grand Jerry subpoena and 29 00:01:54.200 --> 00:01:57.519 search warrants dated April twenty six, twenty twenty three, and 30 00:01:57.640 --> 00:02:01.200 May a, twenty twenty three. The informationation the defendant seeks 31 00:02:01.200 --> 00:02:04.640 to suppress that was obtained by federal grand jury subpoena 32 00:02:04.959 --> 00:02:08.599 falls squarely within the third party doctrine, as recognized in 33 00:02:08.639 --> 00:02:11.479 Smith and Miller, and as the Supreme Court has continue 34 00:02:11.520 --> 00:02:15.560 to endorse in Carpenter c. Smith versus Maryland four forty 35 00:02:15.560 --> 00:02:19.960 two US seven forty three, seven forty four nineteen seventy nine, 36 00:02:20.280 --> 00:02:24.080 holding that persons have no reasonable expectational privacy in phone 37 00:02:24.120 --> 00:02:27.280 numbers they dial because they necessarily share those numbers with 38 00:02:27.360 --> 00:02:31.120 phone companies to make calls. United States versus Miller, four 39 00:02:31.240 --> 00:02:35.800 twenty five US four thirty five, nineteen seventy six, holding 40 00:02:35.840 --> 00:02:39.759 that persons have no reasonable expectational privacy and banking business 41 00:02:39.759 --> 00:02:43.840 records because they voluntarily share that information with banks. But 42 00:02:44.000 --> 00:02:47.439 see Carboner versus. United States, five eighty five US two 43 00:02:47.520 --> 00:02:51.599 ninety six, three oh six, three oh nine, twenty eighteen. First, 44 00:02:51.680 --> 00:02:56.400 the defendant voluntarily disclosed the subpoenaed information to Apple. Second, 45 00:02:56.719 --> 00:02:59.960 as the defendant nos from review of the discovery the informa. 46 00:03:00.000 --> 00:03:02.759 Theimation obtained from Apple was in no way a detailed 47 00:03:02.759 --> 00:03:06.800 and comprehensive record of the defendants movements see Carpenter, five 48 00:03:06.840 --> 00:03:10.479 eighty five US three O nine. The information provided was 49 00:03:10.560 --> 00:03:15.120 solely account subscriber information i e. Emails addresses, phone numbers, 50 00:03:15.439 --> 00:03:19.039 and the data account was created. The information provided by 51 00:03:19.120 --> 00:03:23.000 Apple was devoid of any location information. The state was 52 00:03:23.159 --> 00:03:26.319 justified and relying on the information provided from the U. S. 53 00:03:26.360 --> 00:03:31.199 Attorney's Office, which simply confirmed that defendant had Apple iCloud 54 00:03:31.240 --> 00:03:35.840 accounts and the email addresses usernames associated. This is allowed 55 00:03:36.280 --> 00:03:39.800 as to the subsequent search warrant. The State established probable 56 00:03:39.840 --> 00:03:42.560 cause for the remainder of the items sought, as shown 57 00:03:42.599 --> 00:03:45.639 by the lengthy and detailed affid David for a search 58 00:03:45.680 --> 00:03:49.960 warrant Two. Defendant is not demonstrated the search warrant afid 59 00:03:50.000 --> 00:03:55.000 David's contain intentionally or recklessly false statements or omissions in 60 00:03:55.080 --> 00:03:58.280 response to the Defendant's arguments under the affid David submitted 61 00:03:58.479 --> 00:04:01.520 in support of the application for the issued search warrant, 62 00:04:01.520 --> 00:04:06.599 recklessly or intentionally omitted material information, relies on information gained, 63 00:04:06.599 --> 00:04:10.719 and violation of the Constitution, and fails to provide probable 64 00:04:10.800 --> 00:04:14.680 cause for the requested search. The State refers the court 65 00:04:14.919 --> 00:04:18.839 two and hereby incorporate State's objection to Defendant's motion and 66 00:04:18.879 --> 00:04:22.319 memorandum in support for a. Frank's hearing, and State's objection 67 00:04:22.439 --> 00:04:27.319 to Defendant's motion to suppress genetic information. Three. The apple 68 00:04:27.399 --> 00:04:31.680 warrants incorporated the affid David for probable cause and exhibit 69 00:04:31.680 --> 00:04:35.439 by reference. The defendant next asserts that the search warrants 70 00:04:35.439 --> 00:04:38.360 fail to command law enforcement to search the accounts or 71 00:04:38.360 --> 00:04:42.040 contents of the iCloud. The Fourth Amendment to the United 72 00:04:42.040 --> 00:04:46.480 States Constitution requires that warrants must particularly describe the place 73 00:04:46.800 --> 00:04:51.759 to be searched and the persons or things to be seized. However, 74 00:04:51.920 --> 00:04:55.959 decisions must reflect the recognition that the Fourth Amendment commands, 75 00:04:56.079 --> 00:05:01.879 like all constitutional requirements, are practical and not obstrud United 76 00:05:01.879 --> 00:05:05.560 States Verus Ventresca three eighty US one O two one 77 00:05:05.600 --> 00:05:10.000 O eight eighty five seven forty one thirteen nineteen sixty five. 78 00:05:11.720 --> 00:05:14.480 The Ninth Circuit held that courts consider the afid David 79 00:05:14.519 --> 00:05:16.759 to be part of a warrant, which would cure any 80 00:05:16.759 --> 00:05:20.160 deficiencies in the naked warrant when one the warrant expressly 81 00:05:20.199 --> 00:05:24.000 incorporates the AFID David by reference, and two the AFID 82 00:05:24.079 --> 00:05:27.720 David is either attached physically or accompanies the warrant while 83 00:05:27.759 --> 00:05:32.680 agents execute the warrant. US versus SDI Future Health Incorporated. 84 00:05:32.720 --> 00:05:36.040 Five sixty eight f Dot three D. Circuit two thousand 85 00:05:36.079 --> 00:05:40.839 and nine, citing United States versus Cow fifty eight Ft 86 00:05:40.920 --> 00:05:44.839 three d. Ninth Circuit nineteen ninety five, applying requirements with 87 00:05:44.959 --> 00:05:48.480 respect to overbreadth of a warrant. See also US Versus 88 00:05:48.879 --> 00:05:53.439 Visakuru three fourteen ft. Three d one sixteen eleven twenty 89 00:05:53.519 --> 00:05:57.680 ninth Circuit two thousand and two, Applying requirements with respect 90 00:05:57.680 --> 00:06:00.720 to the lack of particularity of a warrant, the Court held, 91 00:06:01.160 --> 00:06:04.399 when the officer who requests authorization for the search, the 92 00:06:04.439 --> 00:06:09.000 magistrate who grants such authorization, and the officers who execute 93 00:06:09.040 --> 00:06:12.319 the search expressly rely upon a given set of papers 94 00:06:12.360 --> 00:06:15.600 containing a given series of words, they identify that set 95 00:06:15.639 --> 00:06:18.720 of papers and that series of words as the proof 96 00:06:18.800 --> 00:06:23.040 that proper precautions were taken to prevent an unreasonably invasive search. 97 00:06:23.800 --> 00:06:26.680 Fairness and common sense alike demand that we test the 98 00:06:26.720 --> 00:06:31.439 sufficiency of the precautions taken by examining that evidence. The 99 00:06:31.519 --> 00:06:35.199 SDI Future Health Court held will warrant expressly incorporates and 100 00:06:35.279 --> 00:06:39.519 affidavid when it uses suitable words of reference. Courts have 101 00:06:39.600 --> 00:06:43.199 not defined precisely what verbiage is suitable for this purpose, 102 00:06:43.560 --> 00:06:47.519 as there are no required magic words of incorporation Vescura 103 00:06:47.600 --> 00:06:52.240 three fourteen three d at eleven twenty in Veskira the 104 00:06:52.279 --> 00:06:55.680 suitable words, where upon the sworn complaint made before me 105 00:06:56.120 --> 00:06:59.560 in SDI Future Health, the suitable words were the supporting 106 00:06:59.560 --> 00:07:03.399 affidai vis as to the second prong, the affidavit is 107 00:07:03.480 --> 00:07:07.319 neither attached physically or accompanies the warrant while agents execute 108 00:07:07.319 --> 00:07:11.040 the warrant. The SDI Future Health Court stated, by making 109 00:07:11.120 --> 00:07:14.279 the affidavit available to the search team, the search team 110 00:07:14.360 --> 00:07:18.199 ensued that it accompanied the warrant to satisfy the requirements 111 00:07:18.240 --> 00:07:22.199 of incorporation. Nothing more is necessary for the Avid David 112 00:07:22.240 --> 00:07:25.519 to ensure that the discretion of the officers executing the 113 00:07:25.519 --> 00:07:28.720 warrant is limited. Town nine ninety seven f. Dot two 114 00:07:28.839 --> 00:07:33.240 d At five forty eight. Internal quotation marks omitted. The 115 00:07:33.360 --> 00:07:35.920 SDI Future Health Court went on the hold that a 116 00:07:35.959 --> 00:07:38.319 copy of the Avid David does not need to be 117 00:07:38.399 --> 00:07:41.839 given to the defendant, stating SDi's argument that the Fourth 118 00:07:41.879 --> 00:07:45.199 Amendment required the search team to provide all defendants a 119 00:07:45.240 --> 00:07:48.720 copy of the Apid David fails. SDI Future Health, five 120 00:07:48.879 --> 00:07:51.519 sixty eight at seven oh one. In the case at hand, 121 00:07:51.560 --> 00:07:55.199 the search warrant expressly incorporates the Avid David for search 122 00:07:55.240 --> 00:07:58.439 warrant by reference. The language included on the face of 123 00:07:58.480 --> 00:08:01.759 the search warrant is Corporal Brett Pain having given me 124 00:08:01.879 --> 00:08:06.240 proof upon oath this day, showing probable cause, establishing ground 125 00:08:06.319 --> 00:08:09.639 for the issuing of a search warrant. The suitable words 126 00:08:09.680 --> 00:08:12.759 proof upon oath is akin to upon the sworn complaint 127 00:08:12.800 --> 00:08:16.519 before me and the unsupporting affid Davids. The affid David 128 00:08:16.560 --> 00:08:19.639 for a probable cause. The appended exhibit A was the 129 00:08:19.680 --> 00:08:22.800 only proof presented to the magistrate. To read any other 130 00:08:22.879 --> 00:08:26.079 way would render the word proof meaningless and would be 131 00:08:26.120 --> 00:08:30.759 an abstract application not supported by ventresca. As a result, 132 00:08:30.759 --> 00:08:33.559 the affid David for Search Warrant an appended Exhibit A 133 00:08:33.960 --> 00:08:38.279 was incorporated by reference into the search warrant. With respect 134 00:08:38.279 --> 00:08:41.519 to the second prong, the investigators necessarily had copies of 135 00:08:41.559 --> 00:08:44.919 the affid David in their possession when they executed the 136 00:08:44.960 --> 00:08:47.919 warrant by emailing it to apple. The effect of this 137 00:08:48.120 --> 00:08:51.240 that the affid David for Search Warrant an appended Exhibit 138 00:08:51.279 --> 00:08:55.679 A cure any supposed efficiencies in the naked warrant. Next, 139 00:08:55.720 --> 00:08:59.039 regarding the defense argument that the warrant fails to actually 140 00:08:59.080 --> 00:09:02.159 provide a command to say search but instead order seizure, 141 00:09:02.600 --> 00:09:05.840 and it has no time frame, the defendant's argument fails 142 00:09:05.879 --> 00:09:10.159 to recognize that law enforcement must necessarily search for the 143 00:09:10.240 --> 00:09:14.799 item's disease. Further, these items would have been inevitably discovered 144 00:09:14.840 --> 00:09:17.879 since the order signed by Judge Marshall on August fourteenth, 145 00:09:17.960 --> 00:09:21.159 twenty twenty three. The search warrant was signed on August first, 146 00:09:21.399 --> 00:09:26.159 twenty twenty three, directed law enforcement as follows. It's further 147 00:09:26.320 --> 00:09:29.840 ordered that said property or any part thereof, may be 148 00:09:29.960 --> 00:09:33.559 delivered to any person or laboratory or laboratories for the 149 00:09:33.600 --> 00:09:38.440 purpose of conducting or obtaining any tests, analysis, or identification 150 00:09:38.519 --> 00:09:41.559 of said property which is deemed necessary by the custodial 151 00:09:41.639 --> 00:09:46.799 law enforcement agency or jurisdictional prosecuting attorney without further order 152 00:09:47.120 --> 00:09:52.320 of this Court, states Exhibit S two. Again, constitutional requirements 153 00:09:52.320 --> 00:09:56.679 are practical and not abstract. Van Tresca, three eighty US 154 00:09:56.679 --> 00:09:59.879 at one oh eight eighty five, Supreme Court at. Seven four, 155 00:10:01.679 --> 00:10:05.240 Part four. The Apple search warrant was not a general warrant. 156 00:10:05.799 --> 00:10:08.519 The defendant next asserts that the search warrant fails to 157 00:10:08.559 --> 00:10:13.519 provide specific particularization of what the search here. The defendant 158 00:10:13.559 --> 00:10:16.240 attempts to challenge the Apple search warrant on the grounds 159 00:10:16.480 --> 00:10:19.399 that it's too broad or too general in time and 160 00:10:19.480 --> 00:10:22.039 descriptions of the items to be seized to meet the 161 00:10:22.080 --> 00:10:26.320 particularity requirement of the fourth amendment. The State notes the 162 00:10:26.360 --> 00:10:29.600 defendant fails to identify what pieces of evidence he seeks 163 00:10:29.639 --> 00:10:33.039 to suppress from the Apple search warrant. All right, we're 164 00:10:33.039 --> 00:10:34.679 going to wrap up right here, and in the next 165 00:10:34.720 --> 00:10:37.879 episode we're going to pick up with a analysis. All 166 00:10:37.919 --> 00:10:40.440 of the information that goes with this episode can be 167 00:10:40.519 --> 00:10:44.480 found in the description box. What's up, everyone, and welcome 168 00:10:44.519 --> 00:10:47.200 back to the program. In this episode, we're going to 169 00:10:47.240 --> 00:10:49.919 pick up poor we left off with the State's objection 170 00:10:50.120 --> 00:10:54.440 to Colberger's motion to suppress and memorandum in support of 171 00:10:54.480 --> 00:10:58.159 the Apple account Federal grand Jury Subpoena and Search Warrant 172 00:10:58.279 --> 00:11:03.679 dated August first of twenty twenty three. Analysis. The Fourth 173 00:11:03.679 --> 00:11:07.200 Amendment of the United States Constitution and Article one, section 174 00:11:07.279 --> 00:11:11.000 seventeen of the Idaho Constitution prohibit the issuance of a 175 00:11:11.039 --> 00:11:15.279 warrant unless it particularly describes the place to be searched 176 00:11:15.480 --> 00:11:18.679 and the person or thing to be seized. US Constitutional 177 00:11:18.720 --> 00:11:25.080 Amendment four, Idaho Constitution, Article one, Section seventeen. The purpose 178 00:11:25.120 --> 00:11:28.039 of this guarantee is to safeguard the privacy of citizens 179 00:11:28.240 --> 00:11:31.759 by insuring against the search of premises where probable causes 180 00:11:31.840 --> 00:11:35.799 lacking State Verse tel one forty five Idaho. Nine eighty five, 181 00:11:36.200 --> 00:11:38.440 nine eighty nine, one eighty eight p Dot three d 182 00:11:38.879 --> 00:11:42.360 nine twenty seven, nine thirty one. Court of Appeals, two 183 00:11:42.360 --> 00:11:45.600 thousand and eight. Search is pursuant to a warrant are 184 00:11:45.639 --> 00:11:49.519 typically reasonable. However, the specific evil is a general warrant 185 00:11:49.679 --> 00:11:52.960 abhorred by colonists, and the problem is not that of 186 00:11:53.000 --> 00:11:56.879 the intrusion per se, but of general exploratory rummaging in 187 00:11:56.919 --> 00:12:00.840 a person's belongings Coolidge versus New Hampshire, four three US 188 00:12:00.960 --> 00:12:04.799 four forty three, four sixty seven, ninety one. Supreme Court, 189 00:12:05.159 --> 00:12:09.519 twenty twenty two, twenty thirty eight, nineteen seventy one. To 190 00:12:09.600 --> 00:12:14.080 prevent general exploratory rummaging, the Fourth Amendment requires a particular 191 00:12:14.159 --> 00:12:17.879 description of the things to be seized. Whether a warrant 192 00:12:17.919 --> 00:12:21.600 is over broad or lacks sufficient particularity is a legal question. 193 00:12:21.919 --> 00:12:25.320 Teel one, forty five, Idaho nine ninety one, eighty eight 194 00:12:25.519 --> 00:12:28.559 p Dot three, d at nine thirty two. The Fourth 195 00:12:28.600 --> 00:12:32.519 Amendment requires particularity to prevent the seizure of one thing 196 00:12:32.639 --> 00:12:35.519 under a warrant describing another thing, and to prevent the 197 00:12:35.559 --> 00:12:40.279 discretion of officers executing the warrant id At nine ninety 198 00:12:40.320 --> 00:12:42.759 one one eighty eight, p Dot three d at nine 199 00:12:42.759 --> 00:12:47.600 thirty three. The particularity requirement objective is that search is 200 00:12:47.600 --> 00:12:51.480 deemed necessary by a magistrate should be as limited as possible. 201 00:12:51.840 --> 00:12:55.399 Id C State versus Caldero, one oh nine, Idaho eighty 202 00:12:55.519 --> 00:12:58.960 eighty four, seven oh five, p Dot two, D eighty five, 203 00:12:59.080 --> 00:13:03.039 eighty nine of Appeals, nineteen eighty five. The Idaho Court 204 00:13:03.039 --> 00:13:06.200 of Appeal is held a search warrant must be particular 205 00:13:06.320 --> 00:13:09.039 enough so that as to what is to be taken, 206 00:13:09.440 --> 00:13:12.559 nothing is left to the discretion of the officer executing 207 00:13:12.559 --> 00:13:16.159 the warrant, quoting Marin versus United States two seven eight 208 00:13:16.279 --> 00:13:21.759 five US one ninety two one ninety six, nineteen twenty seven. However, 209 00:13:21.840 --> 00:13:24.320 the Court cautioned that this statement is not to be 210 00:13:24.399 --> 00:13:28.399 read literally. Id State vers. Wimer one thirty three, Idaho 211 00:13:28.480 --> 00:13:32.039 four forty two, four forty nine nine eighty eight p 212 00:13:32.200 --> 00:13:37.120 Dot two D two sixteen two twenty three, nineteen ninety nine. 213 00:13:37.519 --> 00:13:41.000 Wayne R. Lefay Search and Seizure Section four dot six 214 00:13:41.080 --> 00:13:45.200 a at six oh five, Fourth Edition, two thousand and four. Instead, 215 00:13:45.240 --> 00:13:48.759 the warrant must allow the searcher to reasonably ascertain and 216 00:13:48.840 --> 00:13:52.600 identify the things which are authorized to be seized. Id 217 00:13:52.799 --> 00:13:55.679 United States Verse Cook six fifty seven f Dot two, 218 00:13:55.759 --> 00:13:59.960 D seven thirty seven thirty three, Fifth Circuit, nineteen eighty one. 219 00:14:00.639 --> 00:14:03.320 United States Verse betten Courts seven thirty four f Dot 220 00:14:03.320 --> 00:14:07.080 two D seven fifty seven fifty four eleven Circuit nineteen 221 00:14:07.120 --> 00:14:10.519 eighty four. Courts look to the following to determine if 222 00:14:10.519 --> 00:14:15.000 a description is sufficiently particular. One whether probable cause exists 223 00:14:15.000 --> 00:14:18.039 to seize all items of a particular type described in 224 00:14:18.080 --> 00:14:22.000 the warrant. Two, whether the warrant sets out objective standards 225 00:14:22.200 --> 00:14:25.960 by which executing officers can differentiate items subject to seizure 226 00:14:26.159 --> 00:14:29.480 from those that are not. And three whether the government 227 00:14:29.559 --> 00:14:33.320 was able to describe the items more particularly considering the 228 00:14:33.320 --> 00:14:36.559 information available to it at the time the warrant is issued. 229 00:14:37.440 --> 00:14:40.440 State Verse TL one forty five Idaho nine eighty five, 230 00:14:40.759 --> 00:14:43.320 nine eighty nine, one eighty eight p Dot three D 231 00:14:43.679 --> 00:14:46.559 nine twenty seven, nine thirty one. Court of Appeals two 232 00:14:46.600 --> 00:14:50.360 thousand and eight. The Ninth Circuit has held the specificity 233 00:14:50.480 --> 00:14:53.759 required in a warrant varies depending on the circumstances of 234 00:14:53.840 --> 00:14:57.080 the case and the type of items involved. United States 235 00:14:57.159 --> 00:14:59.919 Versus Pilatro eight hundred f dot two D nine fIF 236 00:15:00.000 --> 00:15:04.559 fifty nine nine sixty three, Ninth Circuit, nineteen eighty six. Further, 237 00:15:04.759 --> 00:15:08.559 warrants which describe generic categories of items are not necessarily 238 00:15:08.600 --> 00:15:12.240 invalid if a more precise description of the items subject 239 00:15:12.279 --> 00:15:15.919 to seizure is not possible id United States first card 240 00:15:15.919 --> 00:15:19.279 Well six eighty F dot two D seventy five seventy eight, 241 00:15:19.559 --> 00:15:23.480 Ninth Circuit, nineteen eighty two. As stated above, Idaho courts 242 00:15:23.519 --> 00:15:26.919 allow a search warrant AFFID DAVID to support the particularity 243 00:15:27.000 --> 00:15:31.679 requirement atomic Verse State one sixty three, Idaho one fourteen 244 00:15:31.759 --> 00:15:34.360 one twenty four and twenty five four oh eight P 245 00:15:34.440 --> 00:15:37.120 Dot three D four seventy four, four eighty four and 246 00:15:37.159 --> 00:15:41.519 eighty five twenty seventeen. While the particularity requirement is not 247 00:15:41.600 --> 00:15:44.799 usually difficult to apply to a physical world, courts have 248 00:15:44.879 --> 00:15:48.240 recognized that it is challenging to apply to the digital world. 249 00:15:48.759 --> 00:15:52.240 For example, the United States Supreme Court is observed cell 250 00:15:52.279 --> 00:15:56.200 phones differ in both quantitative and qualitative sense from other 251 00:15:56.240 --> 00:15:59.600 objects that might be kept on a person. Ryley versus California, 252 00:15:59.639 --> 00:16:02.879 five Sis seventy three, US three seventy three three ninety 253 00:16:02.919 --> 00:16:06.639 three one thirty four Supreme Court two four seven, three, 254 00:16:06.720 --> 00:16:10.679 two four eight nine, twenty fourteen. To be compliant with 255 00:16:10.720 --> 00:16:14.639 the Fourth Amendment, the search warrant must specify the particular 256 00:16:14.679 --> 00:16:17.960 items of evidence to be searched for and seized from 257 00:16:18.000 --> 00:16:20.759 the phone, and be strictly limited to the time period 258 00:16:20.960 --> 00:16:24.360 and information or other data for which probable cause has 259 00:16:24.399 --> 00:16:28.240 been properly established through the facts and circumstances set forth 260 00:16:28.720 --> 00:16:33.440 under oath in the warrant supporting Affi. David. Vigilance in 261 00:16:33.559 --> 00:16:37.440 enforcing the probable cause and particularity requirements is thus essential 262 00:16:37.559 --> 00:16:40.720 to the protection of the vital privacy interests inherent in 263 00:16:40.799 --> 00:16:43.879 virtually every modern cell phone and to the achievement of 264 00:16:43.919 --> 00:16:50.000 the meaningful constraints contemplated in Riley. Adam Gershwitz articulated the 265 00:16:50.000 --> 00:16:54.279 complication of the particularity requirement regarding digital information in his 266 00:16:54.440 --> 00:16:58.240 Vanderbilt Law Review article the post Riley Search Warrant, Search 267 00:16:58.279 --> 00:17:03.759 Protocols and Particularity in cell phone searches. Girshowitz correctly observe 268 00:17:03.840 --> 00:17:06.680 that because electronic data can be hidden anywhere on a 269 00:17:06.720 --> 00:17:09.640 computer or cell phone, it's very hard for officers to 270 00:17:09.720 --> 00:17:12.920 narrow down and advance the area that should be searched. 271 00:17:14.640 --> 00:17:18.480 Gershowitz review found that there are two fairly narrow categories 272 00:17:18.519 --> 00:17:22.240 of cases in which courts tend to find particularity violations, 273 00:17:22.559 --> 00:17:25.359 one when the search warrant does not state on its 274 00:17:25.359 --> 00:17:27.960 face what crime the search is being conducted to find 275 00:17:27.960 --> 00:17:31.480 evidence of, and two where the search warrant contains over 276 00:17:31.599 --> 00:17:37.160 broad catch all language. Defendant's argument focuses on the second category, 277 00:17:37.279 --> 00:17:40.759 stating data compilation requested in the Apple warrant is too 278 00:17:40.799 --> 00:17:43.960 broad in that it makes no attempt at narrowing and 279 00:17:44.039 --> 00:17:47.680 results instead in a blanket request for everything available into 280 00:17:47.720 --> 00:17:52.319 Apple accounts and the iCloud. Defendant's motion to suppress Page fourteen. 281 00:17:52.960 --> 00:17:56.720 Defendant relies on Wheeler Verse State, a Delaware Supreme Court 282 00:17:56.759 --> 00:18:00.160 case that is not binding on this court. However, Neever, 283 00:18:00.279 --> 00:18:03.359 the Wheeler Court held that warrants must be tested by 284 00:18:03.440 --> 00:18:07.079 courts in a common sense and realistic fashion, and reviewing 285 00:18:07.119 --> 00:18:11.119 courts should avoid a hypertechnical approach. The Wheeler Court did 286 00:18:11.160 --> 00:18:14.640 not require a time frame to meet their particularity requirement, 287 00:18:15.039 --> 00:18:19.599 instead explaining that while investigators should generally include specific information 288 00:18:20.000 --> 00:18:22.200 known to them within the body of a search warrant, 289 00:18:22.880 --> 00:18:26.799 we hesitate to prescribe rigid rules and instead reiterate the 290 00:18:26.839 --> 00:18:30.000 warrants must designate the things to be searched and seized 291 00:18:30.400 --> 00:18:34.480 as particular as possible. Wheeler made it clearer that the 292 00:18:34.519 --> 00:18:37.400 cases must be reviewed on a case by case basis. 293 00:18:38.279 --> 00:18:41.720 In Wheeler, the defendant being investigated for witness tampering and 294 00:18:41.759 --> 00:18:46.279 his digital devices were collected pursuant search warrants see generally id. 295 00:18:46.839 --> 00:18:50.079 Despite orders to search for text type documents a letter 296 00:18:50.119 --> 00:18:54.720 regarding witness intimidation, the forensic examiner captured image files and 297 00:18:54.799 --> 00:19:00.559 video files. Within these files, the investigators found CP As 298 00:19:00.559 --> 00:19:03.640 a result, the challenge search warrant failed to satisfy the 299 00:19:03.720 --> 00:19:07.920 particularity requirement for two reasons. One, the search warrant did 300 00:19:07.920 --> 00:19:11.640 not guide and control the forensic examiner's judgment as to 301 00:19:11.680 --> 00:19:14.519 what was to be seized on the computer, and two, 302 00:19:14.599 --> 00:19:17.920 the language of the search warrant clearly included items that 303 00:19:17.960 --> 00:19:22.319 were not subject to seizure i e. Activity regarding witness intimidation. 304 00:19:23.400 --> 00:19:26.279 The Seventh Circuit of Court of Appeals has noted that 305 00:19:26.359 --> 00:19:29.839 broad language may be permissible where the warrant constrains the 306 00:19:29.880 --> 00:19:33.839 search to evidence of a specific crime. The rationale is 307 00:19:33.880 --> 00:19:37.519 that criminals don't advertise where they keep evidence. Bishop nine 308 00:19:37.640 --> 00:19:42.079 ten three d at three thirty six. A warrant authorizing 309 00:19:42.960 --> 00:19:45.720 the search of a house for drugs permits the police 310 00:19:45.720 --> 00:19:49.640 to search everywhere in the house, because everywhere is where 311 00:19:49.680 --> 00:19:52.680 a contraband may be hidden. Idea at three thirty six 312 00:19:52.720 --> 00:19:56.599 and three thirty seven apply to electronic devices. Criminals can 313 00:19:56.799 --> 00:20:00.400 and often do hide, mislabel, or manipulate far files to 314 00:20:00.440 --> 00:20:04.079 conceal criminal activity, such that a broad, expansive search of 315 00:20:04.119 --> 00:20:08.680 the device may be required because law enforcement cannot know 316 00:20:08.759 --> 00:20:11.400 in advance how a suspect may label or code files. 317 00:20:11.720 --> 00:20:15.000 Other courts have held that by necessity, government efforts to 318 00:20:15.079 --> 00:20:19.720 locate particular files will require examining many other files to 319 00:20:19.799 --> 00:20:23.880 exclude the possibility that the sought after data are concealed there. 320 00:20:24.599 --> 00:20:27.480 This does not mean that law enforcement can search electronic 321 00:20:27.519 --> 00:20:31.440 files where evidence is unlikely to be i e. If 322 00:20:31.440 --> 00:20:34.400 there is probable cause evidence will be found in text 323 00:20:34.480 --> 00:20:38.119 messages but not photos, then access to all data violates 324 00:20:38.119 --> 00:20:43.240 the particularity requirement. What courts have made resoundingly clear is 325 00:20:43.279 --> 00:20:47.359 whether a search warrant satisfies the particularity requirement depends on 326 00:20:47.400 --> 00:20:50.519 the facts and circumstances of the crime for which the 327 00:20:50.599 --> 00:20:54.559 warrant is being sought. Determining the permissible parameters of a 328 00:20:54.599 --> 00:20:58.279 cell phone search is a fact intensive inquiry and must 329 00:20:58.319 --> 00:21:01.440 be resolved based on the parteint particular facts of each case. 330 00:21:02.079 --> 00:21:05.000 Similar to the nexus of analysis, the inquiry can be 331 00:21:05.039 --> 00:21:07.880 based on the type of crime, the nature of the 332 00:21:07.920 --> 00:21:11.240 evidence sought, and the normal inferences about how far back 333 00:21:11.279 --> 00:21:15.039 in time the evidence can be found. Citing Commonwealth versus 334 00:21:15.039 --> 00:21:20.759 White four seventy five twenty sixteen B, the Apple search warrant, 335 00:21:20.799 --> 00:21:24.200 when considered with the search warrant AFFIDAVID and Exhibit A, 336 00:21:24.640 --> 00:21:29.880 satisfies the particularity requirement as mentioned above. IDAHO allows a 337 00:21:29.920 --> 00:21:34.039 search warrant affidavid to support the particularity requirement when the 338 00:21:34.079 --> 00:21:38.839 warrant references the apidavid for probable cause. There are no 339 00:21:38.920 --> 00:21:42.480 magic words for reference. As stated above, the Apple search 340 00:21:42.519 --> 00:21:46.839 warrant specifically referenced the search warrant affidavid and incorporated the 341 00:21:46.880 --> 00:21:50.079 Exhibit A with the words proof upon oath this day 342 00:21:50.359 --> 00:21:54.720 showing probable cause. When the Apple search warrant is considered 343 00:21:54.759 --> 00:21:57.920 along with the APIDAVID for probable cause and the twenty 344 00:21:57.920 --> 00:22:02.000 five page Exhibit A, the warrants are sufficiently particular and valid. 345 00:22:03.079 --> 00:22:07.039 While the Apple search warrant was broadly worded regarding each 346 00:22:07.079 --> 00:22:10.680 category of digital evidence listed the search warrant, Affidavid and 347 00:22:10.799 --> 00:22:14.839 Exhibit A provide the particularity necessary to satisfy the three 348 00:22:14.920 --> 00:22:19.319 factor tests set fourth in Teal. First, probable cause existed 349 00:22:19.519 --> 00:22:22.640 to seize all items of a particular type described in 350 00:22:22.640 --> 00:22:26.680 the warrant. The Apple Search warrants sought evidence of defendant's plans, 351 00:22:26.880 --> 00:22:32.640 thought process, research, locations, photos, or other pertinent information located 352 00:22:32.680 --> 00:22:36.079 on two Apple accounts shown to be associated with defendant. 353 00:22:36.640 --> 00:22:39.240 To determine the parameters of the court should look to 354 00:22:39.279 --> 00:22:42.680 the particular facts of the case. Based on the affidavid 355 00:22:42.680 --> 00:22:46.720 of probable cause, we know several facts. Defendant was a 356 00:22:46.759 --> 00:22:50.640 suspect in a burglary and homicide occurring at eleven twenty 357 00:22:50.640 --> 00:22:54.240 two King Rhode in Moscow, Idaho, Honor about November thirteenth, 358 00:22:54.359 --> 00:22:57.880 twenty twenty two. Defendant was the owner of two Apple 359 00:22:58.400 --> 00:23:02.319 iCloud accounts. Active pain set out with what information Apple 360 00:23:02.359 --> 00:23:06.400 captures in connection with an Apple ID. Two Apple iCloud 361 00:23:06.400 --> 00:23:09.160 accounts were accessed by the defendant leading up to the 362 00:23:09.200 --> 00:23:13.799 homicides and following the homicides, the defendant was seeking an 363 00:23:13.799 --> 00:23:17.559 advanced degree in criminology and had studied cloud based forensics 364 00:23:17.559 --> 00:23:21.200 prior to the crimes. Defendant had attempted to conceal his 365 00:23:21.319 --> 00:23:25.160 location during the time of the crimes. Together, the above 366 00:23:25.240 --> 00:23:29.079 established probable cause to search for evidence of defendant's plans, 367 00:23:29.319 --> 00:23:35.319 thought process, research, locations, photos, or other pertinent information located 368 00:23:35.359 --> 00:23:39.720 on two Apple accounts shown to be associated with defendant. Second, 369 00:23:39.759 --> 00:23:43.279 the warrant set out objective standards by which executing officers 370 00:23:43.319 --> 00:23:47.240 could differentiate items subject to seizure from those that were not. 371 00:23:47.759 --> 00:23:50.240 The seizure of items was limited to the crime for 372 00:23:50.319 --> 00:23:54.319 which the defendant was arrested. Investigation into burglary and our 373 00:23:54.359 --> 00:23:57.799 homicides at eleven twenty two King Roade in Moscow, Honor 374 00:23:57.839 --> 00:24:01.880 about November thirteenth, twenty twenty two. The temporal range of 375 00:24:01.960 --> 00:24:06.839 October seventh, twenty sixteen, dates accounts were created to December thirtieth, 376 00:24:06.880 --> 00:24:10.759 twenty twenty two. Date of Coberger's arrest was justified given 377 00:24:10.759 --> 00:24:14.160 the type of crime, nature of evidence sought, and normal 378 00:24:14.160 --> 00:24:17.160 inferences about how far back in time the evidence could 379 00:24:17.160 --> 00:24:21.000 be found. Third, the government was not able to describe 380 00:24:21.039 --> 00:24:24.799 the items more particularly, considering the information available to it 381 00:24:24.839 --> 00:24:28.759 at the time the warrant was issued, Detective Pain could 382 00:24:28.759 --> 00:24:32.319 not reasonably narrow the scope further. Since Detective Pain was 383 00:24:32.359 --> 00:24:36.039 seeking evidence that could be located in multiple formats in areas, 384 00:24:36.279 --> 00:24:39.519 and considering electronic data can be stored anywhere, it was 385 00:24:39.559 --> 00:24:43.160 impossible for Detective Pain to narrow down in advance the 386 00:24:43.200 --> 00:24:46.680 Apple areas that should be searched. As a result, if 387 00:24:46.680 --> 00:24:50.160 the court employs a common sense and realistic approach and 388 00:24:50.240 --> 00:24:54.400 not the hypertechnical approach the defense is suggesting, the court 389 00:24:54.440 --> 00:24:57.200 should find the Apple Search warrant passes the Teel test 390 00:24:57.599 --> 00:25:02.480 and sufficiently is particular. In summary, given the circumstances of 391 00:25:02.519 --> 00:25:05.759 this case, the Apple Search Warrant and its respective AFFI 392 00:25:05.920 --> 00:25:09.680 David and Exhibit A are so particular as can reasonably 393 00:25:09.759 --> 00:25:13.400 be expected, and therefore fall within the proper parameters set 394 00:25:13.440 --> 00:25:17.079 forth and Teal and consistently applied by other courts around 395 00:25:17.119 --> 00:25:21.039 the country. Unlike general exploratory warrants, the Apple Search warrant 396 00:25:21.359 --> 00:25:25.240 allow the searcher to reasonably ascertain and identify the things 397 00:25:25.480 --> 00:25:28.680 which are authorized to be seized. Teal one forty five, 398 00:25:28.720 --> 00:25:31.880 Idaho nine ninety two one eight eight p Dot three 399 00:25:32.000 --> 00:25:35.599 d at nine twenty four. Thus suppression is not warranted 400 00:25:36.240 --> 00:25:39.799 conclusion based on the above, the State respectfully requests that 401 00:25:39.880 --> 00:25:43.640