4 Univ of Idaho Students Murdered, Bryan Kohberger Arrested, Moscow, Nov 2022 #96

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  • #981
I confused as to what you mean here...BBM

"The other interesting thing in the motion--the defense says the state must show the evidence would have been discovered anyway and the state cannot show this."

As far as the FBI investigating how the FBI investigates, along side the local LE investigating on their end simultaneously...what does that matter? They're all LE looking for a killer. Why would the state have to prove they were making their own progress outside of the FBI? It's all information to catch a killer.
I think we don't really know if that's true. This was alleged in Howard Blum's book about the murders. He reported the FBI was running a parallel investigation and that MPD was unaware of the lead generated by the IGG until shortly before the arrest.

I think it matters specifically for this motion because, if true, it will bolster the state's case that the evidence would have been discovered without the IGG. In the case the defense cites, Idaho courts found that had law enforcement not detained Maahs in violation of his 4th amendment rights, he would have been free to leave and they would never have discovered the evidence in his car. Therefore, the evidence was thrown out. The defense is arguing that this is case here too--without IGG, they never would have obtained the evidence they did, and since they argue IGG violates his 4th amendment rights, they argue it should all be thrown out. They are preempting the argument they anticipate the state will make--that they would have focused on BK and obtained this evidence even without the IGG.

JMO
 
  • #982
Rbbm

I wonder why LE didn't wait until they could surreptitiously recover BK's DNA. Stake out the neighborhood and collect just his baggied trash. I wonder if something about that night dictated the action. I think the LISK was arrested ahead of LE schedule because they feared he was setting up his next crime. I'm guessing LE had eyes on BK, even as they were positioning for the no-knock entry. Peculiar thing to be doing in the middle of the night, in boxers (iirc) at the kitchen table and sorting trash.

I wonder if BK was very careful with his movements. Was he leaving the house (except to dump his trash into other people's bins)? Was he going anywhere, where LE could orchestrate a traffic stop?

Why didn't they wait a few more days? Outcome is the same, just a curiosity, I suppose.

JMO

Interesting questions you raise.

Also I'm wondering re covert surveillance, how much do we the public truly get to know about in terms of what can be done to monitor a person these days. If LE were able to utilise certain methods to monitor or gather data on a person that might not be known to the public or might not be covered by proper formalities and court orders etc, would we ever really know?
 
  • #983
My question is why wouldn't the state have to prove or show their work when a human beings life is on the line?
They do have to prove their case at trial. Here we're talking about the defense's Motion to Suppress. Part of the state's argument against the motion is likely going to be that the evidence would have been discovered without the IGG and the defense says they will need to show evidence that's true.
JMO
 
  • #984
Interesting questions you raise.

Also I'm wondering re covert surveillance, how much do we the public truly get to know about in terms of what can be done to monitor a person these days. If LE were able to utilise certain methods to monitor or gather data on a person that might not be known to the public or might not be covered by proper formalities and court orders etc, would we ever really know?
I've been surprised by two purported pieces of evidence. Both of which were report on by approved news sources/organization. One of which was also repeated by one of the victim's fathers.

The wi-fi and le-bluetooth broadcast/handshaking evidence. To me it seemed like the FBI was exposing a method that they've likely been using for years (I mean, American retailers use it in their stores) to generate in house leads but never made it's way into an actual case.

Will it make it's way into this case? Who knows. But I also wonder how much more of that stuff is out there.

All MOO
 
  • #985
Snipped by me--but not HIS dna. He didn't voluntarily submit his dna to the test pool. But through genetic genealogy they have it anyway. If you have a relative's dna, through IGG you essentially have his dna--without his permission, without him entering it into a commercial database, without it being entered legally into CODIS, without it being left on a discarded cigarette butt, etc.--all these other ways that have already been court-tested and/or legislated.

The courts are going to have to decide if, given the current technology available through IGG, and, given the fact that he left his dna at the crime scene (confirmed by the match of the dna on the sheath to BK) did BK have a reasonable expectation of privacy. We knew this was coming.

I don't see how BK's constitutional rights can be considered breached simply because HIS dna wasn't accessed on any database. HIS privacy wasn't breached because HIS dna was obtained legally. It's unfortunate for him that a relatives dna was uploaded and opted in for LE, but that's still not breaching his rights, all it did was give LE a lead to investigate, they still had no access to BK's dna until he discarded his trash.
This is just my simplistic opinion, and could be totally wrong!.
 
  • #986
Rbbm

I wonder why LE didn't wait until they could surreptitiously recover BK's DNA. Stake out the neighborhood and collect just his baggied trash. I wonder if something about that night dictated the action. I think the LISK was arrested ahead of LE schedule because they feared he was setting up his next crime. I'm guessing LE had eyes on BK, even as they were positioning for the no-knock entry. Peculiar thing to be doing in the middle of the night, in boxers (iirc) at the kitchen table and sorting trash.

I wonder if BK was very careful with his movements. Was he leaving the house (except to dump his trash into other people's bins)? Was he going anywhere, where LE could orchestrate a traffic stop?

Why didn't they wait a few more days? Outcome is the same, just a curiosity, I suppose.

JMO
So, IMO, the 3 reasons LE might move in early is 1) to protect the case i.e. the destruction of evidence 2) to protect the suspect from himself or 3) protect someone else that might be in danger of him planning/committing another crime

You did a good job of summarizing #3. So let's quickly look at #1 and #2.

#1 to protect the case:
It seems like the highway stops spooked him, right? I wonder if his behavior might have indicated that he was going to do something that might damage the states case against him. They must have witnessed him manically (allegedly) cleaning his car and putting his trash in his neighbors bins. DailyMail published the purported text messages from a source that said he was grocery shopping with his gloves on. So if LE was watching it at all times when would he have time to destroy any evidence that wasn't going to be in the trash?

JMO on the above

#2 to protect BK from himself:
LE did discover a gun inside of the house as indicated by the search warrant. From everything I can tell all guns in PA need to be registered to the carrier (this is MOO, the state website is wholly devoid of information). So LE would have known that the gun is inside of the residence (assuming it is properly registered since PA LE did not say otherwise).

So what was it about his behavior that could have indicated he was a danger to himself or anyone else in the home? Is it possible that his suspicious sister contacted law enforcement and gave context to his behavior to law enforcement prior to his arrest? I have no evidence of this obviously...this is MOO.

But I'd bundle that last one in the - Things We May Never Know category.



All of it is MOO. I am not an expert at anything.
 
  • #987
I don't see how BK's constitutional rights can be considered breached simply because HIS dna wasn't accessed on any database. HIS privacy wasn't breached because HIS dna was obtained legally. It's unfortunate for him that a relatives dna was uploaded and opted in for LE, but that's still not breaching his rights, all it did was give LE a lead to investigate, they still had no access to BK's dna until he discarded his trash.
This is just my simplistic opinion, and could be totally wrong!.
No, I think you're right. It isn't unconstituitional.
 
  • #988
The familial line being found with IGG was by a BK relative LEGALLY uploading his/her DNA in a database and opting in for LE use. Does the database need to have permission from everyone in the up and down line of that person who uploaded his/her DNA?

Is that part of the question?

Maybe BK is at fault for not demanding that ALL his family members—past, present, future—refrain from using genealogy websites and databases.
Snipped by me--these are questions that have been floating around since genetic genealogy started being used in cold cases. I know I'm not explaining things very well. Just by the nature of genetics, law enforcement can essentially "have" your dna through familial matching when they haven't obtained it in ways that the courts have said do not violate the 4th amendment--you've given it voluntarily, you've uploaded it yourself to a public database, you've had it entered into CODIS, etc. We share so much dna with our familial matches that having their dna is essentially having our dna. The courts will need to decide if law enforcement can "have" our dna via a third party. Do we have a reasonable expectation of privacy when we leave our dna at a crime scene and there are public databases containing familial matches.
JMO
 
  • #989
I don't see how BK's constitutional rights can be considered breached simply because HIS dna wasn't accessed on any database. HIS privacy wasn't breached because HIS dna was obtained legally. It's unfortunate for him that a relatives dna was uploaded and opted in for LE, but that's still not breaching his rights, all it did was give LE a lead to investigate, they still had no access to BK's dna until he discarded his trash.
This is just my simplistic opinion, and could be totally wrong!.
It hasn't been challenged in court yet so we don't really know how the courts are going to see it. The defense is going to argue that they never would have investigated BK or obtained the warrants if not for the IGG, so it should all be tossed. They were only able to obtain his father's discarded dna and eventually BK's dna because of those warrants. They are going to argue that providing BK's dna to law enforcement through a third party is unconstitutional (the case law they cited in the motion refer to third party evidence). The state will likely argue there's no reasonable expectation of privacy when you leave your dna at the scene and it's common knowledge that there are public dna databases with familial matches. This is new and hasn't been tested yet--we just don't know how the courts will view it.
JMO
 
  • #990
It hasn't been challenged in court yet so we don't really know how the courts are going to see it. The defense is going to argue that they never would have investigated BK or obtained the warrants if not for the IGG, so it should all be tossed. They were only able to obtain his father's discarded dna and eventually BK's dna because of those warrants. They are going to argue that providing BK's dna to law enforcement through a third party is unconstitutional (the case law they cited in the motion refer to third party evidence). The state will likely argue there's no reasonable expectation of privacy when you leave your dna at the scene and it's common knowledge that there are public dna databases with familial matches. This is new and hasn't been tested yet--we just don't know how the courts will view it.
JMO
It HAS to stand up in court. It just has to. It's how they convicted the Golden State Killer who was so prolific and got away with it for so many years. He was a police officer!!!
 
  • #991
So what was it about his behavior that could have indicated he was a danger to himself or anyone else in the home? Is it possible that his suspicious sister contacted law enforcement and gave context to his behavior to law enforcement prior to his arrest? I have no evidence of this obviously...this is MOO.
RSBM
I wouldn't be surprised to learn that BK was planning to kill his "suspicious sister". IIRC, she was the one who instigated the family search of his car, and he may have known/discovered that. It's hard to hide your feelings when you are suspicious of someone, and although BK may be weird, he's no dummy. If the sister did in fact contact LE, they certainly may have had reason to fear for her.
 
  • #992
It HAS to stand up in court. It just has to. It's how they convicted the Golden State Killer who was so prolific and got away with it for so many years. He was a police officer!!!
About a dozen states also allow for criminal databases to be searched for relatives of a DNA sample. Crime tends to run in families, so they’ve had a great deal of success using those databases as opposed to the public one used here.

That’s how California was able to catch the “Grim Sleeper.”

This is just really stupid stuff. There’s plenty of precedent. I’m not concerned at all.

 
  • #993
About a dozen states also allow for criminal databases to be searched for relatives of a DNA sample. Crime tends to run in families, so they’ve had a great deal of success using those databases as opposed to the public one used here.

That’s how California was able to catch the “Grim Sleeper.”

This is just really stupid stuff. There’s plenty of precedent. I’m not concerned at all.

Unfortunately, the LA Times is putting up a paywall for me, and I refuse to subscribe to them, so I can't read the article.
 
  • #994
Bbm

It seems to me that the car and bushy eyebrows were of more than “a little to no value.”
White Elantra and bushy eyebrows.
Would these two items have given probable cause for a warrant? An arrest?
Identification is made from getting a name from the car license plate, then finding the car belongs to someone with bushy eyebrows. Are you saying LE should be penalized because a sharp-eyed LEO spotted a white four-door sedan in the broader area of four brutal murders?
The lead investigator did not know about this identification until the third week in Dec according to his testimony.
The private labs invoice was dated Nov 29th (16 days into the investigation which is different than other active cases where LE compares a direct sample after all investigative leads have been followed through (sometimes years later) - before an arrest is made).
We don't know when the actual work was completed nor when the tree was created nor when MPD received their tip from the FB i (the D probably knows this timeline).
BP testified as to what he relied on to obtain the arrest and ATT warrants.
The next thing would be getting some trash or something with his DNA, to determine if he needed further investigation, since LE has DNA from the crime scene.

But this step is problematic, because BK doesn’t toss anything, odd and suspicious in itself. A red flag, if you will.
He has to toss his garbage somewhere eventually.
According to the latest documents, he was under surveillance for weeks. Where did his garbage end up if he were hoarding it? How much garbage did he generate in those weeks and where did he put it?
So while they wait on a way to do the DNA matching, LE investigates all the other avenues they can, as any investigative entity would—BK background, phone records, social media, school records, criminal records and complaints, surveillance cameras, etc.—all the things.They find more and more evidence that keeps them on BK’s trail.
Many of the subpoenas and warrants were after arrest.
Did the IGG tip cause them to query his other background information (school work, traffic stops, reddit)?
The familial line being found with IGG was by a BK relative LEGALLY uploading his/her DNA in a database and opting in for LE use. Does the database need to have permission from everyone in the up and down line of that person who uploaded his/her DNA?
Is that part of the question?
Because the IGG information is sealed, we don't know the details of how the familial line was investigated nor what databases were searched nor who opted in or out.
Maybe BK is at fault for not demanding that ALL his family members—past, present, future—refrain from using genealogy websites and databases.
Some people would say he shouldn't have to.
What about relatives he does not know about? Is not in contact with? People far removed in his family tree?

Waiting for the Ps responses to these MTS's.

JMO
 
  • #995
  • #996
It HAS to stand up in court. It just has to. It's how they convicted the Golden State Killer who was so prolific and got away with it for so many years. He was a police officer!!!
This is the first case where it's been used that they are challenging the constitutionality of IGG. I think because the prior cases were so cold and IGG was used so many years later and after extensive investigation. Not to mention how very good this defense team is. It was bound to be challenged eventually but it's devastating for it to be this case.

It's kind of interesting that there's no mention of law enforcement using loopholes, violating terms of service, etc. after raising a ruckus about that for a year. They're going straight to 4th amendment. I wonder if after examining the discovery they found none of the stuff they were looking for with all those motions and hearings with the genetic genealogists.
 
  • #997
White Elantra and bushy eyebrows.
Would these two items have given probable cause for a warrant? An arrest?
SBM--I think it's possible a white Elantra with no front license plate and a DL photo that is similar to the description of the witness could lead to warrants for the digital data. And then they would have the cell phone pinging by the house a dozen times and moving with the car seen on video the night of the murders traveling toward the house before it stopped reporting to the network. And that would lead to warrants for everything else.
 
  • #998
DOJ policy

A suspect shall not be arrested based solely on a genetic association generated by a GG service. If a suspect is identified after a genetic association has occurred, STR DNA typing must be performed, and the suspect’s STR DNA profile must be directly compared to the forensic profile previously uploaded to CODIS.14 This comparison is necessary to confirm that the forensic sample could have originated from the suspect.


LE tried to obtain his DNA from the trash for confirmation STR, but failed.
LE used genetic information from his father, which is essentially more IGG investigation (included in the PCA).
The confirmation STR was performed after his arrest.
JMO


No.

MOS the arrest warrant which was Idaho. They make multiple arguments about the arrest warrant, one is relating to the IGG. It helps to read all the MOS's as many relate to each other.

Relating to the IGG

a. All information in the affidavit was gathered because of law enforcement’s unconstitutional use of Investigative Genetic Genealogy (IGG), and thus nothing in the warrant should remain.

Mr. Kohberger has argued in a separate Motion that the genetic genealogy investigation in this matter was done in violation of the constitution. Additionally, he has argued there would be no investigation into him without that original constitutional violation. It is not that the results of the IGG sped up the investigation. Instead, they focused the investigation on Mr. Kohberger, a person whose only connection to the case was his mode of transportation and the shape of his eyebrows, two identifications of little to no value, as previously argued. As the Idaho Supreme Court has explained, while the initial burden in showing a factual nexus between the illegality and the evidence, the State must show it would have been discovered anyway. State v. Maahs, 171 Idaho 738, 752 (2022). The State cannot make this showing. Without IGG, there is no case, no request for his phone records, surveillance of his parents’ home, no DNA taken from the garbage


The D is saying there is an illegality (violation regarding IGG).
And the State cannot show they would have discovered the information (BKs name) without that constitutional violation.

JMO
So the garbage that LE collected in PA, that they saw BK deposit in his neighbor's trash bin, yielded no BK DNA? I was not aware of that. If that's true then I now understand the arguement being made by the defense. Thank you for the info, much appreciated.
 
  • #999
It seems clear that the IGG was done at the end of November, and that LE was already onto him when he was pulled over twice during the cross country drive in mid December. However, as the court documents show, at the time, the digital/phone records hadn't come back.
LE were quick to dismiss the white Elantra with no front plates that was found in Oregon on the weekend of December 17-18, even though at the time, the warrants for the digital/phone data hadn't come back.
It seems to me the Kohberger ID was based on the IGG but they didn't want to say so due to the legal issues this could cause. So they had to wait for the warrants to do the CAST stuff and paternity testing his father's trash etc, and only arrest him in late December to minimize the fact that IGG was not "just a tip", but the whole reason they ID'd him. As soon as the paternity test results came in, they got the arrest warrant.
Was there a violation of his rights and is there grounds for a Franks motion to succeed? I don't know, IANAL. But what I do know is that the victims' families are going to go berzerk if the State's case falls apart over this.
All MOO.
 
  • #1,000
I think we don't really know if that's true. This was alleged in Howard Blum's book about the murders. He reported the FBI was running a parallel investigation and that MPD was unaware of the lead generated by the IGG until shortly before the arrest.

I think it matters specifically for this motion because, if true, it will bolster the state's case that the evidence would have been discovered without the IGG. In the case the defense cites, Idaho courts found that had law enforcement not detained Maahs in violation of his 4th amendment rights, he would have been free to leave and they would never have discovered the evidence in his car. Therefore, the evidence was thrown out. The defense is arguing that this is case here too--without IGG, they never would have obtained the evidence they did, and since they argue IGG violates his 4th amendment rights, they argue it should all be thrown out. They are preempting the argument they anticipate the state will make--that they would have focused on BK and obtained this evidence even without the IGG.

JMO
Thank you wendy44, a little more of the picture and it really helps flesh out just what's going on with these defense motions, much appreciate your info!
 
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