Murder In Moscow: Judge Hippler's Order Denying Kohberger's Frank's Hearing Request (Part 5)

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What's up everyone, and welcome back to the program.

In this episode, we're headed back up to Moscow,

and we're going to continue on

with Judge Hitler's order denying Brian Coburgers request

for a Frank's hearing.

And for those of you who are following along

with what's going on with Diddy,

he is now also trying to get a Frank's hearing,

in his case, due to how evidence was collected

and how overbroad he says the warrants were.

So it's kind of the same thing we're seeing here

with Brian Coburger.

So let's get back to it.

F, defendant has not met his Frank's burden

on issue number seven cell phone data.

Issue seven challenges exhibit A

in so far as it discusses data from defendant's phone

referenced as the eight, four, five, eight phone

in exhibit A, and conclusions drawn therefrom.

He asserts that exhibit A falsely implies

defendant's location on the night of the murders

based on improper speculation, misrepresentations,

and omissions about four topics.

One, the geofence return.

Two, the timing of the second AT&T warrant.

Three, the time defendant's phone stop reporting.

And four, the cell tower coverage area.

Defendants proper on each of these topics

is insufficient to warrant a Frank's hearing.

One, the geofence return assertion

was not a false or misleading statement.

Defendant first takes issue.

Detective Payne's assertions regarding the geofence return

in Payne's exhibit A, Detective Payne,

informs the magistrate that a query of the eight, four,

five, eight phone in these returns did not show

the eight, four, five, eight phone utilizing cellular tower

resources and close proximity to the King Road Residents

between three a.m. and five a.m.

He then states, based on my training,

experience and conversations with law enforcement officers

that specialize in the utilization

of cellular telephone records as part of investigations,

individuals can either leave their cell phone

at a different location before committing a crime

or turn the cell phone off prior to going to a location

to commit a crime.

This is done by subjects in an effort

to avoid alerting law enforcement

that a cellular device associated with them

was in a particular area where a crime was committed.

I also know that on numerous occasions,

subjects will surveil an area where

they intend to commit a crime prior to the date of the crime,

depending on the circumstances.

This could be done a few days before or for several months

prior to the commission of a crime.

During these types of surveillance,

it's possible that an individual would not leave their cellular

telephone at a separate location or turn it off

since they do not plan to commit the offense

on that particular day.

Defendant contends that Detective Payne's claim

that criminals will turn off or leave their cell phones

elsewhere before committing crimes

as highly speculative and conclusory.

He argues that he is just as likely

the phone was not present in the area.

Defendant has not demonstrated the statement

was deliberately or recklessly false.

What Payne's exhibit A shows is that Detective Payne,

based on his training and experience,

drew one conclusion about the lack of a return

to the exclusion of other possibilities.

While there certainly may be other reasons

for the lack of a return, the mere fact

that the affiant did not list every conceivable conclusion

does not taint the validity of the affidavit.

United States vs. Burns, 816F.2D, 1354, 1358, 9th Circuit, 1987.

Further Detective Payne's conclusion was expressly based

on his training and experience and conversations

with other experts, which further belies any suggestion

that it was deliberately or recklessly false.

A Frank's hearing is not warranted on this issue.

Challenge to timing of the second AT&T warrant

is conclusory.

Defendant next challenges the one-hour return around

from the law enforcement received the return

of the first AT&T warrant and submitted the application

for the second AT&T warrant.

According to defendant's expert Thomas Slebensky,

it takes one to two days at a minimum

to secure call detail records from AT&T

and then convert, analyze, and peer review them.

He surmised the fact that Detective Payne was able

to complete these tasks in one hour, means the FBI

had already secured and analyzed the information

and provided their analysis to Detective Payne,

who simply reported to the magistrate

what he was told without telling the magistrate the truth

about how the investigation truly unfolded.

Frank's does not contemplate such conclusion

that the accusations, Fisher 140 Idaho at 370-93-P.3D at 701.

The challenger's attack must be more than conclusory,

and must be supported by more than a mere desire

to cross examine.

Mr. Slebensky was not involved in the investigation

and his attempt to impute untoward conduct

to law enforcement lacks any foundation.

As Detective Payne testified out of prior hearing

in this matter, he received the return from the first AT&T

warrant and immediately turned the material over

to FBI agent balance to begin deciphering it

while Detective Payne started on the second search warrant

application.

While defendant may wish to cross examine Detective Payne

on this issue, it is not a basis for a Frank's hearing.

Further, even if the FBI had already secured the records

prior to receiving the return on the first AT&T warrant,

defendant has not shown how the inclusion of this information

in Exhibit A would have negated probable cause.

A Frank's hearing is not warranted.

Defendant has not shown the alleged misstatement

regarding when defendant's phone stop reporting

was intentionally false or excolvatory.

Defendant next asserts that Detective Payne misrepresented

the time defendant's cell phone stop reporting to the network

to imply that defendant was traveling toward Moscow

between 247 AM and 254 AM when he was not.

On this point, defendant relies foremost on the affidavit

of his ex-vert, Mr. Slovinsky, who states,

Afean has found inaccurate information on officer Payne's

affidavit for search warrant and application for an order

for a pen registry or a trap and trace device.

Dated December 23, 2022, Payne makes a false statement

in his affidavit.

Payne states in his affidavit bates 0-0-3-772

that add approximately 247 AM.

The 8458 phone stops reporting to the network.

This statement is erroneous.

Payne has failed to advise the court of the following.

The 247 AM traffic is a continuous seven-minute stream

on multiple towers that ends at 254 AM.

Payne does not document this seven-minute traffic.

Payne did not inform the magistrate

about these handoffs, which would have clearly

shown him the fact that on November 13, 2022,

from 247 to 254, Mr. Coburger's device

was not heading to Moscow as reported by Payne,

but was indeed heading southbound from Pullman, Washington.

The fact that Payne either disregarded

or was not aware of the handoff and direction

of travel of Mr. Coburger's device gives

this Afean grave concern over the lack of training

and experience Payne has in mobile forensics

and the credibility of his Afean David.

Defendant's other cellular expert, Syray,

likewise contends that he has reviewed

multiple search warrant Afean David's

prepared by Detective Payne and his statement

that defendant's cell phone stop reporting

to the network at 247 AM is blatantly false

and not supported by the AT&T data.

In addition, these two expert Afean David's

defendant includes in his proffer

the AT&T call detail records that purportedly reveal

that the actual time the phone stop reporting

to the network was 254 AM.

As an initial matter, defendant has not provided

the search warrant Afean David identified

by Mr. Slovinsky with his proffer.

The only search warrant Afean David authored

by Detective Payne that defendant was provided

with his proffer is Payne Exhibit A,

which is dated December 29th, 2022

and accompanied an application for a warrant

for defendant's arrest.

The court cannot consider the effect

the alleged misstatement would have had

on probable cause without the correct Afean David

before it.

However, the search warrant Afean David reference

by Mr. Slovinsky is otherwise part of the record

in this case as to other motions and the court

will take judicial notice of it for purposes

of deciding this issue.

The court does not find defendant's proffer

deserving of a frankseering.

First defendant has not established the challenge statement

is a misrepresentation.

Detective Payne expressly qualified a statement

by noting it was approximation only.

As he also testified to at an earlier hearing

in this matter, Detective Payne is not an expert

in deciphering CDRs.

Thus he provided the records to FBI special agent

balance to analyze and relied on agent balance analysis

and drafting the pan register Afean David.

The Afean David disclosed both Detective Payne's reliance

on agent balance analysis and agent balance training

and experience to the magistrate.

To the extent the approximation was off

a seven minute discrepancy, particularly one occurring

more than one hour prior to homicides

is not so far outside the approximate window

as to render the statement false.

Further, even if the statement

could be characterized as false,

defendant is not shown it to be intentionally

or recklessly so.

In fact, not even Mr. Slovinsky goes so far

to impute this means Rhea to Detective Payne.

Rather, he points out that Detective Payne

either disregarded or was unaware of the handoff data

that would have revealed the correct time

the phone stopped reporting.

Based on Detective Payne's self-described lack

of expertise in analyzing CDRs,

it's reasonable to infer the latter,

which amounts to at most negligence.

Further, Detective Payne relied on agent balance

to decipher the CDRs, which he is entitled to do

in executing probable cause Afean David's.

Finally, defendant is not shown Detective Payne's mistake

in identifying the handoff data to be exculpatory.

Mr. Slovinsky claims it was exculpatory

because the correct interpretation of the data,

which showed the device was not heading

to Moscow as reported by Payne,

but was indeed heading southbound from Pullman, Washington.

There are two problems with this assertion.

First, the Penn Register, David,

represents that the device was traveling south at 2.47 AM.

When according to Detective Payne,

it was last reported to wit.

On November 13th, 2022, at approximately 2.42 AM,

the 8458 phone was utilizing cellular resources

that provided coverage at 1630 Northeast Valley Road,

apartment G201 Pullman, Washington,

here after the Colberger Residence.

At approximately 2.47 AM, the 8458 phone

utilized cellular resources that provided coverage,

southeast of the Colberger Residence,

consistent with the 8458 phone,

leaving the Colberger Residence and traveling south

through Pullman, Washington.

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Thus, because the exculpatory information identified

by Mr. Slovensky appears to have represented in the affidavit,

the court is at a loss at how a correct statement

of the time the phone stop reporting to the network

would affect probable cause.

Second, even if the pen register affidavit

did misrepresent that defendant's cell phone

was headed to Moscow between 247 AM and 254 AM

as opposed to southbound from Pullman.

A correction would have no effect on probable cause.

Traveling southbound from Pullman at 254 AM

more than an hour prior to the homicides

does not disprove that defendant could not have driven

the Moscow after 254 AM

after his phone stop reporting to the network.

As the affidavit points out footage,

from multiple videos obtained from the neighborhood

around 1122 King Road showed several sightings of a vehicle

matching the description of defendant's vehicle

starting at 3.29 AM and ending at 4.20 AM.

Given the proximity of Pullman to Moscow,

the fact that defendant may have been traveling southbound

in Pullman at 254 AM does not exclude him

as the potential driver of the suspect vehicle

from a probable cause standpoint.

Moreover, the strength of the other evidence described

in the pen register affidavit cannot be overlooked.

The affidavit describes how CSLI data

show that defendant's cell phone left his apartment

at approximately 245 AM

and started traveling south before it sees reporting

to the network approximately 90 minutes before

the homicides occurred.

The phone then started reporting to the network again

approximately 90 minutes after the homicides occurred

at which time it was traveling south on Highway 95.

Just south of Moscow before looping back,

north into Pullman via Highway 195.

Consistent with the CSLI surveillance cameras

from the Pullman area,

showed a white Hyundai Alantra consistent

with defendant's vehicle returning to an area

of defendant's apartment at 5.25 AM.

As detective Payne pointed out,

individuals commonly turn off their phones

prior to committing a crime

to avoid alerting law enforcement

of their presence near a crime scene.

The obvious inference is that defendant

turned off his cell phone to avoid detection

until he was clear and free of the crime scene.

In addition, the affidavit described footage

from multiple surveillance videos

that captured the vehicle consistent

with defendant's make three passes

by 1122 King Road between 329 AM and 420 AM,

at which time it departed from the residence

at a high rate of speed.

On one surveillance camera,

according to Detective Payne,

the suspect vehicle did not appear to have

a front license plate.

He noted that defendant's vehicle

had been registered in Pennsylvania

at the time of the homicides,

which does not require a front license plate be displayed.

Finally, CSLI evidence shows that at approximately 9 AM,

November 13th, 2022,

a mere three and one half hours

after defendant's return to his apartment,

he again left his apartment and returned to Moscow,

utilizing cellular resources that provided coverage

to 1122 King Road from between approximately 912 AM

and 921 AM before traveling back to the area

of his apartment at 932 AM.

This is consistent with defendant returning

to the scene of the crime.

All right, we're gonna wrap up right here

and in the next episode,

we're gonna pick up with Detective Payne

also noted that defendant's height.

If you'd like to contact me,

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Warning, the following Zippercruder radio spot

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When you're hiring, we at Zippercruder know

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For Lauren, even, like your efforts are futile

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Fortunately, Zippercruder figured out how to fix all that.

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In fact, four out of five employers who post on Zippercruder

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