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Spokane, Washington  Est. May 19, 1883

Kohberger’s Idaho attorneys argue FBI skirted policies. They want DNA evidence dropped

By Kevin Fixler idaho statesman

BOISE – Police investigating the Moscow, Idaho, college student homicides did not obtain search warrants in their handling of DNA from the crime scene – the critical, and perhaps only, piece of evidence that ties suspect Bryan Kohberger to the victims – and efforts to block it from his trial hinge on the novel argument they were legally required.

The FBI also ignored internal federal policy in pursuit of the alleged killer when its agents submitted that DNA to a pair of public ancestry databases that law enforcement is restricted from accessing, it was revealed at a court hearing Thursday. That amounted to nothing more than a breach of private terms of service, prosecutors rebutted, even as the defense alleged constitutional rights violations over the advanced technique known as investigative genetic genealogy, or IGG, that first put Kohberger on police’s radar.

“Yes, IGG was used in this case, and, yes, it did point to the defendant,” Deputy Attorney General Jeff Nye said Thursday for the prosecution. “But the fact that that happened doesn’t mean that there was a violation of the Fourth Amendment” – which protects against unreasonable searches and seizures.

But Anne Taylor, Kohberger’s lead attorney, accused police at the pretrial hearing of intentionally and recklessly sidestepping protocols during the sprawling investigation, in their feverish hunt for the person responsible for the violent crime that left four dead. IGG had neither been disclosed by police to a prior judge who granted dozens of search warrants in the case, nor included in the probable cause affidavit for Kohberger’s arrest.

In the process, investigators broke the law, Taylor said, and raised defining questions about modern-day policing.

“If society is not ready to support suppression of every bit of our DNA when the government does not have a warrant and searches it, there is no privacy right left,” Taylor told the court Thursday.

Ada County Judge Steven Hippler pressed Taylor to point him to any court decisions that supported the defense’s argument of a constitutional rights violation to justify excluding from trial the crime-scene DNA, which police and prosecutors have said was found on a leather knife sheath next to one of the four victims and matches Kohberger. Taylor acknowledged she could not.

“Nor do I have any to the contrary to say that’s not the case,” she added.

Determinations on the legal issues presented at the all-day hearing could have broad implications for crime-solving tactics going forward, and how detectives must conduct themselves when they incorporate DNA evidence into their investigations. Hippler’s decisions in the matters may set the course for not only one of the nation’s most high-profile murder trials, but also many others that follow.

Police are not required to have warrants to shuttle DNA between labs for analysis, despite what the defense argued, Nye said, nor do people have privacy rights to items they leave behind at a crime scene. The DNA in question first went to the Idaho State Police crime lab in Meridian, then to a private lab in Texas called Othram, before moving on to the FBI, which used IGG on four ancestry databases to land on Kohberger and send a “tip” to Idaho police to investigate Kohberger.

“The defense is kind of trying to pick and choose what they believe the searches are throughout this chain, and what they’re leaving out, repeatedly, is where this DNA started,” Nye said. “Well, it started at a quadruple homicide, at a crime scene. There is no case law anywhere that the state could find, and the defense has not cited any, to suggest that there is a reasonable expectation of privacy in DNA found at a crime scene.”

The only way to forge a Fourth Amendment argument through the use of IGG would be if Kohberger had previously submitted his own DNA profile to one of the ancestry websites, but not permitted public use of the information, Nye said. Legal experts have previously told the Idaho Statesman that a vicarious privacy claim on behalf of someone’s relatives is not a potential path for a defendant in a criminal case.

“He has not asserted factually or through evidence that he was a customer to one of these databases,” Nye told the court. “And maybe that changes the case if he were, but he’s not. He’s not even claiming that.”

Kohberger, 30, is suspected in the November 2022 fatal stabbings of the four University of Idaho students at an off-campus home in Moscow. He faces four counts of first-degree murder and one count of felony burglary, and could be sentenced to death if convicted.

The victims were Kaylee Goncalves, 21, of Rathdrum; Madison Mogen, 21, of Coeur d’Alene; Xana Kernodle, 20, of Post Falls; and Ethan Chapin, 20, of Mount Vernon, Washington. The three women lived in the home on King Road with two other women who went physically unharmed in the early-morning attack, and Chapin was Kernodle’s boyfriend and stayed over for the night.

The defense also disclosed Thursday that detectives in the case failed to obtain a search warrant for trash taken from the curb at the home of Kohberger’s parents.

The contents were tested, which found that the suspect DNA from the crime scene was that of the biological son of Kohberger’s father, according to the affidavit. Most states, including Pennsylvania, allow police to retrieve abandoned garbage without a warrant if they have probable cause.

David Gurney is an attorney and director of the IGG Center at Ramapo College of New Jersey. He said Kohberger’s defense was unlikely to prevail, arguing IGG is different than other investigative techniques used by police, and called the posture that search warrants were needed to transfer DNA “dead in the water.”

“What we’re seeing from defense attorneys – and this is their job, I get it and don’t blame them – is an attempt to make genetic genealogy out to be something completely and fundamentally different from other forms of investigative methods, including traditional DNA testing,” Gurney told the Statesman by phone Thursday. “The idea somehow that you’d get a constitutional violation out of a terms-of-service violation is absurd.”

Genealogy websites Ancestry.com and 23andMe are the most well known commercial services, but are not compatible with IGG searches. Law enforcement only has permission to access two other online databases: GEDmatch and FamilyTreeDNA.

Taylor named MyHeritage as one of two additional services where the FBI isn’t permitted to use IGG, but access is possible. Gurney said he bet the other is Promeathese, which, like the other three lesser-known databases, was used to identify the suspect in the Golden State Killer case in 2018.

Taylor maintained Thursday the defense’s past position that there are no connections between their client and the victims. That included from any of the evidence taken by police from his student apartment in Washington state, his car, and his parents’ Pennsylvania home where he was arrested in December 2022, she said.

Kohberger also wasn’t at or around the King Road house the night or early morning of the students’ deaths, Taylor said, despite what police claimed cellphone tower data showed in the affidavit. A prior alibi filing from the defense stated he was out on a late-night drive by himself southwest of Pullman, which is located not far from Moscow on the opposite side of the Idaho state line.

“He was never at that house,” Taylor said. “He did go to Moscow, he did drive around, but he wasn’t over there, and the phone records absolutely show that.”

In addition, she questioned the memory and credibility of one of the surviving roommates who gave a physical description of a masked male intruder to police, but was “drunk,” Taylor said, and also couldn’t recall if what she saw and experienced was real. Later, the same roommate was unable to identify Kohberger as the man in the home when police showed her a photo of him, Taylor said.

Thursday’s hearing was the first in more than two months for the closely watched case. The hearing continues Friday with more oral arguments in the defense’s push to keep certain evidence against Kohberger from being presented to a jury.

To help preserve Kohberger’s right to a fair trial, and because previously unreleased evidence would be discussed, Hippler earlier this week resolved to hold only portions of the hearing in open court, which amounted to just over two hours Thursday of the nearly seven-hour court day. A court livestream was the only way for members of the public to watch, and the remainder of the hearing was held behind closed doors.

“Until I can get a handle on the exact evidence that does, in fact, come in given that it is potentially evidence that will not be admissible,” he said Wednesday, “and anyone who hears about it may therefore be removed from the jury panel, I think it’s better that we proceed in this fashion for now.”

As a result, testimony from unnamed witnesses on a variety of suppression arguments was shielded from the public eye.

But seated on the defense side of the court were two prior witnesses, California-based IGG experts Leah Larkin and Bicka Barlow. On the state’s side were Moscow police officers, Cpl. Brett Payne and Detective Lawrence Mowery, plus, from the Idaho State Police crime lab, Forensic Services Director Matthew Gamette and Rylene Nowlin, a lab manager.

Kohberger’s murder trial was moved out of Moscow to Boise and is scheduled for this summer. Jury selection is set to start July 30.